COMMENT The Malaysian Bar is troubled by the decision of the Court of Appeal in M Indira Gandhi’s case. The unilateral conversion of a minor child to a religion, by one parent without the knowledge or consent of the other (non-converting) parent, violates the constitutional rights of the non-converting parent.

The Malaysian Bar recalls the cabinet directive announced in April 2009 through the former de facto law minister, Mohamed Nazri Abdul Aziz, that the children of an estranged couple should remain in the religion of the parents at the point of their marriage. This directive is just and fair, and is the only position that can be constitutionally correct.

The Malaysian Bar calls for the government to introduce appropriate amendments to all relevant statutes and state enactments to provide that both parents must consent to the change of religion of a minor child. This, too, would be the correct constitutional position.

Article 12(4) of the Federal Constitution provides: "For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian."

Article 12(3) states: "No person shall be required to receive instructions in or take part in any ceremony or act of worship of a religion other than his own."

Article 12(4) has to be read with Article 160 and the 11th schedule of the Federal Constitution. Article 160 and the 11th schedule govern the interpretation of the Federal Constitution. The 11th schedule states that "words in the singular include the plural, and words in the plural include the singular".

Thus, Article 12(4), read with Article 160 and the 11th schedule of the Federal Constitution, would mean that the word "parent" in the singular would also mean 'parents' in the plural. In this regard, Article 12(4), read with Article 160 and the eleventh schedule, must be construed as requiring the religion of children under the age of eighteen years to be decided by both parents, in cases where both parents are alive.

The Court of Appeal in Indira Gandhi’s case relied primarily on two Federal Court cases, namely Subashini Rajasingam v Saravanan Thangathorayand Hj Raimi Abdullah v Siti Hasnah Vangarama Abdullah to justify the unilateral conversion of minors by the converting parent. However, both cases are not appropriate authorities in respect of the Indira Gandhi case.

In Subashini, the discussion by the Federal Court on the meaning of the word 'parent' in Article 12(4) of the federal constitution was obiter dicta - other statements not required for the decision in the case - and is therefore not a binding statement of the law.

The Haji Raimi Abdullah case was not a contest between one parent who had converted to Islam and one who had not. On the general question of the jurisdiction of the civil court to determine the validity of the conversion of a minor to Islam, the Federal Court decided that the answer will depend on the facts of a given case. The principles underlying the decision in that case cannot therefore apply in the Indira Gandhi case.

'Unfortunately flawed'

Further, where only one parent had converted, Section 50 of the Administration of the Religion of Islam (Perak) Enactment 2004 cannot apply. Section 50(3)(b) of the 2004 Enactment clearly states that, 'The Shariah High Court shall … in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims ...' As Indira Gandhi is a non-Muslim, the Court of Appeal’s reliance on this provision is regrettably misplaced.

The Court of Appeal’s finding that the conclusiveness of the certificate of conversion to the religion of Islam cannot be challenged is also unfortunately flawed. The supervisory jurisdiction of the civil courts over state authorities to determine the state authorities’ compliance with statutory requirements, before the issuance of the Certificate under Section 101(2) of the 2004 Enactment, has not been ousted.

Moreover, pursuant to Articles 5, 8 and 11 of the federal constitution, and Malaysia’s obligations under the United Nations Convention on the Rights of the Child ('CRC') and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women ('Cedaw') - both of which Malaysia acceded to in 1995 - state authorities are required to respect the right of minor children and mothers to be included in decisions involving any change of the religion of children of a marriage.

This must, at the very least, mean a refusal by state authorities to recognise or register any attempt by one parent to unilaterally change the religion of a minor child without the consent of the other parent, or of the child.

The Indira Gandhi case clearly concerns important constitutional rights. Civil courts are the sole guardian of constitutional rights under our constitutional scheme. The Court of Appeal, as a civil court, should have exercised its jurisdiction to determine the constitutionality of the unilateral conversion of the minor children in this case.

Further, the civil courts must not allow a situation where an aggrieved party - the mother of the minor children - is deprived of access to justice and any constitutional remedy. Section 63 of the above-mentioned 2004 Enactment provides that the Syariah Court cannot decide on the rights of non-Muslims. The decision of the Court of Appeal therefore results in a denial of access to justice as well as denial of a constitutional remedy for Indira Gandhi.

The Malaysian Bar supports, and stands ready to assist the government in its efforts to implement the cabinet directive of 2009 and to amend all relevant legislation and enactment to give effect to this directive. We urge the government to act with all due speed, in order that this issue will no longer arise.

The unilateral conversion of minor children has caused unspeakable misery, pain and anguish to the non-converting parent. The need is now more urgent than ever for an effective and conclusive legal remedy to obviate the continued and frequent recurrence of this social injustice.

STEVEN THIRU is president, Malaysian Bar.