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Written by Janice Chuah
Case Facts
This case involves a contentious issue of religious conversion. Indira Gandhi (‘the Appellant’) is a Hindu mother of three children. Her then husband, Muhammad Riduan Abdullah, formerly known as K Pathmanthan (‘the Respondent’) converted the three children to Islam without the Appellant’s knowledge, after he obtained a permanent custody order on the 29th of September 2009 from the Syariah Court. In response, the Appellant filed a Judicial Review application for an order of certiorari to quash the conversion, on the ground that the issuance of certificates of conversion by the Registrar of Muallaf was ultra vires and illegal. Meanwhile, the Appellant filed an application for custody of the three children in accordance with Section 88 of Law Reform (Marriage and Divorce) Act 1976 (‘LRA 1987’) and a petition for divorce on the ground of the Respondent’s conversion to Islam under Section 51 of LRA 1987. The divorce was permitted on the 8th of August 2012 and the custody was granted by the High Court.
High Court (HC)
The HC found in favour of the Appellant, quashing the certificates of conversion and granted her custody of the three children. The HC also ordered the Respondent to deliver the youngest child to the Appellant immediately.
Court of Appeal (COA)
The COA overruled the HC decision and held that religious conversion was a matter exclusively for the Syariah Court to decide.
Federal Court
The Federal Court unanimously finds in favour of the Appellant and voids the children’s certificates of conversion.
Issues of Law
The Federal Court had granted leave for the subsequent questions of law :-
1. Whether the High Court has the exclusive jurisdiction pursuant to Sections 23, 24 and 25 and the Schedule of the Courts of Judicature Act 1954 (read together with Order 53 of the Rules of Court 2012) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004.
2. Whether a child of a marriage under the Law Reform (Marriage and Divorce) Act 1976 (“a civil marriage”) who has not attained the age of eighteen years must comply with both Sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (or similar provisions in State laws throughout the country) before the Registrar of Muallafs or his delegate may register the conversion to Islam of that child.
3. Whether the mother and the father (if both are still surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam can be issued in respect of that child.
Reasonings of the Federal Court
The court emphasises that the determination of the present appeals does not involve the interpretation of any Islamic personal law or principles. The subject matter in this application does not concern with the status of the Appellant’s children as Muslims converts or with the question of Islamic personal law and practice, but rather with the question of the legality and constitutionality of administrative action taken by the Registrar of Muallaf in the exercise of his statutory powers. Since the Appellant is a non-Muslim, she has no locus to appear before the Syariah Court for the present application and the Syariah Court does not have the power to expand its own jurisdiction to choose to hear the Appellant’s application.
Moreover, there is undisputed evidence that the requirement in Section 96 of the Administration of the Religion of Islam (Perak) Enactment 2004 was not fulfilled prior to the conversion. Hence, it was held that the Registrar wrongly interpreted the limits of his power and acted beyond its scope.
The Federal Court also took a purposive interpretation of Article 12(4), which states that ‘the religion of a person under the age of eighteen years shall be decided by his parent or guardian’, as requiring the consent of both parents. The court held that the reason ‘parent’ is used in art 12(4) is to provide for a situation where indeed there is only one parent of the child, but where both parents exist, 11th Schedule of the Constitution shall be relied on, which provides for singular terms to include the plural.
The court answers all three questions in the affirmative.
What happens next?
This is a landmark case in the Malaysian constitutional jurisdiction. This case was dragged on for more than a decade and till this day Indira Gandhi could not locate her youngest daughter who is now 13-years-old. She was taken away by Muhammad Riduan when she was 11-months-old. Indira Gandhi decides to file a civil suit against the Inspector-General of Police (IGP) and three others over the authorities’ alleged failure to arrest her ex-husband and bring back her daughter who was abducted by him. The High Court dismissed a striking out application by IGP, Royal Malaysia Police, Home Ministry and the government to strike out Indira Gandhi’s suit. [1] However, the IGP and government have filed an appeal against the High Court’s decision. We shall all continue to keep an eye out on how this civil suit progresses.