Bar: Unilateral child conversions unconstitutional

Controversy over the unilateral conversion of minors has resurfaced after two children, aged five and eight, were reportedly converted to Islam in Negeri Sembilan in April 2013 by the estranged husband of a Hindu woman, without her knowledge.

Speaking up on the issue, the Malaysian Bar said that such conversions were "unacceptable" and "unconstitutional" and called for the Government to act immediately.

“The unilateral conversion of minor children to any religion by a parent, without the knowledge or consent of the non-converting parent, creates social injustice,” said Bar Council president Christopher Leong.

Leong pointed out that Article 12(3) of the Federal Constitution states that “no person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.”

And in the cases of persons under eighteen years, Article 12(4) provides that "the religion shall be decided by his parent or guardian.”

Leong explained that Article 160 on the interpretation of the Federal Constitution says that “words importing the masculine gender include females”; and “words in the singular include the plural, and words in the plural include the singular”.

“Therefore, Article 12(4) must be construed as requiring the religion of children (whether male or female) under the age of eighteen years to be decided by both parents, in cases where both parents are alive,” said Leong.

“Accordingly, unilateral religious conversions of any minor children in breach of this are unconstitutional.”

Currently, said Leong, there was confusion in the Bahasa Malaysia version of the Federal Constitution, in particular Article 12(4).

“Until 2002, the Bahasa Malaysia version, as published by the government printers, translated “parent” as “ibu bapa”, in the plural.”

“Inexplicably, in the 2002 edition of the translation of the Federal Constitution, the word ‘parent’ was translated as “ibu atau bapa” (emphasis added). It would also appear today that some Bahasa Malaysia translations use the term ‘ibu bapa’ while others state ‘ibu atau bapa’.”

Leong said that the authorities seem to be now applying this new Bahasa Malaysia translation of “parent” as “ibu atau bapa” which was "tantamount to an unauthorised amendment or alteration of the Federal Constitution, and is itself unconstitutional.”

Leong said that the word "parent” in Article 12(4) should be read as “ibu bapa”.

Leong also recalled that in April 2009, the former de facto Law Minister, Datuk Seri Mohamed Nazri Abdul Aziz ‘correctly’ said that children of an estranged couple should remain in the religion of the parents at the point of their marriage.

He said that the Government had sought to make clear and reaffirm this position with the introduction of appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976.

“Those draft amendments, which were discussed among the Attorney General’s Chambers, Bar Council and various civil society groups, recommended that both parents must consent to the change of religion of a minor child.”

However, these proposed amendments were deferred by the Government for further consultation, and then apparently quietly forgotten, he added.

“The Malaysian Bar urges the Government to immediately legislate to resolve this controversy, which has occasioned untold hardship and social injustice to many citizens.”

“The Government must act now to put an end to this sorry state of affairs, and not remain in suspended animation in the face of human sorrow and misery.”

In the Negeri Sembilan case, Hindu mother S Deepa, 29, said that she and her husband had contracted a civil marriage in 2004, and she was unaware that her husband had embraced Islam.

The Negeri Sembilan state Islamic Affairs Department has reportedly taken the position that consent by both parents is unnecessary, as children can be automatically converted once one parent embraces Islam.