THE Federal Court’s decision in the case of M. Indira Gandhi vs Pengarah Jabatan Agama Perak is not only momentous for Indira and her family, but also for the future of multi-ethnic and multi-religious Malaysia.
For too long, our political leaders on both sides of the divide have failed us by wilfully ignoring the elephants running rampage in the room, undermining rule of law and ignoring constitutional guarantees of fundamental liberties.
The situation was muddied further by judges who relinquished their inherent power of judicial review and awarded jurisdiction to the syariah courts to hear matters that rightfully should be the powers of the civil court to adjudicate.
It finally took a bench of five Federal Court judges to reach a unanimous decision with such clarity, courage and eloquence to reset the path of constitutionalism for this country.
We now pray that this will be enough to propel the political leadership to summon the will and courage to speak out and do what is right and just for this country to move forward as one nation.
For too long the politics of race and religion, rather than justice and rule of law, have prevailed over many contested issues such as conversion, freedom of religion, freedom of expression, moral policing, women’s rights and human rights.
Where there has been a whiff of Islam, too many of those in authority have abdicated their responsibility and given free reign to the extremist, supremacist voices and their tactics to turn every dispute into a religious matter to bolster their grand project to turn Malaysia into a theocratic state.
This landmark Federal Court judgment, which asserts the principles of constitutional supremacy, will now provide clarity to judges on the principles to be used in interpreting the Constitution and the law.
It is now clear that the power to review the lawfulness of executive action rests solely with the civil courts; regardless of subject matter, the interpretation and enforcement of all laws, whether civil or Syariah, is the exclusive preserve of civil courts; that Syariah court jurisdiction is limited and must be expressly conferred by state legislation; it has no inherent judicial powers, including the power of judicial review; it is confined to persons and subjects listed in the State List; and the religion of children below 18 must be decided upon by both parents.
This judgment will shed light on many critical disputed matters that have remained unresolved and divided the country for over a decade, and have been a source of heartbreak at the personal level for many families.
Constitutional uncertainty caused by court decisions in the earlier cases of Sharmila and Subashini should now be history. It is crystal clear that a party to a marriage who converts to Islam has no right to unilaterally convert any underage children.
Importantly, the decision also points out that the yardstick to determine the validity of the conversion is administrative compliance with the express conditions stated in law – in this case, in Sections 96 and 106 of the Perak Administration of Islamic Law Enactment.
Section 96 requires the person to utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith; that the person must be aware that they mean when they say “I bear witness that there is no God but Allah and I bear witness that the Prophet Muhammad S.A.W. is the Messenger of Allah”; and the utterance must be made of the person’s own free will.
Section 106 requires that the person who converts must be above 18 and if not, the written consent of the parent or guardian is required. Both these sections must be complied with.
In both the legal requirement for conversion and capacity to convert, the Registrar of Muallafs has failed in the exercise of his statutory powers. Evidence showed that Indira’s three children did not utter the Affirmation of Faith, nor were they even present before the Registrar of Muallafs. The judgment made clear that the subject matter of Indira’s appeal is not about the status of her children as Muslim converts or about Islamic law and practice, but about the legality and constitutionality of administrative action.
This clarity is important as the same principle can help resolve the many cases of families traumatised when the happy occasion of a child’s birth is turned into a crisis because officials at the National Registration Department (NRD) refuse to register the name of the proud father and instead enter some random “Abdullah” as the father.
The Court of Appeal recently decided that the NRD has no power to prevent a father from conferring his name to his biological child. It also ruled that even though Jakim had instructed the NRD to abide by a 1981 national fatwa which asserted that children born within six months of a Muslim marriage are deemed illegitimate and cannot bear the name of the father, a fatwa is not a law and has no force of law, and cannot form the legal basis for the director-general to decide on the surname of children.
It behoves the Home Affairs Minister to instruct the NRD to stop violating its own law and relinquishing its own power, and conflating personal faith with public policy in the exercise of its public duty. The case is simple – exercise your statutory power legally and constitutionally by complying with Section 13 of the Births and Deaths Registration Act, which allows the father’s name to be entered into the register upon the joint request of both the father and mother of the child.
But of course, the widespread acclaim that has met this Federal Court judgment is also countered by criticism from the Islamic state ideologues of Malaysia. One group has warned of potential violence should the police track down Indira’s fugitive ex-husband and the abducted daughter whom she has not seen for nine years.
Another decried that this meant the views of the ulama will be side-lined. Two muftis have called on state governments to upgrade the status of syariah courts to be equivalent to civil courts.
But for those who welcome this long overdue judgment, clarity on principles of constitutionalism and interpretation of the law are far more important than identity politics and supremacy of one religion over another.
What we are most concerned about is the future of Malaysia and the peace, prosperity and stability that must prevail if this ethnically divided country is to survive. That the apex court of this country has spoken out and shown the way forward for us to co-exist by upholding the rule of law gives hope that the future might just get better.