Of the fairness or unfairness of unilateral conversion – Aidil Khalid
July 07, 2013
It takes only one word, and that word is parent.
Yes – parent – and that is to say, without an ‘s’.
Should that single word be read in the national language as “ibu atau bapa”, or should the same be read as “ibu dan bapa” instead?
In light of the proposed Administration of the Religion of Islam (Federal Territories) Bill 2013 (‘the proposed bill’), the reading as to the former would mean that a father or a mother alone could unilaterally convert a child into Islam without having to obtain the consent of the other parent; while the latter, on the other hand, would make it compulsory for the consent of both parents to be obtained.
Therefrom sprung a whole host of blitzkrieg attack from the media, and, understandably, based upon such coverage, a large chunk of public reactions seem to be harsh slamming and strenuous criticisms.
The chief minister of Penang reportedly said that a move to pass the proposed bill – where the word ‘parent’ in its proposed section 107(b) reads as “ibu atau bapa” instead of “ibu dan bapa” – reeks of “malicious and deceptive trick” on the part of the government.
And there are even ministers in the government’s very own cabinet who voiced out concerns about the unfairness of such a move.
With the latest being the report that the government has now decided to withdraw the proposed bill, “to ensure that any religious decision made is fair to all.”
The main thrust of the criticisms, so it seems, would be as to the question of fairness or unfairness in allowing only a father without the consent of the mother, or vice versa, to convert the religion of a child.
The learned president of the Bar Council went even a couple of steps further so as to accuse such a move being “unconstitutional”.
But is that really the case?
Is it really that unfair?
It is pertinent to put the subject matter upon which any such allegations of unfairness or unconstitutionality under close and careful scrutiny.
What is unfair or unconstitutional cannot be summarily or arbitrarily concluded without reference to established principles of justice.
For fairness and justice are but abstract concepts, the determination of which must be strictly subjected to and scrupulously guided by proper reading of the law and constitution, lest it may lead to abuse of such abstraction by many quarters.
The abuse, should it be by one in the position of authority, might lead to dictatorship where fairness or unfairness is determined by the fancy of one man alone; should it be by the public at large, might lead to anarchism, chaos and uncertainty, where what constitutes fair or unfair being dictated by just about anyone according to their own liking or disliking.
Such is the danger of allowing such abstract concepts to stray, severed from the wellsprings of established principles.
Thankfully, we have several authoritative references to look into, for the above purpose of determination. I propose however to look into only two.
The first would be the current piece of legislation of which the proposed bill seeks to replace – and that would be the existing Administration of Islamic Law (Federal Territories) Act 1993 (Act 505).
It is important to look into the existing law as it stands today so as to determine whether the allegation of bad intention in the move to introduce the proposed bill, holds any water at all.
Secondly, we have the Federal Court’s judgment in the landmark case of Subashini Rajasingam v. Saravanan Thangothoray Other Appeals [2008] 2 CLJ 1 (‘Subashini’s Case’).
In this regard it is important to look at how the apex court interpreted the word ‘parent’ as used in the Federal Constitution, and thereafter, determine the question of fairness or unfairness as the case may be upon both of the parents into effect.
Section 95 of the current and existing Administration of Islamic Law (Fedral Territories) Act 1993 (Act 505) reads as follows:-
“Bagi maksud Bahagian ini, seseorang yang tidak beragama Islam boleh masuk Islam jika dia sempurna akal dan – mencapai umur lapan belas tahun; atau jika dia belum mencapai lapan belas tahun, ibu atau bapa atau penjaganya mengizinkan kemasukannya.” (emphasis is mine)
Yes – ibu atau bapa. It is spelled there very clearly. And it has been so in forced for almost 20 years now, since 1993 when the Act was passed and thereafter gazetted.
Thus when the proposed section 107(b) of the proposed bill construes the word parent as “ibu atau bapa”, it is merely reiterating what has been the position of the law all these while.
Nothing new is being imposed here. Neither is there anything sneaky.
The accusation that the move to pass the proposed bill is made with “malicious and deceptive trick”, as the chief minister of Penang had so defamatorily accused the federal government of, is clearly without any merit whatsoever.
It is noted that there are voices who claim that the objection is not so much to the wordings of the proposed bill, as it is to the fact that – now that the election is over – the government changes direction from its previous decision in 2009 where it was announced that unilateral conversion of a child would be barred and the consent of both parents be made compulsory.
