In an earlier article, Is Indira’s battle finally coming to an end?, I summarized the submissions of the appellant’s lawyers delivered to the Federal Court on 14th and 15th November. The hearing continued on 28th November 2016 with the submissions of Muhammad Riduan’s lawyer Hatim Musa, the State Legal Advisor Rohana Abdul Malek and Senior Federal Counsel Arik Sanusi Yeop Johari, based on the same questions as Indira Gandhi’s lawyers. Below are excerpts of their submissions.
Question 1: Whether the High Court has the exclusive jurisdiction pursuant to sections 23, 24 and 25 and the Schedule of the Courts of Judicature Act 1964 (read together with order 53 of the Rules of Court 2012) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004.
Hatim Musa submitted that the subject matter – the conversion of Muhammad Riduan and his three children- is within the jurisdiction of the Syariah courts and relied on the judgement of Subashini Rajasingam v Saravanan Thangathoray & other appeals  2 CLJ 1 F/CT. In Subashini, the court relied on section 112(2) of the Selangor Islamic Enactment 2003, which determines that certificates of conversion are conclusive proof of the facts stated therein. When a person wishes to convert to Islam, the Registrar of Muallafs examines if the conversion criteria are met, a power which is conferred upon the Selangor Registrar of Muallaf by way of section 111 of the Selangor Islamic Enactment 2003. If the Registrar of Muallafs is satisfied that the conversion meets the stated criteria, he issues a certificate of conversion for the respective person, which proves that the conversion to Islam has been successful. The conversion certificate states the day on which the convert officially becomes a Muslim. In Subashini, the court held that the Civil Courts are to accept the date of conversion and thus recognize that the conversion to Islam is valid.
Thus, Hatim Musa submitted that this case should be followed and it is without dispute that Muhammad Riduan converted to Islam on 11th March 2009 and his children on 2nd April 2009.
Hatim Musa further submitted that the unilateral conversion of the three children in April 2009 is not in conflict with Articles 12(4) and 8 of the Federal Constitution; Indira Gandhi never questioned the validity of the conversion of her ex-husband to Islam, who is now bound by Islamic duties and obligations according to section 98 of the Perak Enactment 2004. This includes the application of Islamic law to his children which would translate into the children’s conversion to Islam.
Hatim Musa thus submitted that the Syariah Court has the exclusive authority to decide if a person is a Muslim.
Question 2: Whether a child of a marriage registered under the Law Reform (Marriage and Divorce) Act 1976 (“a civil marriage”) who has not attained the age of eighteen years must comply with both sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (or similar provisions in State laws throughout the country) before the Registrar of Muallafs or his delegate may register the conversion of Islam of that child.
In the written submissions, State Legal Advisor Rohana Abdul Malek representing the Perak Islamic Department and the Registrar of Muallafs, submitted that the Syariah Courts are of equal standing as the Civil Courts. This is anchored in Article 121 (1A). Relying on the Mohd Habibullah Mahmood v Faridah bt Dato Talib judgement, he further submitted that due to the wide interpretation of section 53 of the Administration of Islamic Law (Federal Territories) Act 1993, Indira Gandhi could seek judicial remedy at the Syariah Court, as she is firstly, not prohibited to do so and secondly, this would lead to a fair decision framed in Islamic law.
During the hearing on 28th November 2016, State Legal Advisor Rohana Abdul Malek submitted that section 96 of the Perak Enactment of 2004 is a general provision, which does not make any reference to the age of the converting person. For the conversion of a minor, the more specific section 106(b). In section 106(b) of the Perak Enactment 2004, it is determined that a person below the age of 18 requires the consent in writing of “a parent or guardian” prior to the conversion. As regards section 96 of the Perak Enactment 2004 (where the converting person must be aware of the meaning of the utterance of faith), to prove that the minor is aware of the meaning of the utterance, the certificate of conversion is sufficient proof that the conversion to Islam has been successful and the conversion criteria have been met. As conversion certificates were issued for Muhammad Riduan and all three children, the provisions of section 96 and section 106 of the Perak Enactment 2004 were met and the conversion is valid.
