KUALA LUMPUR, Dec 30 — Today’s Court of Appeal deferment to the Shariah Court in M. Indira Gandhi’s case effectively means non-Muslims are left in legal limbo when challenging unilateral conversions of their children to Islam, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) said today.
MCCBCHST vice-president Jagir Singh criticised the Court of Appeal’s majority ruling today, where the civil court’s judges said only the Shariah courts can decide on the religious status of a Hindu mother’s children who were unilaterally converted by their Muslim convert parent.
“By pushing conversion cases to the Shariah courts the Court of Appeal appears to have abdicated its duty. It is akin to say, yes, you have a right but have no remedy,” the MCCBCHST immediate past president told Malay Mail Online when contacted for comments.
Jagir, who is also a lawyer, questioned how a Shariah Court, which only has jurisdiction over Muslims, can dispense justice to non-Muslims.
“About 20 years ago, it was the civil court who were hearing all conversion cases. This was correctly so as the Shariah court have no jurisdiction over non-Muslims and non-Muslims cannot appear as witnesses in a Shariah Court.
“Therefore, how is a Shariah court going to administer justice as it will not have the evidence of the non-Muslim parties involved in the case?” he asked.
Jagir said the Court of Appeal’s ruling today will not solve the predicaments faced by the spouse that had not converted to Islam, such as Hindu mother M. Indira Gandhi in today’s case.
“In fact the problem will be compounded in the future. Since the majority decision appears to have ignored the rights of the non-converting spouse, the problems arising from such conversions will persist in the future,” he said.
“It is a genuine fear that the majority decision allowing a unilateral conversion of child by one parent will open floodgates to abuse,” he also said in his statement.
Jagir said the Court of Appeal’s majority ruling in Indira’s case “has cast a dark cloud on fundamental rights including freedom of religion”, highlighting that the Federal Constitution was drafted with the expectation that the judges would “vigorously enforce” its provisions including its supremacy as law.
“Today’s majority decision shows that the Constitution’s provisions have been ignored and a very wide interpretation to Islamic law has been given,” he said, noting that laws on Islamic matters had until now been confined to List II of the Constitution’s Ninth Schedule.
Jagir said the MCCBCHST is “saddened” that a 2009 Cabinet decision against the conversion of a child by a single parent has been rendered illusory, insisting that Putrajaya roll out laws that would require both parents’ consent before an underaged child can be converted.
“The MCCBCHST is also saddened that the Cabinet decision that was made on 23/09/2009 and reported in papers on 24/09/2009 that “a single parent cannot convert a child of marriage” and that a marriage solemnised in a civil registry must be annulled by the civil courts with the appropriate remedies being given, was illusory.
“This decision of the majority of the Court of Appeal is unjust to the non-converting spouse, the MCCBCHST therefore calls on the Cabinet to put an end to this kind of abuse by parties and to introduce clear laws to say that both parents must consent to conversion of minors of the marriage.
Jagir voiced support for the sole dissenting Court of Appeal judge today, Datuk Hamid Sultan Abu Backer, who had said that the Muslim conversion of Indira’s three children is invalid as the legal requirements were not complied with.
“We support the minority view that the procedure should have been complied with as required by the state enactment. Since it has not been complied with, the conversion should have been held null and void,” he said.
Earlier today, a Court of Appeal panel headed by Datuk Balia Yusof Haji Wahi reversed a lower court’s order that had quashed the unilateral conversion of Indira’s three children to Islam, which represents a critical blow to the Hindu mother’s legal battle against her Muslim ex-spouse.
Indira had secured a Ipoh High Court order to quash the unilateral religious conversion of her three children in 2013, which the Perak Islamic Religious Department (JAIPk) and five other government bodies then appealed.
Indira’s ex-husband, Muhammad Riduan Abdullah (formerly known as K. Pathmanathan), had in 2009 converted the couple’s three children — then aged 12 years old, 11 years old, and 11 months old — to Islam without their presence or Indira’s knowledge, just six days before he obtained a custody order for all three in the Shariah court on April 8, 2009.
Muhammad Riduan had also snatched away the youngest child Prasana Diksa in 2009 - now aged seven - and kept her away from Indira since then, despite the latter winning custody of all three children in the civil courts.