Bar chief says past cases wrongly applied in Indira ruling

Malaysian Bar president Steven Thiru says two past decisions cited by Court of Appeal judges in the Indira Gandhi case are not appropriate to come to a right decision. – The Malaysian Insider file pic, January 13, 2016.

The Court of Appeal's majority ruling in Indira Gandhi’s case has relied primarily on two Federal Court cases, but Malaysian Bar president Steven Thiru said both are not appropriate authorities to come to a right decision.

He said in the case of Subashini Rajasingam v Saravanan Thangathoray, the discussion by the Federal Court on the meaning of the word "parent" in Article 12(4) of the Federal Constitution was only a passing remark (obiter dicta).

"It is therefore not a binding statement of the law," Steven said in a statement.

He said in the case of Haji Raimi Abdullah v Siti Hasnah Vangarama Abdullah, it was not a contest between one parent who had converted to Islam and one who had not.

"The principles underlying the decision in that case cannot therefore apply in the Indira Gandhi case," he said.

Steven said in Indira's case, only one parent had converted and as such, Section 50 of the Administration of the Religion of Islam (Perak) Enactment 2004 could also not apply.

Section 50(3)(b) states that the Shariah High Court could only hear and determine all actions and proceedings if all the parties are Muslims.

"As Indira is a non-Muslim, the Court of Appeal’s reliance on this provision is regrettably misplaced," he added.

He said the majority ruling that the conversion certificate could not be challenged was also flawed.

He said Indira's case was clearly about important constitutional rights and the civil courts should have exercised its jurisdiction to determine the constitutionality of the unilateral conversion of the children.

Steven said the courts must also not allow a situation where an aggrieved party – the mother of the minor children – was deprived of access to justice and any constitutional remedy.

He said according to Section 63 of the enactment, the Shariah court cannot decide on the rights of non-Muslims.

He said the unilateral conversion of children caused misery, pain and anguish to the non-converting parent.

"The need is now more urgent than ever for an effective and conclusive legal remedy to obviate the continued and frequent recurrence of this social injustice," he said.

Indira now plans to appeal to the Federal 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.

- TMI