Question 3: Whether the mother and the father (when both are still surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam can be issued in respect of that child.
To determine if the consent of one parent is sufficient, Senior Federal Counsel Arik Sanusi Yeop Johari submitted that the judgement of Shamala Sathiyaseelan v Dr Javaganesh C Mogarajah & Anor case refers to the definition of “parent” in Black’s Law Dictionary, where both “parent” and “guardian” are defined in the singular. He further added the definitions from Osborn’s Concise Law Dictionary, Reader’s Digest Great Dictionary and the Shorter Oxford English Dictionary which all define “parent” in the singular.
The Shamala Sathiyaseelan v Dr Javaganesh C Mogarajah & Anor judgement further stated that this interpretation is in line with section 6(1) of the Guardianship of Infants Act 1961, which frames “parent” and “guardian” in the singular and the plain meaning rule should be used. According to the plain meaning rule, section 95(b) of the Administrative of Islamic Law Act 1994 is straightforward and a conversion requires only the consent of either mother or father. If read in conjunction with Article 12(4) of the Federal Constitution, a Muslim parent has the power to unilaterally convert his or her children.
Senior Federal Counsel Arik Sanusi Yeop Johari further submitted that this interpretation has been confirmed in Subashini, acknowledging that Article 12(4) of the Federal Constitution refers to a single parent. In the Subashini judgment, it was held that Article 12(4) “must not be read as entrenching the right to choice of religion in both parents.” A unilateral conversion does not touch upon the right to equality as enshrined in Article 8 of the Federal Constitution as the gender of the converting spouse is of no relevance. It was shown in Nendunchelian that a unilateral conversion can be valid, independent of mother or father being the unilaterally converting party.
The panel of judges asked how this interpretation is consistent with the Guardianship of Infants Act 1961, which requires both parents’ wishes to be considered. Senior Federal Counsel Arik Sanusi Yeop answered that the Federal Constitution as the supreme law of Malaysia should take precedence over the Guardianship of Infants Act 1961. He further submitted that both the word “parent” as well as “parents” is used in the Federal Constitution and that the difference in spelling was on purpose.
The judges further queried on Article 160 of the Federal Constitution. Senior Federal Counsel Arik Sanusi Yeop submitted that Article 160 cannot be relied on in this case, as the Federal Constitution switches between singular and plural wording of “parent”. To illustrate, Senior Federal Counsel Arik Sanusi Yeop Johari mentioned two separate provisions in the Constitution, which referred to “parent” and “parents”, respectively.
In addition to the above, it was interesting that Hatim Musa, Counsel for Muhammad Riduan, submitted that Article 160(B) of the Federal Constitution states that the authoritative text of the Constitution is the Bahasa text. In the Bahasa version, the Malay word used is “ibu bapa” instead of “kedua ibu bapa”, thus the singular instead of the plural should be applicable.
How Indira’s lawyers addressed the respondent’s submissions
Indira’s Lawyer Fahri Azzat addressed the respondent’s submissions. On Question 1, Fahri submitted that the Guardianship of Infants Act 1961 is applicable, requiring a mother’s consent to the conversion of her child to Islam. Furthermore, he submitted that the Federal Constitution, the Guardianship of Infants Act 1961 and the Perak Enactment should be read harmoniously.
For example, the general provision of section 96 of the Perak Enactment 2004 is not enough to determine the requirements for the conversion of a minor; section 96 of the Perak Enactment 2004 should be read in conjunction with section 106. The legal situation can only be clarified if all sources of law are read together.
On Question 2, Fahri submitted that three requirements have to be fulfilled in order for the conversion to be successful: consent in writing; the consenting parent must be the parent with a court order; and before the conversion, the wishes of mother, father and the child have to be taken into account. The three requirements were not fulfilled in the present case.
On Question 3, Fahri argued that Subashini as an authority should be rejected because the facts in the present case are different. Furthermore, reading parent in the singular leads to absurdity as one parent could unilaterally convert the child before the other parent converts it to another religion, leading to “tension and anxiety”.
The decision will be delivered at a later, yet to be determined, date.