Ravi Nekoo said a High Court in the case of Chang Ah Mee v Jabatan Hal-Ehwal Agama Islam Sabah had ruled in 2003 that the Federal Constitution did not discriminate against the genders.
“The court then held that Article 12 (4) of the Federal Constitution must necessarily mean both father and mother,” he said.
Ravi said the then judge Ian Chin had said to construe otherwise would mean depriving the mother of her right as parent to choose the religion of the child.
In that case, the mother successfully obtained a declaration that her former husband’s act to convert their child unilaterally was null and void.
Ravi was responding to a statement by Minister in the Prime Minister’s Department Azalina Othman Said on Monday that the Law Reform (Marriage and Divorce) Bill 2016 would be tabled without clause 88A, which states that the religion of the child should remain the same despite the conversion of one of the parents.
She said the clause was removed to be in line with the courts’ decisions on the interpretation of Article 12 (4), which states that the religion of a minor shall be decided by his parent or a guardian.
Ravi said Azalina must have been referring to the 2007 majority Federal Court ruling in the case of Subashini Rajasingam v Saravanan Thangathoray, which had opined that a single parent could convert a child who is aged below 18.
“In legal terms, it is only an obiter dictum or a passing remark. It was not a central issue that was up for discussion before the apex court,” said Ravi, who is the Bar Council treasurer.
The judges held the view that the word “parent” was “a single parent” and it follows that either spouse has the right to convert a child of marriage to Islam.
However, lawyers and the Malaysan Bar have argued that the 11th Schedule of the Constitution provides that in interpreting the supreme law of the land, “words in the singular include the plural, and words in the plural include the singular”.
Ravi said the legal fraternity would now have to wait for the Federal Court ruling in the case of M Indira Gandhi who is challenging the validity of the conversion certificates of the Perak state religious authorities.
“The apex court will decide the legal position of Article 12 (4) since Indira’s ex-husband (Muhammad Riduan Abdullah ) had unilaterally converted their three children to Islam,” he said,
He said Indira’s case would also decide which of the two legal interpretations – in the case of Chang Ah Mee or Subashini – was correct.
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