Civil courts have the power, say judges as top court quashes conversion certs

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PUTRAJAYA: In its landmark ruling today, the Federal Court decreed that the civil courts have jurisdiction to hear cases when aggrieved parties question conversion to Islam.

This was one of the key pronouncements made as the apex court allowed kindergarten teacher M Indira Gandhi’s appeal over the conversion of her three children by her ex-husband, K Pathamanathan @ Muhammad Riduan Abdullah, in 2009.

The five-man bench was chaired by Court of Appeal president Zulkefli Ahmad Makinudin, and included justices Richard Malanjun, Zainun Ali, Abu Samah Nordin and Ramly Ali.

Following this ruling, the certificates of conversion issued by the Perak Registrar of Muallafs on Tevi Darshiny, Karan Dinesh and Prasana Diksa are now null and void.

Zainun delivered the unanimous judgment.

Zulkefli, in his supplementary ruling, remarked that the judges were not swayed by their religious beliefs.

Quoting a passage from former Lord President Suffian Mohammed Hashim, Zulkefli said judges should not be identified by their race and religion, especially when upholding the rights of minority communities.

“We strictly follow case laws and statutes in upholding the rule of law,” he added.

He said the conversion issue had been in public domain in recent times, and the executive and the legislature were involved in amending the relevant laws.

Zainun said today’s ruling would only have prospective effect, meaning the legal principles established in Indira’s matter applied to future cases.

In the judgment, she said Indira was a non-Muslim and had no locus standi before the Shariah Court.

“The Shariah Court does not have the power to expand its own jurisdiction to choose to hear the appellant’s application,” she said.

She said the power of judicial review was essential to the constitutional role of the civil courts and part of the basic structure of the Federal Constitution.

“It cannot be abrogated or altered by Parliament by way of constitutional amendment. The conferment of judicial functions on bodies other than the court is an incursion into the judicial powers of the federation,” she said.

Zainun said it was undisputed evidence that the children did not utter the two clauses of affirmation of faith and were not present before the registrar before the conversion certificates were issued.

“Issuance of the certificates, despite the non-fulfilment of the mandatory statutory requirement, is an act which the registrar had no power to do under the enactment,” she said.

She said it would be repugnant to the rule of law and the judicial power of the court if the registrar’s decision was immune from review since the facts were clear he had no jurisdiction.

Zainun said allowing a child to be converted with the consent of one parent would give rise to practical conundrums.

“A purposive reading of Article 12 (4) of the constitution that promotes the welfare of the child and is consistent with good sense would require the consent of both parents (if both are living) for the conversion of a minor child,” she said.

Here is the key timeline of Indira’s tussle with Riduan over the conversion of their children.

  1. April 10, 1993 – Entered into civil marriage.
  2. March 11, 2009 – Riduan converts to Islam.
  3. March 31, 2009 – Riduan leaves matrimonial home in Ipoh with youngest daughter Prasana Diksa.
  4. April 2, 2009 – Riduan unilaterally converts his three children by using their birth certificates and without the consent and knowledge of Indira.
  5. July 25, 2013 – High Court revokes the conversion as Shariah Court has no jurisdiction.
  6. Dec 30, 2015 – Court of Appeal in 2-1 ruling holds Shariah Court has jurisdiction to determine the unilateral conversion as it is a religious and not a constitutional issue.
  7. May 19, 2016 – Federal Court gives go ahead to Indira to challenge the validity of the unilateral conversion of her children.
  8. Nov 30 – Federal Court reserves judgment after hearing Indira, Riduan, the Perak state religious authorities and Putrajaya.