Month: January 2016

Unilateral Child Conversions

Mr K J John wrote an excellent piece on the Indira Gandhi case and his article inspired me to offer a legal perspective on the controversial issue of unilateral child conversions

So what does the supreme law of our land say about the religion of a child and how it is determined? Article 12(3) of the Federal Constitution expressly provides that “no person shall be required to take part in any ceremony or act of worship of a religion other than his own

The Constitution then goes on to say that for the purposes of Article 12(3), the religion of persons below the age of eighteen years shall be decided by his parent or guardian [Article 12(4)]

In reading Clause (3) in light of Clause (4), this is the long and short of it:

a) The religion of a child (i.e. a person below eighteen years old) will be determined by his/her parent or guardian [note the use of the nouns in a singular form]

b) Once the parent or guardian has determined the child’s religion, the child will have the right not to be forced to take part in any ceremony or act of worship of another religion

Upon literal inspection of the aforementioned provisions, one may come to the conclusion that the Federal Constitution permits unilateral conversion of a child’s religion

However, statutes are not only to be interpreted literally as the “English language is not an instrument of mathematical precision” (as per Lord Denning in Seaford Court Estates Ltd v Asher)

Judges have a broad arsenal of rules of construction to choose from. A particular provision can be interpreted using the golden rule, the mischief rule, the purposive approach, etc

The golden rule allows a judge to depart from the ordinary meaning of a word and modify it if adhering to the literal sense of a word would lead to a “manifest absurdity or repugnance” (Lord Wensleydale in Becke v Smith)

A practical application of the golden rule could involve construing that although the singular noun “parent” was used, it should actually mean both the parents of a child (the manifest absurdity or repugnance being the ability of one parent to unilaterally convert his/her child/children)

The purposive approach would involve the Judiciary looking at the intention of the Legislature for enacting the particular provision and for using particular word(s) before determining how the provision/word should be interpreted

In respect of the Federal Constitution, the Reid Commission’s 1957 report as well as the transcript of the debates of the Federal Legislative Council (the predecessors of the Malaysian Parliament who were responsible for the debate and passing of the Federal Constitition) are documents of extreme importance in ascertaining the Legislature’s intentions

Simply put, if our Malaysian judges were bold enough to render the single noun “parent” to include both parents, they would be able to circumvent the entire issue of unilateral child conversions

If a child cannot be converted by only one parent, the conversion of Indira Gandhi’s children (and the many other children unilaterally converted) would be void ab initio (i.e. from the beginning), thus there would not be the quandary of whether the Syariah court or Civil court has jurisdiction over the matter

However, in all honesty, if the judges did so, some groups (legal experts included) might render their actions as too extreme

The panacea would be for Parliament to amend the Federal Constitution to limit child conversions to both parents (save in exceptional circumstances, e.g. one of the parents absconded, one of the parents is dead)

In 2009, the Cabinet decided that in the event of any dispute, a child must be raised in the faith professed by both parents at the time of marriage (hence impliedly denouncing unilateral child conversions)

However, the Executive branch’s reassurance is good-for-nothing, as the fact of the matter is, the Federal Constitution, when applied literally, appears to provide for unilateral child conversions

So instead of dishing out false assurances, the Executive (who also has the majority of seats in the Legislature), should push for Article 12(4) to be ammended in light of their 2009 Cabinet decision (if indeed it is still their stance today)

*This article also appeared in Free Malaysia Today, The Malaysian Insider, Malaysiakini

Self Defence & Mohamad Zulkifli

It appears that Malaysians are up in arms about the fact that Mohamad Zulkifli Ismail, who allegedly stabbed two men who were trying to rob him at his house, was charged under Section 302 of the Penal Code for murder and under Section 326 of the Penal Code for causing grevious bodily harm.

What many do not know is that what happened to Mohamad Zulkifli is quite normative. In most cases where prima facie, there appears to be legal defences available, the defences are pleaded by the defendant whilst he/she is on trial (the exception being where there are no criminal proceedings initiated as the Attorney General exercised his discretionary power to not institute prosecution)

For the sake of parallelism, the common law defence of automatism will be examined. This defence is pleaded when the wrongful act was done “by the muscles without any control by the mind” (as per Lord Denning in Bratty v A-G of Northern Ireland)

The defendant’s lack of physical control over his/her conduct renders the conduct involuntary and “no act is punishable if it is done involuntarily” (Lord Denning in Bratty v A-G of Northern Ireland)

Thus, even in a situation where automatism appears to be a part of the facts of the case, generally, the defendant will still be charged with an offence, plead not guilty, proceed to trial, and then attempt to prove the defence

As for the defence of self defence, the statutory provisions governing it can be found in Sections 96-106 of the Penal Code. The ones relevant to Mohamad Zulkifli will be delved into below

Section 96 of the Penal Code

“Nothing is an offence which is done in the exercise of the right of private defence”

The provision would clearly absolve Mohamad Zulkifli of liability if it can be proven that he was merely exercising his right of private defence

However, the Inspector General of Police was right to say that “it is not an absolute right to kill someone who tries to rob us”

The right to private defence is very much subject to other provisions, of which we will consider accordingly

Section 97 of the Penal Code

“Every person has the right, subject to the restrictions contained in section 99, to defend – … the property … against any act which is an offence falling under the definition of … robbery …”

Based on the minimal facts we are aware of, it is apparent that section 97 would further support Mohamad Zulkifili’s case as he was protecting his house in Kampung Labohan, in Kerteh, Terengganu, from two robbers

Section 103 of the Penal Code

“The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence … occasions the exercise of the right, be an offence of … robbery …”

Section 103 is merely an extension of Section 97. In Mohamad Zulkifli’s case, his exercise of his right of private defence lead to the voluntary causing of death of the two robbers, hence, it is submitted that section 103 is the more appropriate provision to be relied upon

Section 99 of the Penal Code

This section lists out acts against which there is no right of private defence. The fourth act is the only one which bears any potential relevance to the facts of Mohamad Zulkfili’s case

“The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence”

This is basically an issue of proportionality. Was Mohamad Zulkifli’s exercise of his right of private defence proportional to the need to defend his property from the two robbers?

A-G’s Reference (No.2 of 1983) established that the degree of force deemed reasonable varies according to the nature and degree of the threat. Regrettably, the question cannot be answered conclusively due to the lack of facts available at the time of writing

However, as a matter of principle, if the answer to the question of proportionality is in the negative, it would mean that Mohamad Zulkifli would have no right of private defence

The people need to let the law take its due course. However, the people also need to keep an eye out on how Mohamad Zulkifli’s case progresses and it is hoped that the continuous public attention associated to the case will prevent there being a miscarriage of justice

*This article was featured in Malaysiakini, The Malaysian Insider, The Rakyat Post, Malaysia Today