In withdrawing the Law Reform (Marriage and Divorce) (Amendment) Bill 2016 with Clause 88A that would have banned unilateral conversions of minors by one of the parents converting to Islam, Minister in the Prime Minister’s Department Azalina Othman Said had said it was done because of four court decisions which are in conflict with it.
The courts had interpreted “parent” in Article 12(4) of the Constitution to mean a singular parent, or either the mother or father.
What if the courts are wrong?
Courts are not infallible. Judges are human and despite all their training, experience and wisdom, cannot be said to be infallible. Would non-Muslim judges have made the very same decision that is being cited by Azalina?
Our Federal Court had been obviously and blatantly wrong in at least one case as was reported on 21 Jan 2010 on the website of The Malaysian Bar as follows:
“A five-member bench of the Federal Court today unanimously ruled that the previous Federal Court had misconstrued the provisions of section 340(3) of the National Land Code, 1965 (“NLC”) in its decision of Adorna Properties Sdn Bhd v Boonsom Boonyanit 2000 (“Adorna Properties”) because the principle of deferred and not immediate indefeasibility applies to the NLC.
“Delivering the main judgment of the apex court, Chief Judge of Malaya, Tan Sri Arifin Zakaria said the Court has to depart from Tun Eusoff Chin’s four-page judgement in Adorna Properties as it is erroneous.
“Tan Sri Arifin also held that the decision of Court of Appeal Judge Datuk NH Chan in OCBC Bank (M) Bhd v Pendaftar Hakmilik, Negeri Johor Darul Takzim 1999 in so far as holding the OCBC Bank’s charge as invalid is wrong as the learned judge has misapplied the principle of deferred indefeasibility in the case.
“In delivering his supporting judgment, Chief Justice Tun Zaki Azmi described the error committed in Adorna Properties as ‘obvious and blatant’. He added that it is a well-known fact that some unscrupulous people have taken advantage of this error by falsely transferring titles to themselves.”
Similarly, there have been wrong or bad decisions by the House of Lords in the UK.
As a result, in 1966, Lord Gardiner LC announced a change of practice. He stated that although the House of Lords (the counterpart of our Federal Court) “would treat its decision as normally binding, it would depart from these when it appeared right to do so”.
Article 12(4) of our Federal Constitution reads: “For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian”. And Clause (3) says: “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”.
Schedule 11 of the Constitution explains how to interpret words of masculine gender and singular or plural in the Constitution, that is, “words importing the masculine gender includes females” and “words in the singular include the plural, and words in the plural include the singular.”
The Malay version of the Constitution translates this into: “Pentafsiran jantina lelaki: perkataan yang membawa maksud jantina lelaki termasuklah perempuan” and “Pentafsiran bilangan tunggal atau jamak: perkataan dalam bilangan tunggal termasuklah bilangan jamak, dan perkataan dalam bilangan jamak termasuklah bilangan tunggal”.
The obvious question then is why Article 12(4) was not translated in conformity with Schedule 11 but to read “Bagi maksud Fasal (3) agama seseorang yang di bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya”?
Using the logic of “parent” in the constitution being singular, why is it that “his” in the same Article 12(4) does not mean “anak lelaki” but “seseorang” (meaning “anyone”?), so as to include girls as well?
It is thus very clear that “parent” in Article 12(4) was meant to be read in the singular only when the child had one living parent, and in the plural if both the parents were alive.
The proper translation of this article should therefore have been “agama seseorang yang di bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu–bapanya atau penjaganya”.
Were the translators directed to introduce the word “atau” (“or”) into the translation, or did the translators on their own, perhaps in defence of race and religion, surreptitiously put in this word and change the original meaning of Article 12(4)?
There seems to have been mischief in the translation of Article 12(4) to legalise the forced conversions of minors by the parent who has converted to Islam.
It is the translation of Article 12(4) that needs to be corrected, and that should resolve the problem of unilateral conversions.
