Only one parent's consent needed for child’s religious conversion, Federal Court told

File picture shows M. Indira Gandhi speaking to reporters with lawyers M. Kulasegaran and Aston Paiva (right). — Picture by Melissa Chi
File picture shows M. Indira Gandhi speaking to reporters with lawyers M. Kulasegaran and Aston Paiva (right). — Picture by Melissa Chi

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PUTRAJAYA, Nov 30 — The consent of one parent is sufficient for a child to be converted to another religion, the Federal Court heard today in a high-profile dispute on the validity of three Hindu children's unilateral conversion to Islam.

Senior federal counsel Arik Sanusi Yeop Johari, who acted for the Malaysian government, cited four dictionaries and the Federal Constitution's treatment of the word “parent” to back his argument that the consent of both parents were not required.

“In all these four dictionaries, the ordinary meaning of the word parent without 's' has been defined to mean 'a father or a mother,” Arik Sanusi, who is also the director of the Shariah section in the Attorney-General's Chambers, told the court.

He referred to the Concise Oxford English Dictionary, the Osborn's Concise Law Dictionary, the Reader's Digest Great Dictionary of the English Language and Shorter Oxford English Dictionary, saying: “Based on the above references, we submit 'parent' in its singular form means father or mother, 'parent' in its plural form means father and mother.”

He was presenting his arguments at the Federal Court's hearing of Hindu mother M. Indira Gandhi's challenge of the validity of her Muslim convert ex-spouse Muhammad Riduan Abdullah's unilateral conversion of their children to Islam.

Arik Sanusi agreed that Article 160 of the Federal Constitution read together with section 2(95) of the Eleventh Schedule ― which states that “words in the singular include the plural” and “words in the plural include the singular” ― meant that words could be interpreted either way.

But he insisted that the Federal Constitution distinguishes between the words “parent” and “parents”, highlighting two separate provisions there.

He noted the Federal Constitution's Article 12(4) says a “parent or guardian” shall decide the religion of those aged below 18 years old, while Part I and Part II of the constitution's second schedule regarding Malaysian citizenship used the word “parents”.

Arik Sanusi also cited the Federal Court's 2008 decision in the case of Subashini Rajasingam v Saravanan Thangathoray, which he said decided that the word “parent” is singular and that the Muslim convert father's unilateral conversion of his child is valid and in accordance with Article 12(4).

When asked how his argument that the consent of one parent alone for child conversion could be consistent with the Indira's lawyers' contention that the Guardianship of Infants Act meant the wishes of both parents should be considered, Arik Sanusi said the Federal Constitution should be referred to as it is the supreme law and pointed to Subashini's case.

“So on this point, since the word parent has been interpreted by the Federal Court to be singular, we should not rely on interpretation in other legislation. That's the purpose of Article 4 (of the Federal Constitution) where the Constitution is supreme,” he said.

K. Shanmuga, who represented Indira, argued however that all laws should be read harmoniously ― including Guardianship of Infants Act, the interpretation rule under the Federal Constitution's Eleventh Schedule, the Constitution's Article 12(4), Articles 5, 8 and 11 which among others guarantees equality and bars gender discrimination.

“We read all that against the backdrop of the Guardianship of Infants Act, it leads to the conclusion that both parents must consent unless they have been stripped of their guardianship rights,” he said.

Summing up the arguments for Indira, Shanmuga said the civil courts have jurisdiction to hear the challenge against the validity of the Perak religious authorities' conversion certificates and that the conversions must have complied with a Perak Islamic state law's requirements.

“And if both parents are alive, as long as there's no order under Guardianship of Infants Act or Law Reform (Marriage and Divorce) Act stripping my client of her guardianship rights, as long as her guardianship rights are intact under Guardianship of Infants Act; then her consent is necessary before the certificates can be issued,” he said.

Fahri Azzat, another lawyer for Indira, said that interpreting “parent” to be the singular form only would lead to “absurdity” and an environment of “anxiety and tension” with no peace in the family.

He highlighted the High Court judgment in Indira's conversion challenge which said that such interpretation would lead to a never-ending chain of a parent unilaterally converting a child, before the other parent unilaterally converts the same child to another religion.

Indira's lawyer Aston Paiva also noted that her three children had not uttered the Muslim affirmation of faith and that there was no consent in writing from Muhammad Riduan for their conversion ― both which are required under the Administration of the Religion of Islam (Perak) Enactment 2004.

Indira is appealing against Muhammad Riduan’s covert conversion in 2009 of their three children — then aged 12 years old, 11 years old, and 11 months old — without their knowledge and without Indira’s consent.

Chief Judge of the High Court of Malaya Tan Sri Zulkefli Ahmad Makinudin, who chaired the five-man panel, said the decision will be delivered along with the full grounds of the judgment at a later date.

The other judges on the Federal Court panel are Chief Judge of the High Court of Sabah and Sarawak Tan Sri Richard Malanjum, Tan Sri Abu Samah Nordin, Tan Sri Ramly Ali and Tan Sri Zainun Ali.

In her legal challenge against the children’s unilateral conversion, Indira had named the Perak Islamic Religious Department (JAIPk) director, the Registrar of Muallaf, the Perak state government, the Education Ministry, the government of Malaysia and Indira’s ex-husband K. Pathmanathan as respondents.

Indira’s appeal is against the Court of Appeal’s 2-1 ruling last December, in which it said only the Shariah courts have the jurisdiction to decide on the validity of a person’s conversion.

The Court of Appeal had set aside the Ipoh High Court’s 2013 judgement, which found that the three children had not been validly converted to Islam and declared their conversion certificates null and void.

Indira’s eldest daughter Tevi Darsiny and son Karan Dinish are now aged 19 and 18 respectively, while the third child Prasana Diksa now aged eight is with Muhammad Riduan who had snatched her shortly before unilaterally converting the trio in 2009.

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