PETALING JAYA: An expert in constitutional law has questioned the value of amending the Federal Constitution to make the unilateral religious conversion of children illegal.
Faridah Jalil, a professor at Universiti Kebangsaan Malaysia, said she did not believe that such an amendment would end the polemics on unilateral conversion.
It would also be naive to expect the polemics to end with an amendment to the Selangor enactment to allow for unilateral conversions, she told FMT.
“Rigid legal principles will not end the conflict,” she said and noted that the polemics had continued even after last year’s Federal Court ruling that the unilateral conversion of children is unlawful.
The apex court, in its judgment in the case of M Indira Gandhi, 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 proposed Selangor amendment seeks to change the word to “mother or father”.
Faridah said the law and court proceedings needed to be viewed as recourse offering solutions to issues arising in a dissolution of marriage on the grounds of conversion.
“The best solutions are to mediate and negotiate,” she said.
Faridah was commenting on lawyer M Manoharan’s recent call for an amendment to the Federal Constitution.
Manoharan said he was worried the proposed amendment to the Selangor enactment could supersede the Federal Court case law since issues of conversion to Islam come under the jurisdiction of shariah courts.
He spoke of a Hindu client whose wife recently converted to Islam. A court has granted custody, control and full guardianship of all their children to his client.
If the Selangor government were to push through its amendment, he said, there would be “no safety” for his client’s Hindu children unless the Federal Constitution was amended.
Faridah said Manoharan was unduly concerned.
She said matters regarding custody, guardianship, maintenance and access would be heard in a civil court if the children were born in a civil marriage.
“The religion of children should not come into the picture as they can only decide which religion to follow when they reach the age of majority,” she said.
However, she said the shariah courts would be duty-bound to use the new definition of “parent” in the Selangor state Islamic enactment if they are passed.
Parties will have to initiate action in civil or shariah courts to determine the constitutionality of the amendment, she said.
She said a shariah court could rule that it is not bound to apply a law that is inconsistent with a shariah principle while a civil court could rule that the law is inconsistent with the constitution.
However, she said the process might be prolonged for years, noting that Indira’s case went for 10 years before the Federal Court made its ruling.