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Malaysia’s apex court declares unilateral conversion to Islam unlawful
29 January 2018
PUTRAJAYA — In a landmark ruling that finally clarifies the issue of unilateral conversions to Islam, the Malaysian Federal Court on Monday (Jan 29) declared that the consent of both parents was needed to convert a minor’s faith.
The five-judge panel in the case of Hindu mother M Indira Gandhi — who sought to nullify the conversion of her three children by her Muslim convert ex-husband nine years ago — said the Federal Constitution clearly provides for the consent of both parents in such cases.
The ruling closed a nearly decade-old case which has seen different twists and turns, and settled once and for all the legal ambiguities related to religious conversions of minors — a controversial issue that has dogged Malaysia for years.
The panel headed by Court of Appeal president Zulkefli Ahmad Makinudin said that the meaning of the word “parent” in the Federal Constitution in such situations was “lost in translation”.
The Bahasa Malaysia translation uses the phrase “ibu atau bapa (father or mother)” even though the rule is that singular forms also take the plural meaning when interpreting the Federal Constitution.
“The court concludes that the consent of both parents is needed before a certificate of conversion can be issued,” Justice Zainun Ali, who wrote the 99-page judgment, said while reading out her summary.
Ms Zainun said the word “parent” should not be construed literally when reading the Federal Constitution, stressing that the spirit of the provision meant the term referred to both parents when applicable.
The decision by the country’s highest court sets aside the Court of Appeal ruling in 2015, which had upheld the conversion of Ms Gandhi’s children, and follows the High Court’s ruling in 2013 which allowed her application to set aside their conversion.
At that time, the Court of Appeal ruling caused an uproar in Malaysia and shone the spotlight on the perils of the country’s divided legal system, where the majority Muslims use Syariah courts for religious and family issues such as conversion, divorce and death.
The other 40 per cent of Malaysia’s mainly Christians, Buddhists and Hindus citizens use a secular legal system inherited from the country’s British colonial rulers.
Ms Gandhi has faced a lengthy legal battle to gain custody and reverse the unilateral conversion of her children by her ex-spouse, Mohd Riduan Abdullah.
Known as K. Pathmanathan prior to embracing Islam, he had converted the three children on his own in April 2009, three weeks after his own conversion.
The two older children, Mr Karan Dinish and Ms Tevi Darsiny — who are now adults aged 20 and 19 respectively — stayed with their mother since the conversion, but the couple’s youngest child, Prasana Diksa, was abducted by the father when she was 11 months old and has remained with him since.
Ms Gandhi had previously secured a court order compelling the police to find Prasana and return the child to her, which the police said it could not to execute after citing jurisdictional conflicts between the civil and Syariah courts.
Ms Zainun said on Monday the conversion was a “wrong thing” to do, as the children were staying with Ms Gandhi and not her ex-husband at the time he unilaterally changed their faith.
His actions were tantamount to a “serious interference” with the lives of Ms Gandhi and her three children, she added.
Immediately after the court’s ruling, Ms Gandhi wrote on her Facebook: “We won... Thank You Malaysia.”
The post was liked ‘Liked’ over 300 times with scores of Malaysians congratulating her victory.
In court, Ms Gandhi said the police now have no excuse to ignore a court order compelling them to return Prasana, now 9.
“There is a court ruling now. So he can’t say he can’t do anything. He has to act now,” she said, referring to national police chief Mohamad Fuzi Harun.
Previously she had secured a court order to compel Mr Mohamad Fuzi’s predecessor, Khalid Abu Bakar, to retrieve the child but the latter said his agency could not execute the order, citing the jurisdictional conflict between the civil courts and their Syariah counterparts, which also issued an order in favour of Mr Mohd Riduan.
In response, Mr Mohamad Fuzi said the police respected the Federal Court’s decision and will immediately locate the child.
“I will instruct my men to track down the daughter and also the ex-husband,” he said. “We have not identified their location but we are in the process of investigating.”
He added they have leads on Mr Mohd Riduan’s location but declined to elaborate further.
Meanwhile, the ruling was lauded by politicians, non-governmental organisations and Malaysians.
Expressing his happiness for Ms Gandhi, Tourism and Culture Minister Mohamed Nazri Aziz said the decision is a victory for all Malaysians.
“I have always maintained that ‘parent’ means both father and mother, and it’s really wrong and stupid to interpret parent as either one. And when I was the (de facto) law minister, I had always maintained that the father had no right to do what he did,” he said.
“Islam is all about justice. When it is unjust it’s not Islamic, so, it’s a very good decision and from now onwards, there shouldn’t be any doubt in cases like this.”
Following the landmark ruling, the Malaysian Consultative Council on Buddhism, Christianity, Sikhism and Taoism wants Putrajaya to expedite the reconversion of Ms Gandhi’s three children from Islam to their original religion.
The interfaith group president, R S Mohan Shan, said the Registrar of Muallaf (Muslim converts) should expedite the necessary documents for the children’s reconversion.
“They must do it fast. This issue must not be prolonged. We don’t need the Syariah Court to then give a different ruling and make things worse,” he said.
Malaysians also took to Ms Gandhi’s Facebook to congratulate her on her victory.
Mr Arun Dorasamy wrote: “TEARS OF HAPPINESS.....SISTER Indira Gandhi all your perseverance paid off ... #TRUTHWINS.”
Another Facebook commentator, Vijay Saravanen Vasudevan, said he prayed that Prasana will be reunited with her mother soon.
“Victory not only for Indira Gandhi but for all who are affected by unilateral conversion. Time to revisit other similar cases of the past,” he added.
(End)
