Putrajaya's plan to amend the Law Reform (Marriage and Divorce) Act 1976 to prevent unilateral conversion of a child's religion is unconstitutional, the Muslim Lawyers Association says.

In a statement today, association president Zainul Rijal Abu Bakar said the matter must be understood within the context of the Federal Constitution.

"Article 12(4) of the Federal Constitution states that the religion of the child below 18 years old is determined by the parent or guardian.

"In the R Subashini vs T Saravanan case at the Federal Court, Article 12(4) was interpreted to mean either the father or mother or guardian can determine the religion of the child below 18 years old.

"Hence, any law that requires both parents to agree to determine the religion of the child below 18 is unconstitutional and risks being declared null and void," Zainul Rijal said.

A step backwards

He said the proposed amendments would also contradict the Administration of Islam (Selangor) Ordinance 1952 and Administration of Islamic religion (Selangor) Enactment 2003.

The ordinance states that when someone embraces Islam, their children will automatically be Muslims, while the enactment stipulates the need to register a child's conversion to Islam after either the mother or father had converted to Islam.

"However, with the new legislation introduced requiring the permission from both parents to agree, it is not only against the Federal Constitution but for Muslims it is a step backwards - from automatically becoming Muslims (for the children) as various conditions are now imposed," he said.

The religion of the child below the age of 18, Zainul Rijal said, should be viewed differently from the issue of guardianship as under Islamic law, a non-Muslim mother is allowed to look after the underage child.

"Hence, the position of the religion of the child below the age of 18 should be maintained according to the present practice as it is consistent with the Federal Constitution," he argued.

Constitutional position of Islam

Zainul Rijal also warned that the amendments may have a retrospective effect and would have legal implications on past court cases and ongoing cases.

"There are many court cases decided and the effect of the amendment will only undermine the decision made by the courts.

"It is rare for such retrospective effect be implemented in the amendment of the law as it would make something legal becoming illegal. Such approach should be avoided," Zainul Rijal said.

He added that the proposed amendments appear to contravene Article 3(1) of the Federal Constitution, which recognises Islam as the religion of the federation.

"Is Article 3(1) of the Federal Constitution, which recognises Islam as the religion of the federation and that of the state constitutions, besides Sarawak, a mere decorative piece that does not have any legal meaning?" he asked.

He said Putrajaya must iron out constitutional issues first and not just amend the Law Reform (Marriage and Divorce) Act 1976 as it would cause more disputes.

Meanwhile, Zainul Rijal said his association supports amendments that will allow converts to file for divorce at the civil courts, as they are not able to do so under the present legislation.