Amend constitution, law to bring certainty to child conversions, say legal minds

gopal-sri-ram-indira-1PETALING JAYA: The Federal Constitution and the Law Reform Act (Marriage and Divorce) governing non-Muslims must be amended to bring certainty to the Federal Court ruling that both parents must consent to conversion of minor children, a retired judge and lawyers said.

They said nothing would stop another apex court to depart from Monday’s ruling where a five-member bench allowed the appeal of kindergarten teacher M Indira Gandhi to set aside the conversion certificates of her three children.

It also ruled that spouses who have embraced Islam cannot convert their minor children without the consent of the non-converting partner of the civil marriage.

Former Federal Court judge Gopal Sri Ram said it was possible, although not advisable, for another bench of the apex court not to follow the pronouncement in Indira’s case.

“The safest course is for the Federal Constitution to be amended to put the matter beyond doubt,” he said.

Sri Ram was responding to calls to the government to reintroduce clause 88A in the LRA which was withdrawn on Aug 7 by parliament after strong opposition.

Clause 88A states the religion of the child “shall remain as the religion of the parties to the marriage prior to the conversion and that the child can, after turning 18 and with the consent of both parents, convert to Islam.”

On Tuesday, Prime Minister Najib Razak said the government might consider amending the LRA to bring it in accord with the court ruling.

Sri Ram said Article 12 (4) of the constitution, the supreme law of the land, should read that “where a non-Muslim converts to Islam, the religion of his/her minor child of the marriage shall be determined by both parents.

“In the absence of such determination, the child shall be in the religion at the time of its birth.”

He said the government should not have any problem of getting the two-thirds majority, with the support of opposition MPs, as it was a socially beneficial amendment.

“The amendment should not be done from party or religious lines. Anyway, the parties in Barisan Nasional have always been secular,” he added.

Family law practitioner Ravi Nekoo said it would be sufficient to insert section 88A in the LRA to strengthen the judicial pronouncement made in Indira’s case.

“The contentious issue of unilateral conversion has come to a finality following the decision of the highest court in the land. The conundrum may reappear only if another bench decides to depart from the ruling,” said Ravi who is a member of the Bar Council.

He said the courts would have to give effect to the intention of parliament if a written law like the LRA was crystal clear.

Lawyer Balwant Singh Sidhu said judges must uphold the sanctity of the constitution, especially on unilateral conversions.

“They must abide by their oath of office to defend the constitution and not abdicate their responsibilities when it comes to the matter of jurisdiction of the civil court,” he added.

He said non-Muslim marriages were governed by the LRA which was a federal law passed by parliament and only the civil courts had the jurisdiction to dissolve such unions and provide ancillary reliefs such as custody, maintenance and division of property.

Justice Zainun Ali, who delivered the 101-page judgment of the court, said Article 12 (4) which states that the religion of children be determined by their “parent” cannot be given a literal interpretation.

Instead, she said it must be given a broader meaning and purposive approach as the provision fell under Part 11 of the constitution which covered the fundamental liberties of citizens.

Zainun said it must be noted that in translating Article 12 (4), it would appear that the real essence of the English version was eluded.

“The reason ‘parent’ is used in 12 (4) is to provide for a situation where indeed there is only one parent of the child – example a single parent situation. But where both parents exist, then the 11th Schedule shall be relied upon,” said Zainun.

The 11th Schedule in the constitution provides that in interpreting the supreme law of the land, “words in the singular include the plural, and words in the plural include the singular”.

The ruling is a departure from a controversial 2007 majority judgment of the Federal Court in the case of Subashini Rajasingam v Saravanan Thangathoray, which said that a single parent could convert a child who is aged below 18.

As a consequence of the Subashini case, a spouse who became a Muslim could turn to the shariah court for remedy, including obtaining custody of children.