FORUM COMPETITION IN CONVERSION CASES: A REVIEW OF PATHMANATHAN V. INDIRA GHANDI (COURT OF APPEAL DECISION)
1. Introduction
The Court of Appeal penned down on 30 December 2015 its decision in the much publicised conversion case of Pathmanathan A/L Krishnan v. Indira Ghandi a/p Mutho, which was heard together with two other appeals before the same panel. The two other appeals were brought against Indira Ghandi a/p Mutho respectively by the Director of the Islamic Religious Affairs of Perak & Ors and by Ministry of Education Malaysia & Another. All the three appeals arose from the decision of Lee Swee Seng J made in the matter of one judicial review application made by Indira Ghandi against six respondents including Pathmanathan, the Director of the Islamic Religious Affairs of Perak and Ministry of Education.
2. Background facts
Indira Ghandi was married to Pathmanathan in 1993. The couple had three children. In March 2009, the husband converted to Islam. At this time, the children were respectively aged 12 years, 11 years and 11 months. Immediately after his conversion, he procured from the Islamic Religious Affairs of Perak certificates of conversion of the three children purportedly under the Administration of the Religion of Islam (Perak) Enactment 2004, which is a state legislation (“the Perak Enactment”). Indira Ghandi had no knowledge of the purported conversion of the children. At the material time, the two elder children were with Indira Ghandi and the youngest with Pathmanathan. It is apparent that, at the material time, the two elder children had no knowledge of their conversion, and the youngest aged 11 months only could not have had any knowledge of his conversion. Upon coming to know of the certificates of conversion, Indira Ghandi instituted an action before the High Court by way of judicial review to challenge the issuance of the certificates of conversion. In the judicial review application, she named as respondents Pathmanathan, the Director of Islamic Affairs of Perak, the Ministry of Education and three others. The High Court allowed the application and quashed the certificates. All the six respondents appealed to the Court of Appeal through a total of three appeals.
3. Decision of the Court of Appeal The panel in the Court of Appeal comprised Balia Yusof bin Hj Wahi JCA, Badariah binti Sahamid JCA and Hamid Sultan bin Abu Backer JCA. The panel heard all the appeals together. The panel was divided in its decision. Balia Yusof JCA, with whom Badariah JCA concurred, found in favour of the Pathmanathan and other five appellants (“the Appellants”). Hamid Sultan JCA found in favour of Indira Ghandi. The result was a decision by majority, with Hamid Sultan JCA dissenting, allowing all the three appeals with no order as to costs. This paper will analyse the case from the perspectives both of the majority decision and of the dissenting judgment. In undertaking this task, it will be helpful first to set out the judgment of Balia Yusof JCA and then of Hamid Sultan JCA, followed by the author’s review of them.
4. Judgment of Balia Yusof JCA
Balia Yusof JCA first proposed to resolve the issue of jurisdiction of the High Court to entertain the judicial review application in question. His Lordship framed the question as to whether the High Court had “jurisdiction to deal with the issue of conversion to the religion of Islam”. His Lordship adopted an approach what his Lordship called “subject matter approach”. Taking this approach, his Lordship came to the following conclusion in two sentences: … whether a person is a Muslim or not is a matter falling under the exclusive jurisdiction of the Syariah Court. The determination of the validity of the conversion of any person to the religion of Islam is strictly a religious issue and it falls within the exclusive jurisdiction of the Syariah Court. In coming to the above conclusion, his Lordship relied on the Federal Court decision in Hj Raimi bin Abdullah v. Siti Hasnah Vangarama bt. Abdullah [2014] 3 MLJ 757, particularly the following passage: Article 121 of the Federal Constitution clearly provided that the civil court shall have no jurisdiction on any matter falling within the jurisdiction of the Syariah Court. … Whether a person was a Muslim or not was a matter falling under the exclusive jurisdiction of the Syariah Court. It would be highly inappropriate for the civil court, which lacks jurisdiction pursuant to art 121, to determine the validity of the conversion of any person to the religion of Islam as this is strictly a religious issue.
