Malaysiaconstitutes a multicultural, multi-ethnic and multi-religious society andlawfully perceives the privilege of flexibility of religion among its subjectswho have achieved the period of development, that is, eighteen years old. Thereare situations where minors change their religion because of their parents’ conversionor through their own particular decision and this needs exceptional thought.This article expects to center and talk about a few issues of change of minorsto Islam, initiating from the meaning of minor, the law that identifies withthe transformation and some pertinent cases. KEYWORDS: Flexibility of religion,Change of Minors, Conversion, Transformation, Islam. 1. INTRODUTIONMalaysia is known as multi-ethnic andmulti-religious country. The Federal Constitution of Malaysia guaranteesfreedom of religion where every person is granted the right to profess andpractise, and, subject to certain restrictions, to promulgate his or herreligion.
Though not expressly stated, it may be implied that such right shallinclude the right to change one’s religion or belief. Otherwise, it will renderthe freedom of religion as enshrined in Art 11 of the Federal Constitutionillusory 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 byhis or her parent or guardian2.
In Malaysia, Syariah Courts only have jurisdictionover persons professing the religion of Islam. Questions arise as to what extenta non-Muslim parent has the right to determine the religion of the child if thespouse embraces Islam and the impact of the child’s conversion to Islam on thecustody dispute between the parents3.Such questions, if left unattended, will lead to social tension anddisintegrate the religious cohesion in the country, which is detrimental to thenational unity4. Non-Muslim marriages inMalaysia are governed by the Law Reform (Marriage and Divorce) Act 1976(“LRA”). The LRA specifically excludes its application to Muslims, except wherea petition for divorce is filed by the non-converting spouse against theconverted spouse on the ground of conversion to Islam as provided in s 51 ofthe LRA. Hence, conversion to Islam of one spouse can be a ground for the non-convertingspouse to petition for divorce and seek ancillary relief5.However, it is observed that the Islamic law ascontained in the various state enactments and the federal statute havedistinguished the parental right over a child’s religion based on the religionof the parents, particularly the converted parent, at the time the child isborn. It seems that the non-converting parent has no right to determine thechild’s religion if such child is born after another spouse embraces Islam andthe civil marriage has not been dissolved.
This is because the various stateenactments in Malaysia define “Muslim” as, inter alia, “a person either or bothof whose parents were at the time of the person’s birth, a Muslim. 2. FREEDOM OF RELIGIONThe freedom of religion has become a main topic in ourcountry. There are a lot of opinion from the Muslims towards this topic. Thereare 70% or more Muslims in each country surveyed in these regions hold a viewabout they are free to practice any faith they want.
6Notwithstandingflexibility for themselves, most Muslims trust people from different religionscan hone their faith straightforwardly. 7AmongMuslims who say individuals of various religions are allowed to rehearse theirfaith, seventy five percent or more in every nation say this is something worthbeing thankful for. For a certain something, it is tucked away in the realworldwide human rights traditions. 8It can likewise be gotten from the estimation of religion itself, inwhich individuals over a tremendous assortment of times and places have lookedfor satisfaction. Recognizing that religion will be at its practically truewhen it may be uninhibitedly picked, those Determination that those state oughtfurther bolstering guarantee the benefit should search then afterward thatfulfilment unhindered takes after regularly9.
At long last, the Muslim world likewise contains religiously freeadministrations, adding much further unpredictability to the negative judgmentof the satellite view10. Cases of suchadministrations incorporate Kosovo, Djibouti, Albania, Mali, Senegal and SierraLeone– the greater part of them observably outside the Arab world11. These administrations– around one-fourth of Muslim-larger part nations – demonstrate that thedissent of religious opportunity is a long way from the entire story in theMuslim world.There might be no efficient clarification for why these nations arereligiously free. For a few, the underlying foundations of flexibility may liein a specific type of Islamic philosophy or culture that encapsulatesresilience. In others, opportunity may have emerged through a modus vivendiamong Islam and different religions eventually in the nation’s history. Thesecases, however, demonstrate that Muslim populaces can, in specific situations,demonstrate neighbourly to religious opportunity12.While Islam may endurea shortage of religious flexibility in the total, Islam isn’t really theexplanation for this deficiency.
