PUTRAJAYA: The government’s stand in the appeal by kindergarten teacher M Indira Gandhi, who is challenging the conversion of her three children, is that the consent of only one parent is required to make minor children Muslim.
Senior Federal Counsel Arik Sanusi Yeop Johari said the government adopted the 2007 Federal Court ruling in the case of Subashini Rajasingam v Saravanan Thangathoray that a single parent could convert their children.
Today’s submission by Sanusi, who is representing the attorney-general, is in stark contrast to a proposed amendment tabled by the government in the Dewan Rakyat last week to the Law Reform Act (Marriage and Divorce) which governs non-Muslims.
It proposes, among other things, that the consent of both parents, including the spouse who had embraced Islam, is needed to make their minor children Muslim.
Arif told the five-man Federal Court bench led by Chief Judge of Malaya Zulkefli Ahmad Makinudin that even the dictionary meaning provided that parent in the singular meant father or mother.
“The conversion of the appellant’s (Indira) children is also in accordance with Article 12 (4) of the Federal Constitution that the religion of a minor below 18 could be decide by a parent,” he said.
He said the apex court (in 2007) had rightly interpreted the Constitution to give one parent the right to convert their underage children.
The judges in that case held the word “parent” as “a single parent” and it follows that either spouse has the right to convert a child of marriage to Islam.
However, the legal fraternity is of the view the 2-1 majority ruling was an obiter dictum, or passing remark.
Lawyers have argued that the 11th Schedule of the Constitution provides that in interpreting the supreme law of the land, “words in the singular include the plural, and words in the plural include the singular”.
As a consequence of the Subashini case, the spouse who became a Muslim could seek remedies in the shariah court.
Meanwhile, Senior Federal Counsel Shamsul Bolhassan submitted that Indira’s issue was about conversion and this matter could only be decided by the shariah court.
However, Indira’s legal team had told the bench earlier that this was an administrative issue to challenge the Registrar of Converts who did not follow a Perak enactment to register the conversions.
Shamsul said the amendment to Article 121 (1A) of the Constitution in 1988 excluded the civil court from interfering in the religious affairs of Muslims.
“The shariah court and Islamic matters came under the jurisdiction of the states. As such, the civil court will not interfere in conversion matters,” he added.
Shamsul said the registrar had closely followed the provisions in the Administration of the Religion of Islam (Perak) Enactment 2004 to register the conversions.
“The conversion certificates of the children are the conclusive proof that everything was done according to procedure,” he said.
The kindergarten teacher wants the civil court to rule that their conversion certificates are null and void.
In December, the majority Court of Appeal ruling held that the validity of the conversion by Indira’s ex-husband Muhammad Riduan Abdullah could only be determined by the shariah court.
Justices Balia Yusof Wahi and Badariah Sahamid said the civil court did not have the jurisdiction to hear the conversion.
However, Justice Hamid Sultan Abu Backer, in his dissenting judgment, said the conversion was purely an administrative matter and the civil court could inquire into the matter.
Indira’s two children, Tevi Darsiny, 19, and Karan Dinish, 18, are under her care.
In 2009, Riduan snatched Prasana Diksa, then aged 11 months, before unilaterally converting the children in their absence.
Indira subsequently won full custody of her children in the High Court on March 11, 2010.
The Federal Court has reserved judgment.