Therefore, the question of the plaintiff’s conversion in 1983 fell within the exclusive jurisdiction of the Syariah Court. (emphasis added) His Lordship further relied on sections 50(2)(b) (x) and (xi) of the Perak Enactment which confers the following subject matter jurisdiction, subject to the general limitation that the section applies only when all parties to the action are Muslims:
(x) a declaration that a person is no longer a Muslim;
(xi) a declaration that a deceased person was a Muslim or otherwise at the time of his death (emphasis added)
On that basis, his Lordship stressed and repeated his Lordship’s conclusion in the following words: A plain reading of the aforesaid provisions puts it beyond doubt that the power to declare the status of a Muslim person is within the exclusive jurisdiction of the Syariah High Court. It followed that on that ground alone, his Lordship would allow the appeal, ie, disallow the challenge by Indira Ghandi to the conversion certificates. However his Lordship felt impelled to proceed to deal with the merits of the challenge by Indira Ghandi, i.e. whether the conversion certificates were issued contrary to the law and thus a nullity ab initio. In dealing with the merits of the challenge, his Lordship considered sections 96 and 106 and sections 100 and 101 of the Perak
Enactment, which are reproduced in order below: 96. Requirement for conversion to the religion of Islam.
1) The following requirements shall be complied with for a valid conversion of a person to the religion of Islam:
(a) the person must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith;
(b) at the time of uttering the two clauses of the Affirmation of Faith the person must be aware that they mean “I bear witness that there is no God but Allah and I bear witness that the Prophet Muhammad S.A.W. is the Messenger of Allah”; and (c) the utterance must be made of the person's own free will. 2) A person who is incapable of speech may, for the purpose of fulfilling the requirement of paragraph (1)(a), utter the two clauses of the Affirmation of Faith by means of signs that convey the meaning specified in paragraph (i)(b).
106. Capacity to convert to the religion of Islam.
For the purpose of this Part, a person who is not a Muslim may convert to the religion of Islam if he is of mind and:- (a) has attained the age of eighteen years; or (b)if he has not attained the age of eighteen years, his parent or guardian consents in writing to his conversion.
100. Registration of Muallafs.
1) A person who has converted to the religion of Islam may apply to the Registrar in the prescribed form for registration as a muallaf. 2) If the Registrar is satisfied that the requirements of section 96 have been fulfilled in respect of the applicant, the Registrar may register the applicant's conversion to the religion of Islam by entering in the Register of Muallafs the name of the applicant and other particulars as indicated in the Register of Muallafs. 3) … 4) … 5) …
101. Certificate of Conversion to the Religion of Islam.
1) The Registrar shall furnish every person whose conversion to the religion of Islam has been registered a Certificate of Conversion to the Religion of Islam in the prescribed form. 2) A certificate of Conversion to Religion of Islam shall be conclusive proof of the facts stated in the Certificate. The merits of the challenge, as framed by Indira Ghandi was twofold. Firstly, section 96 was not complied with because the children did not utter the two clauses of the Affirmation of Faith (“the Affirmation of Faith”). Secondly, section 106 was not satisfied because she did not give her consent for the purported conversion. It was not disputed that the three children (the youngest of which was only 11-month old) did not utter the Affirmation of Faith, and therefore the “requirements for conversion to the religion of Islam” set out in the section 96 were not complied with. However the issue of whether section 106 was
contravened was a disputed one.
It was Indira Ghandi’s argument that the consent of “parent or guardian” required in the section 106 meant the consent of the “parents” in this case. To the contrary, the Appellants argued that it meant either parent. Before addressing sections 96 and 106, his Lordship directed his Lordship’s mind to section 101(2) of the Perak Enactment and relied on it to say that a certificate of conversion was not challengeable because pursuant to the section, the facts stated in the certificates of conversion are conclusive proof thereof. His Lordship pointed out that the conversion certificates stated “the fact of conversion” and “the fact that the persons named therein has been registered in the Registrar of Muallafs.” Having held that, by virtue of the section 101(2), the conversion certificates are not open to challenge, his Lordship however also said that any challenge to the certificates must be made at the Syariah court.
