By Haris Ibrahim
I was in the Court of Appeal yesterday to hold a watching brief for 5 women NGOs in the Shamala appeal.
Malaysiakini has a report of the proceedings yesterday where, by consent of all parties concerned, the Court of Appeal referred 5 questions of constitutional importance to the Federal Court.
Shamala’s case is not dissimilar with the more recent case of kindergarten teacher, M Indira Gandhi, whose ‘convert to Islam’ husband K Patmanathan converted their three children, the youngest being a one-year-old girl, without her knowledge.
Malaysiakini also reported last week that the government has now moved to ban secret conversions of minor children by one spouse whilst the other remains completely in the dark.
Whether the government has the moral conviction to carry this ban through remains to be seen.
What really left me flabbergasted was the report in the second Malaysiakini report mentioned above that Nazri had said that the “attorney-general will review the civil laws that needed to be amended, but that any change to Islamic law would have to be discussed with the sultans of Malaysia’s states, who are the guardians of the religion”.
So typical to turn attention away from the real problem!
If Nazri would take the trouble to look up the civil laws presently in place, he’d see that there’s nothing in those laws that need fixing.
That’s provided Nazri’s sincerely looking to resolve the problem of unilateral conversions of minor children by a ‘convert to Islam’ spouse.
In December, 2002, in the case of Chang Ah Mee, decided by Justice Ian Chin in the High Court in Sabah, the issue of unilateral conversion of a minor child to Islam by a ‘convert to Islam’ spouse arose for consideration.
Justice Ian Chin held the conversion of the minor child, aged 2 at the time of the alleged conversion, to be null and void.
Sabah’s Administration of Islamic Law Enactment 1992 has a section 68 which provides : “For the purpose of this Part, a person who is not a Muslim may convert to Islam if he attains the age of baligh according to Islamic Law and provided that if a person is below eighteen (18) years of age consent shall be obtained from the parents or his guardian”.
Justice Ian Chin made the following observation of an concerning ‘parents’ in section 68 : “The term “parents” mentioned in that section is in the plural which literal and ordinary interpretation means the father and the mother (or persons acting as such) while the singular form would mean either the father or the mother. But that section also confer upon a guardian the right to give consent. The conjunction “or” indicates that either the parents or the guardian could give consent. The term “guardian” and his duties are dealt with extensively by the Guardianship of Infants Ordinance (Cap. 54) which contain provisions for the guardianship of infants. Before the amendment on 1 September 1999, s. 5 of the Ordinance gave the father the primary right over the person and property of an infant but the amendment gave both the father and the mother the same and equal right but such right equal right is illusory unless it means that the husband and the wife must exercise them jointly, that is, it cannot be exercised by the one without the other save when the other has died. Therefore when the Administration of Islamic Law Enactment 1992, s. 68, refers to a guardian, it must be taken to mean both the mother and the father as they have equal right under the Guardianship of Infants Ordinance”.
Article 12(3) of the Federal Constitution provides that “No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own” whilst Clause (4) of the same Article clarifies that “For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian”.
Article 75 of the Federal Constitution provides : “If any State law is inconsistent with a federal law, the federal law shall prevail and the State aw shall, to the extent of the inconsistency, be void”.
Now, please take note that section 68 of Administration of Islamic Law Enactment 1992, which is a state law, has ‘parents’ whilst Article 12(4) has ‘parent’.
Lawyers acting for the ‘convert to Islam’ spouse sought to argue that argue that section 68, when it requires the consent of both parents is inconsistent with art. 12(4) which requires the consent of a parent and that when an inconsistency occurs between state and federal law, in accordance with Article 75, the Constitution prevails. Section 68 and ‘parents’, being part of state law, must give way to ‘parent’ under Article 12(4), they argued. Thus, “parents” in the Enactment” shall have to be read as “parent”, lawyers for the ‘convert to Islam’ spouse submitted.
Justice Ian Chin did not buy this argument.
This is what the learned judge said : “The Constitution does not discriminate against the sexes and since the father and the mother have equal right over the person and property of an infant, the term “parent” in art. 12(4) must necessarily mean both the father and the mother if both are living. To construe otherwise would mean depriving, for example, a mother of her right as a parent to chose the religion of the infant under art. 12(4), if the father alone decides on the religion to be followed by the infant. To allow just the father or the mother to chose the religion would invariably mean depriving the other of the constitutional right under art. 12(4). Therefore, the term “parents” used in s. 68 does not conflict with art. 12(4) as art. 12(4) confers the right on both the father and the mother (when they are both living)”.
That, in my view, was a sound and sane construction of two provisions of two different pieces of written law to harmonise a seeming contradiction.
