. INTRODUTIONMalaysia is known as multi-ethnic andmulti-religious country. The Federal Constitution of Malaysia guaranteesfreedom of religion where every person is granted the right to profess andpractise, and, subject to certain restrictions, to promulgate his or herreligion. Though not expressly stated, it may be implied that such right shallinclude the right to change one’s religion or belief. Otherwise, it will renderthe freedom of religion as enshrined in Art 11 of the Federal Constitutionillusory or ineffective and fall short of the international human rights standards1.
However, the religion of a person under the age of 18 years shall be decided byhis or her parent or guardian2. In Malaysia, Syariah Courts only have jurisdictionover persons professing the religion of Islam. Questions arise as to what extenta non-Muslim parent has the right to determine the religion of the child if thespouse embraces Islam and the impact of the child’s conversion to Islam on thecustody dispute between the parents3.Such questions, if left unattended, will lead to social tension anddisintegrate the religious cohesion in the country, which is detrimental to thenational unity4. Non-Muslim marriages inMalaysia are governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA”)5.The LRA specifically excludes its application to Muslims, except where apetition for divorce is filed by the non-converting spouse against theconverted spouse on the ground of conversion to Islam as provided in s 51 ofthe LRA.
Hence, conversion to Islam of one spouse can be a ground for the non-convertingspouse to petition for divorce and seek ancillary relief6. However, it is observed that the Islamic law ascontained in the various state enactments and the federal statute havedistinguished the parental right over a child’s religion based on the religionof the parents, particularly the converted parent, at the time the child isborn. It seems that the non-converting parent has no right to determine thechild’s religion if such child is born after another spouse embraces Islam andthe civil marriage has not been dissolved.
This is because the various stateenactments in Malaysia define “Muslim” as, inter alia, “a person either or bothof whose parents were at the time of the person’s birth, a Muslim. 2. FREEDOM OF RELIGIONThe freedom of religion has become a main topic in our country.There are a lot of opinion from the Muslims towards this topic. There are 70%or more Muslims in each country surveyed in these regions hold a view aboutthey are free to practice any faith they want. 7Notwithstandingflexibility for themselves, most Muslims trust people from different religionscan hone their faith straightforwardly.
8Among Muslimswho say individuals of various religions are allowed to rehearse their faith,seventy five percent or more in every nation say this is something worth beingthankful for. For a certain something, it is tucked away in the real worldwidehuman rights traditions. 9It can likewise be gotten from the estimation of religion itself, in whichindividuals over a tremendous assortment of times and places have looked forsatisfaction. Recognizing that religion will be at its practically true when itmay be uninhibitedly picked, those Determination that those state ought furtherbolstering guarantee the benefit should search then afterward that fulfilmentunhindered takes after regularly10. At long last, the Muslim world likewise contains religiously freeadministrations, adding much further unpredictability to the negative judgmentof the satellite view11. Cases of suchadministrations incorporate Kosovo, Djibouti, Albania, Mali, Senegal and SierraLeone– the greater part of them observably outside the Arab world12.
These administrations –around one-fourth of Muslim-larger part nations – demonstrate that the dissentof religious opportunity is a long way from the entire story in the Muslimworld.There might be no efficient clarification for why these nations arereligiously free. For a few, the underlying foundations of flexibility may liein a specific type of Islamic philosophy or culture that encapsulatesresilience. In others, opportunity may have emerged through a modus vivendiamong Islam and different religions eventually in the nation’s history. Thesecases, however, demonstrate that Muslim populaces can, in specific situations,demonstrate neighbourly to religious opportunity13.While Islam may endure ashortage of religious flexibility in the total, Islam isn’t really theexplanation for this deficiency.
Mainstream abusive governments are a broadwellspring of constraint in the Muslim world. 14Indeed, even Islamistadministrations frequently have their inception in chronicled conditions thatgive a false representation of a simple linkage of Islamic lessons withreligious constraint. This joined with the nearness of religiously free nationsin Islam, focuses to the likelihood that religious opportunity in the Muslimworld may extend15.Generally speaking, Muslims comprehensively bolster the possibility ofreligious freedom16. Most of the Muslimshave the opinion about the freedom of religion is actually good for them17. The matter of the freedom of religion has been addressed by Allah Himselfin a few verses in the Al-Quran:”We have not sent you (O Muhammad) but to all mankind as a giver of goodnews and as a warner, but most people do not know18.” (Quran 34:28) “Whoever seeks a religion other than Islam, it will never beaccepted of him, and in the Hereafter he will be one of the losers19.
