Read it as a whole, says law expert

  • Nation
  • Saturday, 10 Dec 2016

PETALING JAYA: The use of the word “parent” in the Federal Constitution makes it appear as if the consent of just a mother or father is required to convert a minor to Islam.

Does that mean the amendment by Perlis to allow just one parent to unilaterally convert their child to Islam really is in line with the supreme law of Malaysia?

Definitely not, argues constitutional law expert Prof Datuk Dr Shad Saleem Faruqi.

Shad, who is Emeritus Professor of Law at UiTM, said Article 12(4) of the Constitution states that the religion of a person under the age of 18 for the purposes of education will be determined by his parent or guardian.

“It doesn’t say ‘parents’ or ‘guardians’ but anyone who knows the law will know that in legal drafting we normally use the singular,” he explained.

Citing an example, Shad said Article 5 says that “no person” shall be deprived of his life or liberty.

“It doesn’t say, ‘all persons’ but that does not mean anyone is excluded.

“We normally use singular and masculine when drafting laws, so we have to look at what we call interpretation clauses.”

Shad noted that Clause 2(95) of the Eleventh Schedule in the Constitution states very clearly that, “words in the singular include the plural and words in the plural include the singular”.

“When Article 12(4) and Schedule 11 are read together, the conclusion drawn by many people that parent means one and guardian is singular is not correct.” (see table below)

Shad said the Constitution has to be read as a whole, and in this issue, there is also the question of equality between a mother and father, which is mentioned in Article 8.

He said it was not right to say that one parent has more say over the other in matters of the religion of the child.

“It is only sensible, reading Article 12(4), Schedule 11 and Article 8, that both parents should have equal rights.

“Given what the Constitution says, some state enactments are clashing with the Constitution. Not just Perlis, but a number of other states,” said Shad.

He said that in cases where there was a conflict between a federal law and a state law, Article 75 of the Constitution says the federal law prevails.

“This is subject to the issue of whether the federal law was within jurisdiction and the state law was within jurisdiction, in other words were they passing a law on a matter within their competence?”

On Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said’s statement that the proposed amendment to the Law Reform (Marriage and Divorce) Act 1976 (LRA) may require a constitutional amendment to Article 12(4) to substitute the word “parent” with “parents”, Shad said that would require two-thirds support.

He said at least 148 Members of Parliament (two-thirds of the 222 MPs) must vote in favour of the constitutional amendment for it.

“Surely on an issue like this, if the Government wishes to support they should be able to muster two-thirds.”

On whether a newly-converted Muslim parent can take his or her child from a civil marriage to Perlis or other states with similar provisions in order to unilaterally convert their child to Islam, Shad believes they could.

Citing polygamy as an example, he said a Muslim man who would need permission from his wife to marry another woman under his own state’s law need only to “hop over” to another state, where such permission is not required.

“All laws will have loopholes because life is always larger than the law.

“This is where legislative amendments will have to keep up with all these problems that keep coming up now and then,” he said.

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