A little over a year later, in the Shamala case that is now before the Court of Appeal, Justice Faiza Thamby Chik was called to determine the similar question that vexed Justice Ian Chin in Chang Ah Mee.
In Shamala’s case, the relevant syariah law was section 95(b) of the Administration of Islamic Law (Federal Territories) Act 1993 which provided that a person who is not a Muslim may convert into Islam if he is of sound mind and if he has not attained the age of 18 years, his parent or guardian consents to his conversion. Note that this stated ‘parent’ as opposed to ‘parents’ in the Sabah enacment.
Justice Faiza disagreed with Ian Chin’s construction of ‘parent’ in Article 12(4). This is what Faiza said :
“With respect I do not agree with such an interpretation on art. 12(4) made by my learned brother colleague. It is to be noted that s. 68 of the Sabah Administration of Islamic Laws Enactment 1992 uses the word “parents”. It is spelt “p-a-r-e-n-t-s” in the plural sense, whereas art. 12(4) of the Federal Constitution uses the word “parent”. It is spelt “p-a-r-e-n-t” without the alphabet “s”. It is used in the singular sense. In the first place the said interpretation is not consistent with normal rules which govern the reading and interpretation of an Act of Parliament. Let me explain. Consider s. 95(b) of the Administration of Islamic Law (Federal Territories) Act 1993 and art. 12(4) of the Federal Constitution. In the present case the wife in fact referred to s. 95(b) arguing that this section requires her consent for the conversion of her two minors into Islam. Section 95(b) provides for the purpose of capacity to convert into Islam, and states that a person who is not a Muslim may convert into Islam if he is of sound mind and if he has not attained the age of 18 years, his parent or guardian consents to his conversion. It is noteworthy that the phrase used is “his parent or guardian consents”. Article 12(4) used the phrase “be decided by his parent or guardian”. The determiner used is “his”. This word “his” that comes before the noun “parent or guardian” limits its meaning. Black’s Law Dictionary Abridged6th edn (Centennial Edition 1891-1991) defines the word “parent” as “the lawful father or mother of a person” and the word “guardian” as “a person lawfully invested with the power and responsibility for the care and management of the person or the estate or both of a child during its minority”. It is instructive to note that the noun “parent” or “guardian” is defined in the singular. Parent is either a “father or a mother” and “guardian is a person lawfully invested with …”. The term “determiner” is used frequently in modern grammars. The noun in the phrase here is singular. Therefore the singular verb “consents” in s. 95(b) is used since both nouns “parent” and “guardian” are singular. The two nouns that share a singular verb are linked by “or” and grammatically the verb agrees with whichever part is closest to it. In the phrase under discussion both subjects are singular. Hence the present tense singular verb “consents” is used. It is also true of art. 12(4). Both nouns “parent” and “guardian” are singular and the determiner used is “his”. Either his parent or his guardian consents to his conversion. The meaning of the words is plain, the plain meaning rule is applied. My interpretation of the words “parent and guardian” gains strength when it is considered in the light of Act 351. Section 6(1) of Act 351 states ‘on the death of a parent of an infant, the surviving parent, … shall be guardian to the infant either alone or jointly with any guardian appointed …”. It is to be noted that the legislature uses the terms “parent and guardian” in the singular sense since both nouns are singular. The determiner “a” (parent) is used. I must stress here this involves vested rights. “Statutes should be interpreted, if possible, so as to respect vested rights.” Indeed: “If a vested right is to be defeated, the section must plainly say so. This rule has been stated by the courts over and over again” (see the book entitled “How to understand an Act of Parliament”6th edn. by Kenneth H.G. Gifford and D.J. Gifford, p. 143). In Section 5 of Act 351 where it refers to equality of parental rights, sub-s. (1) plainly states “… a mother shall have the same rights and authority as the law allows to a father …”. And such a provision I think is to be strictly construed and applied. The plain meaning rule is a very simple rule. It means what it says. If the meaning of the Act is plain, it is to be given that plain meaning. “Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.” Its words must be given “the plain and ordinary meaning of the word applying to them the appropriate grammatical rules” (Chapter 21 ibid/ib). The words used in s. 95(b) of Act 505 are clear. The consent of a single parent is enough to validate the conversion of a minor. Any other interpretation would give an unjust result. It may lead into adopting a forced meaning that s. 95(b) does not bear and the plain meaning rule will not allow”.
Justice Faiza’s pronouncement of the law reminds of a warning issued by the Privy Council in an appeal that emanated from New Zealand some years back : that you cannot refine the law in the process of its interpretation and application to the point where the law becomes an ass.
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