Granted, but this argument too, must be examined closely, and mustn’t be accepted at its face value.
For it is trite that the cabinet is an executive body, and that being the case, it is not vested with the authority to undertake any policy that goes against the wordings of the Federal Constitution.
Merely being executive and not legislative in nature, the cabinet can only execute what the laws and constitution dictates; they aren’t allowed to usurp upon the purviews of the legislature or the judiciary for that matter.
And in this regard, the provision of article 12(4) of the Federal Constitution clearly provides that “the religion of a person under the age of eighteen years shall be decided by his parent or guardian.”
Yes – parent – as in without an ‘s’.
But how does one interpret that word? Clearly just as much as parent without an ‘s’ could mean a father, it could also mean a mother, or simply father and mother.
This brings us to the Federal Court’s decision in the Subashini’s case, wherein Nik Hashim FCJ, in delivering the majority judgment of the court, held as follows:-
“After careful study of the authorities, I am of the opinion that … [t]he word ‘parent’ in art. 12(4) of the FC, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent.” (emphasis is mine)
Just as important is the minority judgment of the court, wherein Abdul Aziz Mohamed FCJ observed as follows:-
“One has to begin by construing what is the meaning of “parent”.
The ordinary meaning is ‘a father or mother’. See, for example, the Concise Oxford Dictionary.
So is the legal meaning. Black’s Law Dictionary, 7th edn, gives the meaning as “the lawful father or mother of someone”.
The relevant phrase in clause (4) has, therefore, to be read as “by his father or mother or guardian … Either father or mother will do, not both.” (emphasis is mine)
If such is the interpretation of the court, however good intentioned the cabinet were in their earlier decision to require the consent of both parents, the fact simply is that they cannot proceed with such a decision.
It will go against the constitution for them to do so.
It will be unconstitutional and it will render the same to be ultra vires.
If a father, for instance, or a mother, wishes to convert his or her child, but is sent away by the authority and asked to obtain the consent of his or her spouse first, such a requirement would be a fundamental breach and violation of the right of the singular parent, as protected under article 12(4).
It is in this light that the position taken by the Bar Council in criticising the government seems perplexing.
Shouldn’t they instead commend the government for the latter’s honourable move to strictly comply with the constitutional provision?
And that is, of course, not to forget also that notwithstanding whatever that had been said by the learned president of the Bar Council, the fact simply remains that he is not in the position to declare unconstitutional what has been declared by the court to be constitutional.
For the Bar Council is not the judiciary. It is not vested with any such declaratory jurisdiction.
Be that as it may, the fundamental question remains: was the Federal Court’s decision in the Subashini’s case fair?; had it not stripped away the wife’s natural right as a poor mother to her own child?; had the decision not been absurdly unjust and utterly unfair? How o how, could a unilateral conversion of a child by the father alone without the consent of the mother, or vice versa, be said to be fair?
The problem with these lines of criticisms is that it simply fails to appreciate the whole matrix of the judgment.
As reported in the CLJ Law Report, the broad ground of judgment is rather lengthy and voluminous.
There are 101 pages in total.
But it is very important that it be read and appreciated in its totality if any conclusion as to the fairness or unfairness were to be properly attained at all, so as to avoid misconstruing the effect of the court’s decision.
But for the benefit of those who do not have the time or access to read the whole judgment, the gist of the relevant part is thus quoted here, wherein Abdul Aziz Mohamed FCJ, in the minority judgment, at pages 94 to 95 of the case report observed as follows:-
“But that does not mean that the other parent has no right to object or to prevent his child from being taught that religion or being converted to Islam…
Generally speaking, what those sections, especially s. 5, do is to give both parents an equal say in the affairs and destinies of their children.
The fact that each has an equal say must necessarily result sometimes in opposing wishes.
If both agree over something concerning their child no problem arises and the right of equal say is not of operative importance.
If they are opposed, a decision has to be reached as to whose wishes are best for the child, otherwise the child might suffer a disadvantage.
The right of equal say entitles one spouse to come to court to prevent the other from doing what he or she intends to do about their child.
The court will then decide for the wife or the husband, unless they can agree.
Otherwise it ends with the thing being done according to the wishes of one parent only … The wife has an equal right not to want Sharvind to be converted.