In dealing with the issue of conclusiveness of conversion certificates, his Lordship also relied on the decision in Saravanan Thangatoray v. Subashini Rajasingam & Another Appeal [2007] 2 CLJ 451 made by the Court of Appeal by majority (which was affirmed by the Federal Court again by majority as reported in [2008] 2 CLJ 1). In Saravanan’s case, a husband converted to Islam and subsequently the wife petitioned for divorce under section 51(1) of the Law Reform (Marriage and Divorce) Act 1976. Under this section, when a spouse converts to Islam, the other spouse who has not so converted may petition for divorce. The section also imposes a limitation that a petition under this section may only be presented after expiry of three months from the date of the conversion. In opposition the petition, the husband contended that the petition was filed within the period of three months after conversion, but the wife argued otherwise. The date of conversion was disputed. In resolving the issue as to the date of conversion, the Court of Appeal (by majority) held that the date stated in the certificate of conversion was conclusive proof thereof, by virtue of section 112(2) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (“the Selangor Enactment”) which is in pari materia with section 101(2) of the Perak Enactment. Relying on the above, Balia Yusof JCA in the instant appeal was of the view that the certificate of conversion is not open to challenge and said that “the High Court has to accept the facts stated [in the conversion certificates] and it is beyond the powers of the [High Court] to question the same.” Having so discounted the challenge at the outset, his Lordship however dwelled into the question of whether a single parent can give the requisite consent in the section 106, and answered this question in the affirmative.
In so answering, his Lordship relied on the remarks made by the Federal Court, by majority, in Subashini a/p Rajasingam v. Saravanan a/l Thangathoray and other appeals [2008] 2 CLJ 1 with regard to the meaning of “parent” appearing in article 12(4) of the Federal Constitution. The remark made by the Federal Court in relation to the article 12(4) in that case was that “[e]ither husband or wife has the right to convert a child of the marriage to Islam”.
The article 12 reads as follows:
12. Rights in respect of education
1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth:- a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or b) …
2) Every religious group has the right to establish and maintain institutions for the education of children in its own religion …
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. His Lordship relied on Subashini’s case to say that there was no violation in the case before his Lordship of article 11(1) of the Federal Constitution, which reads as follows:
11. Freedom of religion
1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it. The decision of his Lordship can now be conveniently summarised as follows: 1) The jurisdiction to decide the issue of validity of conversion is exclusively vested in the Syariah courts, and as such by virtue of article 121(1A) of the Federal Constitution, the matter is outside the jurisdiction of the High Court. 2) Section 101(2) of the Perak Enactment renders the certificates of conversion unchallengeable. 3) Any challenge to the certificates of conversion must be taken before the Syariah court. 4) The right of either parent to consent for conversion is entrenched in article 12(4) of the Federal Constitution and it does not run contrary to article 11 of the Federal Constitution.
5. Judgment of Hamid Sultan JCA
Hamid Sultan JCA, the dissenting judge in this appeal, started off by visiting the framework of the Perak Enactment, which contained 113 sections in 11 parts. His Lordship opined that not all the provisions in the Enactment are protected by article 121(1A) of the Federal Constitution so as to be out of the realm of civil courts. His Lordship emphasised the meaning of the article 121(1A), which reads as follows:
(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. His Lordship identified that the article 121(1A) is largely applicable to Part IV entitled “Syariah Jurisdiction”, which contains 23 sections numbered from sections 44 to 66. His Lordship said that it is only to some of these sections that the article 121(1A) applies.
