JULY 29 — Part 1: The basic and “untrumpable” principles of statutory interpretation

Over the last week or two I have been discussing with a few friends — lawyers, historians, social scientists and civil society activists — the much contested Administration of the Religion of Islam (Federal Territories) Bill 2013, popularly known as the “conversion of children” Bill.

In other words, the Bill — now withdrawn, but perhaps only temporarily, pending further drafting and refinement, or so the minister with responsibility for the matter has said — that would give the federal government’s imprimatur to the controversial practice of the unilateral, pre-emptive, non-consensual (and often undisclosed and hence “secret”) conversion of minors, or children, from one faith and faith-community to another.

This is a complex matter, one with many aspects and dimensions.

This present discussion sets aside all the many other aspects to consider exclusively — in a focused, sustained and methodical way — only one of them.

Its focus is upon language. On the legal, technical import of everyday words.

Specifically, upon one crucial aspect of language that lies at the heart of all the current religious, legal and political contestation.

It deals with the legislative rendering (or “glossing”, as linguists say) of the English-language concept of “parent” in Malay — where there is no single equivalent and comprehensive word available — as “ibu atau bapa”.

The question at the heart of the dispute is: how is this term to be understood and construed? As denoting inclusively and impartially both the mother and father? Or restrictively and exclusively (as some now insist), as denoting one or the other of them — in an “either/or” way — but not necessarily, at the one and same time, both of them. And if only one of them, which?

On this question of interpretation, or the construing of proper legal meaning, the whole dispute turns. Is the consent (explicit, timely, and informed) of both parents required? Or may a child be converted without this dual consent? Which is to say, on the initiative, of only one of parent — even to complete exclusion or in the complete ignorance of the other?

The veteran lawyer and politician Karpal Singh was right when he identified this as the central point of contention, the focus of the dispute. He was right to see that the problem lies here, in a matter of disputed language. In confusion about meaning.

But was only half-right when he termed this a “grammatical” problem.

It is one as much of semantics, or the meaning of words, as it is of grammar, or the proper syntactic deployment of words in their various functional forms according to use in context.

This discussion provides some much needed clarification of the central semantic ambiguity, and confusion, underlying this major legal, religious, intercultural and political dispute that so troubles, and divides, the nation at this time.

Sorting out and laying bare this confusion will definitively indicate who, which side, is right, and which wrong, in this hotly contested confrontation.

The legally decisive principle or instrument

The lawyers to whom I speak seem to be agreed that the core of the matter is really quite simple. Or ought to be.

They see this core point not just as a matter of which the court should take notice, but as the only one, the sole and sufficient basis, upon which the matter must be decided: for determining whether the expression “ibu atau bapa” in this legal situation means “both the mother and the father”, at all times inclusively and impartially; or whether it may be taken to mean (as some “shari’ah-minded” legal activists and others would insist) merely “one or other of them, just one, to the exclusion of the other”.

If you read the expression that the conversion of a minor requires parental consent, understood as the consent of “ibu atau bapa/mother or father”, to mean only one of them — that the initiative and permission of one of them, generally the father, in the absence or to the exclusion of that of the mother will suffice — then the unilateral, pre-emptive, non-consensual and undisclosed conversion of a minor is lawful.

But can the idea of “parental consent” as conveyed through the expression “ibu atau bapa” be properly read in this way?

No, say the lawyers.

Those with whom I speak, that is.

There are clear and absolute grounds, a fundamental and undeniable basis, for not doing so, they say.

They point to Act 388, Interpretation Acts of 1948 and 1967, standing as Schedule 11 of the Federal Constitution.

Section 4 of that Schedule lays down the cardinal interpretive principle concerning “grammatical variations, gender and number”. It lays down that:

(1) Where any word or expression is defined in a written law, the definition shall extend to all grammatical variations and cognate expressions of the word or expression so defined; and

(2) Words and expressions importing the masculine gender include females; and

(3) Words and expressions in the singular include the plural, and words and expressions in the plural include the singular.

That, the lawyers say is definitive and fundamental. That interpretive principle cannot be set aside. It must be upheld and applied, not discarded, compromised or evaded.

That, alone and by itself, they say, should decide the matter on this key point. Where the conversion of a minor requires the consent of the parent, rendered as the child’s “ibu atau bapa”, this means any parent, and must mean both of them.

It is inclusive. Male as well as female gender, and the plural not only the singular: this is entailed by the absolute principle of interpretive procedure laid down in Schedule 4.

Clear, but will legal clarity prevail on the day?

So it is clear, they say. And simple.

Or, at least, it should be.

The consent of both parents is necessary, they say.

Or, again, so it should be.

Should be?

Their use of that expression, their stating of that qualification, points to a disquieting doubt that they harbour.

Because they admit to a lurking fear.

A fear that precisely because the scope and status of these principles of interpretation are general and comprehensive, they can at times be seen, even by those who frame and hand down important legal decisions, as somehow “abstract” or vague. Meaning, remote from the immediate demands, which they alone from experience know best, of framing realistic and practicable judgments.

“The Malaysian judge,” a friend remarked, “or many of them, tend to be practical legal craftsmen, exponents of practical skills, knowing fixers and masterful adjusters of practical complications; they are adept brokers of contested differences who are always attuned to practical concerns, with a sound appreciation for the realities of life and the great forces that flow through it rather than any deep attachment to abstract theoretical schemes, fancy legal principles or jurisprudential doctrines.”

On an issue such as this one, my friend implied, some judges might be tempted, at the expense of clear but perhaps here an awkward legal principle, to be just a little bit too practical.

For that reason, it is feared, though they ought always to be “untrumpable”, those cardinal interpretive principles may at times be vulnerable to being set aside, quite wrongly, at the expense of some far more specific consideration. This may happen when an ostensibly plausible or pragmatic argument is made to the court that this kind of very specific, contextual consideration must be given precedence, even if in some narrow and quite circumstantial rather than comprehensive fashion, over the basic and absolute rules of meaning-construction laid out in Article 4 of Schedule 11.

That being the case, it may be useful in practice (if, ideally, in principle quite unnecessary) to go on now to consider whether there are any other, further grounds — apart from Article 4 of Schedule 11 — to argue that, in this context, “ibu atau bapa” must be read inclusively and impartially to mean “both mother and father”, and that any other reading is erroneous and does violence to language, logic, reason and the grounds of coherent discourse.

There are, in fact, such further grounds. Compelling grounds. Independently compelling grounds.

They are to be found in the field of linguistics, specifically semantics. This second line of argument may be of some use — like that of a belt to a man whose trousers are primarily held up by suspender braces.

But more than just the practicalities of being useful, as a reserve source of support, these other grounds are of real significance and substantial value in their own right.

They therefore warrant serious consideration. That further analysis will be provided in Parts Two and Three of this discussion.

* Clive Kessler is Emeritus Professor of Sociology & Anthropology at The University of New South Wales, Sydney.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malay Mail Online.