PROPOSED SECTION 88A
IS NOT UNCONSTITUTIONAL
K.
Siladass
05/05/2017
When
the Bill to amend the Law Reform (Marriage and Divorce) Act 1976 was tabled in
Parliament many commended the Government’s effort. After all, the legal problemfacedby
a spouse not converting to Islam when the other spouse had done so, did create
traumatic experience. Therefore, any effort to remove the uncertainty,
ambiguity or wrong interpretation of the law that was the source of the pain
should be viewed positively. The new amendments when brought into effect would
ensure that a child of non-Muslim marriage cannot be converted to Islam except
with the consent of both parents. A child under the age of eighteen shall
remain in the same religion of the parent who had decided not to embrace Islam.
Notwithstanding
the positive effort seen in the amendments negative views were expressed to the
effect that they could be violating the Constitutional provisions. We must bear
in mind that the proposed amendments were to the existing Law Reform (Marriage
and Divorce) Act 1976 but not to the Constitution. I did indicate at that point
of time that there will be people who will raise the issues of
unconstitutionality of the amendments. Among those who oppose the amendments is
Tun Abdul Hamid Mohamad, the former Chief Justice of Malaysia (see Sunday
Times, 23 April 2017).
The
proposed amendments, complains Tun Abdul Hamid, only protect the non-converting
spouse, more particularly the wives. This is an erroneous view, because non-converting
husbands too can be subjected to the same predicamentnon-converting wives had
suffered, and continue to do so.
Although
most of the cases decided by the court involved husbands who had converted to
Islam there had also been an occasion where the non-Muslim wife had converted
to Islam and the non-converting husband was left without any remedy. The case
of Nedunchelian v Nurshafiqah Mah Singai
Ammal [2005] 2 AMR 711 is on point. In that case the non-converting husband
Nedunchelian, sought declaratory reliefs against his wife on the ground that
conversion to Islam of the children of the marriage who were infants at all
material time was invalid and void. The matter did not proceed further because
of jurisdictional issue based on Article 121 (1A) i.e. the High Court has no
jurisdiction on the matter as it involved question of Syariah Law. There could
be similar cases but may have not been immortalized in the law journals. It
could, therefore, be seen that a converting party could be a wife and similar
problems that a wife had faced could also be faced by a non-converting husband.
What was envisaged by section 51(1) of the Act 1976 was that both husband and
wife should enjoy equal protection. The protection accorded to the wife in
section 52 bears testimony to the situation that husband would leave the wife
and children without any protection which has been a problem all the while and
its notoriety has not diminished. The question of greater protection to wife
and ignoring the rights of the husbands did not feature at all, and to view the
proposed section 88A as protecting only the wife is an unfortunate perception.
It is also impossible
for the converting party to get custody of the child
It
is also the contention of Tun Abdul Hamid that under the proposed amendment in
the form of 88A,it is impossible for the converting party to get custody of the
child of the marriage. Followed by argument that the child is prohibited from
becoming a Muslim.
The
point that the parties, husband and wife, had contracted a valid marriage and
there is a child of that marriage before one of the parties decided to convert
to Islam seems to have not been given any weight at all. It must be borne in
mind that the child of the marriage would have been instructed in a faith other
than Islam in accordance with the unwritten matrimonial contract reached at the
time of their non-Muslim spouses’ (parents’) non-Muslim marriage. Therefore, a
party to that non-Islamic marriage deciding to leave his or her original faith
and converting to Islam had indeed breached the sanctity of the marriage vow which
is,to remain faithful to one another, particularly in religious issues. Thus,
when a party to the non-Islamic marriage converts to Islam he or she has
acquired a different religious identity that was not within the contemplation
of parties at the time of their legal customary marriage; and, when the child
was born they were still practising the same faith. The religious identity of
the converting spouse could have changed but the responsibilities and
liabilities from the pre-conversion civil marriage would not cease until
resolved to the satisfaction of all concerned.
Would
it be wrong to suggest that the party to the non-Muslim marriage had indeed
forfeited the right as to the kind of religious education the child should
have, bearing in mind that the child would have been receiving instruction on a
faith other than Islam since birth. In the circumstances, it is only proper,
fair and proper that the child should remain in the same religion of the
non-converting parent until the age of eighteen. On attaining the age of
majority the child having acquired the capacity to decide should have the right
as to the religion he or she wants to practise. And that is doing justice to
the child. Therefore, the proposed section 88A is not void and is not
unconstitutional.
Child prohibited from
becoming a Muslim
The
next argument that is advanced is that the child is prohibited from becoming a
Muslim. This argument is contrary to the sound reasoning in the case of Teoh Eng Huat v. Kadhi of Pasir Mas &
Anor [1990] 1 CLJ (Rep) 277 where the former Lord President of Malaysia,
Tun Abdul Hamid Omar emphasized that in the wider interest of the nation, “no
infant shall have the automatic right to receive instruction relating to any
religion other than his own without the permission of the parent or guardian.”
This is plain that the child under the age of eighteen has not the liberty to
choose a religion. This is also protected by Article 12(4) of the Constitution.
To
strengthen his argument Tun Abdul Hamid says that the proposed section 88A
prohibits the child from becoming a Muslim, and he refers to Article 11 of the
Federal Constitution, the relevant provision of which reads as follows:-
“Every person has the right to profess and
practice his religion and, subject to Clause (4), to propagate it.”
This
cannot be read in isolation. The word “Every person…” must be understood as
having the capacity to convert. Article 12(4) supplies the qualification of the
words “Every person…” which should not be ignored; but it seems this is
ignored. Thus, the reference to Article 11 is wide off the mark.
