Attorney-general Abdul Gani Patail's proposal to intervene in interfaith custody disputes will not resolve the matter as long as the political leadership lacks the courage to amend the laws, according to a legal expert.
Veteran lawyer Muralee Menon (left), a Muslim convert himself, said unless the federal constitution and existing federal and state laws are amended to curb unilateral conversion of minors, the AG is headed for a brick wall.
He noted that Prime Minister Najib Abdul Razak, who was previously said to be looking into the amendments, could be worried about an electoral backlash.
"I understand Najib may feel that such amendments could be detrimental as he may lose Malay and Muslim support.
"But it is this move (amending the laws) which could help resolve the deadlock (once and for all)," he told Malaysiakini.
The merits of Muralee's argument is strengthened by the fact that the last general election proved that the ruling coalition is dependent on Malay voters for its continued survival.
To antagonise them could prove to be political suicide for Najib and Umno.
In the past, there have been interventions made by the AG's Chambers in the cases of R Subashini vs T Saravanan and S Shamala vs Dr M Jeyaganesh, without much effect.
Muralee, who is familiar with such cases, said that apart from the federal constitution, the Law Reform (Marriage and Divorce) Act 1976, the Guardianship of Infants Act and various state Islamic enactments must be amended.
"I am afraid the AG's Chambers' application to intervene would not help resolve anything unless and until the existing laws and the federal constitution are amended.
"When I appeared for my client Jeyaganesh in the S Shamala case, there were talks that the government under Abdullah Ahmad Badawi and also under Najib would look into the problem of unilateral conversion and amend existing laws.
"However, after that case, many years have passed and such amendments have yet to be tabled," he added.
In 2009, the cabinet issued a directive to bar unilateral conversion of minors but the issue continues to persist.
Muralee said the present position of the law is that it gives the right to a parent to unilaterally convert their underage children without the consent of the other as this is recognised in the various enactments of some states.
Furthermore, he said the Federal Court's decision in the R Subashini vs T Saravanan case had provided an interpretation of Article 12 (4) of the federal constitution which states the religion of a person under 18 is determined by his or her parent or guardian.
In that judgment then Federal Court judge Nik Hashim Nik Abdul Rahman interpreted the definition of “parent” as "either husband or wife having the right to convert a child of the marriage to Islam. The word 'parent' in Article 12(4) of the federal constitution, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent."
This Federal Court decision, Muralee said, is unfortunately binding on all courts.
He said at present, several state Islamic laws recognised that children can be converted by one parent, and herein lies the problem such as in the cases of S Deepa in Seremban and M Indira Gandhi in Ipoh.
No official BM translation
Muralee said there is no known official translation of the federal constitution in Bahasa Malaysia and this compounded the problem further regarding the interpretation of the term "parent".
Malaysian Bar president Christopher Leong had also agreed that unilateral conversion is not proper and the definition of "parent" under Article 12 (4) has been misconstrued.
He said unilateral conversion of minors to any religion by one parent, without the knowledge or consent of the non-converting parent, creates social injustice and violates the rights of the non-converting parent.
He added that it was wrong for the authorities to apply the word "parent" in the BM translation of the constitution, where it is stated "ibu atau bapa" (mother or father) as opposed to "ibu bapa" (father and mother).
The word "parent", Leong said, although singular, referred to both the child's parents, as accorded in the Eleventh Schedule of the constitution.
Muralee said to resolve the long-standing dispute, he proposed the definition of "parent" in the constitution to be refined, and the various state enactments be changed to include permission from both parents to convert a minor to resolve the long-standing dispute.
He said besides getting the necessary nod from the legislature, it also needed the approval of the Yang di Pertuan Agong and the Conference of Rulers, as Islam is within the states' jurisdiction.
He pointed out that there are also problems with Section 51 of the Law Reform Act which was poorly drafted and this too must be addressed.
Veteran lawyer Muralee Menon (left), a Muslim convert himself, said unless the federal constitution and existing federal and state laws are amended to curb unilateral conversion of minors, the AG is headed for a brick wall.He noted that Prime Minister Najib Abdul Razak, who was previously said to be looking into the amendments, could be worried about an electoral backlash.
"I understand Najib may feel that such amendments could be detrimental as he may lose Malay and Muslim support.
"But it is this move (amending the laws) which could help resolve the deadlock (once and for all)," he told Malaysiakini.
The merits of Muralee's argument is strengthened by the fact that the last general election proved that the ruling coalition is dependent on Malay voters for its continued survival.
To antagonise them could prove to be political suicide for Najib and Umno.
In the past, there have been interventions made by the AG's Chambers in the cases of R Subashini vs T Saravanan and S Shamala vs Dr M Jeyaganesh, without much effect.
Muralee, who is familiar with such cases, said that apart from the federal constitution, the Law Reform (Marriage and Divorce) Act 1976, the Guardianship of Infants Act and various state Islamic enactments must be amended.
"I am afraid the AG's Chambers' application to intervene would not help resolve anything unless and until the existing laws and the federal constitution are amended.
"When I appeared for my client Jeyaganesh in the S Shamala case, there were talks that the government under Abdullah Ahmad Badawi and also under Najib would look into the problem of unilateral conversion and amend existing laws.
"However, after that case, many years have passed and such amendments have yet to be tabled," he added.
In 2009, the cabinet issued a directive to bar unilateral conversion of minors but the issue continues to persist.
Muralee said the present position of the law is that it gives the right to a parent to unilaterally convert their underage children without the consent of the other as this is recognised in the various enactments of some states.
Furthermore, he said the Federal Court's decision in the R Subashini vs T Saravanan case had provided an interpretation of Article 12 (4) of the federal constitution which states the religion of a person under 18 is determined by his or her parent or guardian.
In that judgment then Federal Court judge Nik Hashim Nik Abdul Rahman interpreted the definition of “parent” as "either husband or wife having the right to convert a child of the marriage to Islam. The word 'parent' in Article 12(4) of the federal constitution, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent."
This Federal Court decision, Muralee said, is unfortunately binding on all courts.
He said at present, several state Islamic laws recognised that children can be converted by one parent, and herein lies the problem such as in the cases of S Deepa in Seremban and M Indira Gandhi in Ipoh.
No official BM translation
Muralee said there is no known official translation of the federal constitution in Bahasa Malaysia and this compounded the problem further regarding the interpretation of the term "parent".
Malaysian Bar president Christopher Leong had also agreed that unilateral conversion is not proper and the definition of "parent" under Article 12 (4) has been misconstrued.
He said unilateral conversion of minors to any religion by one parent, without the knowledge or consent of the non-converting parent, creates social injustice and violates the rights of the non-converting parent.
He added that it was wrong for the authorities to apply the word "parent" in the BM translation of the constitution, where it is stated "ibu atau bapa" (mother or father) as opposed to "ibu bapa" (father and mother).
The word "parent", Leong said, although singular, referred to both the child's parents, as accorded in the Eleventh Schedule of the constitution.
Muralee said to resolve the long-standing dispute, he proposed the definition of "parent" in the constitution to be refined, and the various state enactments be changed to include permission from both parents to convert a minor to resolve the long-standing dispute.
He said besides getting the necessary nod from the legislature, it also needed the approval of the Yang di Pertuan Agong and the Conference of Rulers, as Islam is within the states' jurisdiction.
He pointed out that there are also problems with Section 51 of the Law Reform Act which was poorly drafted and this too must be addressed.
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