Malaysia’s apex court has ruled that the consent of both parents is needed to change a child’s religion.
In a landmark ruling today (29 Jan 2018), Federal Court of Malaysia ruled against the unilateral conversion of Hindu mother M. Indira Gandhi’s children by her Muslim ex-husband, thus ending her nearly decade-long ordeal.
The unanimous decision of the five judges would certainly be welcome by the substantial non-Muslim population in Malaysia, though some elements will certainly call for the elevation of the status of the Syariah courts.
The three appeals before the Federal Court were concerned with the registration of conversion of children in a non-Muslim marriage to Islam under the Perak Enactment.
“We hold that the High Court is seised with jurisdiction to exercise its supervisory power to decide on the complaints made by the Appellant against the administrative act of the Registrar of Muallafs in issuing the certificates of conversion of the Appellant’s children to Islam,” said Justice Zainun Ali who read out the 99-page judgment.
“We find that the Registrar of Muallaf had no jurisdiction to issue the certificates of conversion in respect of the conversion of the children to Islam due to noncompliance of sections 96 and 106(b) of the Perak Enactment. In giving effect to the statutory provisions of the Perak Enactment the Court is not required to inquire into principles of Syariah law or to resolve doctrinal legal issues arising out of the matter.
“We also find that the certificates of conversion were issued without the consent of the Appellant thus contravening Article 12(4) of the Federal Constitution and sections 5 and 11 of the GIA. The certificates of conversion are void and must be set aside,” according to a press summary released for the case.
SEE ALSO: Conversion no shortcut to divorce
He said the decision enables the comprehensive regime of judicial review based on standard concepts of justiciability.
A five-man panel, led by Court of Appeal president Justice Zulkefli Ahmad Makinudin, were unanimous in their decision. The panel included Chief Judge of Sabah and Sarawak Justice Richard Malanjum, Justices Zainun, Abu Samah Nordin and Ramly Ali.
The issue dates back to 2009. On April 2, 2009, Indira’s ex-husband had covertly converted their three children to Islam without her knowledge and without her consent. He then appeared before the Shariah court just a few days later to obtain custody rights for them. Indira was a kindergarten teacher.
In late 2015, Malaysia’s Court of Appeal released a ruling on the conversion case that has gripped the attention of the nation.
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.
The three questions posed to the Federal Court in this appeal were:
QUESTION 1: Whether the High Court has the exclusive jurisdiction pursuant to section 23, 24 and 25 and the Schedule of the Courts of Judicature Act 1964 (read together with Order 53 of the Rules of Court 2012) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment.
QUESTION 2: Whether a child of a marriage registered under the Law Reform (Marriage & Divorce) Act 1976 (‘a civil marriage’) who has not attained the age of eighteen years must comply with both sections 96(1) and 106(b) of the administration of the Religion of Islam (Perak) Enactment 2004 (or similar provisions in State law throughout the country) before the Registrar of Muallafs or his delegate may register the conversion to Islam of that child.
QUESTION 3: Whether the mother and the father (if both are still surviving) of a child of a civil marriage must consent before a Certificate of Conversion to Islam can be issued in respect of that child?
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Conversion no shortcut to divorce (Asia Samachar, 23 Sept 2017)
Conversion ruling in Malaysian court affects all, Sikhs included (Asia Samachar, 6 Jan 2016)