In the Indira Gandhi case, the primacy of the civil courts was reaffirmed as the proper and correct forum to dispense with matters relating to conflicting laws.
IN early April 2009, after the appointment of Tan Sri Dr Koh Tsu Koon as Minister in the Prime Minister’s Department in charge of national unity and transformation, I was offered a position that would forever change the trajectory of my professional life.
I was 23 years old and eager to serve after completing my legal education in the Britain. Dr Koh offered me the position of special officer with focus on national unity and legal affairs.
I accepted it with trepidation as the responsibilities were enormous and my experience was limited.
I will remain eternally indebted to Dr Koh for giving me my “first break” in government and politics.
Not long after formally starting work, I received a phone call from then Malaysian Hindu Sangam president Datuk A. Vaithilingam.
He sounded very distressed over the conversion of three children to Islam by a single parent (father) and asked to see Dr Koh.
The rest is history as they say, but allow me to recap certain salient facts.
On March 11, 2009, Indira Gandhi’s husband Pathamanathan converted to Islam and took the name of Muhammad Riduan. On April 2, 2009, Riduan unilaterally converted his three children, including the youngest who then only 11 months old.
His estranged wife, Indira Gandhi, whom I recall as a determined and stoic lady, challenged the conversion of her three children on the grounds that both parents must consent to the conversion of minor children.
The case captured the imagination of Malaysians and placed significant pressure on the Government to act. In April 2009, then (de-facto) law minister Datuk Seri Nazri Aziz made a declaration stating that both parents must consent to the conversion of minor children.
This declaration formed the basis of extensive engagements with the Malaysian Bar and other non-governmental organisation, most of which I was privy to by virtue of my position.
It was challenging and arduous because getting all parties to unite around a common position was difficult but after some tense moments; the Attorney-General’s Chambers proposed certain amendments to the laws governing marriage, divorce and custody of children and while not perfect, it was a step in the right direction.
I remember cautioning in one meeting that “the good must not be the enemy of the perfect”.
Alas, the amendments were not meant to be and after the Rulers’ Council expressed reservations, they were shelved. Indira Gandhi continued her battle in the courts.
She prevailed in the Ipoh High Court and gained complete custody of her three children and their conversions were also set aside. However, the Syariah Court gave a parallel order granting the custody of the children to Riduan.
At this time, matters were also dicey as Riduan and the couple’s youngest child could not be located and the police were faced with a situation where there were two conflicting court orders, one from the civil high court in Ipoh and another from the syariah court.
Contempt proceedings were also commenced against Riduan for failing to comply with the Ipoh High Court order.
On Jan 29, 2018, the Federal Court in a unanimous decision set aside the conversion of the three children to Islam and made a landmark ruling that the word “parent” in Article 12(4) of the Federal Constitution concerning the religion of the child must be read as a plural as both parents must have equal say in the religious upbringing of a child.
Hence, before a conversion of a child can be registered it must receive the consent of both parents.
This decision also impliedly repealed the previous Federal Court decision on Dec 27, 2007 in the case of Subhasini where a panel of the Federal Court ruled in a majority 2-1 decision that the word “parent” in Article 12(4) of the Federal Constitution meant a single parent — either mother or father — could decide the religion of a child.
The Indira Gandhi decision also brought much needed clarity to the power of judicial review of the courts that was usurped by Tun Dr Mahathir Mohamad in 1988 at the height of the judicial crisis.
In the Federal Court’s Indira Gandhi decision, Justice Zainun Ali unequivocally stated that the power to review decisions of the Executive are inherent in our constitutional set-up and forms the basic structure of the Constitution. It cannot be disturbed or compromised by amending the Constitution.
Further, the primacy of the civil courts was reaffirmed as the proper and correct forum to dispense with matters relating to conflicting laws, especially conflicts between syariah and civil laws.
A quiet judicial revolution took place with not many noticing and the courts rightfully reclaimed powers that were taken away by the Executive in the late 1980s.
The present Government should be applauded for not standing in the way of this process of correction.
However, what is unfortunate is that there were parties who tried to hijack this decision and cast it as a loss for Muslims and gain for non-Muslims.
I must share a part of a statement issued by Chai Ko Thing, Gerakan Youth Legal Bureau chairman that eloquently summed up the significance of the decision and the importance of respecting it:
“Our hybrid justice system caters for the needs of Muslims and non-Muslims alike as we are all loyal citizens of our beloved country.
The law is there to protect everyone, regardless of race, religion or beliefs from harm.
The decision of the Federal Court in the case of Indira Gandhi was a manifestation of this protection.
It is not a victory for non-Muslims and a loss for Muslims … it is a victory for justice and the law, only that and nothing more.”
As such, despite a difficult road travelled, Indira Gandhi’s fortitude has helped cure a major lacuna in the law and this will also aid the Government in amending the necessary laws to prevent situations like this from recurring.
> The views expressed are entirely the writer's own.
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