Mainstream abusive governments are a broadwellspring of constraint in the Muslim world. 13Indeed, even Islamistadministrations frequently have their inception in chronicled conditions thatgive a false representation of a simple linkage of Islamic lessons withreligious constraint. This joined with the nearness of religiously free nationsin Islam, focuses to the likelihood that religious opportunity in the Muslimworld may extend14.Generally speaking, Muslims comprehensively bolster the possibility ofreligious freedom15. Most of the Muslimshave the opinion about the freedom of religion is actually good for them16.
The matter of the freedom of religion has been addressed by AllahHimself in a few verses in the Al-Quran:”Wehave not sent you (O Muhammad) but to all mankind as a giver of good news andas a warner, but most people do not know17.” (Quran 34:28) “Whoeverseeks a religion other than Islam, it will never be accepted of him, and in theHereafter he will be one of the losers18.” (Quran 3:85)”Letthere be no compulsion in religion: Truth stands out clear from Error: whoeverrejects evil and believes in Allah hath grasped the most trustworthy hand-holdthat never breaks. And Allah heareth and knoweth all things19.” (Quran 2:286)”Youcannot guide whomever you wish, but it is Allah who guides whomever Hewishes, and He knows best those who are guided20.
” (Quran 28:56)3.Article 12(4) of the Federation ConstitutionInFederal Constitution (hereinafter FC), Article 12 (4) stated that for thepurposes of Clause (3) the religion of a person under the age of 18 years shallbe decided by his parent or guardian. Article 12(3) for FC also mentioned thatno person shall be required to receive instruction in or take part in anyceremony or act of worship of a religion other than his own21.Article160 and the Eleventh Schedule of the Federal Constitution should be apply sothat the word “his” would also mean “her”. If not, the words will be interpreted literally as they appear, thenArticles 12(3) and (4) of FC would only be applicable to the conversions ofmales under the age of eighteen years, and would not apply to females.
It isclear to say that the discrimination of gender in this 2 Article is not theoriginal intention of such a provision in the Federal Constitution22. Themain controversy raised from the word “parent” used in Article 12(4) ofFC. As the “word “parent” is expressedin singular form, some may defined that only one parent’s consent is needed toconvert a minor’s religion23.However, some opposed by saying that the expression “parent” in singular formalso contain the plural meaning “parents”.
It is beyond doubt that it isagainst the Parliament’s purpose if only one parent’s consent is required underArticle 12(4) of FC.24 Basedon Oxford English Dictionary25, thedefinition of the word “parent” is “a father or mother”. The phrase “or” usedin the definition emphasised that that a parent means either a father or amother.
According to The Kamus Dwibahasa Oxford Fajar, the word “parent” isdefined as “ibu-bapa”. The omission of the conjunctive “atau” (or) is confusingand unclear. 26Asthis is just the general definition of the word, it is not uncommon thatordinary dictionary defined words differently from an Act of Parliament or aState Enactment.
Therefore, generally, there will a specific section in everystatute to define certain words to make the meaning of the words clear in thestructure of a sentence within specific provision27. Inaddition, Article 160 (1) which is the Eleventh Schedule of the Constitutionclearly provides that the words in the singular include the plural, and wordsin the plural include the singular. Section 4(3) of the Interpretation Acts1948 and 1967 carries the same meaning which provides that words andexpressions in the singular include the plural, and words and expressions inthe plural include the singular28. TheBahasa version of FC also provides “Perkataan dalam bilangan tunggaltermasuklah bilangan jamak, dan perkataan dalam bilangan jamak termasuklahbilangan tunggal.” It can be concluded that words and expressions which are insingular they include plural and plural include singular is constitutionallyand commonly accepted legal position. The Federal Constitution which was inEnglish was translated into the National language of Malaysia which is Malaylanguage. Article 160B of FC was inserted to give effect to the translation andprovides that the national language text of the Constitution shall prevail overthe English language text if any conflict arises between this 2 languages.
Anotherconfusion came to light when the word “parent” has been translated as “ibu ataubapa” (mother or father). In the National language version, Article 12(4) of FChas been translated as “Bagi maksud Fasal (3) agama seseorang yang di bawahumur 18 tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya.” WhenArticle 12(4) of FC in the English version is read along with Article 160(1) ofFC and the Interpretation Acts 1948 and 1967, it is clearly understood that thereligion of a person under 18 years shall be decided by his parents.
