Malaysia is known as multi-ethnic and
multi-religious country. The Federal Constitution of Malaysia guarantees
freedom of religion where every person is granted the right to profess and
practise, and, subject to certain restrictions, to promulgate his or her
religion. Though not expressly stated, it may be implied that such right shall
include the right to change one’s religion or belief. Otherwise, it will render
the freedom of religion as enshrined in Art 11 of the Federal Constitution
illusory or ineffective and fall short of the international human rights standards1.
However, the religion of a person under the age of 18 years shall be decided by
his or her parent or guardian2.
In Malaysia, Syariah Courts only have jurisdiction
over persons professing the religion of Islam. Questions arise as to what extent
a non-Muslim parent has the right to determine the religion of the child if the
spouse embraces Islam and the impact of the child’s conversion to Islam on the
custody dispute between the parents3.
Such questions, if left unattended, will lead to social tension and
disintegrate the religious cohesion in the country, which is detrimental to the
national unity4. Non-Muslim marriages in
Malaysia are governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA”)5.
The LRA specifically excludes its application to Muslims, except where a
petition for divorce is filed by the non-converting spouse against the
converted spouse on the ground of conversion to Islam as provided in s 51 of
the LRA. Hence, conversion to Islam of one spouse can be a ground for the non-converting
spouse to petition for divorce and seek ancillary relief6.
However, it is observed that the Islamic law as
contained in the various state enactments and the federal statute have
distinguished the parental right over a child’s religion based on the religion
of the parents, particularly the converted parent, at the time the child is
born. It seems that the non-converting parent has no right to determine the
child’s religion if such child is born after another spouse embraces Islam and
the civil marriage has not been dissolved. This is because the various state
enactments in Malaysia define “Muslim” as, inter alia, “a person either or both
of whose parents were at the time of the person’s birth, a Muslim.
2. FREEDOM OF RELIGION
The freedom of religion has become a main topic in our country.
There are a lot of opinion from the Muslims towards this topic. There are 70%
or more Muslims in each country surveyed in these regions hold a view about
they are free to practice any faith they want. 7Notwithstanding
flexibility for themselves, most Muslims trust people from different religions
can hone their faith straightforwardly. 8Among Muslims
who say individuals of various religions are allowed to rehearse their faith,
seventy five percent or more in every nation say this is something worth being
thankful for. For a certain something, it is tucked away in the real worldwide
human rights traditions. 9
It can likewise be gotten from the estimation of religion itself, in which
individuals over a tremendous assortment of times and places have looked for
satisfaction. Recognizing that religion will be at its practically true when it
may be uninhibitedly picked, those Determination that those state ought further
bolstering guarantee the benefit should search then afterward that fulfilment
unhindered takes after regularly10.
At long last, the Muslim world likewise contains religiously free
administrations, adding much further unpredictability to the negative judgment
of the satellite view11. Cases of such
administrations incorporate Kosovo, Djibouti, Albania, Mali, Senegal and Sierra
Leone– the greater part of them observably outside the Arab world12. These administrations –
around one-fourth of Muslim-larger part nations – demonstrate that the dissent
of religious opportunity is a long way from the entire story in the Muslim
There might be no efficient clarification for why these nations are
religiously free. For a few, the underlying foundations of flexibility may lie
in a specific type of Islamic philosophy or culture that encapsulates
resilience. In others, opportunity may have emerged through a modus vivendi
among Islam and different religions eventually in the nation’s history. These
cases, however, demonstrate that Muslim populaces can, in specific situations,
demonstrate neighbourly to religious opportunity13.While Islam may endure a
shortage of religious flexibility in the total, Islam isn’t really the
explanation for this deficiency. Mainstream abusive governments are a broad
wellspring of constraint in the Muslim world. 14Indeed, even Islamist
administrations frequently have their inception in chronicled conditions that
give a false representation of a simple linkage of Islamic lessons with
religious constraint. This joined with the nearness of religiously free nations
in Islam, focuses to the likelihood that religious opportunity in the Muslim
world may extend15.
Generally speaking, Muslims comprehensively bolster the possibility of
religious freedom16. Most of the Muslims
have the opinion about the freedom of religion is actually good for them17. The matter of the freedom of religion has been addressed by Allah Himself
in a few verses in the Al-Quran:
“We have not sent you (O Muhammad) but to all mankind as a giver of good
news and as a warner, but most people do not know18.” (Quran 34:28)
“Whoever seeks a religion other than Islam, it will never be
accepted of him, and in the Hereafter he will be one of the losers19.” (Quran 3:85)
“Let there be no compulsion in religion: Truth stands out clear from
Error: whoever rejects evil and believes in Allah hath grasped the most
trustworthy hand-hold that never breaks. And Allah heareth and knoweth all
things20.” (Quran 2:286)
“You cannot guide whomever you wish, but it is Allah who guides
whomever He wishes, and He knows best those who are guided21.” (Quran 28:56)
3. Article 12(4) of the Federation Constitution
Federal Constitution (hereinafter FC), Article 12 (4) stated that for the
purposes of Clause (3) the religion of a person under the age of 18 years shall
be decided by his parent or guardian. Article 12(3) for FC also mentioned that
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 own22.Article 160 and the
Eleventh Schedule of the Federal Constitution should be apply so that the word
“his” would also mean “her”. If not, the
words will be interpreted literally as they appear, then Articles 12(3) and (4)
of FC would only be applicable to the conversions of males under the age of
eighteen years, and would not apply to females. It is clear to say that the
discrimination of gender in this 2 Article is not the original intention of
such a provision in the Federal Constitution23.
