Malaysia: Unilateral Conversion In Malaysia – Back From The Brink

Last Updated: 6 June 2018
Article by Trevor Padasian

INTRODUCTION

Monday, 29 January 2018, was a momentous day. On that day, the Federal Court ("FC") set aside the unilateral conversion to Islam of three children in the long-running case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 ("FC Indira Gandhi"). In doing so, the FC reaffirmed that the jurisdiction of the civil courts was not ousted by Article 121(1A) of the Federal Constitution ("Constitution").

In terms of constitutional law as well as family law, a great deal was at stake. First, was the question of erosion of the judicial power and independence of the civil High Courts; and second, the right of a parent to determine the religion of his or her child or children.

FC Indira Gandhi was just one in a rash of cases involving an inevitable mix of constitutional conundrum and the unilateral conversion to Islam of children by their converting fathers without the consent of their mothers, namely, Subashini a/p Rajasingam v Saravan a/l Thangathoray [2007] 2 MLJ 705 (FC), Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah [2011] 1 CLJ 568 (FC) and Viran a/l Nagapan v Deepa a/p Subramaniam and other appeals [2016] 1 MLJ 585 (FC).

EVENTS LEADING UP TO THE DECISION

Indira Gandhi a/p Mutho ("Indira"), the appellant, married Patmanathan a/l Krishnan, the 6th respondent, in 1993. Their marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 ("LRA"). After nearly 16 years of marriage, Patmanathan converted to Islam on 11 March 2009 and changed his name to Muhammad Riduan bin Abdullah ("Riduan"). He left the family home with their youngest child, Prasana Diksa ("Prasana") shortly thereafter. Their two elder children, Tevi Darsiny and Karan Dinish, continued to reside with Indira. Indira discovered sometime in April 2009 that the Pengarah Jabatan Agama Islam Perak had issued three certificates of conversion to Islam of her three children. The Syariah Court had granted custody of the children to Riduan on 3 April 2009.

WHAT THE HIGH COURT DECIDED

On 9 June 2009, Indira applied to the Ipoh High Court ("HC") by way of an application for judicial review for an order of certiorari to quash the certificates of conversion on the ground that their issuance by the Registrar of Muallafs was ultra vires and illegal. On 25 July 2013, the learned Judicial Commissioner, in addition to finding that the HC had exclusive jurisdiction to hear the judicial review application to the exclusion of the Syariah Court, held that the Registrar of Muallafs had not complied with the requirements of the relevant provisions of the Administration of the Religion of Islam (Perak) 2004 ("Perak Enactment") and quashed the certificates of conversion (see Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 5 MLJ 552).

In the meantime, Riduan refused to surrender the children to Indira despite the HC having granted Indira full custody of the three children on 11 March 2010. On 30 May 2014, Indira successfully obtained a committal order to commit Riduan to prison until the delivery of Prasana to her. Indira also filed a petition for divorce on grounds of Riduan's conversion to Islam under section 51 of the LRA.

WHAT THE COURT OF APPEAL DECIDED

However, on appeal by Riduan, the Court of Appeal ("CA") by majority reversed the HC's decision on 30 December 2015 (Pathmanathan a/l Krishnan (also known as Muhammad Riduan bin Abdullah) v Indira Gandhi a/p Mutho and other appeals [2016] 4 MLJ 455). The majority held that that the HC had no power to question the decision of the Registrar of Muallafs or to consider the registrar's compliance with the relevant requirements of the Perak Enactment. The fact that a person had been registered in the Registrar of Muallafs as stated in the certificates of conversion was proof that the conversion process had been carried out to the satisfaction of the registrar.

APPEAL TO THE FEDERAL COURT

The FC granted leave to Indira to appeal against the CA's decision on three questions of law. The respondents in the three appeals, which were heard together, were the Director of the Perak Islamic Religious Affairs Department, the Registrar of Muallafs, the Perak Government, the Education Ministry, the Government of Malaysia and Riduan.