” (Quran 3:85)”Let there be no compulsion in religion: Truth stands out clear fromError: whoever rejects evil and believes in Allah hath grasped the mosttrustworthy hand-hold that never breaks. And Allah heareth and knoweth allthings20.” (Quran 2:286)”You cannot guide whomever you wish, but it is Allah who guideswhomever He wishes, and He knows best those who are guided21.” (Quran 28:56)3. Article 12(4) of the Federation ConstitutionInFederal Constitution (hereinafter FC), Article 12 (4) stated that for thepurposes of Clause (3) the religion of a person under the age of 18 years shallbe decided by his parent or guardian. Article 12(3) for FC also mentioned thatno person shall be required to receive instruction in or take part in anyceremony or act of worship of a religion other than his own22.
Article 160 and theEleventh Schedule of the Federal Constitution should be apply so that the word”his” would also mean “her”. If not, thewords will be interpreted literally as they appear, then Articles 12(3) and (4)of FC would only be applicable to the conversions of males under the age ofeighteen years, and would not apply to females. It is clear to say that thediscrimination of gender in this 2 Article is not the original intention ofsuch a provision in the Federal Constitution23. Themain controversy raised from the word “parent” used in Article 12(4) ofFC. As the “word “parent” is expressedin singular form, some may defined that only one parent’s consent is needed toconvert a minor’s religion24. However, some opposedby saying that the expression “parent” in singular form also contain the pluralmeaning “parents”. It is beyond doubt that it is against the Parliament’spurpose if only one parent’s consent is required under Article 12(4) of FC.25 Based on Oxford EnglishDictionary26,the definition of the word “parent” is “a father or mother”.
The phrase “or”used in the definition emphasised that that a parent means either a father or amother. According to The Kamus Dwibahasa Oxford Fajar, the word “parent” isdefined as “ibu-bapa”. The omission of the conjunctive “atau” (or) is confusingand unclear.
27Asthis is just the general definition of the word, it is not uncommon thatordinary dictionary defined words differently from an Act of Parliament or aState Enactment. Therefore, generally, there will a specific section in everystatute to define certain words to make the meaning of the words clear in thestructure of a sentence within specific provision28. In addition, Article160 (1) which is the Eleventh Schedule of the Constitution clearly providesthat the words in the singular include the plural, and words in the pluralinclude the singular. Section 4(3) of the Interpretation Acts 1948 and 1967carries the same meaning which provides that words and expressions in thesingular include the plural, and words and expressions in the plural includethe singular29.The Bahasa version of FC also provides “Perkataan dalam bilangan tunggaltermasuklah bilangan jamak, dan perkataan dalam bilangan jamak termasuklahbilangan tunggal.” It can be concluded that words and expressions which are insingular they include plural and plural include singular is constitutionallyand commonly accepted legal position. The Federal Constitution which was inEnglish was translated into the National language of Malaysia which is Malaylanguage. Article 160B of FC was inserted to give effect to the translation andprovides that the national language text of the Constitution shall prevail overthe English language text if any conflict arises between this 2 languages.
Anotherconfusion came to light when the word “parent” has been translated as “ibu ataubapa” (mother or father). In the National language version, Article 12(4) of FChas been translated as “Bagi maksud Fasal (3) agama seseorang yang di bawahumur 18 tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya.” WhenArticle 12(4) of FC in the English version is read along with Article 160(1) ofFC and the Interpretation Acts 1948 and 1967, it is clearly understood that thereligion of a person under 18 years shall be decided by his parents. On theother hand, Bahasa version of Article 12(4) provides that either father ormother could decide the religion of a person under the age of 18, thus theoriginal meaning and intention had been lost. 30 In certain conditions, asingle parent could decide the religion of a minor if one of the otherbiological parents or one of the legally adoptive parents had passed away. Italso seems like the translator did not think of special composition of theMalaysian society which is multi-racial and multi religious31.
Anotherstage of confusion is portrayed in the State Enactments. In the StateEnactments regarding the Administration of Islam, majority of the States usethe words “ibu atau bapa” to consent the conversion of a minor. Nevertheless,Penang, Selangor, Sabah use “ibu dan bapa” in the same provision32. The difference or errorin the translation of Article 12(4) of FC is too obvious as the translation hasdisregard the changing fact when words are expressed in singular or plural form33.
