LETTER | Children's conversion: Perlis Mufti's view not supported by Constitution

LETTER | The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism & Taoism (MCCBCHST) refers to the report in Free Malaysia Today (Feb 17, 2022, under the heading 'children's conversion legal in Perlis, says Mufti'), where Perlis state Mufti Mohd Asri Zainal Abidin has been reported as saying, "that under the Perlis Islamic Enactment, either the father, mother or a guardian can convert their minors to Islam.

The Perlis Law is in Malay and reads that either father or mother or a guardian can convert their child.

The MCCBCHST is aware that section 117 (b) of the Perlis Administration of the Religion of Islam Enactment 2006 was amended in 2016 to allow conversion by a single parent. Article 12 (4) of the Federal Constitution was interpreted by the Federal Court in the Indira Gandhi's Case (2018) to mean that both parents must consent before a minor of the marriage can be converted.

Despite this clear decision of the Federal Court, the Selangor Islamic Religious Council (Mais) had in another case appealed against a 2020 Shah Alam High Court decision which allowed a civil action by the children's non-Muslim mother to invalidate the conversion initiated by their Muslim father, to the Federal Court which unanimously dismissed the application for leave by Mais.

The Federal Court stated that "the core issue has already been settled by this same apex court in the 2018 Indira Gandhi case". In view of this, Section 117(6) of the Perlis Administration of the Religion of Islam Enactment 2016 will be void as being in conflict with the Federal Constitution. Thus section 117 (6) should be amended to bring it in line with the Federal Constitution.

The Perlis Mufti in the same above report also stated, "the Malay version of the Federal Constitution also read that either parent can agree to the child's conversion". This issue of the possible existence of an authoritative Malay version of the Federal Constitution was also taken up in the Indira Gandhi case but the Federal Court found no evidence to support that the Bahasa Malaysia version of the Federal Constitution was authoritative.

Thus, the Perlis Mufti's claim regarding the Bahasa Malaysia version of the Federal Constitution has been ruled upon, and it is not open to the Perlis Mufti to dispute the finding of the apex court on it.

In an article in the Malay Mail of Jan 25, 2022, where it had carried out a check of the AGC'S Federal Legislation portal, it found the following note on its very first page:

“Teks ini hanyalah terjemahan oleh Jabatan Peguam Negara bagi Federal Constitution. Melainkan jika dan sehingga ditetapkan sahih di bawah Perkara 160B Perlembagaan Persekutuan, teks ini bukan perundangan”.

Thus, this note would mean that the Malay translation of the Federal Constitution was only a translation by the Attorney-General's Chambers and that it was not law unless and until it has been prescribed as authoritative.

Bahasa Malaysia version of the Federal Constitution

The Malaysian Federal Constitution is the most important historical document of the country, which embodies the understanding and the social contract embodied in it. It is a written constitution and is in English and it is which led to the independence of the country. The Bahasa Malaysia version is a translation of the original Federal Constitution which is in English.

Article 160B provides for the Malay translation to prevail over the original English version if there was any conflict or discrepancy between the two.

The question arises. How could a translation be allowed to override the original text? We have seen that the Malay translation for "parent" is stated as "Ibu atau bapa". This will be inaccurate as the Federal Constitution states singular should include plural in its interpretation section.

The danger is real that by making an arbitrary translation, the original safeguards and rights provided by the original Federal Constitution may be whittled away.

Members of Parliament, especially those from Sabah and Sarawak, how was this Article 160B allowed to creep in which through translation can change the original meaning?

An original document like the Federal Constitution cannot be allowed to be overridden by a translation. Whenever there is a conflict, the original must always prevail.

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