Columnist KJ John wrote an excellent piece on the M Indira Gandhi case , and his article - published in Free Malaysia Today on Jan 4 - 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".
In reading Clause (3) in light of Clause (4), this is the long and short of it:
- 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]; and
- 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.
If our judges were bold enough...
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 - 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’s children - and the many other children unilaterally converted - would be void ab initio (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, or 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 amended in light of their 2009 cabinet decision, if indeed it is still their stance today.
JOSH WU is a second-year law student who blogs at www.rebuttedopinions.wordpress.com .