12 DECEMBER 2016
The proposed amendment to the Law Reform (Marriage and Divorce) Act 1976 to put a stop to unilateral conversions of minor children to Islam is timely and a welcome move by the government. The conversion of such children without the knowledge and/or consent by the non-converted parent violates the constitutional rights to equality of that parent and the rights of the child under the United Nations Convention on the Rights of the Child ('CRC') to which Malaysia is a signatory. These conversions have caused immense suffering and expense to many families in the past and it is hoped that the amendments to the law will prevent such cases in future.
There have been conflicting views and court decisions on the meaning of ‘parent’ in Article 12(4) of the Federal Constitution which provides: "For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian" even though the 11th schedule of the Constitution states that "words in the singular include the plural, and words in the plural include the singular".
The proposed amendment to the Law Reform (Marriage and Divorce) Act 1976 inserts Section 88A, a new section which makes clear that both parents in a civil marriage must agree to the conversion of a minor into Islam. The section also provides that the child will remain in the religion practised by the parents at the time the marriage was registered, and may choose his own religion on reaching the age of 18. This amendment will serve to preserve and protect the freedom of a person to choose his or her own religion, and is indeed a positive and progressive move.
The announcement last week that the government will amend Article 12(4) of the Federal Constitution will also help to make it clear and certain that the consent of both parents is required for conversion of minor children. This is consistent with the proposed amendment to the Law Reform (Marriage and Divorce) Act 1976 and will remove any doubt or ambiguity once and for all.
In Sarawak, the Majlis Islam Sarawak Ordinance 2001 in s 69 allows the conversion into Muslim of a person who has not reached the age of 18, ‘if … his parent or guardian consents to the conversion’ or ‘jika … ibu atau bapa atau penjaganya mengizinkan pemelukan agama Islam olehnya.’ I believe this provision is unconstitutional as explained above, and the move by the Perlis state assembly to introduce such a provision into their state enactment was incorrect, unwise and regressive.
I fully support the call by the Association of Churches for the Sarawak government to amend the Majlis Islam Sarawak Ordinance to be in tandem with the Law Reform (Marriage and Divorce) Act once amended, and to bring it in line with the constitutional guarantees which is the entitlement of every citizen of Malaysia.
Chairman, KEADILAN Sarawak / ADUN N81 Ba’ Kelalan