Press Statement by Karpal Singh in Kuala Lumpur on Friday, 1^st May 2009:

Cabinet decision should be welcomed by all Malaysians, including PAS

The reaction by PAS through its information chief, Mahfuz Omar, against the Cabinet decision that the religion of children born to non-Muslims must be the common religion of the parents when they were married is an unjustified attack on the decision of the Cabinet.

There is no doubt that the decision of the Cabinet is pragmatic, reasonable and accords with considerations of justice. Non-Muslims who embrace Islam should not do so for the purpose of defeating the rights of their non-Muslim spouse or in any way affect the rights of children born during the subsistence of their marriage.

What has to be carefully considered is whether the Cabinet decision, which is an Executive act, can override or in any way supersede the Federal Court decision in Subashini Rajasingam v Saravanan Thangathorav and other appeals. The Federal Court ruled on 27^th December 2007 that the husband in that case, who had embraced Islam, could lawfully, following his conversion, have the right to convert his child who is under the age of 18 into Islam without the concurrence of his non-Muslim spouse.

The Federal Court in that case considered Article 12(4) of the Federal Constitution which states:-

“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.”

The Federal Court interpreted the word ‘parent’ in the said Article to mean either parent could decide on the religion of a child under the age of 18.

It has been pointed out, and rightly so, by Law Professor Shad Faruqi that what was missed by the Court and counsel in that case was that in the 11^th Schedule to the Federal Constitution, which deals with the law on interpretation of the Federal Constitution, words in the singular include the plural and words in the plural include the singular. The word ‘parent’ in Article 12(4) must, in the circumstances, be taken to mean both parents without whose consent the religion of their child under the age of 18 cannot be determined.

It appears, therefore, that Subashini requires to be overruled by way of review by the Federal Court. The decision was given per incuriam, In the public interest, the Federal Court should forthwith review its own decision. This step is more than necessary now in the light of several similar cases having come to public attention.

In the alternative, the Cabinet should call upon the Yang di-Pertuan Agong to refer this issue to the Federal Court under Article 130 of the Federal Constitution which states:-

The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.”

It must be conceded that the Cabinet was wrong in making the decision it did in the face of the decision of the Federal Court in Subashini which binds everyone, including the Cabinet until such time it is reversed. However, it cannot be denied that the said Cabinet decision is a decision which should be welcomed by all Malaysians, including PAS.

* Karpal Singh, DAP National Chairman & MP for Bukit Gelugor