main controversy raised from the word “parent” used in Article 12(4) of
FC. As the “word “parent” is expressed
in singular form, some may defined that only one parent’s consent is needed to
convert a minor’s religion24. However, some opposed
by saying that the expression “parent” in singular form also contain the plural
meaning “parents”. It is beyond doubt that it is against the Parliament’s
purpose if only one parent’s consent is required under Article 12(4) of FC.25 Based on Oxford English
the definition of the word “parent” is “a father or mother”. The phrase “or”
used in the definition emphasised that that a parent means either a father or a
mother. According to The Kamus Dwibahasa Oxford Fajar, the word “parent” is
defined as “ibu-bapa”. The omission of the conjunctive “atau” (or) is confusing
and unclear. 27
this is just the general definition of the word, it is not uncommon that
ordinary dictionary defined words differently from an Act of Parliament or a
State Enactment. Therefore, generally, there will a specific section in every
statute to define certain words to make the meaning of the words clear in the
structure of a sentence within specific provision28. In addition, Article
160 (1) which is the Eleventh Schedule of the Constitution clearly provides
that the words in the singular include the plural, and words in the plural
include the singular. Section 4(3) of the Interpretation Acts 1948 and 1967
carries the same meaning which provides that words and expressions in the
singular include the plural, and words and expressions in the plural include
The Bahasa version of FC also provides “Perkataan dalam bilangan tunggal
termasuklah bilangan jamak, dan perkataan dalam bilangan jamak termasuklah
bilangan tunggal.” It can be concluded that words and expressions which are in
singular they include plural and plural include singular is constitutionally
and commonly accepted legal position. The Federal Constitution which was in
English was translated into the National language of Malaysia which is Malay
language. Article 160B of FC was inserted to give effect to the translation and
provides that the national language text of the Constitution shall prevail over
the English language text if any conflict arises between this 2 languages.
confusion came to light when the word “parent” has been translated as “ibu atau
bapa” (mother or father). In the National language version, Article 12(4) of FC
has been translated as “Bagi maksud Fasal (3) agama seseorang yang di bawah
umur 18 tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya.” When
Article 12(4) of FC in the English version is read along with Article 160(1) of
FC and the Interpretation Acts 1948 and 1967, it is clearly understood that the
religion of a person under 18 years shall be decided by his parents. On the
other hand, Bahasa version of Article 12(4) provides that either father or
mother could decide the religion of a person under the age of 18, thus the
original meaning and intention had been lost. 30 In certain conditions, a
single parent could decide the religion of a minor if one of the other
biological parents or one of the legally adoptive parents had passed away. It
also seems like the translator did not think of special composition of the
Malaysian society which is multi-racial and multi religious31.
stage of confusion is portrayed in the State Enactments. In the State
Enactments regarding the Administration of Islam, majority of the States use
the words “ibu atau bapa” to consent the conversion of a minor. Nevertheless,
Penang, Selangor, Sabah use “ibu dan bapa” in the same provision32. The difference or error
in the translation of Article 12(4) of FC is too obvious as the translation has
disregard the changing fact when words are expressed in singular or plural form33.
4. CONVERSION OF MINOR IN
currently there are many cases where non-Muslim parents were unaware and not
consent that the other non-Muslim spouse has converted their under 18
children’s religion after converting themselves to Islam34. The Bill tabled by the
Government to amend the Law Reform (Marriage and Divorce) Act 1976 in 2016.