On theother hand, Bahasa version of Article 12(4) provides that either father ormother could decide the religion of a person under the age of 18, thus theoriginal meaning and intention had been lost. 29 Incertain conditions, a single parent could decide the religion of a minor if oneof the other biological parents or one of the legally adoptive parents hadpassed away. It also seems like the translator did not think of specialcomposition of the Malaysian society which is multi-racial and multi religious30. Anotherstage of confusion is portrayed in the State Enactments. In the StateEnactments regarding the Administration of Islam, majority of the States usethe words “ibu atau bapa” to consent the conversion of a minor. Nevertheless,Penang, Selangor, Sabah use “ibu dan bapa” in the same provision31. Thedifference or error in the translation of Article 12(4) of FC is too obvious asthe translation has disregard the changing fact when words are expressed insingular or plural form32.
4. CONVERSION OF MINOR INMALAYSIAAscurrently there are many cases where non-Muslim parents were unaware and notconsent that the other non-Muslim spouse has converted their under 18children’s religion after converting themselves to Islam33. TheBill 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 theconversion of the child under 18 years old34. Anew section, Section 88A will be inserted through the amendment which makesclear that both parents in a civil marriage must agree to the conversion of aminor into Islam as the law is silent on this aspect currently. In thisSection, a child after attaining the age of majority has the right to decide onthe issue of his or her religion35.
In Indira Gandhi a/p Mutho v Pengarah JabatanIslam Perak and Ors, the Ipoh High Court qua Family Court, in managing theone-sided change of minor kids to Islam by their changed over the father, wasconstrained to swim through the mind-boggling and prickly interface betweencommon law and Islamic law in Malaysia. In the occasion, in a soundlycontemplated choice conveyed on 25 July 201336,the High Court subdued the minor youngsters’ transformation authentications gotby the changed over father (without the information or assent of the non-changingover mother) and conceded a presentation that the minor kids had not beenchanged over. Two emerge issues in Indira Gandhi as chose by the High Courtwas, initially, the privilege of the non-changing over parent to be heardbefore the minor youngsters can be changed over and, also, the FederalConstitution did not take away the forces of the common High Courts the minutean issue came extremely close to the Syariah Courts, the last being only ananimal of state law, without the ward to settle on the defensive ability ofissues said to be inside its select domain.
The interest to the Federal Courtwas 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 themother. A father and a mother joined together and become “parent”.
When we read the Bahasa rendition of Article12(4) either father or mother could choose the religion of a man under theeighteen years, the first impact and aim had been lost. Sound judgment wouldmanage that the aim of Parliament in detailing proviso 12(4) was to enable thetwo guardians and not to a solitary parent to choose the religion of theirchild 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 father39.Article 160B of the Federal Constitution givesthat the national dialect content should be definitive and any inconsistencybetween such national dialect content and the English dialect message, thenational dialect content might beat the English dialect content.
The genuinereason for the adjustment in the words40″The articulation in craftsmanship 12(4) might be perused as “chosen by hisparents”. The same ought to apply uniformly and similarly to a wide rangeof change where the two guardians can’t be of one personality. The composersdid not face a circumstance where for any religion other than Islam the assentof the two guardians are required where they can’t concur on the religion ofthe minor youngster yet that for transformation to Islam, just the assent ofthe changed over parent would do the trick41.Regardlessof whether this was affected by or come about because of the current pattern ofthe court choices which deciphered Article 12(4) of the Federal Constitutiontruly stays flawed.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 of Islam42.(Subashini Rajasingam v. Saravanan Thangathoray). 5.
CONCLUSIONIn 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 tothe legal procedures that are stated and given by the Federal Constitution44.It is also very important to guarantee that the issue of transformation doesnot come in the method for guaranteeing the youngster’s welfare and thefollowing custodial obligations by the questioning guardians45.In addition, it is an essential and it should be highly looked up in the matterof building up an exceptional branch of legal with blended purview where both Syariahand common law judges can sit and mediate instances of transformation andreligious personality of the youngster46.1
