Amid language clash, Federal Court says conversion needs consent of both parents

KUALA LUMPUR, Jan 31 ― A child from a civil marriage can only be converted to Islam if both parents consent, the Federal Court has decided amid a language clash in the Federal Constitution.

In arriving at its landmark ruling on Monday, the Federal Court first addressed the apparent inconsistency in the English version and Bahasa Malaysia translation of the Federal Constitution for the word “parent”.

In its unanimous decision to nullify Muslim convert Muhammad Riduan Abdullah's unilateral conversion of Ipoh-based Hindu mother M. Indira Gandhi's three children to Islam, the Federal Court clarified the long-standing debate ― stemming from language differences ― on parental consent for religious conversion .

In the full judgment sighted by Malay Mail, the Federal Court noted that Indira's lawyers had argued that the word “ibu atau bapa” (mother or father) in a Perak state law should be read as requiring both parents' consent for the conversion ― in light of the Federal Constitution, the Guardianship of Infants Act (GIA) 1961 and international conventions.

The Perak state legal adviser had argued that the Federal Constitution's Article 12(4) uses the word “parent” in the singular sense and argued that Article 12(4)'s Bahasa Malaysia translation which uses the words “ibu atau bapa” (mother or father) should be the authoritative version due to the Constitution's Article 160B.

For Article 12(3), which says no one shall be required to have religious instruction and participation in religious ceremonies of a religion other than their own, Article 12(4) further specifies that the religion of a person under the age of 18 “shall be decided by his parent or guardian”.

But the Federal Court pointed out the Federal Constitution's Eleventh Schedule has a clause on interpreting words in the singular to include the plural and vice versa, noting that it is fairly clear that the singular word “parent” includes the plural “parents”.

'Parent' vs 'Ibu atau bapa'

Article 160B states that the Yang di-Pertuan Agong may prescribe the Federal Constitution's translation into the national language to be the “authoritative” version, and that it would then prevail over the original English version in the event there are discrepancies between the two.

The Federal Court noted however that the Ipoh High Court had previously decided in Indira's case that the English version is the authoritative or official text as the Yang di-Pertuan Agong had not prescribed the Bahasa Malaysia version to be authoritative.

The Federal Court further said those sued by Indira had not shown that the Bahasa Malaysia version had been prescribed by the ruler to be the authoritative version.

“In the present appeals, despite the learned State Legal Adviser's reliance on Article 160B, no evidence of the necessary prescription was adduced by either of the Respondents.

“In the circumstances, we will proceed on the basis that the English version to be authoritative,” Federal Court judge Tan Sri Zainun Ali said in the 100-page judgment that was made available to the Malay Mail.

The child's welfare

Noting that religion conversion is a “momentous decision” which would impose a new and different set of personal laws on a child, Zainun said it would be in the child’s best interests to have the consent of both parents for such decisions.

Zainun pointed out the detriment to the child's welfare and the practical dilemma that will arise if a child is allowed to be converted with just one parent's consent, citing the Ipoh High Court judge's remark of a possible scenario of a chain reaction where both parents take turns unilaterally changing a child’s religion.

The Ipoh High Court judge had said in Indira's case: “If by 'parent' is meant either parent then we would have a situation where one day the converted parent converts the child to his religion and the next day the other parent realizing this would convert the child back to her religion. The same can then be repeated ad nauseum.”

Zainun concluded that a purposive interpretation of Article 12(4) that promotes the child's welfare and is “consistent with good sense” would require consent from both parents ― if both are living ― for a child's conversion.

“It is noted that in translating Article 12(4) of the Federal Constitution, it would appear that the real essence of the English version is eluded. It is literally a case of being lost in translation,” she said of the BM translation, adding that the word “parent” in Article 12(4) is intended for situations such as a single parent situation and that it should be read to include the plural if both parents exist.

Zainun also cited the Guardianship of Infants Act’s Sections 5 and 11 when saying both parents’ consent is required for a child’s conversion. These provisions provide for the equal rights of both parents in the custody and upbringing of their children, and for the courts to consider the wishes of both.

Zainun’s judgement was unanimously backed by the other judges on the Federal Court’s five-man panel that included Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, and Federal Court judges Tan Sri Abu Samah Nordin and Tan Sri Ramly Ali.

The Federal Court’s judgment reverses the Court of Appeal’s 2015 majority decision, where the latter had dismissed Indira’s bid to challenge the validity of her children's conversion.

The Court of Appeal had cited the Federal Court's 2007 ruling in Subashini a/p Rajasingam v Saravanan a/l Thangathoray, where the apex court said Article 12(4) does not confer the right to decide on the children's religion in both parents.

Although not highlighted in the Federal Court’s Monday judgment for Indira's case, an apparent variation in the Bahasa Malaysia translation of the Federal Constitution that was mentioned relatively recently may shed light on the matter.

The then Malaysian Bar president Christopher Leong had on June 18, 2013 noted  that the government-printed Federal Constitution’s Bahasa Malaysia version had always translated “parent” to the plural form of “ibu bapa” (father and mother), but had in the 2002 edition translated it to read “ibu atau bapa” (mother or father).