Conversion of Indira’s children invalid as state Islamic law requirements not met, court told


Source: The Malay Mail Online

Today is the hearing of M. Indira Gandhi’s appeal against Muhammad Riduan’s covert conversion in 2009 of their three children without their knowledge and without Indira’s consent. ― Picture by Saw Siow Feng

Today is the hearing of M. Indira Gandhi’s appeal against Muhammad Riduan’s covert conversion in 2009 of their three children without their knowledge and without Indira’s consent. ― Picture by Saw Siow Feng

PUTRAJAYA, Nov 15 — Muslim convert Muhammad Riduan Abdullah’s unilateral conversion of his three children from a Hindu marriage to Islam did not fulfil the requirements of a Perak state Islamic law, the Federal Court heard today.

Lawyer Aston Paiva, who is representing Hindu mother M. Indira Gandhi, said there are three requirements that must first be fulfilled before a child can be validly registered as a Muslim convert — namely the conversion application to be made by the child, the child to utter the Muslim affirmation of faith and with written consent of a parent.

Aston highlighted the requirements of the Section 96(1) of the Administration of the Religion of Islam (Perak) Enactment 2004, which he said had not been followed in Muhammad Riduan’s conversion of the three Hindu children.

“It is not in dispute that all of these have not been complied with,” he told the court.

Under Section 96(1) of the Perak law, a conversion to Islam is only considered valid if a person utters the Muslim affirmation of faith in Arabic and utters it of their own free will, besides also understanding the meaning of the affirmation of faith.

Aston also highlighted that Section 106 of the same law said a person may convert to Islam if he is of sound mind and has turned 18, or if the parent or guardian has given written consent for those who have yet to become an adult.

“I believe in this case, there is no consent in writing that exists. The decision of the High Court must be upheld, the conversion certificates quashed for non-compliance with Section 96 and Section 106 of the enactment,” he said.

Another lawyer acting for Indira, Fahri Azzat, argued that the consent of both parents is required for a child to be converted.

Among other things, Fahri said that allowing a parent to convert a child without informing the other parent would go against the right to equality in law under Article 8 of the Federal Constitution, which he said also bars gender discrimination.

“Exercise of that right would be discriminatory, if it is allowed without consent of another,” he said, referring to the right to decide a child’s religion.

“On a practical matter, there is no peace of mind for a parent knowing that if we get into a fight, my spouse can go and do all these things behind my back,” he pointed out.

Fahri said the word “parent” should be read as “parents”, citing among other things the Federal Constitution’s Article 160 read together with its 11th Schedule which provides that “words in the singular include the plural” and vice versa.

He said the Federal Court’s 2008 decision in the case of Subashini a/p Rajasingam v Saravanan a/l Thangathoray should be revisited and “cannot be relied on” to say that only one parent’s consent is required for a child to be converted.

Lawyer K. Shanmuga, who also acted for Indira, argued that Shariah courts do not have jurisdiction to decide on the validity of the conversion certificates issued for the three children.

Shanmuga cited Section 50 of the 2004 Perak enactment which only covers situations such as when a declaration is sought to confirm that a person is no longer a Muslim, as well as Section 63.

Section 63, which touches on the Shariah courts’ jurisdiction, says that none of its decisions shall involve the right or property of a non-Muslim.

The Hansard which recorded debates in the Perak legislative assembly on the 2004 enactment is clear evidence that the state law was “never meant to apply to or jeopardise the rights of non-Muslims like my client”, he said.

He pointed out among other things that Item 1 of the Federal Constitution’s Ninth Schedule — regarding matters falling within the state’s jurisdiction — limits the Shariah courts’ jurisdiction only to Muslims.

Shanmuga argued that the civil courts instead have the exclusive jurisdiction to review the actions of the Perak authorities’ actions — where they registered Indira’s children as Muslim converts and issued them with conversion certificates.

The hearing before Chief Judge of the High Court of Malaya Tan Sri Zulkefli Ahmad Makinudin, who is chairing the five-man panel in this case, resumes on December 5.

The other judges on the Federal Court panel are Chief Judge of the High Court of Sabah and Sarawak Tan Sri Richard Malanjum, Tan Sri Abu Samah Nordin, Tan Sri Ramly Ali and Tan Sri Zainun Ali.

In her legal challenge against the children’s unilateral conversion, Indira had named the Perak Islamic Religious Department (JAIPk) director, the Registrar of Muallaf, the Perak state government, the Education Ministry, the government of Malaysia and Indira’s ex-husband K. Pathmanathan as respondents.

Indira’s appeal is against the Court of Appeal’s 2-1 ruling last December, in which it said only the Shariah courts have the jurisdiction to decide on the validity of a person’s conversion.

The Court of Appeal had set aside the Ipoh High Court’s 2013 judgement, which found that the three children had not been validly converted to Islam and declared their conversion certificates null and void.

Indira’s eldest daughter Tevi Darsiny and son Karan Dinish are now adults respectively aged 19 and 18, while the third child Prasana Diksa now aged eight is with Muhammad Riduan who had snatched her shortly before unilaterally converting the trio in 2009.