KUCHING: The Malaysian Bar Council has expressed concern over media reports of two
children, aged 5 and 8, in Negeri Sembilan who were converted to Islam in April by the estranged husband of a Hindu woman, without her knowledge.
“The unilateral conversion of minor children to any religion by a parent, without the knowledge or consent of the non-converting parent, creates social injustice, violates the rights of the non-converting parent, and is contrary to our constitutional scheme,” said the council’s president Christopher Leong through a press statement released through their website www.malaysianbar.org.my yesterday.
The press statement observed that according to the woman, she and her husband had contracted a civil marriage in 2004, and she was unaware that her husband had embraced Islam. The Negeri Sembilan state Islamic Affairs Department has reportedly taken the position that consent by both parents is unnecessary as children can be automatically converted once one parent embraces Islam.
Voicing the Bar’s concern, Leong pointed out that it was reminiscent of many similar cases, including the widely publicised cases of Shamala Sathiyaseelan and Subashini Rajasingam.
“… Article 12(3) of the Federal Constitution states that “No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.”; and … Article 12(4) provides that “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.”
“Article 160 governs the interpretation of the Federal Constitution, and it refers to the Eleventh Schedule (of the Federal Constitution), which states, inter alia, that “words importing the masculine gender include females”; and “words in the singular include the plural, and words in the plural include the singular”.
“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 both parents, in cases where both parents are alive. Accordingly, unilateral religious conversions of any minor children in breach of this are unconstitutional,” he said.
The Malaysian Bar called on the government to ensure that the Bahasa Malaysia version of the Federal Constitution is corrected, so that the term “ibu bapa” is used, and for the government to implement appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976 to further make clear and provide assurance that the consent of both parents is obtained prior to any minor children being allowed to change his or her religion.
“There is presently confusion in the Bahasa Malaysia version of Article 12(4) of the Federal Constitution. Until 2002, the Bahasa Malaysia version, as published by the government printers, translated “parent” as “ibu bapa”, ie in the plural. Inexplicably, in the 2002 edition of the translation of the Federal Constitution, the word “parent” was translated as “ibu atau bapa”.
“It would also appear today that some Bahasa Malaysia translations use the term “ibu bapa” while others state “ibu atau bapa”. Nevertheless, it would seem that the authorities are now applying this new Bahasa Malaysia translation of “parent” as “ibu atau bapa”.
“This is tantamount to an unauthorised amendment or alteration of the Federal Constitution, and is itself unconstitutional. An act of translation of the Federal Constitution cannot become an act of amendment of the Federal Constitution. The word “parent” in Article 12(4) must be read as “ibu bapa”, as found in the pre-2002 Bahasa Malaysia translations, and which is consistent with Article 160 and the Eleventh Schedule.
Leong noted the Cabinet directive 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.
He also noted that the government had sought to make clear and reaffirm this position with the introduction of appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976 through draft amendments, which were discussed among the Attorney General’s Chambers, Bar Council and various civil society groups, which recommended that both parents must consent to the change of religion of a minor child.
However, these proposed amendments were deferred by the government for further consultation, and then apparently “quietly forgotten”, he said.
“The unilateral conversion of minor children to any religion should be unacceptable. The Malaysian Bar urges the government to immediately legislate to resolve this controversy, which has occasioned untold hardship and social injustice to many citizens.
“The government must act now to put an end to this sorry state of affairs, and not remain in animated suspension in the face of human sorrow and misery,” said Leong.