While K Pathmanathan @ Mohd Ridhuan Abdullah was absent in the Federal Court proceedings over the unilateral conversion of his children, his former wife M Indira Gandhi wanted the highest court in the country to re-visit the 2008 case of R Subashini to correctly define the word "parent" to mean both father and mother.

This was to stop the purpose of unilateral conversion of the children by either one of the parent, as approval had to be sought from both of them.

The Federal Court in Subashini had ruled in 2007 that any one parent had the right to convert a child.

Federal Court judge Justice Nik Hashim Nik Ab Rahman had said the word “parent” in Article 12(4) of the Constitution, which stated that the religion of a person under the age of 18 years should be decided by his parent or guardian, meaning, a single parent.

At the same time, Indira Gandhi's lawyers told the apex court that the syariah courts do not have jurisdiction over children born of civil marriages and that the Court of Appeal's majority decision last year was wrong in deciding jurisdiction over the conversion of her children was with the Syariah Court.

The couple's three children were unilaterally converted to Islam by Ridhuan in 2009, without their presence and recitation of the kalimah syahadah (affirmation of faith), and a certificate of conversion was issued by the Registrar of Muallaf.

The court was hearing Indira's appeal for answers to three questions to be decided by the apex court namely:

  • Whether the High Court has exclusive jurisdiction, pursuant to Sections 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 Muallaf or his delegate acting as the public authority in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004;
  • Whether a child of a marriage registered under the Law Reform (Marriage and Divorce) Act 1976, who has not attained the age of 18 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 to state laws throughout the country), before the Registrar of Muallaf or his delegate may register the conversion to Islam of that child; and
  • Whether the mother and 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 the child.

Her lawyer K Shanmuga, in answering the first question in the affirmative, told the court that previous cases have shown that the Syariah Court shall only have jurisdiction over persons who professed Islam.

“Hence, there is a limitation that all parties must be persons professing religion of Islam,” he said.

The lawyer who was addressing the five-member bench led by Chief Judge of Malaya Zulkefli Ahmad Makinudin, said that the Perak Administration of Islamic Law Enactment (2004) was never meant to jeopardise non-Muslims like Indira.

He showed the bench the Perak legislative assembly's Hansard with regard to debates on the enactment, when a question was asked by a member of the opposition and the Perak government replied that this was only applicable to Muslims and did not cover non-Muslims.

“Hence, the intention is that the enactment is not used to discriminate against my client,” said Shanmuga.

Three prerequisies must be met

Another lawyer, Aston Paiva who was addressing the second question, told the bench that three requirements must be fulfilled under Sections 96 (1) and 106 (b) of the Administration of the Religion of Islam (Perak) Enactment 2004 to determine whether a children is Muslim or otherwise through conversion namely, the child must make the application, the child must utter the kalimah syahadah (affirmation of faith) and there must be written consent by the parent.

Aston pointed in this case it was not disputed that the children never uttered the kalimah nor did they consent to be converted.

He said the enactment provided that the father's right, the mother's rights and the child's right be heard.

Under Section 96 (1), he said the utterance of the kalimah syahadah is a requirement besides a deep realisation of the consequence and that the utterance must be made of free will.

When asked by Justice Zulkefli how would a child who is under 18 know how to make an application, Shanmuga replied that consent must be given by both the parents, that is the mother, father and child.

“All three must consent to fulfill the requirement under the Section. This is the reason why we are bringing this appeal as the certificate issued by the Registrar of Muallaf had been made and we are applying to quash it,” he said.

Apex court decision in Subashini wrong

Meanwhile, the third lawyer for Indira Gandhi, Fahri Azzat, urged the panel to re-look at the Subashini case as it had wrongly defined "parent" to mean either the father or mother.

In answering the third question in the affirmative, that both father and mother's consent were necessary if the children were to convert.

Fahri's said the definition of the "parent" to mean either a father or mother was inconsistent with the Federal Constitution with regard to Article 12 (4), Article 160 and the 11th Schedule where it defined that word in the singular in the constitution to include the plural and words in plural to include singular.

“Hence the word 'parent' should be defined both to include father and mother and not father or mother,” he said.

The lawyer further argued that on a topic as sensitive as religion, both parents must consent before the state could register the conversion of the child.

Fahri, when asked by Chief Judge of Sabah and Sarawak Justice Richard Malanjum, agreed with the judge that he wanted the Subashini case to be re-visited and that the majority judgment by Justice Nik Hashim in the Subashini case should be considered an obiter (comment made in passing).

“This follows the Federal Court then had already made a decision in the case without the necessity of answering the question (on definition of parent) posed,” he said.

Fahri said existing laws like the Guardianship Act 1990 had been amended to reflect both parents to have equal access and rights to guardianship after earlier stating it should be the father.

He also said without allowing Indira the right to a say on conversion was also against her equality rights, as we promote gender equality and contravened Malaysia's obligations under the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women.

The other judges hearing the appeal are Federal Court judges Justice Zainun Ali, Justice Abu Samah Nordin and Justice Ramly Ali.

They will hear the reply on Dec 5, from the respondents comprising the Federal government representing the Education Ministry, along with the Perak state legal adviser representing the Registrar of Muallaf, the Perak Islamic Department and the Perak government and Ridhuan's lawyer Hatem Musa.