KUALA LUMPUR, Jan 5 ― The Court of Appeal’s 2-1 decision on a case of unilateral conversion of minors to Islam last Wednesday has sparked fresh debate on the legal avenues of justice available to non-Muslims.
To recap, two judges out of three on the Bench ruled against Hindu mother M. Indira Gandhi, saying the Shariah courts have sole jurisdiction to decide the religious status of her three children unilaterally converted to Islam by their muallaf father.
Here’s a nutshell version of the 34-page majority judgment sighted by Malay Mail Online:
The facts: K. Pathmanathan, a Hindu, embraced Islam on March 11, 2009, and converted all three children on April 2 that same year from his 1993 civil marriage to Indira without her knowledge and consent, and their absence. He obtained temporary custody order and permanent custody order from the Shariah court for all three on April 8 and on September 29.
The parties involved: Appealing against Indira’s 2013 Ipoh High Court victory where the conversion certificates of the three minors were declared null and void are six parties ― the Perak Islamic Religious Department (JAIPk) director, the Registrar of Muallaf, the Perak state government, the Education Ministry, the government of Malaysia and Pathmanathan.
What the Court of Appeal panel’s majority judgment written by Justice Datuk Balia Yusof Hj Wahi and supported by Datuk Dr Badariah Sahamid said:
· No orders made on the conversion of eldest child Tevi Darsiny (aged 12 when the legal challenge first started in 2009), as she has now turned 18 and become an adult and has her own right to decide her religion.
· Does the civil High Court have jurisdiction to deal with conversion to Islam (Indira lost on this ground alone):
― Using the subject matter approach, it is beyond doubt that the issue of whether a person is Muslim or not falls under the Shariah Court’s exclusive jurisdiction. “The determination of the validity of the conversion of any person to the religion of Islam is strictly a religious issue and it falls within the exclusive jurisdiction of the Shariah Court”.
― Cites Federal Court’s 2014 judgment in [Haji Raimi b. Abdullah v Siti Hasnah Vangarama bt. Abdullah] which also involved a minor’s conversion to Islam, where it held that the Shariah Court has exclusive jurisdiction both to decide whether a person professes Islam or not and to decide the validity of the conversion.
― A plain reading of a Perak law gives Shariah courts the exclusive jurisdiction to declare a Muslim person’s status, rules that the Ipoh High Court’s declaration that the three children’s conversion is null and void had transgressed these provisions.
― Cites Section 50 (3)(b)(x) and (xi) of Administration of Religion of Islam (Perak) Enactment 2004 that when put together states: The Shariah High Court shall in its civil jurisdiction, hear and determine all actions and proceedings of all the parties to the actions or proceedings are Muslims and the actions and proceedings relate to:
― a declaration that a person is no longer a Muslim; a declaration that a deceased person was a Muslim or otherwise at the time of his death.
― Says the High Court judge had erred in using the remedy approach to decide on the constitutionality of conversion process and interpret the fundamental liberties provisions in the Federal Constitution, instead of using the subject matter approach.
― Allowing the High Court to review matters within exclusive powers of Shariah Court breaches the Federal Constitution’s Article 121 and is inconsistent with judicial review principles
― The Court of Appeal said the pivotal issue is not whether or not the Majlis Agama Islam (Islamic religious council) has jurisdiction, but whether High Court has jurisdiction, further saying that the subject matter of conversion to Islam in Indira’s case is clearly outside the latter’s legal competency.
― Implies that the fact that the non-Muslim Indira would have no remedy in the Shariah courts would not by itself give the civil courts jurisdiction: “In addition, the lack of remedy for the Respondent cannot ipso facto confer jurisdiction on the High Court.”
· Certificates of conversion to Islam
― By declaring the three children’s certificates of conversions null and void due to failure to comply with Section 96 and Section 106 of the Perak enactment, the Ipoh High Court overlooked Section 101 which states the certificates as conclusive proof of the facts stated there. Cites Court of Appeal’s 2007 judgment in [Saravanan Thangatoray v Subashini Rajasingam & Another Appeal], which dealt with a similar provision in a Selangor law.
― “In our view, in the absence of any evidence to the contrary and in the absence of any challenge to the said certificates which must be done or taken in the Shariah Court, the said certificates remain good.”
― Certificate which states conversion as having been recorded in Register of Muallafs indicates that conversion must have been done to satisfaction of the Registrar, with the Court of Appeal saying that the stated validity of the recorded conversion should be accepted by the civil court: “As such we are of the view that the High Court has to accept the facts stated therein and it is beyond the powers of the learned JC to question the same.”
― High Court has no business to consider whether the conversion requirements under Section 96 and Section 106 were violated, as it has no powers to go into issue of the validity of conversion to Islam that falls within the exclusive jurisdiction of the Shariah courts.
· Single parent's right to convert child without consent of wife
― High Court ruled that the non-Muslim Indira’s constitutional rights under Article 11 of the Federal Constitution would be deprived as she would not be able to teach her children the tenets of her faith, but Court of Appeal said “that cannot be so” and said the High Court erred in declaring conversion illegal based on this point.
― High Court ran foul of Federal Court’s judgment in [Subashini], where the latter ruled that Article 12(4) (on the decision of a minor’s religion by a parent or guardian) does not give the right on choice of religion of children below 18 in both parents.
― “The exercise of the right of one parent under Article 12(4) cannot and shall not be taken to mean a deprivation of another parent's right to profess and practice his or her religion and to propagate it under Article 11 (1) of the Federal Constitution.”
· Did conversion of Indira's three children violate international norms and conventions?
― High Court said the preferred interpretation of “parents” in Article 12(4) is the one that best promotes commitment to international norms and enhance basic human rights, in a nod to the Universal Declaration of Human Rights (UDHR), the Convention on Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
― International treaties do not form part of Malaysian law unless those provisions have been incorporated by Parliament into local laws, cites a 2011 judgment where the Federal Court said that international norms should not be used as a guide to interpret the Federal Constitution.
― Cites a 1981 judgment where UDHR was said to be merely a statement of principles that is not legally binding as it is not part of Malaysian laws and a 2014 judgment where the Court of Appeal said the CEDAW has no force of law in Malaysia as it has not been made part of local laws.
― Although the Federal Constitution is not to be interpreted in a narrow way, the Court of Appeal said it is not free to “stretch or pervert the language of the Constitution” in the interest of any legal or constitutional theory, and also said it is not a tribunal to decide if a local law goes against general acknowledged principles of international law. “For us, the Federal Constitution is supreme and we are duty bound to give effect to its terms.”
― High Court’s approach of sticking closely to the standard of international norms in interpreting the Federal Constitution is not in tandem with the accepted principles of constitutional interpretation.
Appeal of six parties against Indira allowed. High Court’s order in favour of Indira set aside, with no orders as to cost.
To read Malay Mail Online’s highlights of the dissenting Court of Appeal judge Datuk Dr Hamid Sultan Abu Backer’s judgment, go to this link.