-K. SILADASS, May 5, 2017.

When the Bill to amend the Law Reform (Marriage and Divorce) Act 1976 was tabled in Parliament many commended the Government’s effort. After all, the legal problem faced by a spouse not converting to Islam when the other spouse had done so, did create traumatic experience. Therefore, any effort to remove the uncertainty, ambiguity or wrong interpretation of the law that was the source of the pain should be viewed positively. The new amendments when brought into effect would ensure that a child of non-Muslim marriage cannot be converted to Islam except with the consent of both parents. A child under the age of eighteen shall remain in the same religion of the parent who had decided not to embrace Islam.

 Notwithstanding the positive effort seen in the amendments negative views were expressed to the effect that they could be violating the Constitutional provisions. We must bear in mind that the proposed amendments were to the existing Law Reform (Marriage and Divorce) Act 1976 but not to the Constitution. I did indicate at that point of time that there will be people who will raise the issues of unconstitutionality of the amendments. Among those who oppose the amendments is Tun Abdul Hamid Mohamad, the former Chief Justice of Malaysia (see Sunday Times, 23 April 2017).

The proposed amendments, complains Tun Abdul Hamid, only protect the non-converting spouse, more particularly the wives. This is an erroneous view, because non-converting husbands too can be subjected to the same predicament non-converting wives had suffered, and continue to do so.

Although most of the cases decided by the court involved husbands who had converted to Islam there had also been an occasion where the non-Muslim wife had converted to Islam and the non-converting husband was left without any remedy. The case of Nedunchelian v Nurshafiqah Mah Singai Ammal [2005] 2 AMR 711 is on point. In that case the non-converting husband Nedunchelian, sought declaratory reliefs against his wife on the ground that conversion to Islam of the children of the marriage who were infants at all material time was invalid and void. The matter did not proceed further because of jurisdictional issue based on Article 121 (1A) i.e. the High Court has no jurisdiction on the matter as it involved question of Syariah Law. There could be similar cases but may have not been immortalized in the law journals. It could, therefore, be seen that a converting party could be a wife and similar problems that a wife had faced could also be faced by a non-converting husband. What was envisaged by section 51(1) of the Act 1976 was that both husband and wife should enjoy equal protection. The protection accorded to the wife in section 52 bears testimony to the situation that husband would leave the wife and children without any protection which has been a problem all the while and its notoriety has not diminished. The question of greater protection to wife and ignoring the rights of the husbands did not feature at all, and to view the proposed section 88A as protecting only the wife is an unfortunate perception.

It is also impossible for the converting party to get custody of the child

It is also the contention of Tun Abdul Hamid that under the proposed amendment in the form of 88A, it is impossible for the converting party to get custody of the child of the marriage. Followed by argument that the child is prohibited from becoming a Muslim.

The point that the parties, husband and wife, had contracted a valid marriage and there is a child of that marriage before one of the parties decided to convert to Islam seems to have not been given any weight at all. It must be borne in mind that the child of the marriage would have been instructed in a faith other than Islam in accordance with the unwritten matrimonial contract reached at the time of their non-Muslim spouses’ (parents’) non-Muslim marriage. Therefore, a party to that non-Islamic marriage deciding to leave his or her original faith and converting to Islam had indeed breached the sanctity of the marriage vow which is, to remain faithful to one another, particularly in religious issues. Thus, when a party to the non-Islamic marriage converts to Islam he or she has acquired a different religious identity that was not within the contemplation of parties at the time of their legal customary marriage; and, when the child was born they were still practising the same faith. The religious identity of the converting spouse could have changed but the responsibilities and liabilities from the pre-conversion civil marriage would not cease until resolved to the satisfaction of all concerned.

Would it be wrong to suggest that the party to the non-Muslim marriage had indeed forfeited the right as to the kind of religious education the child should have, bearing in mind that the child would have been receiving instruction on a faith other than Islam since birth. In the circumstances, it is only proper, fair and proper 888 that the child should remain in the same religion of the non-converting parent until the age of eighteen. On attaining the age of majority the child having acquired the capacity to decide should have the right as to the religion he or she wants to practise. And that is doing justice to the child. Therefore, the proposed section 88A is not void and is not unconstitutional.

Child prohibited from becoming a Muslim

The next argument that is advanced is that the child is prohibited from becoming a Muslim. This argument is contrary to the sound reasoning in the case of Teoh Eng Huat v. Kadhi of Pasir Mas & Anor [1990] 1 CLJ (Rep) 277 where the former Lord President of Malaysia, Tun Abdul Hamid Omar emphasized that in the wider interest of the nation, “no infant shall have the automatic right to receive instruction relating to any religion other than his own without the permission of the parent or guardian.” This is plain that the child under the age of eighteen has not the liberty to choose a religion. This is also protected by Article 12(4) of the Constitution.

To strengthen his argument Tun Abdul Hamid says that the proposed section 88A prohibits the child from becoming a Muslim, and he refers to Article 11 of the Federal Constitution, the relevant provision of which reads as follows:-

“Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.”

This cannot be read in isolation. The word “Every person…” must be understood as having the capacity to convert. Article 12(4) supplies the qualification of the words “Every person…” which should not be ignored; but it seems this is ignored. Thus, the reference to Article 11 is wide off the mark.

