As you may have heard, the Federal Court recently put an end to unilateral conversion of minors in a landmark decision.
M. Indira Gandhi is a mother of three children who were converted into the Muslim faith by her Muslim-convert-ex-husband K. Padmanathan in 2009. The former couple married in 1993 as Hindus. Shortly after his own conversion into the faith, Mr. Padmanathan (now Muhammad Riduan Abdullah) left their family home with the youngest child, Prasana Diksa, who was only 11 months old. The two older children remained with Ms. Indira.
Since then, things started to get a bit weird.
In April 2009, Ms Indira received documents from her ex-husband showing that ALL three of her children had been converted to Islam on 2 April. The Director of Jabatan Agama Islam Perak (JAIP) had issued three certificates of conversion to Islam on her three children. The documents also showed that the Registrar of Muallafs (read: Muslim converts) had registered the children as Muslims.
The Syariah High Court subsequently granted Mr. Muhammad Riduan permanent custody of the three children.
Ms Indira filed an action to the civil courts and was given the full custody over her three children by the High Court in 2010.
What followed was a series of court proceedings which lasted for 9 years.
On 28 January 2018, the Federal Court declared the conversion of Indira Gandhi’s three children null and void, creating a landmark decision for future cases to follow.
You may read the summary of the judgment here.
To make it simpler for you, we listed a few key points from the Federal Court’s recent ruling:
#1 The Registrar of Muallaf have no power to register children who were not present during the conversion.
Under Section 96(1) of the Administration of the Religion of Islam (Perak) Enactment 2004, a person’s conversion to Islam is only valid when:
(i) the person utters, in reasonably intelligible Arabic, the two clauses of the Affirmation of Faith (‘syahadah’);
(ii) at the time of uttering the syahadah, the person is aware that they mean, “I bear witness that there is no God but Allah and I bear witness that the Prophet Muhammad S.A.W. is the Messenger of Allah”; and
(iii) the utterance must be made of the person’s own free will.
Subsection 2 states that anyone who is incapable of speech may utter the syahadah in signs to convey the meaning in 1(ii).
Clearly, none of the children were not present during the conversion and did not recite the syahadah. So the Registrar cannot issue conversion certificates to the children who did comply with the process under Section 96 of the 2004 Enactment.
#2 There needs to be consent from BOTH parents to change the religion of a child.
One of the issues of the case surrounded the interpretation ‘parent’ under Article 12(4) of the Federal Constitution which states that: “…the religion of a person under the age of eighteen years shall be decided by his parent or guardian.”
The question is: A parent? Or parents? Singular or plural? It determines whether ONE parent could decide over a child’s religion or BOTH.
The Federal Court said that Article 12(4) cannot be read literally. Instead, it must interpret the article in such a way that would allow the law to achieve its’ intended purposes.
“Conversion to another religion is a momentous decision affecting the life of a child, imposing on him a new and different set of personal laws. Where a decision of such significance as the conversion of a child; is made, it is undoubtedly in the best interests of the child that the consent of both parents must be sought. The contrary approach of allowing the child to be converted on the consent of only one parent would give rise to practical conundrums.” (Paragraph 153 of the summary judgment.)
The Federal Court also went on to say that parents have ‘…equal rights in relation to the custody and upbringing of the infant children..’ (Paragraph 170) Thus, it is necessary to take into account wishes of both parents.
#3 Article 121(1A) does not restrain the courts from exercising their powers.
This is when we thought the Federal Court was really badass. But before we go further, let’s take a short history lesson.
In 1988, two significant amendments were made to Article 121 of the Federal Constitution. Before the amendment, Article 121(1) used to say that ‘… the judicial power of the Federation shall be vested in’ the High Court. Here, it means that the courts were given powers by the Federal Constitution.
After 1988, the power of the courts became severely limited. Article 121(1) was amended to say that the High Court ‘shall have such jurisdiction and powers as may be conferred by or under federal law.’ This means that courts can only exercise powers given to them by the Parliament.
The amended Article 121 also included subsection (1A) which states that: ‘The courts referred to in Clause (1) shall have NO jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.’
The amendment was only intended to mean that civil courts should not interfere when one party comes before the civil court after losing a case in the syariah courts. However, the Syariah courts’ powers expanded after the amendment — so much so that it appeared as if all syariah matters must not be interfered with by the civil courts.
Fast-forward to 2018, the Federal Court cleared the air on Article 121.
The Court held that the insertion of subsection (1A) into Article 121 does not remove the jurisdiction of the civil courts nor does it grant judicial power on the Syariah Courts. The civil courts remains to have power over judicial review and decide on constitutional matters, including state syariah laws.
“More importantly, Parliament does not have the power to make any constitutional amendment to give such an effect; it would be invalid, if not downright repugnant, to the notion of judicial power inherent in the basic structure of the constitution.” (Paragraph 86)
It also said that the civil courts must it should first examine the nature of the matter before deferring it to the syariah courts. With this development, it should be clearer from now on that judicial power remains with the civil courts.
The ruling may have been a victory for Indira but she has yet to be reunited with her daughter, Prasana.
— Zurairi A.R. (@zurairi) January 29, 2018