'Indira Gandhi's children conversion illegal, Kalimah Shahadah not recited'

The conversion of M Indira Gandhi's children to Islam is illegal as the permission of the mother had not been obtained and the children themselves did not affirm or recite the Kalimah Shahadah (affirmation of faith) as required, ruled Court of Appeal judge Hamid Sultan Abu Backer in his dissenting judgment on the controversial case.

Justice Hamid said in his 74-page judgment that for a valid administrative conversion to take place, the application must be made by the three children with the consent of both parents.

“There is no provision for a parent to make the application. In addition, the children must, and I repeat, must affirm what is often called in Arabic as Kalimah Shahadah, as set out in Section 96 of the Administration of the Religion of Islam (Perak) Enactment 2004.

“If a person or child has not affirmed the Kalimah Shahadah, there is no provision in written law for a valid conversion to take place and it is as simple as that.

"In the instant case, it is not in dispute that the children have not made the application, have not recited the Kalimah Shahadah or have requested the appellant (their father, Mohd Ridhwan Abdullah, formerly known as K Pathmanathan,) to give consent to their conversion.

“In consequence, without administrative compliance of Section 96 and 106, the Registrar of Muallaf could not have issued in law a certificate under Section 101 of the Perak Enactment.

"The certificate is nullity ab initio and just needs to be set aside by a court of competent jurisdiction,” Justice Hamid (photo) said in his dissenting judgment.

Therefore, he found the judgment made by Justice Lee Swee Seng in the High Court in Ipoh to be correct.

'It is my judgment that the certificates issued by the Pendaftar Muallaf (Registrar of New Converts) Perak is a nullity ab initio and the order of the High Court quashing the administrative decision was correct, not for the reasons stated by the learned trial judge, but strictly within the reasons I have stated in this judgment," he said.

Ab initio is the Latin term for "from the beginning".

Justice Hamid also differentiated parliamentary supremacy from constitutional supremacy, which he observed had resulted in arguments and reasons for judgments to become convoluted not only in this case but also in other cases relating to public law.

'Syariah Court has the jurisdiction'

Nevertheless, the majority judgment of the Court of Appeal takes force as the three-member bench led by Justice Balia Yusof Wahi and another judge, Badariah Sahamid, allowed the appeal by Mohd Ridhwan that the civil court does not have the jurisdiction to determine the conversion of the children as such power lies with the syariah court.

Hence, the Court of Appeal overturned the decision by the High Court in Ipoh, which quashed the conversion on the grounds that the proper forum to hear this matter is the syariah court.

Although the majority judgment decided that the issue is within the realm of the syariah court, Justice Hamid opined otherwise in his dissenting judgment.

The judge said all relevant authorities and counsel for litigants must take note that Article 121(1A) is primarily aimed at those born as Muslims and by reading the relevant section of the Perak Enactment, the syariah court only has jurisdiction over parties where the litigants are either born as Muslims or converted to Islam.

“If the subject matter is not within the syariah court but syariah principles are involved, the civil courts are the sole arbiter under the Federal Constitution.

“In my view, syariah laws in this country are quite straightforward and do not infringe upon the rights of non-Muslims in any manner and a just decision can be reached if counsel are sufficiently learned in civil, criminal, constitutional and syariah law and prepared to balance the rights of the parties and judicial principles, not only with the Federal Constitution but also with the Rukun Negara to achieve a just result.

“In addition, if a Syariah Enactment itself has to be challenged, it has to be done through the civil court. Only the civil court at present has the ability to deal with judicial review of (i) executive decisions; (ii) legislation; (iii) constitutional amendments; and (iv) policy decisions. The jurisprudence relating to judicial review, as practised in Malaysia, is unknown under the syariah jurisprudence,” Justice Hamid said.

Parliament vs constitutional supremacy

Justice Hamid also differentiated parliamentary supremacy from and constitutional supremacy, which he observed had resulted in arguments and reasons for court judgments to become convoluted, not only in this case but in other cases relating to public law as well.

He opined that the judiciary must give effect to the will of Parliament, but the doctrine of constitutional supremacy takes the position that Parliament must be guided by the Federal Constitution.

The judiciary, Justice Hamid said, must make sure that Parliament legislates according to the constitutional framework and all its agencies administer legislation according to the rule of law related to constitutional supremacy.

He reminded that for this purpose, the judiciary takes an oath to preserve, protect and defend the constitution.

“Judges are expected by the public to demonstrate ‘judicial dynamism’ to protect the constitution as well as protect fundamental rights.

“Parliament, as well as the executive, must uphold the concept of accountability, transparency and good governance as failure to do so will breach the constitutional framework. Judges, by their oath of office, are entrusted to ensure that the constitutional framework is not breached.

“Rule of law requires the judiciary to be subservient to the constitution and condone the policy of the government, provided it does not breach the constitutional framework or the doctrine of accountability, transparency and good governance,” the judge said. - Mkini