The Federal Court today allowed kindergarten teacher M Indira Gandhi to challenge the unilateral conversion to Islam of her three children, which it ruled should be heard on its merits.

Chief Judge of Malaya Zulkefli Ahmad Makinudin, who led the three-member bench, allowed three questions of law to be posed.

The other two judges were Justices Abu Samah Nordin and Aziah Ali.

This follows the Court of Appeal having, in a majority 2-1 decision on Dec 30, overturned the Ipoh High Court decision that declared the unilateral conversion as illegal and hence, null and void.

However, the Federal Court did not allow a question related to international conventions, such as the United Nations Convention on the Rights of a Child and the Convention on the Elimination of all Forms of Discrimination Against Women, in which Malaysia is a signatory.

The three-member bench allowed permission to hear the full merits of the appeal after senior federal counsel Shamsul Bolhassan did not object to two out of eight questions of law posed to the court.

However, lawyers for Indira, led by Ipoh Barat MP M Kulasegaran, along with K Shanmuga, Fahri Azzat and Aston Paiva, convinced the bench to admit another question of law, which is a variation of two questions that were not agreed upon.

With this, three questions of law to be decided by the apex court, are:

 

  • 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 authorities 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 1979, 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.

Full-member bench

Perak state legal adviser Rohana Abdul Karim appeared for the state while Hatem Musa appered for Ridhuan.

Section 96 (1) and Section 106 (b) of the Administration of the Religion of Islam (Perak) Enactment deals with the recitation of the kalimah syahadah (affirmation of faith).

Indira Gandhi's two children, now aged 18 and 17, claimed that they did not recite the kalimah syahadah resulting in the High Court to declare the conversions to be illegal.

The minority judgment at the Court of Appeal, by Justice Hamid Sultan Abu Backer, also ruled that the conversion was illegal as the kalimah syahadah was not recited.

Kulasegaran objected to Hatem's presence on the grounds that Hatem's client, or his representative could not be present as Ridhuan has not purged the order of contempt on him and does not have the right to be heard.

The Ipoh Barat MP read a portion of the Court of Appeal president Justice Md Raus Sharif's unanimous decision, which described Ridhuan as someone who does not want to put himself to the court.

“This kind of conduct cannot be condoned by the court as this brings the administration of justice into disrepute. When the case did not turn in his favour, he refused to come to the court's jurisdiction. We are of the view that he must be apprehended and the committal order (for contempt) needs to be executed,” Justice Raus had written.

The court did not make any ruling on Hatem's presence which means that the matter would be decided when the full appeal is heard.

It was previously reported that in 2009, Ridhuan had converted the three children – two daughters and a son – when they were 12, 11 years old and 11 months respectively.

The father took away the 11-month-old Prasana Diksa, and subsequently the apex court last month ordered that Khalid be arrested for committing contempt.

Kulasegaran told reporters outside court after today's proceeding that he hopes the appeal on this matter could be heard quickly.

“We will be making an application for a full bench at the Federal Court to hear the appeal,” he said.

Indira Gandhi, who was also present, told reporters outside the court that she was happy that the full appeal would be heard following today's decision and hoped that an early date could be fixed.