After nine long years, Indira Gandhi’s challenge against the unilateral conversion of her three children to Islam has finally drawn to a close. MCCHR interns Sarah and Max were at the Federal Court on 29 January 2018 and this is their summary of the Federal Court’s decision. The full grounds of judgement of the Federal Court can be found here and the judgement of the President of the Court of Appeal, Zulkefli Ahmad Makinudin can be found here.
Prior to the delivery of the Federal Court’s judgment, Justice Zulkefli Ahmad Makinudin (PCA) referred to the words once spoken by the late Tun Suffian:
“In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgement with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.”
These words were reflected in the reasoning of the decision delivered by the Federal Court, which emphasised freedom of religion, the rights of a child, equality of parental rights, and fundamentally, the intrinsic principles underlying the Federal Constitution, the separation of powers, the rule of law, and the protection of minorities.
Three questions were referred to the Federal Court in November 2016. A summary of the decision of the Federal Court is as follows:
The High Court has jurisdiction to hear judicial review applications and constitutional/statutory interpretations
At the outset, the Federal Court clarified that the appellant was not challenging the conversion of her children, but the legality of the administrative power exercised by the Registrar of Muallaf under the Perak Enactment.
Significantly, the Federal Court held that the inherent supervisory power of judicial review is essential to the role of civil courts as a check and balance mechanism. Under Article 121(1) of the Federal Constitution, judicial power is vested exclusively in the civil High Courts, and these courts will continually engage in the interpretation of all laws. The Federal Court affirmed that judicial power is fundamental to the underlying principles of the Constitution and is inherent in the basic structure of the Constitution. Hence, this power cannot be revoked or altered by Parliament by way of constitutional amendment.
As to the jurisdiction of the Syariah Courts, the Federal Court held that Article 121(1A) does not oust the jurisdiction of the civil courts, and both civil and Syariah courts co-exist in their respective spheres. For the Syariah Courts to have jurisdiction over a particular matter, it must be expressly provided for by the state legislature and this does not extend to judicial review. Where there are questions of constitutionality or statutory interpretation, civil courts must determine such matters, regardless of whether the subject-matter relates to Islamic law.
The Court observed that the core of the subject-matter in this case is not the status of the appellant’s children as Muslim converts, but the question of the legality and constitutionality of the administrative action taken by the Registrar of Muallaf in the exercise of his statutory powers in compliance with sections 96 and 106 of the Perak Enactment.
Registration of conversion to Islam of a child of a civil marriage must comply with sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004
The Federal Court held that the requirements in sections 96(1) and 106(b) of the 2004 Enactment must be complied with in a person’s conversion to Islam; this is independent of the applicant’s age. Since the utterance of faith required by section 96(1) was not fulfilled, the Federal Court held that the issuance of the certificate of conversion by the Registrar of Muallaf was ultra vires and the certificates are null and void.
Further, the Federal Court ruled that section 101(2) of the Perak Enactment does not prevent the courts from reviewing decisions made by the Registrar, a state statutory body. No clause could have the effect of ousting the court’s exclusive supervisory jurisdiction as this would be contrary to the rule of law and the judicial power vested in the courts.
Addressing the submission by the respondent that the certificates should be conclusive of a person’s conversion into Islam, the Federal Court highlighted that the challenge brought by the appellant was on the legality of the conversion and not the conversion itself.
Both parents (when both are still surviving) must consent before a certificate of conversion to Islam is issued in respect of a child of a civil marriage
In interpreting the word “parent” in Article 12(4) of the Federal Constitution, the Federal Court rejected a literal approach as it would have given rise to consequences, which the legislature could not have intended. Instead, a purposive reading that would ensure the welfare of children as paramount consideration was adopted by the said court. The Federal Court recognised that conversion to another religion is a momentous decision, which brings along a new set of personal laws and in view of the magnitude of such a decision, it is in the child’s best interest to seek consent from both parents, if both are still alive. The Federal Court also considered that because the appellant has custody over the children and has dominant influence on their lives, to allow unilateral conversion would be a “very wrong thing”.
Also, it was noteworthy that the apex court recognised equality of parental rights in the Guardianship of Infants Act 1961. As to the application of sections 5 and 11 of the Guardianship of Infants Act 1961, the Federal Court applied the principle in the Law Reform (Marriage and Divorce) Act 1976 (where the converting spouse is bound by the legal obligation under the 1976 Act) and held that sections 5 and 11 of the Guardianship of Infants Act 1961 applies in this instance – the respondent’s conversion does not alter both his and the appellant’s legal positions in relation to the guardianship of their children.
Whilst the Federal Court answered all three questions in affirmative and upheld the 2013 High Court ruling and it should be a much celebrated ruling, we should not forget that the heart of this case is about a mother who has not seen her youngest child since 2009. As such, it is hoped that this landmark judgement will be the start of justice for Indira Gandhi and would lead to a reunion between Prasana Diksa and her mother and siblings.