Conversion ruling in Malaysian court affects all, Sikhs included

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| Kuala Lumpur, Malaysia | 6 Jan 2016 | Asia Samachar |
Mother Indira Gandhi with two of her older children. The family is embroiled in a nasty conversion case. - Photo/AsiaSamachar/Facebook
Mother Indira Gandhi with two of her older children. The family is embroiled in a nasty conversion case. – Photo/AsiaSamachar/Facebook

Just as the 2015 was coming to a close, Malaysia’s Court of Appeal released a ruling on a conversion case that has gripped the attention of the people for some time now. Like other minorities, it has implications on Sikhs in this nation of 27 million, as well.

In a 2-1 majority ruling, the court held that the validity of conversion of three children by their Muslim father could only be determined by the Shariah Court.

As for now, the case is giving the Shariah Courts an upper hand in being the arbiter for conversions to Islam. In Muslim-majority Malaysia, the decision is seen as a source of concern to some segments of the population, especially those from the minority faiths.

The case involves kindergarten teacher M. Indira Gandhi and her ex-husband Mohd Ridzuan Abdullah, formerly known by his Hindu name K. Patmanathan (Pathmanathan a/l Krishnan v Indira Gandhi a/p Mutho).

Lawyer Philip Koh, who was holding a watching brief for the council, said the decision meant that the spouse in a civil law marriage could unilaterally convert a child without the permission or knowledge of his estranged partner.

“This is a sad day for minority faith communities,” he told reporters after the appellate court delivered its ruling, reports The Malay Mail Online.

The appellate court, saying that the Ipoh High Court did not have the jurisdiction to hear the conversion, reversed a lower court’s order quashing the unilateral conversion of the three children to Islam, reports another local news portal.

The three-man bench, headed by judge Balia Yusof Wahi, said taking the subject-matter approach, the conversion has to be decided by the religious court. Concurring with Balia was Dr Badariah Sahamid.

There was abuse in the shariah process when a Muslim convert ex-husband changed his three children’s religion to Islam without their mother’s knowledge, says Court of Appeal judge Datuk Hamid Sultan Abu Backer in a dissenting judgment [see report here].

In an immediate response to the ruling, Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) wants the Cabinet to implement a 2009 decision to prevent converted Muslim single parents from changing the religion of their underage children, reported The Malaysian Insider on 30 Dec 2015.

MCCBCHST vice-president Jagir Singh said that decision must be acted upon or else there would be individuals who would capitalise loopholes in the law to escape responsibility

“Otherwise, the rakyat will suspect that the government is not sincere in its pledge to stop unilateral conversion,” he tells the news portal.

 

COURT OF APPEAL JUDGMENTS

(Pathmanathan a/l Krishnan v Indira Gandhi a/p Mutho, Court of Appeal, 30 Dec 2015)

MAJORITY JUDGMENT: Conversion: Majority Judgment, Court of Appeal, Malaysia

DISSENTING JUDGMENT: Conversion: Dissenting Judgment, Court of Appeal, Malaysia

TIMELINE: A timeline published by Malay Mail Online on 19 May 2016 to accompany a story entitled 'Why Indira Gandhi’s bid to reverse her children’s conversion matters'
TIMELINE: A timeline published by Malay Mail Online on 19 May 2016 to accompany a story entitled ‘Why Indira Gandhi’s bid to reverse her children’s conversion matters’

What is the message for Sikhs and other minorities in Malaysia? We invite any Sikh lawyers, or of any faith for that matter, willing to write on the implications of the ruling. Please send us a Facebook message or email us at editor@asiasamachar.com

 

[ASIA SAMACHAR is an online newspaper for Sikhs in Southeast Asia and surrounding countries. We have a Facebook page, do give it a LIKE. Follow us on Twitter. Visit our website: www.asiasamachar.com]

RELATED STORIES:

MGC passionately protects religious rights of Sikhs, others in Malaysia (Asia Samachar, 19 Nov 2015)

Malaysian Sikhs worry most about economy, divorce and conversion, reveals new ground breaking research (Asia Samachar,  24 Sept 2015)

Ipoh Sikhs raise alarm on Punjabi Christian event (Asia Samachar,  13 May 2015)

Surjit joins Singapore’s Presidential Council for Minority Rights (Asia Samachar,  2 Apr 2015)

 

5 COMMENTS

  1. THE MALAY MAIL ONLINE
    Thursday May 19, 2016

    http://www.themalaymailonline.com/malaysia/article/why-indira-gandhis-bid-to-reverse-her-childrens-conversion-matters

    Why Indira Gandhi’s bid to reverse her children’s conversion matters (VIDEO)

    BY IDA LIM

    KUALA LUMPUR, May 19 ― Hindu mother M. Indira Gandhi’s bid at the Federal Court today to annul her children’s unilateral conversions is one woman’s ordeal that will have far-reaching effects on Malaysians in a similar dilemma.