This is to ensure that both parents must consent to the conversion of the child
under 18 years old35. A new section, Section
88A will be inserted through the amendment which makes clear that both parents
in a civil marriage must agree to the conversion of a minor into Islam as the
law is silent on this aspect currently. In this Section, a child after
attaining the age of majority has the right to decide on the issue of his or
In Indira Gandhi a/p Mutho v Pengarah Jabatan Islam
Perak and Ors, the Ipoh High Court qua Family Court, in managing the one-sided
change of minor kids to Islam by their changed over the father, was constrained
to swim through the mind-boggling and prickly interface between common law and
Islamic law in Malaysia. In the occasion, in a soundly contemplated choice
conveyed on 25 July 201337,
the High Court subdued the minor youngsters’ conversion to Islam by the father without
the knowledge of mother and stated that the conversion is null and void. The issues
in Indira Gandhi as chose by the High Court was, initially, the non-changing
over parent to be heard before the minor youngsters can be changed over and,
also, the Federal Constitution did not take away the forces of the common High
Courts the minute an issue came extremely close to the Syariah Courts, the last
being only an animal of state law, without the ward to settle on the defensive
ability of issues said to be inside its select domain. The interest to the
Federal Court was heard in late 2016 yet the peak court still can’t seem to
issue its choice38.”Parent”
covers both the father and mother of the youngster39. The father is the parent as well as the
mother. A father and a mother joined together and become “parent”. For
the disable child, the father cannot decided the child’s religion but the
mother could do so. 40
Article 160B of the Federal Constitution gives that
the national dialect content should be definitive and any inconsistency between
such national dialect content and the English dialect message, the national
dialect content might beat the English dialect content. The genuine reason for
the adjustment in the words41″
Article12 (4) might be perused as “chosen by his parents”. Two
guardians can’t be of one personality .The same ought to apply uniformly and
similarly to a wide range of change. The assent of the changed over parent
would do the trick42.
Where they can’t concur on the religion of the minor youngster yet that for
transformation to Islam. This is the problems whether this was affected by or
come about because of the current pattern of the court choices which deciphered
Article 12(4) of the Federal Constitution.
Just enduring the consent of one parent
understanding that the other parent had dissented would provoke a not as much
as the alluring state, without a doubt, of reiterated changes of one parent of
the child against the difference in the other. Or then again as by virtue of a
difference in the minor child to Islam by the changed over parent, the
non-changing over parent is said to have no locus to challenge the authenticity
of the Certificate of Conversion which is last and legitimate and that once
changed over into Islam no one can change over the minor youth out of Islam43.
(Subashini Rajasingam v. Saravanan Thangathoray).
In conclusion, conversion of minor in Malaysia is a
very essential matter to look into44.
In the process of conversion, a minor must and have to follow accordingly to
the legal procedures that are stated and given by the Federal Constitution45.
It is also very important to guarantee that the issue of transformation does
not come in the method for guaranteeing the youngster’s welfare and the
following custodial obligations by the questioning guardians46.
In addition, it is an essential and it should be highly looked up in the matter
of building up an exceptional
11(1) of the Federal Constitution of Malaysia provides that “every person has
the right to profess and practise his religion and, subject to Clause (4), to
2 Article 12(4) of
the Federal Constitution of Malaysia. In Malaysia, a person attains the age of
majority at 18-years-old, as provided in S. 2 of the Age of Majority Act 1971 (Act 21).
3 Section 3(3) of
the Law Reform (Marriage and Divorce) Act 1976 (Act 164) provides that the Act
shall not apply to a Muslim or any person who is married under Muslim law
except s 51 whereby the court may grant a decree of divorce on the petition of
one party to a marriage where the other party has converted to Islam.
4 In Subashini a/p Rajasingam v Saravanan a/l
Thangathoray 2008 2 MLJ 147; 2008 2 CLJ 1 at 15 (FC), it was stated that:
The legislature, by enacting s 51, clearly envisaged a situation that where one
party to non-Muslim marriage converted to Islam, the other party who has not
converted may petition to the High Court for divorce and seek ancillary
reliefs. Further, it would seem to us that Parliament, in enacting subsection
51(2), must have had in mind to give protection to non-Muslim spouses and
children of the marriage against a Muslim convert
Author.( 26 August 2016). Law Reform act Amendment
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25 A parliament is
a legislative, elected body of government. Generally, a modern parliament has
three functions: representing the electorate, making laws, and overseeing the
government via hearings and inquiries.
26 Oxford English
Dictionary Volume XI, page 222
27 In law, a minor
is a person under a certain age, usually the age of majority, which legally
demarcates childhood from adulthood. The age of majority depends upon
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Malaysian law which enacted to provide for the commencement, application,
construction, interpretation and operation of written laws; to provide for
matters in relation to the exercise of statutory powers and duties; and for
matters connected therewith.
30 Lee Swee Seng
JC. (25 July 2013). Indira Gandhi Mutho V. Pengarah Jabatan Agama Islam Perak
& Ors Judicial Review No: 25-10-2009.
31 V Anbalagan (10
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33 No Author. (30
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34 Josh Wu. (7 January 2016) .Unilateral Child Conversions And Our Constitution.
35 State laws enacted by the State Legislative Assemblies which applies
in the particular state.
36 Haikal Jalil. (21 November 2006). Law Reform (Marriage and Divorce)
(Amendment) Bill 2016 Tabled in Dewan Rakyat. Retrieved from:
37 2013 5 MLJ 552
38 Chee Ying
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39 No Author. (5
Febuary 2007). Women’s Aid Organisation (WAO). Memorandum. Safeguard Rights of
Wives and Children upon Conversion of Husbands to Islam.
40 No Author. (16
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42 No Author. (7 April 2017). Expedite Amendments To End Unilateral
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43 Steven Thiru. (8
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44 Dr Mohamed Azam
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