In Indira Gandhi a/p Mutho v Pengarah Jabatan Islam Perak and Ors1.The Ipoh High Court quaFamily Court, in managing the one-sided change of minor kids to Islam by theirchanged over the father, was constrained to swim through the mind-boggling andprickly interface between common law and Islamic law in Malaysia2. In the occasion, in asoundly contemplated choice conveyed on 25 July 2013, the High Court subduedthe minor youngsters’ transformation authentications got by the changed overfather (without the information or assent of the non-changing over mother) andconceded a presentation that the minor kids had not been changed over.
Twoemerge issues in Indira Gandhi as chose by the High Court was, initially, theprivilege of the non-changing over parent to be heard before the minoryoungsters can be changed over and, also, the Federal Constitution did not takeaway the forces of the common High Courts the minute an issue came extremelyclose to the Syariah Courts, the last being only an animal of state law,without the ward to settle on the defensive ability of issues said to be insideits select domain. The interest to the Federal Court was heard in late 2016 yetthe peak court still can’t seem to issue its choice. Art 8 of Federal Constitution 3stated that it was not a”license” for the parent to change over the child to Islam connected in acircumstance where the changing over companion was the spouse as inNedunchelian Section 5 of the Guardianship of Infants Act 1961 4which accommodatesuniformity of parental rights was not pertinent since this Act denied itsapplication to the husband who is a Muslim. “Parent” covers both the father and mother of the youngster5. The father is the parent as well as themother. A father and a mother joined together and become “parent”.
Itis intriguing to take note of that “parent” is utilized as a part ofArt 12(4) of the Federal Constitution for the English content. With respect tothe Malay content, “parent” in Art 12(4)was made an interpretation ofas “Ibu-Bapa”.According to Kamus Dewan, the Malay word”Ibu-Bapa” signifies “emak dan ayah” (mother andfather),i.e., “guardians” in the plural shape. A similarinterpretation was additionally embraced by the Faculty of Law, University ofMalaya.
In the 1980s, “Ibu-Bapa” was again utilized as a part of theFederal Constitution (Malay interpretation). in the2000s, theAttorney-General’s Chambers of Malaysia has supplanted the words “IbuBapa”, which they already interpreted, with the words “ibu atauBapa” (signifying “mother or father” in the solitary shape) inArt 12(4). Article 160 of the Federal Constitutiongives particular implications to words utilized as a part of the Constitution6. Article 160(1) alludes to the Eleventh Scheduleto the Constitution and states that the implications are given there mightapply.
What’s more, the Eleventh Schedule expresses that the “words in theparticular incorporate the plural, and words in the plural incorporate thesolitary7”. In this way, Article 12(4) must betranslated as requiring the religion of child (regardless of whether male orfemale) younger than eighteen years to be chosen by the two guardians8, in situations where thetwo guardians are alive. As needs are, one-sided religious transformations ofany minor youngsters in rupture of this are illegal.In this setting segment, 4(3) of theInterpretation Acts 1948 and 1967 states the same, e.g.: “words arearticulations in the solitary incorporate the plural, and words are articulationsin the plural incorporate the particular” When we read the Bahasa rendition ofArticle 12(4) either father or mother could choose the religion of a man underthe eighteen years, the first impact and aim had been lost.
Sound judgmentwould manage that the aim of Parliament in detailing proviso 12(4) was toenable the two guardians and not to a solitary parent to choose the religion oftheir child under eighteen years of age. For contention, one might say that asolitary parent could choose the religion of a man under eighteen years on theoff chance 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 father.The Malaysian Bar approaches theGovernment to guarantee that the Bahasa Malaysia rendition of the FederalConstitution is redressed, so the expression “ibu Bapa” is utilized.
The Malaysian Bar likewise approaches the Government to actualize suitablerevisions to the Law Reform (Marriage and Divorce) Act 1976 9to additionally clarify andgive confirmation that the assent of the two guardians is acquired before anyminor youngsters being permitted to change his or her religion. The one-sidedtransformation of minor youngsters to any religion ought to be unsuitable. TheMalaysian Bar asks the Government to instantly administer to determine thiscontention, which has occasioned untold hardship and social foul play tonumerous subjects.Article 160B of the Federal Constitutiongives that the national dialect content should be definitive and anyinconsistency between such national dialect content and the English dialectmessage, the national dialect content might beat the English dialect content. Thegenuine reason for the adjustment in the words” The articulation in craftsmanship 12(4)might be perused as “chosen by his parents”.
The same ought to applyuniformly and similarly to a wide range of change where the two guardians can’tbe of one personality. The composers did not face a circumstance where for anyreligion other than Islam the assent of the two guardians are required wherethey can’t concur on the religion of the minor youngster yet that fortransformation to Islam, just the assent of the changed over parent would dothe trick. In the case of Subashini Rajasingam v. Saravanan Thangathoray10, Ibu Bapa” (motherand father) to “ibu atau Bapa” (mother or father) is misty.Regardless of whether this was affected by or come about because of the currentpattern of the court choices which deciphered Article 12(4) of the FederalConstitution truly stays flawed11.
Only tolerating the assent of one parentrealizing that 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 ofIslam. (Subashini Rajasingam v. Saravanan Thangathoray).1 2013 5 MLJ 5522 Trevor Padasiandiscusses the Law Reform (Marriage and Divorce) (Amendment) Bill 2016.Unilateral Conversion in Malaysia.http://www.
skrine.com/unilateral-conversion-in-malaysia-still-at-the-brink3 The MalaysianBar, Case: Subashini a/p Rajasingam v Saravanana/l Thangathorayhttp://www.malaysianbar.org.my/selected_judgements/subashini_a/p_rajasingam_v_saravanan_a/l_thangathoray_2007_fc.html4 Women’s AidOrganisation (WAO).
Memorandum .Safeguard Rights of Wives and Children uponConversion of Husbands to Islam. 5 February 2007https://empowermalaysia.
org/isi/uploads/2013/02/Memorandum-Safeguard-Rights-of-Wives-and-Children-Upon-Conversion-of-Husbands-to-Islam.pdf5 Lee Swee SengJC. INDIRA GANDHI MUTHO v. PENGARAH JABATAN AGAMA ISLAM PERAK & ORSJudicial Review No: 25-10-2009, 25 July 2013.http://legalreviewpress.com/sample/MLRH_2013_5_111.
pdf6 K Siladass. Tuesday, 06 December 2016.The Word ‘Parent ‘inArticle 12(4) of the Federal Constitution.http://www.malaysianbar.org.my/members_opinions_and_comments/the_word_parent_in_article_124_of_the_federal_constitution_k.
_siladass.html7 ChristopherLeong (2013). Unilateral of Conversion of Minor Children are unconstitutional,18 June 2013.
my/press_statements/press_release_unilateral_conversions_of_minor_children_are_unconstitutional_.html8 Move to amend law lauded. Monday, 29 Aug 2016https://www.thestar.com.my/opinion/letters/2016/08/29/move-to-amend-law-lauded/9 “Expedite amendments to end unilateralchild conversion, Putrajaya told”.
Friday April 7, 2017http://www.themalaymailonline.com/malaysia/article/expedite-amendments-to-end-unilateral-child-conversion-putrajaya-told#fSTBAMMT26CwPCRh.
9710 2007 2 MLJ11 Steven Thiru. Press Release | Preserve, Respect and Uphold the Supremacy of theFederal Constitution. Wednesday, 08 June2016.http://www.malaysianbar.org.my/press_statements/press_release_%7C_preserve_respect_and_uphold_the_supremacy_of_the_federal_constitution.html