    In and out of courts for years, Indira is seeking finality over the religious status of her three children who were covertly converted to Islam by her Muslim ex-husband in 2009 without their knowledge or their presence.

    “At last, finally once and for all, I can know the status of my children. It’s been dragging for too long,” the Ipoh-based kindergarten teacher told Malay Mail Online when contacted ahead of today’s hearing for leave to appeal.

    Indira and her children have been on a legal roller coaster, from the Ipoh High Court ruling in 2013 that nullified the unilateral conversions to the Court of Appeal’s 2-1 ruling in December that only the Shariah courts could decide on the validity of conversions to Islam.

    Just children when the case began in 2009, Indira’s eldest daughter Tevi Darsiny is now an adult at 19 while her brother Karan Dinish turns 18 in October; both will be old enough to decide their own faiths. Prasana Diksa’s location remains unknown after being snatched by the ex-husband seven years ago.

    “We need a permanent solution for this. And they are growing children, they need a life to go on, they can’t be stuck and then now we are not sure whether they are still Muslims or still Hindus, we are in the middle of nowhere,” Indira said.

    Non-Muslims shut out from the civil justice

    Should the Federal Court deny Indira leave to appeal, her lawyer M. Kulasegaran said non-Muslims in similar cases would effectively be left without remedy from the civil courts.

    “Then it will be a case where anybody who has been converted because a conversion certificate was given without [his] knowledge, when he wants to challenge, he has to go to the Shariah courts,” he said, arguing that it was unreasonable to force non-Muslims to go to Shariah courts to cancel wrongly issued conversion documents.

    Stressing the importance of allowing non-Muslims to challenge the validity of their conversion certificates in the civil courts, Kulasegaran said this was a novel point of law that Indira was bringing before the Federal Court.

    All including Muslims will have a right and avenue to argue their case at the civil courts, he said, noting that all parties will have the opportunity to fully ventilate the relevant issues if the Federal Court grants Indira leave to appeal.

    Indira has filed eight questions of law for the Federal Court to consider.

    A nation’s chance at having conclusive answers

    Civil liberties lawyer Aston Paiva said that beyond the fate of Indira’s children, this case will be the first time the Federal Court is given a chance to deal with state Islamic laws related to conversion and the conversion process.

    “That’s the one thing that no other courts have dealt with it before, what is the conversion process – these are laws, nothing to do with Islam ― what you need to do to become Muslim and if you don’t do it, who can decide, the Shariah court or the civil court.

    “It’s not a religious issue, it’s an issue of whether the preconditions have been met, it’s an issue of compliance with the laws,” Aston said.

    Aston said the Indira’s case also deals with whether a government can convert someone without their consent, noting the current “dangerous precedent” stated this was permissible.

    “That cannot be the case because the remedy is in the Shariah court where the non-Muslim will be subject to Islamic laws,” he said when expressing disagreement with the current legal position based on the Court of Appeal’s majority ruling in Indira’s case.

    Noting that unilateral conversions were “happening over and over again” in Malaysia, Aston said Indira’s case was also crucial as it raises the question of the effect of such conversions on interfaith relations.

    Firdaus Husni, a former co-chair of the Bar Council’s constitutional law committee, said Indira’s “heart-breaking” story involves many important constitutional issues that the Federal Court would have the opportunity to determine if Indira is granted leave to appeal.

    “For example, Article 121(1A) of the Federal Constitution relied on by some to exclude the jurisdiction of the civil courts from all cases concerning the religion of Islam, even when one party to a dispute is a non-Muslim, over which the Syariah courts have no jurisdiction. Many have argued that this cannot be the correct position,” she said.

    Others include the interpretation that a single parent could determine his children’s religion, and the right of non-Muslims to practise their faith in peace.

  2. Unilateral conversion laws still pending

    By Karen Arukesamy

    KUALA LUMPUR: Seven years after the Cabinet’s decision to bar unilateral conversions of children, the amendments to the laws are yet to be seen.

    One of the main reasons for this is that the ongoing consultations on the draft amendments to the Law Reform Act (Marriage & Divorce) have caused the delay in tabling it in Parliament.

    “The draft is ready; it is not like the government has not acted on it,” Minister in the Prime Minister’s Department Nancy Shukri (pix) told the Dewan Rakyat today.

    “But the Islamic Affairs division in PM’s department is still conducting consultations on Syariah Law aspects,” she said in response to Kasthuriraani Patto (DAP-Batu Kawan).

