Malaysia embraces Islam and the impact of the child’s

Malaysia
constitutes a multicultural, multi-ethnic and multi-religious society and
lawfully perceives the privilege of flexibility of religion among its subjects
who have achieved the period of development, that is, eighteen years old. There
are situations where minors change their religion because of their parents’ conversion
or through their own particular decision and this needs exceptional thought.
This article expects to center and talk about a few issues of change of minors
to Islam, initiating from the meaning of minor, the law that identifies with
the transformation and some pertinent cases.

 

KEYWORDS: Flexibility of religion,
Change of Minors, Conversion, Transformation, Islam.

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1. INTRODUTION

Malaysia is known as multi-ethnic and
multi-religious country. The Federal Constitution of Malaysia guarantees
freedom of religion where every person is granted the right to profess and
practise, and, subject to certain restrictions, to promulgate his or her
religion. Though not expressly stated, it may be implied that such right shall
include the right to change one’s religion or belief. Otherwise, it will render
the freedom of religion as enshrined in Art 11 of the Federal Constitution
illusory or ineffective and fall short of the international human rights standards1.
However, the religion of a person under the age of 18 years shall be decided by
his or her parent or guardian2. 

In Malaysia, Syariah Courts only have jurisdiction
over persons professing the religion of Islam. Questions arise as to what extent
a non-Muslim parent has the right to determine the religion of the child if the
spouse embraces Islam and the impact of the child’s conversion to Islam on the
custody dispute between the parents3.
Such questions, if left unattended, will lead to social tension and
disintegrate the religious cohesion in the country, which is detrimental to the
national unity4. Non-Muslim marriages in
Malaysia are governed by the Law Reform (Marriage and Divorce) Act 1976
(“LRA”). The LRA specifically excludes its application to Muslims, except where
a petition for divorce is filed by the non-converting spouse against the
converted spouse on the ground of conversion to Islam as provided in s 51 of
the LRA. Hence, conversion to Islam of one spouse can be a ground for the non-converting
spouse to petition for divorce and seek ancillary relief5.

However, it is observed that the Islamic law as
contained in the various state enactments and the federal statute have
distinguished the parental right over a child’s religion based on the religion
of the parents, particularly the converted parent, at the time the child is
born. It seems that the non-converting parent has no right to determine the
child’s religion if such child is born after another spouse embraces Islam and
the civil marriage has not been dissolved. This is because the various state
enactments in Malaysia define “Muslim” as, inter alia, “a person either or both
of whose parents were at the time of the person’s birth, a Muslim. 

2. FREEDOM OF RELIGION

The freedom of religion has become a main topic in our
country. There are a lot of opinion from the Muslims towards this topic. There
are 70% or more Muslims in each country surveyed in these regions hold a view
about they are free to practice any faith they want. 6Notwithstanding
flexibility for themselves, most Muslims trust people from different religions
can hone their faith straightforwardly. 7Among
Muslims who say individuals of various religions are allowed to rehearse their
faith, seventy five percent or more in every nation say this is something worth
being thankful for. For a certain something, it is tucked away in the real
worldwide human rights traditions. 8

It can likewise be gotten from the estimation of religion itself, in
which individuals over a tremendous assortment of times and places have looked
for satisfaction. Recognizing that religion will be at its practically true
when it may be uninhibitedly picked, those Determination that those state ought
further bolstering guarantee the benefit should search then afterward that
fulfilment unhindered takes after regularly9.

At long last, the Muslim world likewise contains religiously free
administrations, adding much further unpredictability to the negative judgment
of the satellite view10. Cases of such
administrations incorporate Kosovo, Djibouti, Albania, Mali, Senegal and Sierra
Leone– the greater part of them observably outside the Arab world11. These administrations
– around one-fourth of Muslim-larger part nations – demonstrate that the
dissent of religious opportunity is a long way from the entire story in the
Muslim world.

There might be no efficient clarification for why these nations are
religiously free. For a few, the underlying foundations of flexibility may lie
in a specific type of Islamic philosophy or culture that encapsulates
resilience. In others, opportunity may have emerged through a modus vivendi
among Islam and different religions eventually in the nation’s history. These
cases, however, demonstrate that Muslim populaces can, in specific situations,
demonstrate neighbourly to religious opportunity12.While Islam may endure
a shortage of religious flexibility in the total, Islam isn’t really the
explanation for this deficiency. Mainstream abusive governments are a broad
wellspring of constraint in the Muslim world. 13Indeed, even Islamist
administrations frequently have their inception in chronicled conditions that
give a false representation of a simple linkage of Islamic lessons with
religious constraint. This joined with the nearness of religiously free nations
in Islam, focuses to the likelihood that religious opportunity in the Muslim
world may extend14.