The
proposed amendments aim to prevent arbitrary conversion of a child under the
age of eighteen to Islam by one parent. It could be seen that the primary
purpose of the proposed amendments is to remedy the mischief caused by the
interpretation of the word “parent” appearing in Article 12(4) of the Federal
Constitution. Since the mischief emanated from the interpretation of the word
“parent”; to put the controversy to rest once and for all, everybody concerned
with the problem felt at ease and believed that an amendment to Article 12(4)
would be adequate, and that would put an end to the controversy. It was easy to
think but there were obstacles because it being a Constitutional provision any
amendment would require two-third majority. This contention is supported by the
position that Article 12(4) is an integral part of the Constitution. Therefore,
instead of trying the hard way why not look at the root cause which is an
interpretive error,and correct it. I believe that the amendments as suggested
in the Bill is the most safest and effective course consistent with the
original intention of the framers of the Constitution.
Circumstances
necessitating the amendments
Those
who object to the amendments i.e. section 88A, under consideration, have
conveniently disregarded the circumstances that necessitated the amendments.
Had the courts observed the fundamental principle of interpretation, the
problems that had plagued the non-converting parents and the Courts, could have
been avoided. The objectors must realise that the entire problem came about as
a result of interpreting the word “parent” in Article 12(4) of the
Constitution, disregarding the interpretive tools.
What
is meant by the word “parent”? Did the framers of the Constitution intend that
the word “parent” should be literally interpreted meaning a single parent; or,
should the word “parent” be treated as meaning both “father and mother”. The way the Constitution is framed it is
obvious that theydid not envisage that the word “parent” would be subjected to
narrow interpretation disregarding the non-Muslim character of the marriage of
non-Muslims and the problem that could surface relating children.
One
should always remember that the law had always addressed in singular form, for
example, “Every person………” or “Any person……” To rationalize the adoption of the
singular formula the interpretive tools make it very clear that “singular”
includes “plural” and plural includes singular. Article 160 of, and Eleventh of
Schedule to, the Constitution clarify the position beyond any doubt. The Court took
a wrong course and interpreted the word “parent” inconsistent with the rules of
interpretation, therefore, it is a question of interpretation and not conflict
of laws as some would want us to believe. The interpretation had gone terribly
wrong and that was the problem.
Even
the States in Malaya are not uniform in so far as the consent required to
convert a child under eighteen years old. Some States require the consent of
either parent and some States the consent of both parents.
Had
the courts exercised their constitutional duty properly, teething problems that
had arisen and had pained non-converting parties for far too long could have
been avoided. In dealing with this issue we must remember that excursion on the
niceties of law when the ground realities are ignored would not in any way help
create a happy solution.
Effect of proposed
amendments
The
proposed amendments indeed give effect to Article 12(4) overruling the wrong
decisions of the court on the word “parent”. In other words what the Parliament
is doing is to correct the wrong interpretation advanced by the courts. Thus,
all those cases where it was held that the word “parent” means either parent would
be assigned to history with no effect. This is what the apex court should have
done long ago, to alleviate the pain and agony of both Muslim and non-Muslim
parents, and the uncertainty surrounding a child under the age of eighteen
years old.
Historical background
to Article 12 (4)
When
interpreting important constitutional provisions such as Article 12(4) the
courts must bear in mind the historical background of the society that the Constitution
aims at protecting and ensuring fundamental rights of the citizens would not be
eroded. Malaya, and later Malaysia, had always been a multi-racial,
multi-religious, multi-lingual and multi-cultural society and will remain so
forever. The framers of the Constitution were aware of this unassailable
historical truth. Thus, it can be safely said that the framers of the
constitution did recognise that with the special position of Islam in the
Federation and the protection accorded to other religions, the secular content
of the constitution must always be maintained and protected. Further, they must
have also realized that conversion to Islam could be a popular feature. And
most importantly they must have also appreciated the fact that the non-Muslims,
except the Christians, had no laws to regulate their marriages and divorces,
including the children’s custody at that juncture. The Civil Marriage Act 1952
was also not very popular. The existing laws governing guardianship of the
infants were inadequate to tackle the ever-increasing family disputes among
non-Muslims.
The
Law Reform (Marriage and Divorce) Act 1976 sought to correct the uncertainty that
plagued the non-Muslim families and marriages. When the attraction to Islam became
popular, no one anticipated the kind of problems that would besiege the courts;
but problems did arise and they began to tell stories of pain, agony and disappointments
and humiliation. Parents who were deprived of custody of infants were running
from pillar to post with no remedy at sight. The question is: why were they
refused judicial remedy and that question hasnot been answered, but now, the
proposed amendments seek to provide.
The
courts must realise that the framers of the Constitution thought of the unique
living nature of the constitution, namely, the constitution is alive and it is capable
of addressing issues that had not been foreseen but when they do arise the
constitution will accommodate the changes and adjust itself keeping in line
with the changes that occur from time to time. The interpretive tools are there
which can be used for all circumstances and for all times.
It
is indeed heartening to note that the parliament had taken a positive step to
right the wrongs occasioned by wrong interpretation and is intended to uphold
the original c correct position in regard to the word “parent” in Article 12(4)
meaning, both father and mother. And both must consent to the conversion of a
child under eighteen to Islam. Therefore, the proposed amendments are not
unconstitutional. It could be said that at last an attempt is made to see
justice is done. Perhaps, the statement by the American jurist, Oliver Wendell
Holmes, on responsive interpretation may be useful.
“When
we are dealing with the words that are also a constituent act, ………, we must
realize that they have called into life a being the development of which could
not have been foreseen completely by the most gifted of its begetters. It was
enough for them to realize or to hope that they had created an organism; it has
taken a century and has cost their successors much sweat and blood to prove
that they created a nation.” [Missouri . Holland, 252 U.S. 416, 433 (1920)]
