Is unilateral conversion the best solution?Written by Dr Mohamed Azam Mohamed Adil
The issue of unilateral conversion of minors has once again generated widespread uproar in Malaysia after a proposed statutory amendment failed to materialise recently owing to insufficient quorum in the Selangor State Legislative Assembly.
The Selangor Religious Council (MAIS) had earlier proposed to amend the Administration of Religion of Islam (Selangor) Enactment 2003, section 117 so that conversion of minors, currently requiring the consent of both “mother and father”, require only that of either the “mother or father”.
Under the Federal Constitution, Article 12 (4), “The religion of a person under the age of eighteen years is designated by his or her parent or guardian”. Experts disagree as to whether the word “parent” in this provision means both mother and father (i.e. as “parents”) or either one.
Those who claim the former refer to Schedule Eleven of the Federal Constitution which interprets references to the singular to include the plural. Hence the word “parent” must also be understood in the plural form, i.e. as “parents”.
Article 12 (4) of the Federal Constitution requires the religion of a child, whether boy or girl under 18 years of age, to be determined by a mother or father who is still alive or by both parents who are still alive.
From the view of the Bar Council, the provision in Section 117 of the Administration of Religion of Islam (Selangor) Bill 2019, which considers the consent of one parent to be sufficient, is inconsistent with Article 12 (4) of the Federal Constitution.
In contrast, the Malaysian Muslim Lawyers Association and the Malaysian Syariah Lawyers Association have argued that Section 117 of the Selangor 2019 Bill is in line with the decision in the case of Susie Teoh (1990), in which the court ruled that the determination of the religion of a child under 18 years is by permission of her parent or guardian.
This was followed by the case of R. Subashini (2008) in which the Federal Court defined “parent” as one of the parents. Therefore, conversion of the child by the father who converted to Islam was valid.
The Bar Council did not approve this, because, in their view, it was contrary to the plural reading of Article 12 (4) of the Federal Constitution and, therefore, considered the Federal Court’s decision to be incorrect.
At present, it should be noted that in regards to converting children under the age of 18 to Islam, state laws are not standardised.
Some states require both parents’ consent, but others require the consent of only one of the parents.
In eight states the consent of one parent or guardian is sufficient: The Federal Territories, Melaka, Sabah, Sarawak, Johor, Negri Sembilan, Perak and Kedah. In contrast, in four states the consent of both parents or guardians is required to convert children under the age of 18 into Islam, namely, Penang, Selangor, Perlis and Terengganu.
Two states, Pahang and Kelantan, have not provided any requirement for consent from a parent for a minor’s conversion.
On whether the Selangor State Assembly has the power to amend the enactment, it is
argued that it can do so to allow for unilateral conversion but it
is subject to challenge by the court.
For example, the Syariah Criminal Law (II) 1993 Kelantan Enactment, the Syariah Criminal Law (Hudud & Qisas) 2002 Terengganu Enactment and the Syariah Criminal Law (II) 1993 (Amendment) 2015 Kelantan Enactment have been duly passed by the respective States’ Legislative Assemblies and consented by respective sultans. Yet these laws could not be enforced because they are contrary to the Federal Constitution.
However, following the decision of the Federal Court in the case of Indira Gandhi (2018), the word “parent” must be understood to be in the plural form, denoting both “parents”, as interpreted in the Eleventh Schedule of the Federal Constitution and sections 5 and 11 of the Guardianship of Infants Act 1961.
This decision marked a departure from the previous Federal Court judgment in Subashini (2008) which defined “parent” as one of the parents.
Moreover, the Federal Court also rejected the argument put forth by some parties that the court decision in the case of Susie Teoh (1990), who voluntarily converted at age 16, had anything to do with the interpretation of the word “parent” as singular or plural. And until the Federal Court revises the decision in the future, Indira Gandhi’s case remains binding for all.
From the Islamic point of view, the child’s welfare remains paramount and should come above all else. This should not be compromised even when it involves religious status.
It is better that the determination of a child’s religion takes into account the custodianship of the child.
Solving this predicament would require cooperation by all parties, especially parents, guardians and the authorities to prioritise the welfare of the child.
This can be done through a mediation process which involves a third party that will facilitate both parents towards reaching a compromise regarding the religious status of their child, for the sake of the child’s welfare.
The court may also accept recommendations from the mediators and issue a court decision on that basis.
Dr Mohamed Azam Mohamed Adil is associate professor and deputy chief executive officer, International Institute of Advanced Islamic Studies (IAIS) Malaysia.
Published in: The New Straits Times, Tuesday 27 August 2019