She is claiming custody of the two children, hoping probably that, having legal custody of the children, she will be in good position in law to obtain the permanent injunction against conversion in the petition.”
In a nutshell what the judge is saying is that no one can deny the right of a father or a mother to convert his or her child, not even the other parent. But notwithstanding that – and pay attention to this for it is of paramount importance – that doesn’t mean that the other parent is denied the right to object.
To the very contrary, he or she has all the equal right in the world to object.
And if such an objection is raised, the court will then have to determine the matter based upon the facts presented before it, and in the lights of the contending wishes between the parents on the one hand, and the interest of the child on the other, make a decision.
Thus there is no question of unfairness here.
It has been fair and square all along.
In fact, to require the father or mother to obtain the consent of the other – in which event if the parents are not in good terms would almost certainly be impossible – would amount to stripping away the fundamental right of the father or the mother to have his or her own respective wishes upon the child.
By construing ‘parent’ as ‘father or mother’, as the court did, would at least allow the converted parent an opportunity of being heard by the court, without depriving the right of the other to object.
By contrast, should the word be construed as ‘father and mother’ instead, the converted parent would not have any opportunity at all of being heard, for the mandatory requirement of consent – which now renders impossible in light of the relationship turning sour – would make it even the court not having the power to entertain any such application should the mandatory requirement not being fulfilled.
Any application to convert the child would then just be summarily dismissed for want of consent. Under no circumstances at all could the poor converting parent gets his or her child to be converted along, however well meaning or however reasonable the reasons he or she may have.
Now let us consider this.
Say that the father converts to Islam, or the mother converts to Islam – whichever the case may be – does that make it right for the law to strip away whatever paternal or maternal authority that the father or mother possesses over the infant child with regards to religion, just because he or she has now converted to Islam?
And between the two contending wishes of the now disputing parents, does it make it right to deny the converted parent’s wishes upon the child’s religion from being heard at all?
Does that not amount to religious discrimination against the converted parent, and as such a clear violation of article 8 of the Federal Constitution that says “there shall be no discrimination against citizens on the ground only of religion”?
Does it not go against the very principle of natural justice, the legal maxim of which – audi alteram partem – requires that both sides of the disputing party be given equal rights of being heard?
In any event, it is pertinent to point out that the effect of allowing a singular parent without having to obtain the consent of the other would only make it legal to unilaterally convert the religion of a child.
It does not make it automatically right.
It simply means that legally it is allowed, but the rightness or wrongness of which would have to be determined by the court based upon the facts of each individual cases, should the other parent objects.
That is all.
Needless to say, there is a gap between what is only legal on the one side, and what is legal and also right on the other.
Perhaps at this juncture it must also be made clear that what is being discussed through out here is only pertaining to the religion of the child, not custody, for the two are of separate matters.
In the case of Shamala Sathiyaseelan v. Dr. Jeyaganesh C Mogarajah [2004] 3 CLJ 786, for instance, although the father had earlier converted the child to the religion of Islam, the court held that the custody of the child nevertheless remains with the mother, not the father.
This ought to put to rest the allegation that some unscrupulous individuals may easily win custody by merely converting the child. Nothing can be further from true for the matter is not as simple as that.
The court will look into the facts of the matter holistically, rather than simplistically conclude based solely upon whether the child has been converted or not.
That as it is, it seems to me that the court had indeed aptly and acutely laid down the principle of justice rather very mindfully in it’s judgment in the Subashini’s case.
It was a thoroughly well thought, sound and well-meaning decision.
Thrust with such conflicting dispute, surrounded by sensitivities upon various corners, ringed by constitutional and emotional issues all around, the court honourably threaded the thin line of fairness and equity.
As for the proposed bill with the words “ibu atau bapa”, notwithstanding the fact that the government has decided to withdraw from further tabling, the fact remains that the current piece of legislation has the very same provision with the very same wordings.
The position of the law therefore, particularly with regards to the conversion of a child remains very much the same, as much as the constitutional position as interpreted by the court.
The effect of which, looked upon holistically and examined upon microscopically, I would not hesitate to say: not in the least seems unfair. – July 7, 2013.
*Aidil Khalid is an advocate and solicitor practicing in Seri Kembangan, Selangor.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider
Of the fairness or unfairness of unilateral conversion - Aidil Khalid
