A response to the Perlis mufti on unilateral child conversions

I refer to the recent comments by Perlis mufti Mohd Asri Zainul Abidin on the unilateral conversion of Loh Siew Hong’s three children.

With all due respect to the Perlis mufti, many of his key contentions do not hold water.

The English version of the Federal Constitution is authoritative

The Perlis mufti reportedly claimed that the Raja of Perlis Tuanku Syed Sirajuddin Syed Putra Jamalullail was instrumental in issuing an authoritative text of the Federal Constitution in the Malay language when the latter was Yang di-Pertuan Agong.

Consequently, this would invoke Article 160B of the Federal Constitution and render the Malay version of the Federal Constitution the authoritative text.

However, it is important to note that the Perlis mufti’s proposition has not been judicially accepted.

Rather, the superior courts have recognised the English version of the Federal Constitution to be the authoritative text.

In Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 (“Indira Gandhi”), the Federal Court had to decide whether the Malay version or English version of the Federal Constitution was authoritative.

The Federal Court unanimously held that:

“… In the present appeals, despite the learned State Legal Adviser’s reliance on Article 160B, no evidence of the necessary prescription was adduced by either of the Respondents. In the circumstances, we will proceed on the basis that the English version to be authoritative.” (Emphasis mine)

The English version of the Federal Constitution will remain the authoritative text until and unless a subsequent Federal Court departs from Indira Gandhi and decides otherwise.

Any laws which are inconsistent with the Federal Constitution are void

The Perlis mufti reportedly claimed that unilateral child conversions are valid under Perlis law.

Even if that were the case, such provisions would be void if they are inconsistent with the Federal Constitution.

Article 4(1) of the Federal Constitution provides that:

“This constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the extent of the inconsistency, be void.”

In Indira Gandhi, the Federal Court was of the view:

“… Since a literal construction of art 12(4) would give rise to consequences which the legislative could not possibly have intended, the Article should not be construed literally (Sukma Darmawan at p 247). A purposive reading of art 12(4) that promotes the welfare of the child and is consistent with good sense would require the consent of both parents (if both are living) for the conversion of a minor child.” (Emphasis mine)

Accordingly, provisions in Perlis’ law which allow for unilateral child conversions would contravene Article 12(4) of the Federal Constitution and would thus be void.

Certificates for unilateral child conversions are void and must be set aside

Since provisions of Perlis’ law allowing for unilateral child conversions are void for being inconsistent with Article 12(4) of the Federal Constitution, certificates of conversions issued pursuant to those provisions must be set aside.

Support for this proposition can be found in Indira Gandhi, a case which concerned unilateral child conversions under Perak’s law.

The Federal Court in Indira Gandhi held the following:

“We also find that the certificates of conversion were issued without the consent of the Appellant thus contravening Article 12(4) of the Federal Constitution and Sections 5 and 11 of the GIA. The certificates of conversion are void and must be set aside.”

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.