PETALING JAYA: A prime minister in a parliamentary democracy should persuade the MPs to support amendments to laws and the constitution to achieve social justice, a retired judge said.
Gopal Sri Ram said elected representatives would support such amendments that benefited the public.
“If it is a hostile amendment, not all MPs will support it,” he said, citing changes in law to give more powers to the executive and incursion on citizens’ rights.
Sri Ram, who retired as a Federal Court judge, said this in response to Najib Razak’s statement that a ban on unilateral child conversion would require a two-thirds majority vote in the Dewan Rakyat to change the Federal Constitution.
The prime minister’s remark was in reaction to a request by a non-governmental organisation, which had asked during a TN50 dialogue for women held last night, for Section 88A(1) of the Law Reform (Marriage and Divorce) Act (LRA) to be tabled in the next Parliament sitting.
Section 88A(1) specifically states that if a parent converts to Islam, the religion of the children remains the same as when the couple were married, unless both parents agree to the conversion of their children.
However, the bill was withdrawn after the government said Section 88A(1) might go against the spirit of the constitution.
Other amendments to the LRA were, however, passed including a provision for the convert spouse to be brought to a civil court on other family matters.
Former de facto law minister Zaid Ibrahim said Najib simply wanted a two-thirds majority for Barisan Nasional, and had no political will to end the misery caused as a result of unilateral conversion by a spouse who embraced Islam.
“If he had approached the opposition bench and sought bipartisan support to amend the constitution, then we would have reason to believe him,” he said.
Sri Ram said constitutionally, there was no division of MPs along party lines and Article 40 (2) (a) was a clear illustration as the prime minister is appointed by the king who in his judgment is likely to command the confidence of the majority MPs.
“In a hypothetical situation even an independent MP, who commands the support of the majority, could be appointed prime minister,” he said.
Sri Ram said in reality the MPs were constituent representatives and were identified in the Dewan Rakyat according to the seats they had won in the election.
He said there was no need for a constitutional amendment for now since the Federal Court would determine the issue in the case of kindergarten teacher M Indira Gandhi on whether a parent can unilaterally convert their children.
In Indira’s case, she is challenging the validity of the conversion certificates of the Perak state religious authorities.
Her ex-husband K Pathmanathan, who has taken the name Muhammad Riduan Abdullah following his conversion, had unilaterally changed the religion of their three children in 2009.
The Federal Court, which completed hearing parties to the dispute in November last year, will also decide whether the civil court or shariah court is the right forum to rule on conversion cases.
Indira’s case is much awaited as to how the apex court will interpret Article 12(4) of the constitution.
Indira’s lawyers have argued that the consent of both parents is needed when a spouse converts the children of a civil marriage to Islam.
Meanwhile, the federal and Perak governments have submitted that a majority Federal Court ruling, in the case of Subashini Rajasingam v Saravanan Thangathoray, had opined that a single parent could convert a child who is aged below 18.
Lawyer Ravi Nekoo said that pronouncement was only a passing remark (obiter dictum) and was not a central issue that was up for discussion before the apex court in 2007.
The judges held the view that the word “parent” was “a single parent” and it follows that either spouse has the right to convert a child of marriage to Islam.
However, lawyers and the Malaysian Bar have argued that the 11th Schedule of the constitution provides that in interpreting the supreme law of the land, “words in the singular include the plural, and words in the plural include the singular”.