International human rights lawyer Wei Meng Lim-Kabaa returns to the blawg in dissecting the Court of Appeal’s recent decision on the Indira Gandhi child conversion case.
The case of Registrar of Muallafs, Perak & Ors v Indira Gandhi a/p Mutho revisits the legal complexities surrounding the conversion of children to Islam where there is a dispute over the conversion between the parents, one of whom is now a Muslim. A key challenge is jurisdictional in terms of the capacity of civil courts to consider the validity of the conversion process where issues relating to the process straddle state religious legislation; while another concerns the interpretation of relevant provisions in the Federal Constitution.
The Court of Appeal’s (CA) decision on both scores fails to provide clear guidance and leaves many questions unresolved. By relegating the matter to the religious courts, and simply adhering to past precedents, the CA stopped short of an in-depth analysis of the constitutional issues at stake. In a country where it is not uncommon for parents of different religions to disagree over the religious upbringing of their children, albeit not to the level of a legal dispute, the Court could have better strived to provide guidance which is value-based and which would strengthen the constitutional principle of shared responsibilities of parents for the religious upbringing of children in the context of the best interests of the child.
A narrow legalistic approach which sees the process of religious conversion as merely procedural tends to marginalize critical constitutional principles and the values they represent, and also has the potential to fuel family disharmony and discord. In contrast, the High Court’s well analyzed judgement could provide solid grounds for a progressive way to resolving the issues and reaching a balanced outcome for all parties, especially the children.
In deciding that the case concerns the religious status of the children and was therefore a purely religious matter within the jurisdiction of the religious courts, the CA’s decision in effect denies a non-Muslim the right to access justice in civil courts, and in this regard risks severely weakening the rule of law, a key precept of which is as enshrined in Art. 8 of the Federal Constitution relating to equality under the law. A close look at the orders and reliefs sought by the applicant shows clearly that there is no request for a declaration on the religious status of the children; indeed it would be strange for any tribunal to give a ruling on whether a person is of one religion or another, a person’s religion being a very personal matter, unfathomable by any outsider.
The applicant’s claim was that the process of conversion was unlawful in violation of the applicant’s constitutional rights, rules of natural justice and national and international law, and as such, the conversion process was null and void. It is not entirely clear that s50 of the Administration of the Religion of Islam (Perak) Enactment 2004 (“Perak Enactment”) grants jurisdiction to the Syariah Courts to determine the Muslim status of individuals; rather its jurisdiction is limited to declaring that the person “is no longer a Muslim” or a “deceased person was a Muslim or otherwise at time of his death”. Logically, whether a living person is a Muslim or not is known to that person, so it would be very strange to grant jurisdiction to a religious court to declare the religion of the person if the person disputes it. Hence, the case concerns the lawfulness of the conversion process, a public act by the authorities, rather than the religious status of the children.
Ambiguity is also generated by the CA’s decision. While ruling that the matter of the conversion is solely within the jurisdiction of the Syariah Court, the Court nonetheless went on to affirm that, under s101 of the Perak Enactment, the certificates of conversion were conclusive evidence of the conversion. It would seem that the CA, while emphasizing the lack of jurisdiction of civil courts for reviewing conversion of individuals, at the same time, claimed civil jurisdiction to rule on the conclusiveness of conversion certificates. If indeed the civil courts have no jurisdiction to rule on matters of conversion, then the same should apply in relation to the issue of conclusiveness of conversion certificates, which should be a matter for the Syariah Courts.
In that regard, one may argue that conclusiveness of the certificates pertains to the facts of the conversion process which has taken place, but not as regards the lawfulness of the process, which only a tribunal could rule on. In the context of child conversion without the consent of the other parent, serious constitutional issues do arise, as do issues under other legislation concerning child rights and shared rights of parents, all of which cannot be resolved by simply referring to the conclusiveness of certificates of conversion.
In regard to the constitutional issues, the interpretation of the term ‘parent’ in Art 12(4) of the Federal Constitution concerning choice of religion of the child, is a key constitutional challenge. Although the Federal court in the case of Subashini Rajasingam v Saravanan Thangathoray & Or Appeals  2 CLJ 1 ruled that the term “parent” means a single parent, the High Court’s decision in the present case provides solid reasoning for an interpretation which should mean both parents. Not only did the High Court expound on what may be logical and common sense approaches, the Court also looked at the ordinary meaning of the term, the Malay translation version of the Federal Constitution, other similar state enactments, as well other relevant legislation, primarily the Guardianship of Infants Act 1961, to support the view that the singular incorporates the plural in this context.
As pointed out by the JC, this interpretation is entirely consistent with Art. 160(1) of the Constitution which, by referring to the Interpretation and General Clauses Act 1948, provides that words in the singular include the plural. Critically, in interpreting the provision of the Constitution, the JC applied international law principles of respecting the common responsibilities of parents and best interests of the child. This is as provided under Art. 18 of the 1989 Convention on Rights of the Child (CRC), and, from the perspective of the mother’s equal rights, under Art. 5 of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
The provisions of the Constitution do not come out of nowhere; they were crafted by legal jurists and Malaysia’s founding fathers most carefully based on then existing and developing precepts of constitutional and international law. In particular, Part II’s provisions on fundamental liberties were founded on principles of international human rights law, and reflect the values and norms of the Universal Declaration of Human Rights. Noteworthy is that Art. 8 on equality was amended to include non-discrimination based on “gender” so as to give effect to CEDAW. The High Court very rightly did not consider itself bound by international law which has not found its way into the Malaysian legal system through legislative incorporation.
However, the JC did apply international legal precepts in international treaties committed by the Malaysian Government to guide him in interpreting Constitutional provisions; this follows the case of Noorfadilla bt Ahmad Saikin v Chayed bin Basirun and Ors  1 MLJ 832. The JC’s analysis of provisions in the CRC concerning common parental rights and obligations is rich and substantive. While the CRC and CEDAW were not incorporated in their entirety into Malaysian law, the many fundamental precepts and principles were in fact woven into relevant existing legislation to render the latter more progressive and in tune with evolving norms accepted by the community of nations, of which Malaysia is an active member. Indeed, s. 5 of the Guardianship of Infants Act 1967 clearly reflects the principle of a mother’s equal right and authority for custody and upbringing of the children. Similarly, s. 88 of the Law Reform (Marriage and Divorce) Act 1976 provides that, subject to the welfare of the child, the wishes of both parents be considered where there is custody dispute.
In the context of Malaysia where inter-religious marriages do take place not infrequently, issues of religious upbringing and education of children could pose complex constitutional challenges. By ruling away the constitutional issues and putting aside, as irrelevant, international treaty provisions committed to by the country, the CA leaves many issues unresolved. The constitutional issues go beyond just conversion to Islam, and apply to conversion of children to other religions. There is a growing need for the courts to clear the air and put back the constitutional issues center stage by re-considering Subashini’s case in a way which reviews Art. 12(4) holistically. In a country which holds itself to be democratic and aspires to rule of law, it is time for the civil courts to reclaim the equal rights of the nation’s women, wives and mothers.