KUALA LUMPUR: The landmark decision by the Federal Court to nullify the conversion of M. Indira Ghandi’s three children to Islam has drawn mixed reactions from non-governmental organisations, lawyers and political parties.
The Malaysian Islamic Organisation Consultative Council (MAPIM) found that the Federal Court's decision was in conflict with the views of the majority of ulama and undermined Article 121 of the Federal Constitution that stipulates the jurisdiction of Syariah Court should not be disputed.
Its president, Mohd Azmi Abdul Hamid, said the decision would set a precedent to sideline the views of ulama in future cases.
“Does this mean that the view of the ulama majority of scholars will be sidelined? How can the law, which has been agreed upon in Islamic jurisprudence, can be denied and cancelled by civil law?
“Where lies Article 121 of the Federal Constitution that stipulates that the jurisdiction of the Syariah Court shall not be disputed?,” he asked, adding that the decision would be used as a reference in future cases and Islamic law will play second fiddle to civil law.
Mohd Azmi, said that the debate over the status of the Syariah Court has been ongoing for long.
“(But) unfortunately this case proves that the jurisdiction of the Syariah Court is still under the Civil Courts. The case also tests the dignity and jurisdiction of the Syariah Courts in Malaysia.”
The case is also reminiscent of the British high court’s decision in the Natrah incident in 1950 in Singapore.
He said the MAPIM was also annoyed why Islamic law is still regarded as a stepchild in Malaysia.
“This is not just about the interpretation of the law but also the inter-religious harmony in the context of Islam as the Federal religion. We are proposing reviewing the jurisdiction of the Syariah Court to strengthen the jurisdiction of the Syariah Court itself," he said.
Lawyer Hanif Khatri Abdulla said the case does not have to be used as a reference as the law can be amended in the future to avoid confusion in such cases.
“If it only satisfies the minority and not the majority then the government has to sit down and amend the law.
In a similar case in 2007, the apex court decided in the R. Subashini versus T. Saravanan case that any one parent had the right to convert a child, thus the conversion of Subashini’s son to Islam by her husband did not violate the Federal Constitution.
Women Aid Organisation (WAO) executive director Sumitra Visvanathan said the decision by the Federal Court on the case was a huge victory for all Malaysians as it affirms that both parents have equal rights to decide on their child’s religion.
“The verdict is a testament to the tenacity and courage of Indira Gandhi, S. Deepa, Subashini Rajasingam, Shamala Sathiyaseelan, their lawyers, and women’s groups who have fought against unilateral conversion since 2004.
Malaysian Human Rights Society (Hakam) president Datuk S. Ambiga said Federal Court judge Tan Sri Datuk Zainun Ali had resolved the issues surrounding numerous cases of unilateral conversion where the non-converting spouse had been left without remedy in the civil courts.
“This was a situation that screamed for a solution either in the Parliament or in the courts. Yet both abdicated, until now.
“The Federal Court has now determined that Article 121(1A) cannot prevent the civil courts from exercising its jurisdiction in determining matters under Federal law, notwithstanding the conversion of a party to Islam.
“It further held that the powers of judicial review of the civil courts are key in performing their constitutional role in supervising the administrative actions of all statutory bodies. Hence the civil courts have the jurisdiction to examine the validity of the certificates of conversion in relation to Indira Gandhi’s children,” she said.
Ambiga further said the practical effect of the decision was that it brings to a close the unnecessary suffering of so many children and spouses whose families have been torn apart.