Kindergarten teacher M. Indira Gandhi has filed her leave application to reverse the Court of Appeal ruling on unilateral conversion of her minor children, lawyer M. Kula Segaran said.
The lawyer said the application to the Federal Court was filed today via e-filing and copies had been served to the respondents.
“We have framed eight legal questions, which we think are of public importance to obtain leave from the apex court to hear the merit of the appeal,” he told The Malaysian Insider.
Indira’s lawyers have to convince the Federal Court bench during leave stage that the questions posed were raised for the first time or had constitutional importance.
Last week, Attorney-General Tan Sri Mohamed Apandi Ali said he would decide whether to consent to Indira’s application so the Federal Court could revisit contentious issues as soon as possible.
Many in the legal fraternity were of the opinion that the issues to be reviewed were whether Article 121 (1A)) of the Federal Constitution ousted the jurisdiction of the civil court to hear conversion cases.
The other issue was whether a newly converted spouse to Islam could change the religion of children without the consent and knowledge of the non-converting parent.
On December 30, the Court of Appeal, in a majority ruling, held that the civil court had no jurisdiction to hear conversion cases as that was a matter for the Shariah Court to decide.
However, Datuk Dr Hamid Sultan Abu Backer, who dissented, held that Indira’s children should have made the application to convert, which was not the case here.
Malaysian Bar president Steven Thiru said the Court of Appeal’s majority ruling relied primarily on two Federal Court cases, both of which were not appropriate authorities to come to a right decision.
He said in the case of Subashini Rajasingam v Saravanan Thangathoray, the discussion by the Federal Court on the meaning of the word “parent” in Article 12(4) of the Federal Constitution was only a passing remark.
“It is, therefore, not a binding statement of the law,” Steven said.
He said in the case of Haji Raimi Abdullah v Siti Hasnah Vangarama Abdullah, it was not a contest between one parent who had converted to Islam and one who had not.
“The principles underlying the decision in that case cannot, therefore, apply in Indira’s case.”
Steven added that in Indira’s case, only one parent had converted and as such, Section 50 of the Administration of the Religion of Islam (Perak) Enactment 2004 could not apply.
Further, he said, the Shariah Court could only hear and determine all actions and proceedings if all the parties were Muslims.
“As Indira is a non-Muslim, the Court of Appeal’s reliance on this provision is regrettably misplaced.” – January 28, 2016.