    Kasthuriraani had asked the Prime Minister to state whether the government intends to stop unilateral conversions for minors as it is against the Federal Constitution and the initiatives by the Attorney-General to amend the Law Reform Act, which involves unilateral conversions.

    Nancy, who was replying to 11 questions, said the government is aware of the concerns of the people on three aspects of this issue – civil marriage status, child custody and unilateral conversion of minors.

    “We don’t want people to misuse religion to achieve their own intentions. This is a shared responsibility in the Dewan,” she said.

    She added there is no decision about forming a parliamentary committee to look into the unilateral conversion issue and child custody matters as the government wants to conclude the consultations first.

    Later when approached outside the Dewan, Nancy said the people must remember that this is not just for one religion but for all religions.

    She said draft amendments involve Section 51 of the Law Reform Act (Marriages & Divorce), which provides for the dissolution of a civil marriage under civil law even upon conversion instead of taking it to the syariah court.

    “They should not use Syariah law as a platform for them to escape responsibility,” she said.

    Nancy said the consultations are with the state religious bodies and there are some states that have not given their feedback on the
    amendments.

    She admitted that there is no uniformity among the states on laws governing conversion, where some say that it is the responsibility of both parents while others give the right to either one of the parents.

    “If possible we want to have it standardised. But it depends on the states. We cannot control any state’s Islamic laws. Hence the consultation because the amendments will affect state laws as well,” Nancy said.

    SOURCE: The Sun (Malaysia).
    Posted on 9 March 2016 – 04:40pm, Last updated on 9 March 2016 – 09:03pm

    LinK: http://www.thesundaily.my/news/1722981

  3. THE STAR (Malaysia), Monday, 18 January 2016

    Wing sets up legal panel on religious conversion issues

    KUALA LUMPUR: Wanita MCA has set up a legal committee to address issues relating to religious conversion in the country, said its chief Datuk Heng Seai Kie (pic).

    The team, led by Wanita MCA vice-chairman Wong You Fong and comprising members from non-governmental organisations, aims to find solutions to the problems in light of the M. Indira Gandhi case.

    The committee, said Heng, would discuss and study the issues from a legal point of view and provide input to the Cabinet committee set up for the same purpose. The wing, she said, was not against any religion.

    “We are just acting on the principles of justice, the upholding of the Federal Constitution and legal dignity,” she said after chairing the wing’s central committee meeting.

    Heng also expressed the wing’s full support for Indira, whose three children were converted to Islam by her Muslim convert ex-husband without her consent.

    The Court of Appeal recently ruled that Muslim conversion issues were exclusively within the Syariah Court’s jurisdiction.

    However, the non-Muslim parent could not initiate a lawsuit in the Syariah Courts on behalf of their children under existing laws.

    A committee of ministers, led by Health Minister Datuk Seri Dr S. Subramaniam, had recently been asked by the Cabinet to look into the matter.

    Wanita MCA had earlier proposed that religion of minors must be determined equally by both parents. If there is any dispute, the children’s religion shall remain status quo until the age of 18 when they can choose.

    SOURCE: The Star. Retrieved on 18.1.16

    http://www.thestar.com.my/news/nation/2016/01/18/wing-sets-up-legal-panel-on-religious-conversion-issues/

  4. MAJORITY JUDGMENT: Conversion: Majority Judgment, Court of Appeal, Malaysia

    DISSENTING JUDGMENT: Conversion: Dissenting Judgment, Court of Appeal, Malaysia

    See Edge 6.1.16 for detailed justifications by both parties.

    Another example that there is no such thing as right or wrong as it depends on the status of the person giving the decision. MIGHT IS RIGHT.

  5. In a 2-1 majority ruling, the court held that the validity of conversion of three children by their Muslim father could only be determined by the Shariah Court.

    With all respect to the learned judges and without questioning the above ruling which sets a ‘precedent’ some may extend the ‘ruling’ to other cases involving crimes such as rape-fraud-cheating-etc and defaults in interest bearing loans given by financial institutions to Muslims individuals/owned companies just to name a few.

    Further keeping the above ‘precedent’ in mind will civil courts be only for non-Muslims? Can it be assumed that conversions involving other religions [Christianity-Hinduism-Sikhism-Buddhism-others] can now be determined by their respective religious institutions and not by the civil courts which has been the practice all for past many decades?

    Views of legal experts will be sought and also the political/religious leaders as the ‘precedent’ can be used by individuals who my chose to go to their respective religious laws for ‘justice’. Again what about the case when the disputing parties are of two different non-Muslims religions?

    Marriage among couples where one party is Muslim and the other non-Muslim are legal in their country of origin but not locally. What about these couples who may have come here as tourists or for honeymoon?

    Just some thoughts as the effects of the ruling can be far reaching.

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