Kindergarten teacher M. Indira Gandhi must appeal to the Federal Court to determine if a converted Muslim parent can unilaterally change the religion of their children, lawyers said.
They said Indira must exhaust all legal avenues since the majority Court of Appeal ruling last week held that conversion was a religious matter for the Shariah Court to decide.
The lawyers said Indira’s predicament was a fit and proper case of constitutional importance because non-Muslims could not go to the Shariah Court to seek remedy.
Lawyer S. Selvarajah said Indira must complete the legal process, no matter what the outcome.
“The process may be costly to her but she will have no problem obtaining leave for the apex court to hear the merit of the case,” said the lawyer, who appeared for the Catholic Church over the right to use the word “Allah” in a weekly publication.
He said this in reference to a blog post by former de facto law minister Datuk Zaid Ibrahim that the Federal Court would affirm the Court of Appeal ruling.
Zaid had also appealed to all Malaysians who cared about Indira’s case to start raising funds to make a film about her tragedy.
“The world must know the story of how a nation lost its soul and how justice became so alien to our elites, who now care for nothing but themselves,” he said.
Lawyer Syahredzan Johan, however, said Indira’s problem could only end after amendments in the laws, and not through the courts.
“The legislature must step in,” said the Bar Council member.
However, Indira’s matter should be brought up to the apex court because the judgment would “go beyond the four walls of the case”.
“There are many unilateral conversion cases and it will be of great importance to obtain some clarity from the apex court.
“Even if previous cases have been decided, it is still important to revisit the issue,” he added.
Syahredzan was referring to the 2010 Federal Court ruling in the case of Shamala Sathiyaseelan v Dr Jeyaganesh C. Mogarajah.
A five-man bench chaired by the then chief justice Tun Zaki Azmi refused to hear the leave to appeal application on grounds that Shamala had absconded from Malaysia with the children and was, therefore, in contempt of court.
Former chairman of the Malaysian Bar Christopher Leong (pic) also said the 2004 Federal Court case of Subashini Rajasingam v Saravanan Thangathoray could not be used to interpret the meaning of Article 12(4) and the word “parent”.
He said the apex court’s decision concerned appeals against the High Court’s refusal to grant an application by Subashini for interim injunction, pending appeals to superior courts.
Leong said the Federal Court finally dismissed the appeal on a technical point because Subashini filed a premature petition to dissolve her marriage and to obtain custody of her children.
Under the Law Reform (Marriage and Divorce) Act 1976, she could only seek relief from the court three months after the spouse had converted to Islam.
Leong said, therefore, the discussion in Subashini’s case on the meaning of the word “parent” was a by-the-way expression of opinion and not the main thrust of the appeal.
Under Article 12(4) of the Federal Constitution, the religion of a person under the age of 18 years shall be decided by his parent or guardian.
He said Article 12(4) has to be read in totality with other provisions in the constitution to interpret the law.
He said Article 12(4), read with Article 160 and the Eleventh Schedule, would mean that the word “parent” in the singular form would also mean “parents” in the plural.
He said as such the religion of children below 18, whether male or female, was to be decided by parents, if both were alive.
Leong said unilateral conversion of minor children by one parent without the knowledge or consent of the non-converting parent was unconstitutional.
The majority Court of Appeal ruling held that the validity of conversion of three children by Indira’s former husband Muhammad Riduan Abdullah could only be determined by the Shariah Court.
Setting aside 2013 Ipoh High Court ruling, judges Datuk Balia Yusof Wahi and Datuk Dr Badariah Sahamid said the civil court did not have the jurisdiction to hear the conversion.
However, judge Datuk Hamid Sultan Abu Backer, who dissented, said the conversion was purely an administrative matter and the civil court could inquire into the matter.
High Court judge Lee Swee Seng held the conversion certificates of the children – Tevi Darsiny, Karan Dinish and Prasana Diksa – were null and void.
Tevi Darsiny and Karan Dinish are in Indira’s care while Prasana Diksa is with Riduan, whose original named was K. Patmanathan. – January 4, 2016.