His Lordship simplified this in two sentences by saying that: i. “the civil courts’ judicial review powers in the administrative decision of the state or its agencies and/or its officers” are not excluded by the article 121(1A); and ii. “[w]hat the civil courts cannot do is to intervene in the lawful decision of the Syariah Courts made within its jurisdiction and not in excess of its jurisdiction.” His Lordship framed the questions in the appeal as whether the matter of exercise of the powers of the Pendaftar Muallaf came within the jurisdiction of the Syariah court. If the answer is in the negative, then any decision made by the Pendaftar Muallaf is subject to the judicial review powers of the civil courts. In determining the jurisdiction of the Syariah court, his Lordship visited section 50(3)(b) of the Perak Enactment which set out the civil jurisdiction of the Syariah High Court and read as follows: (3) The Syariah High Court shall-- (a) in its criminal jurisdiction, …
[2016] 1 LNS(A) xvii Legal Network Series 13 (b) in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims and the action or proceedings relate to:- (i) betrothal, marriage, ruju', divorce, annulment of marriage (fasakh), nusyuz, or judicial separation (faraq) or any other matter relating to the relationship between husband and wife. (ii) any disposition of or claim to property arising out of any of the matters set out in subparagraph (i); (iii) the maintenance of dependants, legitimacy, or guardianship or custody (hadhanah) of infants; (iv) the division of, or claims to, harta sepencarian; (v) wills or gifts made while in a state of marad-almaut; (vi) gifts intervivos; or settlements made without adequate consideration in money or money's worth by a Muslim; (vii) wakaf or nazr; (viii) division and inheritance of testate or intestate property; [2016] 1 LNS(A) xvii Legal Network Series 14 (ix) the determination of the persons entitled to share in the estate of a deceased Muslim or the shares to which such persons are respectively entitled; (x) a declaration that a person is no longer a Muslim; (xi) a declaration that a deceased person was a Muslim or otherwise at the time of his death; and (xii) other matters in respect of which jurisdiction is conferred by any written law. In dealing with the subject-matter jurisdiction of the Syariah court, his Lordship discounted in particular the subsections (x) and (xi), which were relied on by Balia Yusof JCA, because (x) empowers the Syariah court to declare that a person is no longer a Muslim and (xi) to declare that a deceased person was Muslim or otherwise at the time of his death. The case has nothing to do with the matters covered in either of these subsections. His Lordship seemed to have at the forefront of his Lordship’s mind the following: i) None of the limbs of section 50(3)(b) of the Perak Enactment conferred the jurisdiction on the Syariah court to determine any question as to conversion. ii) None of the limbs of section 50(3)(b) of the Perak Enactment clothed the Syariah court with any jurisdiction to judicially [2016] 1 LNS(A) xvii Legal Network Series 15 review any administrative action including the one by the Registrar of Muallaf in issuing a certificate of conversion. iii) To the contrary, the civil courts are conferred the jurisdiction to judicially review any administrative action (see paragraph 1 of the Schedule to the Courts of Judicature Act 1964). iv) Accordingly, the subject-matter jurisdiction to decide an issue of conversion or an application to judicially review the administrative action of the Registrar of Muallaf was vested in the civil courts.
His Lordship put his foot down and concluded that “[i]n the instant case, the Pendaftar Muallaf certificate of conversion has nothing to do with the jurisdiction of the Syariah Court and/or decision of the Syariah Court as asserted in Article 121 (1A) of the Federal Constitution”. This will answer the pivotal issue in the case, ie, the jurisdictional issue. However, answering the question as to jurisdiction does not answer the appeal in its entirety, as the next issue, if the High Court had the requisite jurisdiction to judicially review the matter of issuance of the conversion certificates, is whether the High Court rightly quashed the conversion certificates by exercise of that jurisdiction. Before moving on to the next issue, leaving aside the question of subjectmatter jurisdiction of the Syariah courts, his Lordship was mindful of the limitation to the personam jurisdiction in the section 50(3)(b), ie, the Syariah court has jurisdiction only when all parties to the action are Muslims, which was not the case in the appeal before his Lordship. [2016] 1 LNS(A) xvii Legal Network Series 16 Now moving on to the next issue, it was not disputed that the requirements for conversion set out in section 96 of the Perak Enactment was not complied with, i.e. none of the children uttered the Affirmation of Faith, particularly the youngest of them being only 11-month old and the other two being with the mother,
Indira Ghandi. His Lordship was also of the view that the parental consent required in section 106 was not complied with, although this was a controversial issue in this appeal. It followed that his Lordship answered the next issue (whether the conversion certificates should be quashed) in the affirmative and concluded that “the administration order of the Pendaftar Muallaf is a nullity ab initio and ought to be set aside of right for non-compliance of section 96 and 106 of the [Perak Enactment]”.
In so concluding, his Lordship reminded that the principle enunciated in Badiaddin bin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 MLJ 393 (“the Badiaddin principle”) equally applies in judicial review matters. Before concluding his judgment, his Lordship helpfully observed that article 12(4) of the Federal Constitution “has nothing to do with conversion” and that “[i]t only permits a parent or guardian from deciding the religion of the child for purpose of worship of a religion other than his own” and thereby put an end to the anathema of applying the article 12 to conversion cases as was done in Subashini’s case. It is recalled that the article 12 is entitled “Rights in respect of education” and the articles 12(3) and (4), which must be read together, provide as follows:
[2016] 1 LNS(A) xvii Legal Network Series 17 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) 6. The author’s review The issues for determination in the appeal were as follows: i) Whether the High Court had the jurisdiction to hear the judicial review application which mounted a challenge to the conversion certificates? ii) If the above question is answered in the affirmative, whether the conversion certificates were issued in non-compliance with the provisions of the Perak Enactment and thus a nullity and liable to be quashed? Each of the issues will in turn be addressed at length below.
