Minister Cites Wrong Federal Court Ruling In Conversion Issue, Says Bar Council

Datuk Seri Jamil Khir Baharom had cited the wrong Federal Court ruling when he said the unilateral religious conversion of a child by either one parent is allowed by the Federal Constitution, the Malaysian Bar said.

The Minister in the Prime Minister's Department had cited the Federal Court ruling in the case of Shamala Sathiyaseelan v Dr Jeyaganesh C. Mogarajah.

Bar Council president Christopher Leong, however, said the Federal Court in that case did not make any such ruling.

"On the contrary, the Federal Court had declined to make a decision in Shamala's case, whether the unilateral conversion to Islam of her children was lawful and constitutional," Leong said in a statement.

Leong said a five-man bench chaired by the then chief justice Tun Zaki Azmi refused to hear the leave to appeal application on grounds Shamala had absconded from Malaysia with the children and was therefore in contempt of court.

As such, Leong said the remarks by Jamil Khir in Parliament through a written reply to M. Kulasegaran (DAP-Ipoh) based on Shamala's case was erroneous, unfortunate and regrettable.

Leong said under Article 12(4) of the Federal Constitution, the religion of a person under the age of 18 years shall be decided by his parent or guardian.

However, Jamil Khir said that the consent of one parent was sufficient to convert the religion of the child because the words "his parent or guardian." appeared.

Leong said Article 12(4) has to be read in totality with other provisions in the constitution to interpret the law.

He said Article 12(4), read with Article 160 and the Eleventh Schedule, would mean that the word “parent” in the singular would also mean “parents” in the plural.

He said as such the religion of children below 18, whether male or female, was to be decided by parents if both were alive.

"Accordingly, unilateral conversion of minor children by one parent without the knowledge or consent of the non-converting parent is unconstitutional," he said.

Leong said the Federal Court case of Subashini Rajasingam vs Saravanan Thangathoray as decided in 2004 was not authority to interpret the meaning of Article 12(4) and the word "parent".

He said the apex court decision concerned appeals by the High Court’s refusal to grant an application by Subashini for interim injunction pending appeals to superior courts.

Leong said The Federal Court finally dismissed the appeal on a technical point because Subashini filed a premature petition to dissolve her marriage and to obtain custody of her children.

Under the Law Reform (Marriage and Divorce) Act 1976, she could only seek relief from the court three months after the spouse had converted to Islam.

Leong said therefore the discussion in Subashini's case on the meaning of the word "parent" was a by-the-way expression of opinion and not the main thrust of the appeal.

He said the Malaysian Bar again urged the government to introduce amendments to the law because unilateral conversion of minor children without the consent of the other spouse created social injustice and was unlawful.

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