Generally speaking, Muslims comprehensively bolster the possibility of
religious freedom15. Most of the Muslims
have the opinion about the freedom of religion is actually good for them16. The matter of the freedom of religion has been addressed by Allah
Himself in a few verses in the Al-Quran:

“We
have not sent you (O Muhammad) but to all mankind as a giver of good news and
as a warner, but most people do not know17.” (Quran 34:28)

 “Whoever
seeks a religion other than Islam, it will never be accepted of him, and in the
Hereafter he will be one of the losers18.” (Quran 3:85)

“Let
there be no compulsion in religion: Truth stands out clear from Error: whoever
rejects evil and believes in Allah hath grasped the most trustworthy hand-hold
that never breaks. And Allah heareth and knoweth all things19.” (Quran 2:286)

“You
cannot guide whomever you wish, but it is Allah who guides whomever He
wishes, and He knows best those who are guided20.” (Quran 28:56)

3.
Article 12(4) of the Federation Constitution

In
Federal Constitution (hereinafter FC), Article 12 (4) stated that for the
purposes of Clause (3) the religion of a person under the age of 18 years shall
be decided by his parent or guardian. Article 12(3) for FC also mentioned that
no person shall be required to receive instruction in or take part in any
ceremony or act of worship of a religion other than his own21.Article
160 and the Eleventh Schedule of the Federal Constitution should be apply so
that the word “his” would also mean “her”. 
If not, the words will be interpreted literally as they appear, then
Articles 12(3) and (4) of FC would only be applicable to the conversions of
males under the age of eighteen years, and would not apply to females. It is
clear to say that the discrimination of gender in this 2 Article is not the
original intention of such a provision in the Federal Constitution22.

The
main controversy raised from the word “parent” used in Article 12(4) of
FC.  As the “word “parent” is expressed
in singular form, some may defined that only one parent’s consent is needed to
convert a minor’s religion23.
However, some opposed by saying that the expression “parent” in singular form
also contain the plural meaning “parents”. It is beyond doubt that it is
against the Parliament’s purpose if only one parent’s consent is required under
Article 12(4) of FC.24 Based
on Oxford English Dictionary25, the
definition of the word “parent” is “a father or mother”. The phrase “or” used
in the definition emphasised that that a parent means either a father or a
mother. According to The Kamus Dwibahasa Oxford Fajar, the word “parent” is
defined as “ibu-bapa”. The omission of the conjunctive “atau” (or) is confusing
and unclear. 26

As
this is just the general definition of the word, it is not uncommon that
ordinary dictionary defined words differently from an Act of Parliament or a
State Enactment. Therefore, generally, there will a specific section in every
statute to define certain words to make the meaning of the words clear in the
structure of a sentence within specific provision27. In
addition, Article 160 (1) which is the Eleventh Schedule of the Constitution
clearly provides that the words in the singular include the plural, and words
in the plural include the singular. Section 4(3) of the Interpretation Acts
1948 and 1967 carries the same meaning which provides that words and
expressions in the singular include the plural, and words and expressions in
the plural include the singular28. The
Bahasa version of FC also provides “Perkataan dalam bilangan tunggal
termasuklah bilangan jamak, dan perkataan dalam bilangan jamak termasuklah
bilangan tunggal.” It can be concluded that words and expressions which are in
singular they include plural and plural include singular is constitutionally
and commonly accepted legal position. The Federal Constitution which was in
English was translated into the National language of Malaysia which is Malay
language. Article 160B of FC was inserted to give effect to the translation and
provides that the national language text of the Constitution shall prevail over
the English language text if any conflict arises between this 2 languages.

Another
confusion came to light when the word “parent” has been translated as “ibu atau
bapa” (mother or father). In the National language version, Article 12(4) of FC
has been translated as “Bagi maksud Fasal (3) agama seseorang yang di bawah
umur 18 tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya.” When
Article 12(4) of FC in the English version is read along with Article 160(1) of
FC and the Interpretation Acts 1948 and 1967, it is clearly understood that the
religion of a person under 18 years shall be decided by his parents. On the
other hand, Bahasa version of Article 12(4) provides that either father or
mother could decide the religion of a person under the age of 18, thus the
original meaning and intention had been lost. 29 In
certain conditions, a single parent could decide the religion of a minor if one
of the other biological parents or one of the legally adoptive parents had
passed away. It also seems like the translator did not think of special
composition of the Malaysian society which is multi-racial and multi religious30.

