KUALA LUMPUR, May 19 ― Hindu mother M. Indira Gandhi's bid at the Federal Court today to annul her children’s unilateral conversions is one woman’s ordeal that will have far-reaching effects on Malaysians in a similar dilemma.
In and out of courts for years, Indira is seeking finality over the religious status of her three children who were covertly converted to Islam by her Muslim ex-husband in 2009 without their knowledge or their presence.
“At last, finally once and for all, I can know the status of my children. It's been dragging for too long,” the Ipoh-based kindergarten teacher told Malay Mail Online when contacted ahead of today's hearing for leave to appeal.
Indira and her children have been on a legal roller coaster, from the Ipoh High Court ruling in 2013 that nullified the unilateral conversions to the Court of Appeal’s 2-1 ruling in December that only the Shariah courts could decide on the validity of conversions to Islam.
Just children when the case began in 2009, Indira’s eldest daughter Tevi Darsiny is now an adult at 19 while her brother Karan Dinish turns 18 in October; both will be old enough to decide their own faiths. Prasana Diksa’s location remains unknown after being snatched by the ex-husband seven years ago.
“We need a permanent solution for this. And they are growing children, they need a life to go on, they can't be stuck and then now we are not sure whether they are still Muslims or still Hindus, we are in the middle of nowhere,” Indira said.
Non-Muslims shut out from the civil justice
Should the Federal Court deny Indira leave to appeal, her lawyer M. Kulasegaran said non-Muslims in similar cases would effectively be left without remedy from the civil courts.
“Then it will be a case where anybody who has been converted because a conversion certificate was given without [his] knowledge, when he wants to challenge, he has to go to the Shariah courts,” he said, arguing that it was unreasonable to force non-Muslims to go to Shariah courts to cancel wrongly issued conversion documents.
Stressing the importance of allowing non-Muslims to challenge the validity of their conversion certificates in the civil courts, Kulasegaran said this was a novel point of law that Indira was bringing before the Federal Court.
All including Muslims will have a right and avenue to argue their case at the civil courts, he said, noting that all parties will have the opportunity to fully ventilate the relevant issues if the Federal Court grants Indira leave to appeal.
Indira has filed eight questions of law for the Federal Court to consider.
A nation's chance at having conclusive answers
Civil liberties lawyer Aston Paiva said that beyond the fate of Indira's children, this case will be the first time the Federal Court is given a chance to deal with state Islamic laws related to conversion and the conversion process.
“That's the one thing that no other courts have dealt with it before, what is the conversion process - these are laws, nothing to do with Islam ― what you need to do to become Muslim and if you don’t do it, who can decide, the Shariah court or the civil court.
“It's not a religious issue, it's an issue of whether the preconditions have been met, it's an issue of compliance with the laws,” Aston said.
Aston said the Indira’s case also deals with whether a government can convert someone without their consent, noting the current “dangerous precedent” stated this was permissible.
“That cannot be the case because the remedy is in the Shariah court where the non-Muslim will be subject to Islamic laws,” he said when expressing disagreement with the current legal position based on the Court of Appeal’s majority ruling in Indira’s case.
Noting that unilateral conversions were “happening over and over again” in Malaysia, Aston said Indira’s case was also crucial as it raises the question of the effect of such conversions on interfaith relations.
Firdaus Husni, a former co-chair of the Bar Council's constitutional law committee, said Indira's “heart-breaking” story involves many important constitutional issues that the Federal Court would have the opportunity to determine if Indira is granted leave to appeal.
“For example, Article 121(1A) of the Federal Constitution relied on by some to exclude the jurisdiction of the civil courts from all cases concerning the religion of Islam, even when one party to a dispute is a non-Muslim, over which the Syariah courts have no jurisdiction. Many have argued that this cannot be the correct position,” she said.
Others include the interpretation that a single parent could determine his children’s religion, and the right of non-Muslims to practise their faith in peace.
