Press Release: Legislation Inconsistent with Article 12(4) of Federal Constitution is Unconstitutional

Friday, 28 June 2013 09:34am
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The Malaysian Bar is concerned that section 107(b) of the Administration of the Religion of Islam (Federal Territories) Bill 2013 (D.R.1/2013) (“the 2013 Bill”), which has been tabled in Parliament, purports to provide that the consent of one parent alone is sufficient for the conversion of minor children to Islam.

We reiterate that the unilateral conversion of minor children to any religion by a parent, without the consent of the non-converting parent, is contrary to our constitutional scheme.

The 2013 Bill should reflect the meaning of “parent” contained in Article 12(4) of the Federal Constitution, read with Article 160 and the Eleventh Schedule of the Federal Constitution, which expressly provide that all words appearing in the Federal Constitution which are stated in one gender also include the other gender, and all words in the singular also include the plural.

Article 12(4) of the Federal Constitution 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.” (emphasis added). The same gender reference to “his” appears in Article 12(3).

If the words were to be taken literally as they appear, then Articles 12(3) and (4) would be read to only apply to conversions of males under the age of 18 years, and would not apply to females. This meaning or discrimination is clearly not the intention of such a provision in the Federal Constitution. A sensible application of the specific provisions in Article 160 and the Eleventh Schedule of the Federal Constitution would read the word “his” as also meaning “her”. This would likewise apply to the word “parent”.

Therefore, Article 12(4) must be construed as requiring the religion of children (whether male or female) under the age of eighteen years to be decided by one parent in cases where there is only one parent alive, and by both parents where both parents are alive. Any legislation inconsistent with this principle would thus be unconstitutional, unless there is an amendment of Article 12(4) beforehand.

While section 107(b) of the 2013 Bill maintains substantially the language of section 95 of the Administration of Islamic Law (Federal Territories) Act 1993, the Malaysian Bar urges the Government to use this opportunity to bring the provision into conformity with the interpretation of Article 12(4) set out above.

We note the Cabinet announced in April 2009 through the former de facto Law Minister, Dato’ Seri Mohamed Nazri Abdul Aziz, that the children of an estranged couple should remain in the religion of the parents at the point of their marriage. We also recall that the Government had sought to introduce appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976 to provide that both parents must consent to the change of religion of a minor child. We urge the Government to renew its initiative to introduce these amendments. This is the correct constitutional position, and should be consistently reflected in all relevant legislation.

There is presently some confusion within some quarters regarding the relevance and weight of certain case law on this issue, in particular, the cases of Subashini Rajasingam v Saravanan Thangathoray decided by the Federal Court and Nedunchelian V Uthiradam v Nurshafiqah Mah Singai Annal & Ors decided by the High Court.

The case of Subashini Rajasingam v Saravanan Thangathoray is not authority for the interpretation and meaning of Article 12(4) of the Federal Constitution and the word “parent” found therein. That Federal Court decision concerned appeals with respect to the High Court’s refusal to grant an application by the wife for interim injunctive relief against the husband, and the grant of an Erinford injunction pending the appeals to the Court of Appeal being disposed of, and subsequently pending the appeals to the Federal Court.

The Federal Court dismissed the appeals on an initial and technical point, that the petition for dissolution of the marriage and for ancillary or consequential relief (such as for custody of the children) filed by the wife was premature and not in compliance with section 51(1) of the Law Reform (Marriage and Divorce) Act 1976. That section states that a person may petition for dissolution of a marriage and seek ancillary or consequential orders only after the expiry of three months from the date of the other spouse’s conversion to Islam. In the Subashini case, the three-month period had not yet expired when the wife filed her petition for dissolution.

Therefore, the discussion by the Federal Court thereafter on the meaning of the word “parent” in Article 12(4) of the Federal Constitution is obiter dicta — other statements not required for the decision in dismissing the appeal — and is therefore not a binding statement of the law.

In any event, in discussing the meaning of the word “parent” in Article 12(4), the Federal Court in its judgment did not address Article 160 and the Eleventh Schedule of the Federal Constitution, as described above. As such, the decision of the Federal Court in this respect was not only obiter dicta, it was also per incuriam, that is, a decision of court that is mistaken as a result of oversight.
Likewise, the case of Nedunchelian V Uthiradam v Nurshafiqah Mah Singai Annal & Ors was dismissed on a preliminary objection. The High Court in that case decided that the civil courts had no jurisdiction on the subject matter and that the Syariah Court had the jurisdiction, and thus the application in the High Court was dismissed. Any other discussion thereafter on Article 12(4) and the meaning of the word “parent” was therefore again obiter dicta, and not binding law.

Any legislation that is inconsistent with Article 12(4), read with Article 160 and the Eleventh Schedule of the Federal Constitution, and that purports to provide that the consent of only one parent is sufficient for the conversion of a minor to any religion, would therefore be unconstitutional unless there is a prior amendment of Article 12(4).

Christopher Leong
President
Malaysian Bar

28 June 2013

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