Malaysia, a Multi-ethnic and Multi-religious Country

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 standards[1]. However, the religion of a person under the age of 18 years shall be decided by his or her parent or guardian[2].

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 parents[3]. Such questions, if left unattended, will lead to social tension and disintegrate the religious cohesion in the country, which is detrimental to the national unity[4]. 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 relief[5]. 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.

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. [6]Notwithstanding flexibility for themselves, most Muslims trust people from different religions can hone their faith straightforwardly. [7]Among 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 regularly[9]. At long last, the Muslim world likewise contains religiously free administrations, adding much further unpredictability to the negative judgment of the satellite view[10]. Cases of such administrations incorporate Kosovo, Djibouti, Albania, Mali, Senegal and Sierra Leone– the greater part of them observably outside the Arab world[11]. 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 opportunity[12].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. [13]Indeed, 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 extend [14].

Generally speaking, Muslims comprehensively bolster the possibility of religious freedom[15]. Most of the Muslims have the opinion about the freedom of religion is actually good for them[16]. 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 know[17]." (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 losers[18]." (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 things[19]." (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 guided[20]." (Quran 28:56)

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 own[21].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 Constitution[22].

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 religion[23]. 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 Dictionary[25], 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 provision[27].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 singular[28]. 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 religious[30].

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 provision[31]. 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 form[32].

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 Islam[33]. 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 old[34]. 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 religion[35].

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 2013[36], 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 choice[37]."Parent" covers both the father and mother of the youngster[38]. 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 father[39].

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 words[40]" 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 trick[41].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 Islam[42]. (Subashini Rajasingam v. Saravanan Thangathoray).