The First Leave Question

The first leave question was whether the High Court has exclusive and inherent jurisdiction to review the actions of a public authority like the Registrar of Muallafs.

The FC unequivocally answered this question in the affirmative. In summary, under Article 121(1) of the Constitution, judicial power is vested exclusively in the civil High Courts. The jurisdiction and powers of the courts are not confined to federal law. Such judicial power, in particular, the power of judicial review, is an essential feature of the basic structure of the Constitution. Features in the basic structure of the Constitution cannot be abrogated by Parliament by way of constitutional amendment.

Significantly, such judicial power may not be removed from the High Courts and may not be conferred upon bodies other than the High Courts unless such bodies comply with the safeguards provided in Part IX of the Constitution to ensure their independence.

The FC cited a seminal case, Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561, which had last year "put beyond the shadow of doubt that judicial power vested exclusively in the High Courts by virtue of Article 121(1)".

On the other hand, the jurisdiction of the Syariah Court to determine a subject matter of a dispute must be expressly conferred by the state legislation. The FC held that there was no doubt that section 50(3) of the Perak Enactment expressly confers jurisdiction on the Syariah Courts. However, section 50(3) (b)(x) which was relied upon did not confer jurisdiction on the Syariah Court to issue a declaration that a person has converted to Islam. Instead, that provision confers jurisdiction on the Syariah Court to issue a declaration that "a person is no longer Muslim". The FC pointed out that this provision would be applicable in a case where a person renounces his Islamic faith. The issue to be decided in the instant appeals concerned the validity of the certificates of conversion issued by the Registrar of Muallafs in respect of the children's conversion to Islam. If the FC found that such certificate was invalid, it would only mean that the said person had never at any time been a Muslim. Thus, the question of the person being "no longer a Muslim" does not arise.

Limits of Jurisdiction of Syariah Courts

Surveying the jurisprudence of the Constitution, the FC was of the view that the Constitution, being founded on the Westminster model constitution, is premised on certain underlying principles which include the separation of powers, the rule of law and the protection of minorities. Being part of the basic structure of the Constitution, these principles cannot be abrogated or removed. The FC reiterated that the judicial power of the civil courts is inherent in the basic structure of the Constitution. The power conferred on the Syariah Courts pursuant to Article 121(1A) must be interpreted against these foundational principles.

To determine whether Article 121(1A) has the effect of granting jurisdiction to the Syariah Courts in judicial review applications to the exclusion of the civil courts, the FC adopted the two-part test from the Canadian courts (MacMillan Bloedel Ltd v Simpson [1995] 4 SCR 725), namely:

(a) Stage 1: Grant of jurisdiction to inferior court

The principle here is that the jurisdiction of a superior court cannot be vested in a body not constituted in accordance with the provisions that protect the independence of its judges.

Applying this test, the FC held that judicial power cannot be vested in the Syariah Courts which are not "superior courts" within the meaning of Part IX of the Constitution with all its constitutional provisions safeguarding the independence of judges.

(b) Stage 2: Ousting of core jurisdiction of superior court

The principle that underpins this test is that the essential historical functions cannot be removed from the superior courts and granted to other adjudicative bodies if the resulting transfer contravenes the constitution.

Applying this test, the FC held that judicial power is part of the core or inherent jurisdiction of the civil courts being "superior courts" within the meaning of Part IX of the Constitution.

The FC, answering the first leave question in the affirmative, concluded that the power to review the decision of the Registrar of Muallafs, being an executive body, rested solely with the civil courts and not the Syariah Courts.

In answering the first leave question, Zainun Ali FCJ emphasised that that the determination of the present appeals "did not involve the interpretation of any Islamic personal law and practice, but rather with the more prosaic questions as to the legality and constitutionality of administrative action taken by the Registrar (of Muallafs)."

