PUTRAJAYA: All eyes and ears will be trained on the Federal Court this morning as Malaysia waits for the apex court’s decision on the validity of the unilateral conversion of three children to Islam.
The public has been waiting almost 14 months to know whether the consent of only one parent is needed to convert a child.
The five-man Bench comprising Court of Appeal President Justice Zulkefli Ahmad Makinudin, Chief Judge of Sabah and Sarawak Justice Richard Malanjum, and Federal Court Justices Zainun Ali, Abu Samah Nordin and Ramly Ali reserved judgment in November 2016.
It has been an even longer wait for kindergarten teacher M. Indira Gandhi, 42, who first marched into a court in 2009 for a declaration that the conversion of her children to Islam without her consent was null and void.
K. Pathmanathan, who took on the name Mohd Riduan Abdullah after he converted to Islam in March 2009, converted his children Tevi Darsiny, Karan Dinish, and Prasana Diksa (now 20, 19 and nine years old, respectively) three weeks later without their knowledge or presence.
Soon after he snatched the then 11-month-old Prasana from the family home.
It has been a protracted battle with the civil court giving Indira custody of her children and the Syariah Court awarding custody to Ridzuan.
On July 25, 2013, the Ipoh High Court nullified the conversion of the three children.
But Riduan and the Government appealed the decision and won by a 2-1 majority in the Court of Appeal on Dec 30, 2015.
This is a case that not only affects Indira Gandhi and her family but others who might find themselves in the same situation if there is no legal clarity.
Legal observers were not unanimous on what the decision would be or how far it would go.
“I don’t see that it will be a ground-breaking decision,” said one human rights lawyer.
“The Government likes to say that religion is a sensitive matter.
“The fact that it deleted Section 88A from the Law Reform (Marriage and Divorce) Amendment Bill which deals with unilateral conversions states clearly the Government’s position, if the court was looking for clues, that is,” he added.
Another lawyer disagreed saying Section 88A was removed because the Government wanted a resolution but stakeholders could not agree on how best to do it.
“The court’s decision must embody fairness and justice,” she said, adding that the Court of Appeal misinterpreted the Federal Constitution and the apex court had the opportunity to put it right.
A senior constitutional lawyer said it was incumbent on the Federal Court to uphold fundamental human rights and give due recognition to and sustain the original intention of Parliament that the word “parents” in the Constitution “means both father and mother.”
A couple of observers predict a majority decision but a lawyer who practises in both the civil and syariah courts was “very optimistic” that Indira would get justice.
“I would be outraged if she didn’t. There is nothing in Islam that condones taking a child away from its mother.
“The most important thing is to reunite Indira with her youngest daughter,” he asserted.
“The Federal Court knows the importance of giving a sensible solution.
“We cannot seem to be rewarding a person who unilaterally converts a child and acts contrary to the law,” he added.
The time taken for this case to conclude has now raised the question of what will happen to Indira’s two older children who are over 18 years of age.
Depending on today’s decision, will they have to go to battle to declare their conversion by their father null and void or will the position that parents only decide a child’s religion up to the age of 18 apply to them too?
A human rights lawyer said the public also wants the court to answer the problem of the police.
“It was the IGP himself who said he didn’t know what to do with the conflicting custody orders from the civil and syariah courts.”
During the appeal, the court had raised its concern about Riduan’s continued absence and for progress on the warrant of arrest issued against him for contempt of court.
“What is the progress? Otherwise anybody can just run away, not bothered by order of the court,” Justice Zulkefli said.
“This is a case of public interest...We are indeed concerned,” he added.
Women’s Aid Organisation vice-president Meera Samanther said she hoped the decision will say that both father and mother decide on a child’s religion and that should remain until the child turns 18.
Indira herself is praying that the “nine years of dark void in my life will come to an end.”
“I want the decision to clarify the legal position not only for my family but the whole nation.”
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