Appeals court judges abdicated role in ruling on children’s conversion, group says

Cenbet's Gan Ping Sieu says the Court of Appeal judges have abdicated its role to defend the Federal Constitution in the case of a Hindu mother challenging the decision to unilaterally convert her children to Islam. – The Malaysian Insider file pic, January 1, 2016.

The Court of Appeal has abdicated its judicial role in a religious conversion dispute involving a Hindu mother's children and has allowed a family matter to turn a "racial-religious monster" that can drive communities apart, civil society group Centre for a Better Tomorrow (Cenbet) said today.

Its president Gan Ping Sieu said appellate court's majority decision on Wednesday that disputes over the unilateral conversion to Islam of minors by one parent could only be decided by the shariah court showed the judges "abdicated judicial role to defend the supremacy and sanctity of the Federal Constitution".

"In the end, what is really a case of family dispute has morphed into a racial-religious monster that drives even deeper the wedge between the different communities in this country.

"This provides a fertile ground for bigots and extremists to rise and goes against the principle of moderation, which forms the cornerstone of this country and which Cenbet fiercely defends and promotes," Gan said in a statement.

He added that access to justice in the case of the Hindu mother, kindergarten teacher M. Indira Gandhi, had not only been delayed "but completely denied".

The Court of Appeal had overturned a 2013 High Court ruling that had quashed the conversion of three children, who were converted to Islam by Indira's ex-husband, Muhammad Riduan Abdullah.

Judges Datuk Balia Yusof Wahi and Datuk Badariah Sahamid held that conversion could only be dealt with by the shariah court, while dissenting judge, Datuk Hamid Sultan Abu Backer, said the conversion was purely an administrative matter and was done by the Registrar of Conversion who in this case, did not follow the law.

Gan said the appellate court's judgment meant that whether a person was Muslim or not could only be determined by the shariah court and that the civil courts had no jurisdiction.

This went against the Federal Constitution's limits on the shariah court system and its clearly defined jurisdiction, which did not cover non-Muslims, Gan added.

"In short, the dispute involves whether a person has or has not become a muallaf (a Muslim convert) and is validly registered in a state muallaf register. In such cases, only the civil High Courts are rightfully vested with jurisdiction to adjudicate such disputes and not otherwise.

"Similarly, if the National Registry Department were to erroneously register one's religious status, e.g. one's MyKad shows that one is a Muslim when one is clearly not, the aggrieved party must be allowed to seek legal redress at a civil court and not otherwise."

Gan added that this situation arose because of wrong interpretations of Article 121(1A) of the constitution on the scope of the shariah court and its position in relation to the civil courts.

"It is deplorable that Article 121(1A) of the Federal Constitution has been interpreted by some quarters in a way that was not originally intended in its amendment. This has emboldened some to rewrite our supreme law of the land without any legislative amendments."

He said such interpretations had created a "lacuna" in our justice system, and led to misery for individuals such as Indira Gandhi, who as a result had not been able to see her youngest child who was in the father's custody.

Gan said the government and politicians from both divide must address the issue, firstly by upholding the April 2009 Cabinet decision where children of divorced parents should be raised in their religion at the time of the marriage.

- TMI