The civil court cannot review or overrule decisions that are in the realm of the syariah court, states the majority judgment in the tussle between Muslin convert Mohd Ridhwan Abdullah (formerly K Pathmanathan) and his former wife M Indira Gandhi involving their three children.
Justice Balia Yusof Wahi, who led the three-member Court of Appeal bench, also ruled that the certificate of conversion, issued by the registrar, should be deemed as conclusive proof of the facts stated in the certificate by virtue of Section 101 (2) of the Administration of the Religion of Islam (Perak) Enactment 2004.
“In our considered view, Sub-section 2 of the said provision clearly declares the certificate of conversion to be conclusive proof of the facts stated in the certificate. The certificates of conversion of the children titled 'Perakuan Memeluk Islam' states the fact of the conversion of the persons named therein.
“We further observed that the 'Perakuan Memeluk Islam' issued by the principal assistant director of the Dakwah Division, on behalf of the Perak Islamic Department, stated the fact that the persons named (the three children) therein have been registered in the Registrar of Muallaf (as new Muslim converts),” he said.
Justice Balia, along with Justice Badariah Sahamid, had ruled in favour of Mohd Ridhwan, who converted the three children to Islam, by ruling it is the syariah court's jurisdiction to determine whether they have embraced Islam.
He added in the 35-page judgment that the view taken by lawyers representing Indira Gandhi (photo) were quite simplistic in that the Registrar of Muallaf’s action of issuing the certificate of conversion is an administrative act and thus amenable to judicial review.
“In our view, in the absence of any evidence to the contrary and in the absence of any challenge to the said certificate, which must be done or taken in the syariah court, the said certificate remains good,” ruled the two judges.
Justice Balia said the issuance of the 'Perakuan Memeluk Islam' indicates that the issue of conversion has been satisfied, and the fact that the persons named therein have been so registered, the process of conversion must have been done to the satisfaction of the registrar.
“As such, we are of the view that the High Court has to accept the facts stated therein and it is beyond the powers of the learned High Court judge to question the same,” he said.
High court transgressed syariah court
Justice Balia further cited Section 50 of the Perak Enactment, where a plain reading of the provisions puts it beyond doubt that the power to declare the status of a Muslim person is within the exclusive jurisdiction of the Syariah High Court.
“The order of the civil High Court declaring that the conversion is null and void is a transgression of Section 50(3)(b(x) of the above said provision,” he said.
The judge further observed that High Court judge Justice Lee Swee Seng had erred in his approach in dealing with the subject matter, where he decided on the constitutionality of the conversion process instead.
“His approach was solely on the constitutional interpretation of the various provisions in the Federal Constitution. The hearing before him was simply on the constitutionality of the conversion process which was challenged by way of a judicial review application.
“We are of the view that on this ground alone these appeals by the Perak government, the state Islamic Department, the registrar of muallafs and Ridhwan, ought to be allowed and for the judgment of the High Court to be set aside.
“To allow the High Court to review decisions on matters that are within the exclusive province of the syariah court is in contravention of Article 121 of the Federal Constitution and inconsistent with the principles of judicial review,” he said in overturning the decision of the High Court in Ipoh.
On the issue of the conversion of the three children being not in accordance with international norms such as the Universal Declaration of Human Rights 1948 (UDHR), the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw), as it should get the consent of both parents, the judge said these are not legally binding instruments.
“It is trite that international treaties do not form part of our law unless those provisions have been incorporated into our laws, Justice Balia said, adding that in the Federal Court decision of Bato Bagi & others vs Kerajaan Negeri Sarawak, the apex court ruled that international norms should not be used as a guide to interpret the Malaysian Federal Constitution.
Justice Lee, in his judgment, said among other things that the unilateral conversion of the three children goes against UDHR, CRC and Cedaw.