by Joshua Wu Kai-Ming | Feb 21, 2022 | Law
Dato’ Arif Perkasa Dr. Mohd Asri bin Zainul Abidin, the Mufti of Perlis (“Perlis Mufti”), recently provided his comments on the unilateral conversion of Loh Siew Hong’s three children.[1]
With all due respect to the Perlis Mufti, many of his key contentions do not hold water.
The English version of the Federal Constitution is authoritative
The Perlis Mufti reportedly claimed that the Raja of Perlis Tuanku Syed Sirajuddin Syed Putra Jamalullail was instrumental in issuing an authoritative text of the Federal Constitution in the Malay language when the latter was Yang di-Pertuan Agong.
Consequently, this would invoke Article 160B of the Federal Constitution and render the Malay version of the Federal Constitution the authoritative text.
However, it is important to note that the Perlis Mufti’s proposition has not been judicially accepted.
Rather, the superior courts have recognised the English version of the Federal Constitution to be the authoritative text.
In Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 (“Indira Gandhi”), the Federal Court had to decide whether the Malay version or English version of the Federal Constitution was authoritative.[2]
The Federal Court unanimously held that:
“… In the present appeals, despite the learned State Legal Adviser’s reliance on Article 160B, no evidence of the necessary prescription was adduced by either of the Respondents. In the circumstances, we will proceed on the basis that the English version to be authoritative.”[3] (Emphasis mine)
The English version of the Federal Constitution will remain the authoritative text until and unless a subsequent Federal Court departs from Indira Gandhi and decides otherwise.[4]
Any laws which are inconsistent with the Federal Constitution are void
The Perlis Mufti reportedly claims that unilateral child conversions are valid under Perlis law.
Even if that were the case, such provisions would be void if they are inconsistent with the Federal Constitution.
Article 4(1) of the Federal Constitution provides that:
“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.” (Emphasis mine)
In Indira Gandhi, the Federal Court was of the view:
“… Since a literal construction of art 12(4) would give rise to consequences which the legislative could not possibly have intended, the Article should not be construed literally (Sukma Darmawan at p 247). A purposive reading of art 12(4) that promotes the welfare of the child and is consistent with good sense would require the consent of both parents (if both are living) for the conversion of a minor child.”[5] (Emphasis mine)
Accordingly, provisions in Perlis’ law which allow for unilateral child conversions would contravene Article 12(4) of the Federal Constitution and would thus be void.
Certificates for unilateral child conversions are void and must be set aside
Since provisions of Perlis’ law allowing for unilateral child conversions are void for being inconsistent with Article 12(4) of the Federal Constitution, certificates of conversions issued pursuant to those provisions must be set aside.
Support for this proposition can be found in Indira Gandhi, a case which concerned unilateral child conversions under Perak’s law.
The Federal Court in Indira Gandhi held the following:
“We also find that the certificates of conversion were issued without the consent of the Appellant thus contravening Article 12(4) of the Federal Constitution and sections 5 and 11 of the GIA. The certificates of conversion are void and must be set aside.”[6] (Emphasis mine)
Editor’s Note: This article also appeared on Malaysia Now
(more…)
by Joshua Wu Kai-Ming | Jan 7, 2016 | Law, Religion
Mr K J John wrote an excellent piece on the Indira Gandhi case and his article inspired me to offer a legal perspective on the controversial issue of unilateral child conversions
So what does the supreme law of our land say about the religion of a child and how it is determined? Article 12(3) of the Federal Constitution expressly provides that “no person shall be required to take part in any ceremony or act of worship of a religion other than his own”
The Constitution then goes on to say that for the purposes of Article 12(3), the religion of persons below the age of eighteen years shall be decided by his parent or guardian [Article 12(4)]
In reading Clause (3) in light of Clause (4), this is the long and short of it:
a) The religion of a child (i.e. a person below eighteen years old) will be determined by his/her parent or guardian [note the use of the nouns in a singular form]
b) Once the parent or guardian has determined the child’s religion, the child will have the right not to be forced to take part in any ceremony or act of worship of another religion
Upon literal inspection of the aforementioned provisions, one may come to the conclusion that the Federal Constitution permits unilateral conversion of a child’s religion
However, statutes are not only to be interpreted literally as the “English language is not an instrument of mathematical precision” (as per Lord Denning in Seaford Court Estates Ltd v Asher)
Judges have a broad arsenal of rules of construction to choose from. A particular provision can be interpreted using the golden rule, the mischief rule, the purposive approach, etc
The golden rule allows a judge to depart from the ordinary meaning of a word and modify it if adhering to the literal sense of a word would lead to a “manifest absurdity or repugnance” (Lord Wensleydale in Becke v Smith)
A practical application of the golden rule could involve construing that although the singular noun “parent” was used, it should actually mean both the parents of a child (the manifest absurdity or repugnance being the ability of one parent to unilaterally convert his/her child/children)
The purposive approach would involve the Judiciary looking at the intention of the Legislature for enacting the particular provision and for using particular word(s) before determining how the provision/word should be interpreted
In respect of the Federal Constitution, the Reid Commission’s 1957 report as well as the transcript of the debates of the Federal Legislative Council (the predecessors of the Malaysian Parliament who were responsible for the debate and passing of the Federal Constitition) are documents of extreme importance in ascertaining the Legislature’s intentions
Simply put, if our Malaysian judges were bold enough to render the single noun “parent” to include both parents, they would be able to circumvent the entire issue of unilateral child conversions
If a child cannot be converted by only one parent, the conversion of Indira Gandhi’s children (and the many other children unilaterally converted) would be void ab initio (i.e. from the beginning), thus there would not be the quandary of whether the Syariah court or Civil court has jurisdiction over the matter
However, in all honesty, if the judges did so, some groups (legal experts included) might render their actions as too extreme
The panacea would be for Parliament to amend the Federal Constitution to limit child conversions to both parents (save in exceptional circumstances, e.g. one of the parents absconded, one of the parents is dead)
In 2009, the Cabinet decided that in the event of any dispute, a child must be raised in the faith professed by both parents at the time of marriage (hence impliedly denouncing unilateral child conversions)
However, the Executive branch’s reassurance is good-for-nothing, as the fact of the matter is, the Federal Constitution, when applied literally, appears to provide for unilateral child conversions
So instead of dishing out false assurances, the Executive (who also has the majority of seats in the Legislature), should push for Article 12(4) to be ammended in light of their 2009 Cabinet decision (if indeed it is still their stance today)
*This article also appeared in Free Malaysia Today, The Malaysian Insider, Malaysiakini
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