Another
stage of confusion is portrayed in the State Enactments. In the State
Enactments regarding the Administration of Islam, majority of the States use
the words “ibu atau bapa” to consent the conversion of a minor. Nevertheless,
Penang, Selangor, Sabah use “ibu dan bapa” in the same provision31. The
difference or error in the translation of Article 12(4) of FC is too obvious as
the translation has disregard the changing fact when words are expressed in
singular or plural form32.

4. CONVERSION OF MINOR IN
MALAYSIA

As
currently there are many cases where non-Muslim parents were unaware and not
consent that the other non-Muslim spouse has converted their under 18
children’s religion after converting themselves to Islam33. The
Bill tabled by the Government to amend the Law Reform (Marriage and Divorce)
Act 1976 in 2016. This is to ensure that both parents must consent to the
conversion of the child under 18 years old34. A
new section, Section 88A will be inserted through the amendment which makes
clear that both parents in a civil marriage must agree to the conversion of a
minor into Islam as the law is silent on this aspect currently. In this
Section, a child after attaining the age of majority has the right to decide on
the issue of his or her religion35.

In Indira Gandhi a/p Mutho v Pengarah Jabatan
Islam Perak and Ors, the Ipoh High Court qua Family Court, in managing the
one-sided change of minor kids to Islam by their changed over the father, was
constrained to swim through the mind-boggling and prickly interface between
common law and Islamic law in Malaysia. In the occasion, in a soundly
contemplated choice conveyed on 25 July 201336,
the High Court subdued the minor youngsters’ transformation authentications got
by the changed over father (without the information or assent of the non-changing
over mother) and conceded a presentation that the minor kids had not been
changed over. Two emerge issues in Indira Gandhi as chose by the High Court
was, initially, the privilege of the non-changing over parent to be heard
before the minor youngsters can be changed over and, also, the Federal
Constitution did not take away the forces of the common High Courts the minute
an issue came extremely close 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 inside its select domain. The interest to the Federal Court
was heard in late 2016 yet the peak court still can’t seem to issue its choice37.”Parent”
covers both the father and mother of the youngster38.  The father is the parent as well as the
mother. A father and a mother joined together and become “parent”.

When we read the Bahasa rendition of Article
12(4) either father or mother could choose the religion of a man under the
eighteen years, the first impact and aim had been lost. Sound judgment would
manage that the aim of Parliament in detailing proviso 12(4) was to enable the
two guardians and not to a solitary parent to choose the religion of their
child under eighteen years of age. For contention, one might say that a
solitary parent could choose the religion of a man under eighteen years on the
off chance that one of the other organic guardians or one of the lawfully new
parents had passed on. On account of an ill-conceived kid, just the mother has
the privilege to settle on the youngster’s religious status, not the father39.

Article 160B of the Federal Constitution gives
that the national dialect content should be definitive and any inconsistency
between such national dialect content and the English dialect message, the
national dialect content might beat the English dialect content. The genuine
reason for the adjustment in the words40″
The articulation in craftsmanship 12(4) might be perused as “chosen by his
parents”. The same ought to apply uniformly and similarly to a wide range
of change where the two guardians can’t be of one personality. The composers
did not face a circumstance where for any religion other than Islam the assent
of the two guardians are required where they can’t concur on the religion of
the minor youngster yet that for transformation to Islam, just the assent of
the changed over parent would do the trick41.Regardless
of whether this was affected by or come about because of the current pattern of
the court choices which deciphered Article 12(4) of the Federal Constitution
truly stays flawed.

Only tolerating the assent of one parent
realizing that the other parent had protested would prompt a not as much as the
attractive state, most definitely, of rehashed transformations of one parent of
the kid against the change of the other parent. Or on the other hand as on
account of a change of the minor kid to Islam by the changed over parent, the
non-changing over parent is said to have no locus to challenge the legitimacy
of the Certificate of Conversion which is last and authoritative and that once
changed over into Islam nobody can change over the minor youngster out of Islam42.
(Subashini Rajasingam v. Saravanan Thangathoray).

 

 

 

5. CONCLUSION

In conclusion,
conversion of minor in Malaysia is a very essential matter to look into43.
In the process of conversion, a minor must and have to follow accordingly to
the legal procedures that are stated and given by the Federal Constitution44.
It is also very important to guarantee that the issue of transformation does
not come in the method for guaranteeing the youngster’s welfare and the
following custodial obligations by the questioning guardians45.
In addition, it is an essential and it should be highly looked up in the matter
of building up an exceptional branch of legal with blended purview where both Syariah
and common law judges can sit and mediate instances of transformation and
religious personality of the youngster46.

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