Respect both parents' constitutional rights to determine child's religion

LETTER | The National Human Rights Society (Hakam) notes with concern an attempt to table a bill in the Selangor state legislative assembly to allow the unilateral conversion of children.

This move directly contradicts the ruling of the Federal Court in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 [Indira Gandhi].

Our apex court clearly held that Article 12(4) of the Federal Constitution must be read to mean that both parents’ consent is required to determine the religion of a child.

Hakam urges all Selangor state legislative assemblypersons to pay due regard to Article 75 of the Federal Constitution, which states that any laws passed by states which are inconsistent with the Federal Constitution are void.

Hakam also calls for all parties to take note of the Federal Court’s reference to Section 5 of the Guardianship of Infants Act 1961, which provides Malaysia’s underlying family policy that:

(i) a mother shall have the same rights and authority as the law allows to a father; and

(ii) the rights and authority of mother and father shall be equal.

Furthermore, the welfare of the child is of paramount consideration. It is undesirable for a significant decision such as the conversion of a child to be made without the consent of both parents, and any such attempts are arguably not done in the child’s best interests.

Hakam also urges all parties to take into account that such unilateral conversion laws have been abused in the past and present by certain parents to gain custody of the child. More often than not, as in the case of Indira Gandhi, it is the parent from the minority religion who is disadvantaged under the law and suffers the greatest hardships.

One must not forget that at the end of the day, the foundational principles of the Federal Constitution were built to protect the various diverse communities and religions. It would be most unfortunate if such a delicate compromise is undermined in the "New Malaysia". 

The above is issued by the National Human Rights Society (Hakam).

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