This article was first published by Malay Mail.
“Indira Gandhi” – a familiar name appearing in many media reports in Malaysia since 2014. Long story short, an Indian Hindu father upon converting himself to Islam, abducted his three children and unilaterally converted them to Islam without prior knowledge and consent of his Indian Hindu wife (now divorced). Devastated, the mother of three filed a judicial review application at the Ipoh High Court to quash the Certificates of Conversion of her three children.
What is a “Certificate of Conversion”?
Like a marriage certificate when you get married, you get a certificate too when you convert to Islam.
What is “judicial review”?
“Judicial review” is filed when you are unhappy about certain administrative action of a public body, unhappy not because you have low EQ but because you doubt the legality of the action. For example, here, judicial review was filed not because the mother was unhappy about Islam as a religion, but because she doubted the legality of the unilateral conversion of her three children which was done without her prior knowledge and consent as their mother.
Before the High Court, the father took a preliminary objection on the jurisdiction of the High Court to hear this application. The father said since this involved Islam, only the Syariah Court was armed with the necessary jurisdiction hear this matter.
What is “preliminary objection”?
An argument raised before all other arguments. Like a smoke grenade you throw in an attempt to escape or to confuse your enemies before you fire your rifle. The Plan A of all Plan As.
The High Court dismissed the preliminary objection and went to find in favour of the mother. YA Lee Swee Seng made the following key points:
- The High Court a.k.a the civil/secular court had an overriding jurisdiction over the Syariah Court in constitutional matters.
- The Syariah Court only had a limited jurisdiction to hear cases where (i) both parties are Muslims; and (ii) the matter falls within the scope of personal laws such as succession, family and property.
- Under the Federal Constitution, the consent of both parents is needed to convert a child to Islam as both parents share equal rights of guardianship.
What do you mean by “constitutional”?
It means anything got to do with the Federal Constitution, the supreme law of the land. The Federal Constitution is a living document which grants us our fundamental liberties and no other laws can derogate from it. Even your house rule that you should help your younger siblings with their laundry has to give way to the constitutional prohibition against slavery and forced labour provided for under the Federal Constitution.
The father appealed and the majority of the Court of Appeal found in favour of the father.
What do you mean by “majority”?
It means there is a dissenting view in the panel of judges. This explains the rationale of having odd number of judges in a panel – so that even in the event of a dissent, there will be no deadlock. A dissent within a panel should not be taken negatively. It is as normal as how you and your siblings may disagree with one another at times. In fact, a dissent is indicative of an independent judiciary.
The majority of the Court of Appeal in reversing the decision of the High Court made the following points:
- The issue of whether one’s conversion to Islam is valid is a matter of Islamic personal law thus falling within the exclusive purview of the Syariah Court.
- The High Court was being such a busybody when it went so far as to decide on the constitutionality of the conversion. The issue before the High Court was “simply” on the legality of the conversion process.
- A Certificate of Conversion was a conclusive proof of a lawful conversion to Islam. The High Court was not empowered to question the Certificate.
- The consent of a single “parent” sufficed for the purposes of converting a child to Islam.
Dissenting view of the Court of Appeal
Hamid Sultan JCA dissented albeit for reasons different to that of the High Court. His Lordship opined:
- The father effectively abused the process of the Syariah Court when it sought to impose a Syariah Court order on the non-Muslim mother.
- For a valid conversion of a child to Islam to take place, (i) the child must make his/her own application to convert; (ii) the parent must consent; and (iii) the child must affirm the ‘Kalimah Shahadah’.
What is “abuse of process of the Court”?
It is when you use court proceeding not to seek remedy for a genuine grievance but to oppress the other party for your own benefits. For example, here, knowing that the mother cannot appear and be heard before the Syariah Court since she was a non-Muslim, the father abused the process of the Syariah Court when he went to the Syariah Court to obtain an order against the mother. It is like you asking your dad for permission to go out when your mum already told you that you are grounded.
Now before you can appeal to the Federal Court which the highest Court of the land, you have to satisfy certain criteria, for example where your case is of public importance or where your case (not you) is novel, novel meaning it has never been decided before. If the Federal Court thinks the criteria have been satisfied, they will grant you permission to appeal i.e. they will hear your case. If you fail to satisfy the criteria, the decision of the Court of Appeal is final and the Federal Court bids you farewell in that case. Here, it is a no-brainer that this case is of public and constitutional importance, leave was granted for Indira Gandhi to appeal to the Federal Court.
Decision of the Federal Court
There were three questions before the Federal Court. In simple terms, they are:
- Who has the jurisdiction to hear judicial review applications in conversion cases? The High Court or the Syariah Court?
- Must the child utter the Affirmation of Faith before he/she can be converted to Islam?
- Where both parents are still surviving, do we need the consent of both parents to convert a child to Islam or the consent of a single parent suffice?
The Federal Court unanimously held:
- Question 1 – The power of judicial review is vested solely and exclusively in the High Court. The power can be exercised even if the matter involved Islamic personal law. This is an essential feature of the basic structure of the Federal Constitution. The status of the Syariah Courts is dependent on State legislations which cannot in any way override the status of the High Court which is a creature of the Federal Constitution. To adopt the approach that all matters involving Islamic personal laws automatically fall within the jurisdiction of the Syariah Court is “unduly simplistic”.
- Question 2 – Yes, the child must utter the Affirmation of Faith before he/she can be converted to Islam.
- Question 3 – The consent of both parents is needed to convert a child to Islam. It is in the best interests of a child that both parents play equal role of guardianship in such a momentous decision which will affect the life of a child, imposing upon him/her a new and different set of personal laws.
- In a secular nation like Malaysia, judges are not to be swayed by their own religious convictions and sentiments over the issue before them. In upholding the rule of law, judges are to decide the issue strictly based on the relevant laws, case authorities and the provisions of both the State and the Federal Constitution governing the particular issue.
What is “basic structure”?
Features which are so fundamental that cannot be compromised or abrogated by anyone or any means whatsoever. The essential features which form part of the basic structure of our Federal Constitution include the (i) supremacy of the Federal Constitution; (ii) rule of law; (iii) judicial independence; (iv) separation of powers; and (v) protection of minorities. It is akin to the brain, heart, kidneys, liver and lungs of a human body, the motherboard, CPU, PSU, RAM and HDD of a computer.