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The grounds of judgment in the Indira Gandhi ruling


PETALING JAYA: The Federal Court's ruling on Jan 29 that kindergarten teacher M. Indira Gandhi's appeal against the conversion of her three children to Islam was not within the Syariah Court's jurisdiction was based on the finding that it did not involve the interpretation of any Islamic personal law or principles.

Justice Zainun Ali said Indira, who was the appellant, was challenging the administrative power exercised by the Registrar of Muallafs under the administration of the Religion of Islam (Perak) Enactment 2004 with regards to the registration and issuance of the certificates of conversion of her children.

Justice Zainun said the appellant was not questioning the conversion itself but the process and legality thereof.

She said it was not disputed that the registrar was exercising a statutory function as a public authority under the Perak Enactment in issuing the certificates.

"As had been clearly manifested earlier, the jurisdiction to review the actions of public authorities and the interpretation of the relevant state or federal legislation as well as the Federal Constitution lie squarely within the jurisdiction of the civil courts.

"The determination of appellant's appeal does not involve the interpretation of any Islamic personal law or principles and this has to be made clear," said Justice Zainun, who delivered the court's five-man panel's decision on Jan 29.

The decision set aside the conversion of Indira's three children – Tevi Darsiny who was then 12 years old, Karan Dinesh, 11, and Prasana Diksa who was only 11 months old at the time – by her Muslim convert ex-husband Muhammad Riduan Abdullah, (formerly known as K. Pathmanathan), in 2009.

The 100-page judgment is available on the judiciary website (PDF).

Justice Zainun said the yardstick to ascertain the validity of the conversion was the administrative compliance with the express conditions stated in Sections 96 and 106 of the Perak Enactment, namely the utterance of the Affirmation of Faith (the Kalimah Syahadah) and the consent of the parent.

She said Syariah Court judges were appointed by the Rulers of the respective states after consultation with the relevant state religious council, adding that it was trite that the Syariah Courts did not have jurisdiction over non-Muslim and non-Muslim parties have no locus before the Syariah Court.

She said since the appellant was a non-Muslim and so has no locus to appear before the Syariah Court for the present application, the application was now before the panel, seeing as the Syariah Court does not have the power to expand its own jurisdiction to choose to hear Indira's application.

She said judicial power could not be vested to the Syariah Courts as such courts were not constituted as a superior court in accordance with the constitutional provisions safeguarding the independence of judges.

On Jan 29, the five-man panel set aside the unilateral conversion of Indira Gandhi's three children to Islam, ruling that both parents must give consent beforehand.

The panel, chaired by Justice Zulkefli, unanimously ruled that the certificate of conversion of Indira's three children was issued without her consent and contravened the Federal Constitution and the Guardianship and Infants Act 1961.

Justice Zulkefli said they allowed the appeal with no cost and set aside the Court of Appeal's decision.

Other judges on the panel were Chief Judge of Sabah and Sarawak Justice Richard Malanjun, Justices Zainun Ali, Abu Samah Nordin and Ramly Ali.

The children, two girls and a boy, now aged 20, 19, and nine, were converted to Islam by their father Muhammad Riduan, 47, in April 2009 without the mother's consent.

The youngest daughter is with Muhammad Riduan while the two elder siblings are with their mother.  

Indira and Pathmanaban were married on April 10, 1993. The husband converted to Islam on March 11, 2009.
   

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