4. CONVERSION OF MINOR INMALAYSIAAscurrently there are many cases where non-Muslim parents were unaware and notconsent that the other non-Muslim spouse has converted their under 18children’s religion after converting themselves to Islam34. The Bill tabled by theGovernment to amend the Law Reform (Marriage and Divorce) Act 1976 in 2016.This is to ensure that both parents must consent to the conversion of the childunder 18 years old35.
A new section, Section88A will be inserted through the amendment which makes clear that both parentsin a civil marriage must agree to the conversion of a minor into Islam as thelaw is silent on this aspect currently. In this Section, a child afterattaining the age of majority has the right to decide on the issue of his orher religion36.In Indira Gandhi a/p Mutho v Pengarah Jabatan IslamPerak and Ors, the Ipoh High Court qua Family Court, in managing the one-sidedchange of minor kids to Islam by their changed over the father, was constrainedto swim through the mind-boggling and prickly interface between common law andIslamic law in Malaysia. In the occasion, in a soundly contemplated choiceconveyed on 25 July 201337,the High Court subdued the minor youngsters’ transformation authentications gotby the changed over father (without the information or assent of the non-changingover mother) and conceded a presentation that the minor kids had not beenchanged over. Two emerge issues in Indira Gandhi as chose by the High Courtwas, initially, the privilege of the non-changing over parent to be heardbefore the minor youngsters can be changed over and, also, the FederalConstitution did not take away the forces of the common High Courts the minutean issue came extremely close to the Syariah Courts, the last being only ananimal of state law, without the ward to settle on the defensive ability ofissues said to be inside its select domain. The interest to the Federal Courtwas heard in late 2016 yet the peak court still can’t seem to issue its choice38.”Parent”covers both the father and mother of the youngster39. The father is the parent as well as themother.
A father and a mother joined together and become “parent”. When we read the Bahasa rendition of Article 12(4)either father or mother could choose the religion of a man under the eighteenyears, the first impact and aim had been lost. Sound judgment would manage thatthe aim of Parliament in detailing proviso 12(4) was to enable the twoguardians and not to a solitary parent to choose the religion of their childunder eighteen years of age.
For contention, one might say that a solitaryparent could choose the religion of a man under eighteen years on the offchance that one of the other organic guardians or one of the lawfully newparents had passed on. On account of an ill-conceived kid, just the mother hasthe privilege to settle on the youngster’s religious status, not the father40.Article 160B of the Federal Constitution gives thatthe national dialect content should be definitive and any inconsistency betweensuch national dialect content and the English dialect message, the nationaldialect content might beat the English dialect content. The genuine reason forthe adjustment in the words41″The articulation in craftsmanship 12(4) might be perused as “chosen by hisparents”. The same ought to apply uniformly and similarly to a wide rangeof change where the two guardians can’t be of one personality. The composersdid not face a circumstance where for any religion other than Islam the assentof the two guardians are required where they can’t concur on the religion ofthe minor youngster yet that for transformation to Islam, just the assent ofthe changed over parent would do the trick42.Regardlessof whether this was affected by or come about because of the current pattern ofthe court choices which deciphered Article 12(4) of the Federal Constitutiontruly stays flawed.Only tolerating the assent of one parent realizingthat the other parent had protested would prompt a not as much as theattractive state, most definitely, of rehashed transformations of one parent ofthe kid against the change of the other parent.
Or on the other hand as onaccount of a change of the minor kid to Islam by the changed over parent, thenon-changing over parent is said to have no locus to challenge the legitimacyof the Certificate of Conversion which is last and authoritative and that oncechanged over into Islam nobody can change over the minor youngster out of Islam43.(Subashini Rajasingam v. Saravanan Thangathoray).
5. CONCLUSIONIn conclusion, conversion of minor in Malaysia is avery essential matter to look into44.In the process of conversion, a minor must and have to follow accordingly tothe legal procedures that are stated and given by the Federal Constitution45.It is also very important to guarantee that the issue of transformation doesnot come in the method for guaranteeing the youngster’s welfare and thefollowing custodial obligations by the questioning guardians46.In addition, it is an essential and it should be highly looked up in the matterof building up an exceptional branch of legal with blended purview where both Syariahand common law judges can sit and mediate instances of transformation andreligious personality of the youngster