The proposed amendments aim to prevent arbitrary conversion of a child under the age of eighteen to Islam by one parent. It could be seen that the primary purpose of the proposed amendments is to remedy the mischief caused by the interpretation of the word “parent” appearing in Article 12(4) of the Federal Constitution. Since the mischief emanated from the interpretation of the word “parent”, to put the controversy to rest once and for all, everybody concerned with the problem felt at ease and believed that an amendment to Article 12(4) would be adequate, and that would put an end to the controversy. It was easy to think but there were obstacles because it being a Constitutional provision any amendment would require two-third majority. This contention is supported by the position that Article 12(4) is an integral part of the Constitution. Therefore, instead of trying the hard way why not look at the root cause which is an interpretive error, and correct it. I believe that the amendments as suggested in the Bill is the most safest and effective course consistent with the original intention of the framers of the Constitution.

Circumstances necessitating the amendments

Those who object to the amendments i.e. section 88A, under consideration, have conveniently disregarded the circumstances that necessitated the amendments. Had the courts observed the fundamental principle of interpretation, the problems that had plagued the non-converting parents and the Courts, could have been avoided. The objectors must realise that the entire problem came about as a result of interpreting the word “parent” in Article 12(4) of the Constitution, disregarding the interpretive tools.

What is meant by the word “parent”? Did the framers of the Constitution intend that the word “parent” should be literally interpreted meaning a single parent; or, should the word “parent” be treated as meaning both “father and mother”.  The way the Constitution is framed it is obvious that they did not envisage that the word “parent” would be subjected to narrow interpretation disregarding the non-Muslim character of the marriage of non-Muslims and the problem that could surface relating to children.

One should always remember that the law had always addressed in singular form, for example, “Every person………” or “Any person……” To rationalize the adoption of the singular formula the interpretive tools make it very clear that “singular” includes “plural” and plural includes singular. Article 160 of, and Eleventh of Schedule to, the Constitution clarify the position beyond any doubt. The Court took a wrong course and interpreted the word “parent” inconsistent with the rules of interpretation, therefore, it is a question of interpretation and not conflict of laws as some would want us to believe. The interpretation had gone terribly wrong and that was the problem.

Even the States in Malaya are not uniform in so far as the consent required to convert a child under eighteen years old. Some States require the consent of either parents and some States the consent of both parents.

Had the courts exercised their constitutional duty properly, teething problems that had arisen and had pained non-converting parties for far too long could have been avoided. In dealing with this issue we must remember that excursion on the niceties of law when the ground realities are ignored would not in any way help create a happy solution.

Effect of proposed amendments

The proposed amendments indeed give effect to Article 12(4) overruling the wrong decisions of the court on the word “parent”. In other words what the Parliament is doing is to correct the wrong interpretation advanced by the courts. Thus, all those cases where it was held that the word “parent” means either parent would be assigned to history with no effect. This is what the apex court should have done long ago, to alleviate the pain and agony of both Muslim and non-Muslim parents, and the uncertainty surrounding a child under the age of eighteen years old.

Historical background to Article 12 (4)

When interpreting important constitutional provisions such as Article 12(4), the courts must bear in mind the historical background of the society that the Constitution aims at protecting and ensuring fundamental rights of the citizens would not be eroded. Malaya, and later Malaysia, had always been a multi-racial, multi-religious, multi-lingual and multi-cultural society and will remain so forever. The framers of the Constitution were aware of this unassailable historical truth. Thus, it can be safely said that the framers of the constitution did recognise that with the special position of Islam in the Federation and the protection accorded to other religions, the secular content of the constitution must always be maintained and protected. Further, they must have also realized that conversion to Islam could be a popular feature. And most importantly they must have also appreciated the fact that the non-Muslims, except the Christians, had no laws to regulate their marriages and divorces, including the children’s custody at that juncture. The Civil Marriage Act 1952 was also not very popular. The existing laws governing guardianship of the infants were inadequate to tackle the ever-increasing family disputes among non-Muslims.

The Law Reform (Marriage and Divorce) Act 1976 sought to correct the uncertainty that plagued the non-Muslim families and marriages. When the attraction to Islam became popular, no one anticipated the kind of problems that would besiege the courts; but problems did arise and they began to tell stories of pain, agony and disappointments and humiliation. Parents who were deprived of custody of infants were running from pillar to post with no remedy at sight. The question is: why were they refused judicial remedy and that question has not been answered, but now, the proposed amendments seek to provide.

The courts must realise that the framers of the Constitution thought of the unique living nature of the constitution, namely, the constitution is alive and it is capable of addressing issues that had not been foreseen but when they do arise the constitution will accommodate the changes and adjust itself keeping in line with the changes that occur from time to time. The interpretive tools are there which can be used for all circumstances and for all times.

It is indeed heartening to note that the parliament had taken a positive step to right the wrongs occasioned by wrong interpretation and is intended to uphold the original  correct position in regard to the word “parent” in Article 12(4) meaning, both father and mother. And both must consent to the conversion of a child under eighteen to Islam. Therefore, the proposed amendments are not unconstitutional. It could be said that at last an attempt is made to see justice is done. Perhaps, the statement by the American jurist, Oliver Wendell Holmes, on responsive interpretation may be useful:

“When we are dealing with the words that are also a constituent act, ………, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.” [Missouri . Holland, 252 U.S. 416, 433 (1920)]