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PUTRAJAYA, Dec 30 — The appellate court’s ruling today on unilateral conversions in M Indira Gandhi’s case is a major setback for the country’s religious minorities, a representative of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) said.
Lawyer Philip Koh, who was holding a watching brief for the council, said the decision meant that the spouse in a civil law marriage could unilaterally convert a child without the permission or knowledge of his estranged partner.
“This is a sad day for minority faith communities,” he told reporters after the appellate court delivered its ruling.
Koh said, however, that it was heartening that at least one judge in the three-man panel had disagreed with the unilateral conversions of Indira’s three children by her ex-husband.
The lawyer also expressed disappointment that although non-Muslims are often assured that their rights under the Federal Constitution would be protected, this was more dependant on how jurisprudence is applied by judges.
“It appears now... that this very protection is rendered meaningless, so that a mother of a child can have her baby being taken away and she's not given access to the child for seven years,” he added, referring to Indira’s case.
In a 2-1 decision today, the three-judge panel at the Court of Appeal headed by Datuk Balia Yusof Wahi overturned an Ipoh High Court’s previous ruling that declared unilateral conversions unconstitutional.
The appellate court also ruled that the civil courts have no jurisdiction over the Islamic matter, which it said was solely the purview of the Shariah courts.
Indira had previously secured the 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 others then appealed.
The other judges on today’s panel were Datuk Dr Hamid Sultan Abu Backer and Dr Badariah Sahamid.
In his dissenting view, Hamid Sultan said that the matter was not the jurisdiction of any court, but a mistake that is legally void and made on the part of the religious authority concerned.
He said that for a non-Muslim child to utter the “kalimah syahadah” or Muslim declaration of faith, the minor must apply to the state religious department accompanied by a parent’s consent, which he said did not happen in the case of Indira’s three children.
Hamid Sultan said the certificates of conversion issued were therefore null and void, and did not need deciding by either the civil or Shariah courts.
The court today also unanimously held that Indira's eldest daughter, Tevi Darsiny, who is now 18, was free to determine her faith as an adult.
Indira’s ex-husband, Muhammad Riduan Abdullah (formerly 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.
He also snatched away the youngest child Prasana Diksa, now seven, about six years ago and has kept her away from Indira since.
The other remaining child, Karan Dinish, is now 17.