Wednesday, January 6, 2016

Abuse in conversion of Indira’s children, says dissenting judge


Kindergarten teacher M. Indira Gandhi is fighting against the unilateral conversion of her three children by former husband Muhammad Riduan Abdullah, a Muslim convert. – The Malaysian Insider file pic, January 5, 2016.

Kindergarten teacher M. Indira Gandhi is fighting against the unilateral conversion of her three children by former husband Muhammad Riduan Abdullah, a Muslim convert. – The Malaysian Insider file pic, January 5, 2016.
There was abuse in the shariah process when a Muslim convert ex-husband changed his three children's religion to Islam without their mother's knowledge, says Court of Appeal judge Datuk Hamid Sultan Abu Backer.
The conversion certificates issued for the three children also had nothing to do with the jurisdiction of the religious court, Hamid said in his written judgment that was released today.
The certificates issued by the registrar of Muslim converts were subject to judicial review and should be declared null and void, he added.
Hamid is the lone judge on the appellate court's bench which last week left it to the Shariah Court to decide on the conversions of kindergarten teacher M. Indira Gandhi's three children.
Hamid said the issuance of the certificates did not comply with Section 96 and 106  of  the Administration of the Religion of Islam (Perak) Enactment  2004.
He also said he found that the converted spouse, Muhammad Riduan Abdullah, had misled and abused the Shariah Court process when obtaining custody in 2009 of three children in a dispute with his Hindu ex-wife.
"The misconduct of the appellant (Riduan) requires the relevant authorities or the Shariah Court to move contempt proceedings against him as well as set aside the order made in excess of jurisdiction," Hamid said.
He said the Section 50 of the Perak enactment did not empower the Shariah Court to have jurisdiction over non-Muslims and such an order was in breach of rule of law and inconsistent with the national philosophy Rukunegara that included upholding the Federal Constitution.
"All Malaysians are obliged to follow Rukunegara strictly to avert distrust and tension and create harmony," he added.
Hamid said the provision in the state enactment did not permit a parent from making an application to carry out a conversion.
"The application must be done by the person who wants to convert himself to Islam. If it is  a minor, the applicant must obtain the consent of the parent or guardian."
In addition, the three children must themselves affirm the shahadah, or the Muslim creed or confession of faith.
"In the instant case, it is not in dispute that the children have not made the application, have not recited the ‘Kalimah Shahadah’ or have requested the appellant (Riduan) to give consent to their conversion," he said.
Constitutional supremacy 
Hamid said it was unfortunate that “convoluted jurisprudence” had come about in Malaysia, and said this was because most court judgments were based on the concept of parliamentary supremacy.
Whereas, Malaysia, like India, was a country with a written constitution which was the supreme law of the land, he added.
He said all executive decisions as well as legislative actions were subject to the constitution’s framework.
“The three pillars, the executive, legislature and the judiciary have taken an oath to preserve, protect and defend the constitution. By the oath of office, they are not allowed to make any arbitrary decision in any of their decision-making process.”
Hamid said they could only do so if they applied the rule of law relating to constitutional supremacy.  
The judge said Indira’s case was a reflection of the problem “we are going through and it is no easy task for the court when the jurisprudence relating to rule of law stands nebulous”.
He said the decision of the courts may vary and it all depended before which judge or coram (in the presence of) the matter had been fixed, and what version of the rule of law was going to be applied.
The concept of parliamentary supremacy began to take hold as a result of the 1988 case of the government of Malaysia v Lim Kit Siang, where the then Supreme Court by majority ruled that a taxpayer has no locus standi to question government policy.
“Ironically, what has transpired in Malaysia is that some of the courts’ decisions are only based on constitutional supremacy.
“A large majority of the decisions which affect the fundamental rights are based on parliamentary supremacy.
“Important decisions which were based on the jurisprudence relating to parliamentary supremacy appear not to have inspired confidence in the judicial decision-making process and hence the cause of convoluted jurisprudence inconsistent with the oath of office.”
The judge made this remark in his dissenting 74-page judgment in dismissing the appeal by Indira’s former husband Riduan.    
Riduan, whose Hindu name was K. Pathmanatan, obtained a custody order from the Shariah Court in September 2009 for Tevi Darsiny, Karan Dinish and Prasana Diksa.
In November 2010, the pendaftar Muallaf (registrar of Muslim converts) issued conversion certificates which Indira successfully set aside in 2013.
Tevi, 18, and Karan, 17, are currently under their mother’s custody while Prasana is under Riduan’s custody although the High Court had ordered the girl, now six, to be returned to the mother. – January 5, 2016.
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