The Second Leave Question

The second leave question was whether a child of a marriage registered under the LRA who has not attained the age of 18 years must comply with both sections 96(1) and 106(b) of the Perak Enactment before the Registrar of Muallafs may register the child's conversion to Islam.

Section 96(1) of the Perak Enactment provides that in order for a conversion of a person to Islam to be valid, the person converting must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith. In addition, at the time of uttering the two clauses, the person must be aware of the meaning of the clauses and must utter them based on the person's own free will. Section 106(b) of the same enactment provides that a person below the age of 18 may convert if he is of sound mind and his parent or guardian consents in writing to his conversion.

The FC answered the second leave question in the affirmative and held that the requirements in sections 96 and 106 are mandatory and must be complied with. It found that the children of Indira and Riduan did not utter the two clauses of the Affirmation of Faith and were not present before the Registrar of Muallafs before the certificates of conversion were issued. As the mandatory statutory requirements were not fulfilled, the Registrar of Muallafs had no jurisdiction to issue the certificates of conversion. The lack of jurisdiction by the Registrar of Muallafs therefore rendered the certificates issued a nullity.

The FC then considered whether section 101(2) of the Perak Enactment, which provides that a certificate of conversion to Islam shall be conclusive proof of the facts stated in the certificate of conversion, had the effect of excluding the HC's power to review the issuance of those certificates. This argument was rejected by the FC. First, the FC held that the court's supervisory jurisdiction to determine the legality of an administrative action (i.e. the issue of the certificates of conversion) by the Registrar of Muallaf could not be excluded even by an express ouster clause (Anisminic Ltd v The Foreign Compensation Commission and Another [1969] 2 AC 147 (HL)).

Further, and in any event, the FC opined that the language of section 101(2) did not purport to oust judicial review. The provision merely states that the certificate of conversion is conclusive proof of the facts stated therein, that is, that the person named in the certificate has been converted to the religion of Islam, and his name has been entered in the Registrar of Muallafs. In the present appeals, the fact of the conversion or the registration of Indira's children was not challenged – what was challenged was the legality of the conversion and registration.

The Third Leave Question

The third leave question considered whether the mother and father (if both are surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam could be issued in respect of the child.

According to the FC, this issue involves the interpretation of the expression "parent" in Article 12(4) of the Constitution. The FC cited Articles 12(3) and 12(4) of the Constitution which provide:

"(3) No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.

(4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian." (Emphasis added)

The FC also considered the national language (Bahasa Malaysia) translation of Article 12(4) was differently worded thus:

"(4) Bagi maksud Fasal (3) agama seseorang yang di bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya." (Emphasis added)

In view of the inconsistency between the Bahasa Malaysia and English versions of Article 12(4), it was contended that the Bahasa Malaysia version prevailed over the English version pursuant to Article 160B of the Constitution which provides, inter alia, that the Yang di-Pertuan Agong may prescribe a translated text in Bahasa Malaysia to be the authoritative version. However, the FC agreed with the HC that since the requisite prescription of the national language version by the Yang di-Pertuan Agong under Article 160B had not been effected, the authoritative version is the English version.

The FC then referred to the Eleventh Schedule to the Constitution (read together with Article 160(1)) which provides that, in interpreting the Constitution, "words in the singular include the plural, and words in the plural include the singular". The FC explained that the reason "parent" is used in Article 12(4) is to provide for a situation where the child has only one parent, i.e. a single parent situation. Where both parents exist, the Eleventh Schedule is to be relied on, that is the plural form of the word, i.e. "parents" is to be used and accordingly, the decision on the religion of a child is to be decided by both parents.

Finally, the FC upheld the equality of parental rights in respect of an infant (which is defined to include any child who has not attained the age of majority) as embodied in inter alia sections 5 and 11 of the Guardianship of Infants Act 1961 ("GIA") which provides that "a mother shall have the same rights and authority as the law allows to a father" in relation to the custody or upbringing of an infant and that the court "shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be". The FC held that the GIA would still apply to the children of Indira and Riduan notwithstanding the latter's conversion to Islam as conversion does not absolve a person of antecedent obligations.

