The Court of Appeal in Putrajaya today scrutinised the manner in which the three children of kindergarten teacher M Indira Gandhi were converted to Islam by her former husband six years' ago.

 

This is because the registration of their conversion was not done through the Perak Registrar of Muallaf (new converts) as required.

 

Their father K Pathmanathan @ Muhammad Ridhuan Abdullah had converted the children - two daughters and a son - when they were 12, 11 years old and 11 months in 2009 without their mother's presence and three other conditions as required under Section 96 of the Administration of Islam Perak, Enactment 2004.

 

Perak state legal adviser Rohana Abdul Malek, in court today,  conceded that Ridhuan had not fulfilled the requirements under Section 96.

However, she claimed his children partially fulfilled the requirements of Section 106 of the same enactment for the conversion of children under 18 years of age.

 

“Furthermore the certificate of conversion issued cannot be challenged by the civil courts although the conversion was not done by the Registrar of Muallaf. No one can challenge the certificates,” said Rohana in submitting before the three-member bench.

 

Justice Balia Yusof Wahi, who led the bench, reserved judgment after hearing submissions during which they grilled Rohana and senior federal counsel Shamsulbol Hassan who are representing the appellants.

 

Rohana is representing the Perak state government and the state Islamic council while Shamsulbol is appearing for the education ministry with lawyer Hatim Ramli representing Ridhuan.

The Perak legal advisor and Shamsulbol had difficulties answering the questions posed by the judges.

The other two appellate court judges were Justices Hamid Sultan Abu Backer and Badariah Sahamid.

 

Natural justice right

The court was earlier told the certificate of conversion was issued by the assistant director of Ukhwah, of the Perak Islamic Department and Malay Affairs in April 2009.

 

Last year, High Court judge Lee Swee Seng ( photo ) had in a landmark decision declared the unilateral conversion of the three as illegal as the court ruled they had not become Muslims as the dua kalimah syahadah (pronouncement to embrace Islam) was not performed on them and therefore, such an act was unconstitutional.

 

“It is against the right of natural justice because the conversion was made without hearing from the mother or the children,” Lee had ruled.

 

"Under the Perak Islamic Administration Enactment, the three children must have the intention to embrace Islam without force. In this case, the three children cannot be proved to have recited the syahadah (affirmation of faith) and they, as well as their mother, were not present at the Islamic Religious Office for the purpose of conversion," he had said.

 

Justice Lee also ruled that to convert their child without the consent of both parents was against international norms.

Today's matter was the result of the Perak government, Ridhuan and the education ministry appealing against Justice Lee's decision.

Shamsulbol in his submission on the issue of jurisdiction, contended that in Islamic matters, such issues should be left  to the Syariah Court and not the civil courts.

However, when asked by the judges, he conceded that the Registrar of Muallaf was under the Perak Islamic and Malay Affairs Department and not under the Perak Islamic Council and hence its decisions could be challenged at the civil courts.

Lawyer Fahri Azzat who appeared for Indira ( photo ) along with lawyers Aston Paiva and M Kulasegaran also told the court that the registration of Muslim converts was done through the Registrar of Muallaf' and not at the syariah courts.

Fahri submitted that Section 106 of the Perak enactment had to be read together with Section 96 meaning that the conditions under Section 96 must be fulfilled.

“In this case, none of the four criteria listed namely the proclamation of faith, the children's presence, the conversion being done out of sincerity and the presence of the mother were fulfilled.

“We are not arguing on the constitutional aspect of this case but that the procedural requirements set under the enactment had not been met,” he said.

Duality of court systems

He added a judicial review to challenge the children's conversion certificate could be made as the certificate was not issued by the Registrar of Muallafs but instead by an assistant director of Ukhwah which was a unit under the Perak Islamic Department.

The lawyer argued that following the discrepancy and questions surrounding the children's conversion, the appeals by the Perak government, Ridhuan and the education ministry should be dismissed.

Aston, meanwhile, pointed out that as one child had already turned 18 and whatever decision the court made, it was not applicable to this eldest child, the daughter.

Under the Federal Constitution, children above the age of 18 can decide on their own religion without their parents' consent.

The case grabbed local headlines when Pathmanathan @ Ridhuan embraced Islam and converted the three children in 2009.

While challenging the unilateral conversion of her children, Indira also mounted a legal battle for the return of her youngest child and in March 2010, the Ipoh High Court granted custody of the toddler to her.

 

At the same time, Pathmanathan @ Ridhuan (left) was granted custody by the Syariah High Court, in a duality of court systems.

 

On Sept 12, the High Court in Ipoh issued a mandamus order to compel the inspector-general of police to arrest Ridhuan and return their youngest daughter to Indira.

 

The police claimed they were caught between two equally valid orders issued by the Syariah High Court and civil High Court, and appealed against the recovery order.

On April 22, The Federal Court has granted leave to Indira Ghandi to hear whether the police can be compelled to execute a court order to retrieve her child.

The single question posed by Indira Gandhi covered all nine questions which were posed earlier before the panel.

The question is:

  • Whether an order of mandamus can be directed to compel the IGP to comply and direct the police officers under him, to execute a warrant of committal and a recovery order under the Child Act 2001, where such orders had not been reversed or set aside.