Unilateral Conversion In Malaysia – Back From The Brink

INTRODUCTION

Monday, 29 January 2018, was a momentous day. On that day, the Federal Court ("FC") set aside the unilateral conversion to Islam of three children in the long-running case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 ("FC Indira Gandhi"). In doing so, the FC reaffirmed that the jurisdiction of the civil courts was not ousted by Article 121(1A) of the Federal Constitution ("Constitution").

In terms of constitutional law as well as family law, a great deal was at stake. First, was the question of erosion of the judicial power and independence of the civil High Courts; and second, the right of a parent to determine the religion of his or her child or children.

FC Indira Gandhi was just one in a rash of cases involving an inevitable mix of constitutional conundrum and the unilateral conversion to Islam of children by their converting fathers without the consent of their mothers, namely, Subashini a/p Rajasingam v Saravan a/l Thangathoray [2007] 2 MLJ 705 (FC), Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah [2011] 1 CLJ 568 (FC) and Viran a/l Nagapan v Deepa a/p Subramaniam and other appeals [2016] 1 MLJ 585 (FC).

EVENTS LEADING UP TO THE DECISION

Indira Gandhi a/p Mutho ("Indira"), the appellant, married Patmanathan a/l Krishnan, the 6th respondent, in 1993. Their marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 ("LRA"). After nearly 16 years of marriage, Patmanathan converted to Islam on 11 March 2009 and changed his name to Muhammad Riduan bin Abdullah ("Riduan"). He left the family home with their youngest child, Prasana Diksa ("Prasana") shortly thereafter. Their two elder children, Tevi Darsiny and Karan Dinish, continued to reside with Indira. Indira discovered sometime in April 2009 that the Pengarah Jabatan Agama Islam Perak had issued three certificates of conversion to Islam of her three children. The Syariah Court had granted custody of the children to Riduan on 3 April 2009.

WHAT THE HIGH COURT DECIDED

On 9 June 2009, Indira applied to the Ipoh High Court ("HC") by way of an application for judicial review for an order of certiorari to quash the certificates of conversion on the ground that their issuance by the Registrar of Muallafs was ultra vires and illegal. On 25 July 2013, the learned Judicial Commissioner, in addition to finding that the HC had exclusive jurisdiction to hear the judicial review application to the exclusion of the Syariah Court, held that the Registrar of Muallafs had not complied with the requirements of the relevant provisions of the Administration of the Religion of Islam (Perak) 2004 ("Perak Enactment") and quashed the certificates of conversion (see Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 5 MLJ 552).

In the meantime, Riduan refused to surrender the children to Indira despite the HC having granted Indira full custody of the three children on 11 March 2010. On 30 May 2014, Indira successfully obtained a committal order to commit Riduan to prison until the delivery of Prasana to her. Indira also filed a petition for divorce on grounds of Riduan's conversion to Islam under section 51 of the LRA.

WHAT THE COURT OF APPEAL DECIDED

However, on appeal by Riduan, the Court of Appeal ("CA") by majority reversed the HC's decision on 30 December 2015 (Pathmanathan a/l Krishnan (also known as Muhammad Riduan bin Abdullah) v Indira Gandhi a/p Mutho and other appeals [2016] 4 MLJ 455). The majority held that that the HC had no power to question the decision of the Registrar of Muallafs or to consider the registrar's compliance with the relevant requirements of the Perak Enactment. The fact that a person had been registered in the Registrar of Muallafs as stated in the certificates of conversion was proof that the conversion process had been carried out to the satisfaction of the registrar.

APPEAL TO THE FEDERAL COURT

The FC granted leave to Indira to appeal against the CA's decision on three questions of law. The respondents in the three appeals, which were heard together, were the Director of the Perak Islamic Religious Affairs Department, the Registrar of...