Both parents' consent was therefore necessary before the certificates of conversion to Islam could be issued and the FC answered the third leave question in the affirmative.

In light of its answers to the leave questions, the FC allowed Indira's appeal. At the same time, the FC also ordered the majority decision of the CA to be set aside and affirmed the decision and orders of the HC.

Prospective effect

In a rare development in Malaysian jurisprudence, the FC applied the doctrine of prospective ruling and ruled that its decision in FC Indira Gandhi is to have prospective effect. This means that the decision will not affect decisions made by the courts prior to the date of the FC's judgment, i.e. 29 January 2018.

COMMENTS

The FC Indira Gandhi decision has been rightly commended for its sound judgment and cogent analysis of the complex constitutional and family law issues of the case. The decision has brought some judicial certainty to this hitherto troubled area of jurisprudence. The FC's interpretation of Articles 121(1) and 121(1A) of the Constitution clearly demonstrates the jurisdictional limits of the Syariah Courts and the supremacy of the civil High Courts. Its interpretation of Article 12(4) of the Constitution and sections 5 and 11 of the GIA removes any doubt that the consent of both parents is required before a certificate of conversion can be issued, except in a single-parent situation.

However, as an apex court, a future panel of the FC has the power to, and may depart from, the reasoning and judgment of FC Indira Gandhi. It is therefore imperative that Parliament reintroduce Clause 7 which had at the last moment been withdrawn from the Law Reform (Marriage and Divorce)(Amendment) Bill 2016 that was passed to amend the LRA in August 2017. Clause 7, which sought to introduce a new section 88A into the LRA, had provided:

"Where a party to a marriage has converted to Islam, the religion of any child of the marriage shall remain as the religion of the parties to the marriage prior to the conversion, except where both parties to the marriage agree to a conversion of the child to Islam, subject always to the wishes of the child where he or she has attained the age of eighteen years."

Arising from FC Indira Gandhi, it has been reported that the Government may consider reintroducing Clause 7 (Star Online, 30 January 2018). It remains to be seen whether the Government has the political will to make this a reality.

user prior to engaging another processor; (ii) process personal data only on instructions from the data user; (iii) designate, in certain circumstances, a representative established in the EU (if the data processor is not established in the EU); (iv) designate a DPO in certain circumstances; and (v) inform the data user of any personal data breach without undue delay after becoming aware of the same.

WHAT HAPPENS IF I DON'T COMPLY?

The GDPR prescribes the imposition of hefty fines for non-compliance based on the provisions in question. Article 83 permits the relevant supervisory authority to impose a fine of up to EUR10 million or up to 2% of the total worldwide annual turnover of the preceding financial year in the case of an undertaking, whichever is higher, for breach of certain provisions such as the requirement to carry out a DPIA.

A fine of up to EUR20 million or up to 4% of the total worldwide annual turnover of the preceding financial year in the case of an undertaking, whichever is higher, may be imposed for breach of certain provisions such as the basic principles for processing, including conditions for consent.

HOW LONG DO I HAVE TO COMPLY?

The 2-year grace period following the adoption of the GDPR will expire on 25 May 2018. Businesses and companies must ensure compliance with the GDPR by that date.

CONCLUSION

The PDPA has only been in force for less than five years and many businesses and companies in Malaysia are still struggling to ensure compliance with the same.

The implementation of the GDPR means that businesses and companies in Malaysia that are required to comply with the GDPR would have to conduct internal assessments in order to ensure compliance with the GDPR by 25 May 2018 or risk the imposition of fines and penalties. However, the extent of enforcement which the supervisory authorities are willing to take against data users and data processors established outside of the EU under this new data protection framework remains to be seen.

Originally published by Legal Insights - A Skrine Newsletter, April 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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