Indira Gandhi’s case shows civil law trumps shariah law

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Source: The Malaysian Insight

THE landmark decision in the M. Indira Gandhi case sets a precedent that civil law prevails over shariah law, lawyers and civil groups said today.

The Federal Court yesterday ruled that the unilateral conversion of Indira’s three children to Islam was null and void, requiring the consent of both parents and the constitutional word “parent” was a case of being lost in translation.

Lawyers for Liberty’s Eric Paulsen said the ruling prevents cases which takes into consideration both civil and shariah law to bypass the common law.

“The judgment is extremely significant, as it conclusively stated that unilateral conversion is no longer valid.

“Therefore, a newly converted spouse can no longer circumvent civil law and go through the shariah system in order to unfairly gain custody of the children,” he told The Malaysian Insight.

Paulsen added that this means in future complicated cases like Indira’s will be tried under civil law, regardless if it involves Muslim matters or not.

“More importantly, the civil courts have asserted their judicial powers – meaning, the rights of all Malaysians are equal under the law and constitution.

“And that the courts can interpret all decisions of public authorities, all laws, state or federal, even on Islamic matters.”

PKR’s Sarawak chairman Baru Bian said the ruling also made it clear that Malaysia is a secular country.

“The court is, in fact, declaring that the civil courts have supremacy over shariah courts, and their judicial power cannot be constrained by Parliament.

“The federal constitution is supreme, the power of the civil courts is unshakable, and that supports our stand that Malaysia is a secular country,” said the lawyer in a statement.

Lawyer Fazri Azzat said the decision not only affects Indira, but also the pending unilateral conversion cases.

He said it gives “clarity” to the previous cases of unilateral conversion custody like the case of R. Subashini v T. Saravanan.

“Now both civil and shariah judges need to understand the decision to avoid inter-jurisdictional ‘conflict’,” he told The Malaysian Insight.

National Human Rights Society (Hakam) chairman Ambiga Sreenevasan said yesterday’s ruling not only enshrines the federal constitution but also gives the priority to the children involved in unilateral conversion.

“The practical effect of the decision is that it brings to a close the unnecessary suffering of so many children and spouses whose families have been torn apart by the actions of one spouse to the marriage.

“No longer can one spouse use religion as a means of punishing the other,” she said in a statement.

The apex court’s five-judge bench yesterday, comprising Court of Appeal president Zulkefli Ahmad Makinudin, Chief Judge of Sabah and Sarawak Richard Malanjum, Zainun Ali, Abu Samah Nordin and Ramly Ali, ruled that the unilateral conversion of the children to Islam was null and void.

Zainun, who read out a summary of the judgment, said the conversion will also need the consent of both parents.

The Federal Court ruling overturned an appellate court’s 2-1 majority decision on December 30, 2015, to reinstate the conversion certificates of the three children, which had been nullified by the Ipoh High Court.

The appellate court ruled that the civil high court did not have jurisdiction to decide on the validity of the children’s conversion, which it said came under the exclusive jurisdiction of the shariah court.

The children, two daughters and a son, now aged 20, 19 and 9, were converted to Islam by their father, K. Pathmanathan, 47, in April 2009 without Indira’s consent, following his conversion to Islam and adoption of the name Muhammad Riduan Abdullah. – January 30, 2018.