Apex court can reverse own ruling on minor’s conversion to Islam, say lawyers

Kindergarten teacher M. Indira Gandhi plans to take her case to the Federal Court, in a bid to declare the conversion of her children to Islam, done by her ex-husband, as null and void. – The Malaysian Insider file pic, January 11, 2016.

The Federal Court can break the impasse over unilateral conversions of children to Islam through M. Indira Gandhi's case, although it had in 2014 ruled that conversions be decided by the Shariah court, lawyers say.

They said there had been past precedent of Federal Court benches departing from their previous decisions, and it was largely a question of how the legal questions were framed and argued before the judges.

Lawyer Mohamed Hanif Khatri Abdulla said the Federal Court bench could revisit the same issue it had decided earlier.

"No decision is cast in stone and cannot be changed. That is why we have a procedure in the Federal Court where parties get leave to argue issues of public importance."

At the same time, there was nothing to stop the executive from amending laws in Parliament to pacify Muslims and non-Muslims on custody, conversion and the religious status of dead persons.

Hindu kindergarten teacher Indira will be appealing to the apex court after the Court of Appeal set aside the High Court's decision to quash the conversion certificates of her children who were converted to Islam by her ex-husband without her knowledge.

Lawyer Mohamed Hanif Khatri Abdulla says legal judgments are not cast in stones. – The Malaysian Insider file pic, January 11, 2016.The Federal Court in 2014, however, led by Chief Justice Tun Arifin Zakaria, decided that Article 121 (1A), a constitutional amendment made in 1988, excluded the civil courts from inquiring into matters that touched on Islam.

This was in the case of Raimi Abdullah v Siti Hasnah Vangarama Abdullah, the latter a mother of three and married to a Hindu husband, but due to her religious status could not register her marriage. She had challenged her conversion, done as a child, as null and void.

Arifin in his judgment then said the constitution allowed the religion of a minor to be determined by the parent or guardian, and its validity by the religious court.

Chief Justice Tun Arifin Zakaria ruled in 2014 that the religion of a minor can be determined by the parent or guardian, but his judgment can still be reversed, say lawyers. – The Malaysian Insider file pic, January 11, 2016.Perkim officer, Raimi Abdullah and the Penang Islamic Religious Council had revealed that Siti Hasnah, together with her parents and her four other siblings, had converted to Islam in 1983.

Lawyer Ravi Nekoo said Indira should not have problems obtaining leave from the Federal Court to hear the merits of the case, as there was also a strong dissenting judgment.

"Every Federal Court judge is competent to make a decision to break the current difficult situation."

He said it did not matter even if Arifin led the bench to hear and rule on Indira's case as, there were instances of the Federal Court having reversed its previous ruling.

Retired Federal Court judge Datuk Gopal Sri Ram had also written an article on the Raimi Abdullah v Siti Hasnah Vangarama Abdullah judgment, which he said was wrong for "reasons not relevant here".

"It is my respectful view that as a matter of law the issues framed in Raimi are matters of statutory and constitutional interpretation solely within the jurisdiction of the ordinary courts established by the Federal Constitution and that the Federal Court fell into serious error in holding otherwise," Sri Ram had written.

Sri Ram said it was for the Federal Court now to decide whether to emerge from the trap of judicial escapism or remain in it.

He said the decision of the majority in Indira’s case appeared heartless but it was not the fault of the Court of Appeal which acted in obedience to precedent.

Former law minister, Datuk Zaid Ibrahim, criticised the judgment, and said judges Datuk Balia Yusof Wahi and Datuk Dr Badariah Sahamid were heartless, prompting Arifin to come to their defence. 

- TMI