A fair and just outcome

Brave New World (The Star)
31 January 2018

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THE saga of Indira Gandi Mutho is finally over. After nearly a decade of legal battles, the Federal Court has made a final decision on the case.

It is an impressive decision with many implications on constitutional interpretation that may well have a profound effect on Malaysian constitutional law in general. However, I shall not be delving into that here. What I wish to do is to look at the immediate effect of the decision.

Very briefly, the facts of the case are as follows. Indira, who is Hindu, married a Hindu man and they had three children. He converted to Islam and they separated and then divorced. The ex-husband, without Indira’s knowledge or consent, converted the children to Islam. At the time, they were 12 years, 11 years and 11 months old.

She challenged this conversion in the High Court and succeeded. The Court of Appeal, however, reversed the decision and the matter ended up in the Federal Court.

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On Monday, the Federal Court held that the procedure needed for a conversion to occur was not followed properly, in particular the requirement for the individuals converting to be present before the authorities to recite the proclamation of faith.

Furthermore, this failure of procedure was something that the civil court had authority to review and pass judgment on.

The second point that the Federal Court made was that the religion of a child has to be determined by both parents. This is based on the premise that this is in the best interest of the child because if there is no cohesive agreement between parents, then the child would be placed in an untenable and incoherent home life.

Also, the constitutional provision regarding the faith of a child was dealt with. That particular section says that a “parent” has the power to determine a child’s religion. The Federal Court held that the word “parent” was used and not “parents” to cover the eventuality that only one parent is alive.

On top of that, the Federal Constitution’s interpretive provisions clearly state that words in the singular are to be read as plural and vice versa. Therefore, the term “parent” in actuality means both parents (if they are alive).

So, what does all this mean?

The first implication of this judgment is that for all administrative matters, the civil court has jurisdiction to review whether the law has been properly followed. This is important because we have a two-court system, the Syariah and the civil, and there has to be clarity as to which court has the jurisdiction to do what.

The second issue is regarding the conversion of children. Can a person who converts to Islam convert his child or children to Islam? Yes, absolutely.

However, two conditions must be fulfilled. First, the procedure to do so has to be followed properly. This will depend on where the conversion takes place, as each state has its legislation on the matter. Second, the consent of both parents is needed (this applies to conversions in religions other than Islam).

In my opinion, this is a very fair and just decision. It respects the Constitution and it emphasises that parents have to act in a way that is in the best interest of the child. It does not pander to any notions of supremacist thinking and in so doing, has achieved that rarest of things – justice.

There are those who are unhappy with the decision naturally. And they have the right to express their displeasure. The grounds of their argument is that such matters should belong to the Syariah Courts and that according to their interpretation of Islam, once one parent converts to Islam, then the children automatically follow.

To this, my response is as follows.

The Constitution is quite clear on the division of jurisdiction of the different courts. Administrative review is in the jurisdiction of the civil courts, not the Syariah Courts. And the Constitution is also clear on the need for both parents to agree before a child can be converted.

Therefore, any change to the law will have to be preceded by a constitutional amendment. It is perfectly possible for some parts of our Constitution to be changed lawfully. But there is a way to do it as there are rules to follow to achieve it.

In our case, the constitutional changes needed are many and for some of the required amendments, it would take a two-thirds majority agreement in both houses of Parliament and the consent of the Conference of Rulers.

At the moment, no one holds a two-thirds majority. So if one is unhappy with the law as it stands, lobby to change it. But change it properly and in the correct fashion.

At the end of the day, surely playing by the rules is something that applies equally to all people of all faiths. Any contrary stand is simply unjust.