PETALING JAYA: Lawyers have expressed concern that an amendment to the wording on the conversion of minors in the Selangor state enactment could cause it to override the landmark ruling of the Federal Court in the M Indira Gandhi case.
M Manoharan told FMT that if the amendment goes through, the state constitution could supersede the Federal Court case law.
“Religious conversion issues are within the jurisdiction of the shariah courts, and the Federal Court case law on Indira may not bind the shariah courts,” he added.
In its landmark judgment last year, the Federal Court declared that the consent of both parents is needed for the conversion of minors, ruling that the word “parent” in the Federal Constitution means both father and mother.
The Selangor amendment seeks to change this to “mother or father”.
Manoharan spoke of a Hindu client whose wife recently converted to Islam and whom he is representing in the ongoing divorce proceedings.
His client’s wife had filed for custody of four of their seven children. However, the court granted custody, control and full guardianship of all seven, aged three to 17, to his client.
Manoharan questioned what would happen if the Selangor government succeeds in pushing through the amendment.
“Unless the Federal Constitution is amended to be in line with Indira’s court case, there is no safety for my client’s seven children who are currently Hindus,” he said.
Selangor Menteri Besar Amirudin Shari recently said he intends to continue with the proposed amendment bill in the next state sitting in November “if there is a need to do so”.
This is despite protest from DAP which labelled the bill as unconstitutional.
Amirudin said the state government would consult with all parties and leaders before referring the bill to Selangor’s Sultan Sharafuddin Idris Shah.
Lawyer Lim Wei Jiet agreed that there is basis to Manoharan’s concern.
“If an enactment is passed to allow unilateral conversion, a parent can abuse it by converting the child to Islam,” he told FMT.
“This would exclude the non-Muslim parent from the custody process which some would argue is in the domain of the shariah courts, where non-Muslims have no right of appearance.”
Lawyer Surendra Ananth said the shariah courts would apply the Selangor state Islamic enactment.
He said it is for the civil courts to declare the amendment unconstitutional on the basis that it violates the constitution as construed by the Federal Court in Indira’s case.
“In essence, a declaration is required by the civil courts to invalidate the amendment.
“Until that happens, it is quite likely that the shariah courts will apply the amendment.”