That will be followed by discussion of a few other matters arising in the course of the respective judgments of Balia Yusof JCA and Hamid Sultan JCA and finally conclusion. 7. The first issue [2016] 1 LNS(A) xvii Legal Network Series 18 Before moving on, at the outset, it must be noted that the “civil courts”, meaning High Court, Court of Appeal and the Federal Court are the only courts constituted by the Federal Constitution (in Part IX entitled “Judiciary”). At face value, if a matter is within the jurisdiction of the Syariah courts, then the civil courts will have no jurisdiction over it. This is the result of article 121(1A) of the Federal Constitution, which was inserted into the Federal Constitution by Constitution (Amendment) Act 1988. Accordingly, the question is whether the issue brought by Indira Ghandi is one falling within the Syariah court jurisdiction. In order to rightly understand the jurisdiction of the Syariah courts, it is important to understand the legislative power of States to legislate in matters broadly relating to Islamic law, because the jurisdiction of the Syariah courts is tied to the said legislative power. This is explained below. Article 74(2) of the Federal Constitution provides that a State may legislate only in respect of matters falling within the State List (Second List) or Concurrent List (Third List) in the Ninth Schedule to the Federal Constitution. The article 74(2) reads as follows: … the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.
Only paragraph 1 of the State List contains matters relating to Islamic law and Syariah courts. Accordingly, that is the only part that one has to look [2016] 1 LNS(A) xvii Legal Network Series 19 at to determine the boundaries both of the legislative power of States in matters connected to Islamic law and of the jurisdiction of Syariah courts. Paragraph 1 is reproduced below (the splitting and alphabetical subnumbering of the paragraph, which is not so done in the actual text, is added by the author for ease of reading): Ninth Schedule -
State List 1. Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya: [2016] 1 LNS(A) xvii Legal Network Series 20 a) Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; b) Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; c) Malay customs; d) Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; e) mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; f) the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of [2016] 1 LNS(A) xvii Legal Network Series 21 any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; g) the control of propagating doctrines and beliefs among persons professing the religion of Islam; h) the determination of matters of Islamic law and doctrine and Malay custom. (emphasis and alphabetical sub-paragraphing added) At this juncture, it must be pointed out that there are two schools of thoughts. One school looks at State legislations (such as the Perak Enactment) for the jurisdiction of Syariah courts.
The other looks at the Federal Constitution, more particularly paragraph 1 of the Ninth Schedule thereto. With due respect, it is erroneous to look at State legislations for jurisdiction of Syariah courts and the correct approach is to look at paragraph 1. The sub-paragraph marked as (f) above provides that “Syariah courts … shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph”. This is the jurisdictional boundary of the Syariah courts, and their jurisdiction is neither more nor less than that. In fact, even apart from the sub-paragraph (f), if one starts looking at State legislations for the jurisdiction, an anomaly will be created. Different States may purportedly confer, in fact as they have done, jurisdiction of [2016] 1 LNS(A) xvii Legal Network Series 22 different scopes on their Syariah courts. When a controversial matter comes before a civil court, it has to hypothetically decide whether the matter is within the jurisdiction of the Syariah court. If every Syariah court has a different jurisdiction, then which Syariah court jurisdiction is the civil court to look at? This is what was said as the ‘anomaly’ that will result if one looks at State legislations for Syariah court jurisdiction. As far as civil matters are concerned, a plain reading of the sub-paragraph (f) above tells that in order for the Syariah courts to gain jurisdiction over a cause, two aspects must be satisfied. The first aspect is that all parties to the cause profess the religion of Islam (which the author will call “personam jurisdiction”). The second is that the subject matter is one included within the paragraph, i.e. included in any of sub-paragraphs as (a) through (h) above (which the author will call “subject-matter” jurisdiction). Logically, sub-paragraph (f) would be excluded from the list of subject-matter jurisdiction as it defines the jurisdiction of the Syariah courts rather than providing any subject matter which would fall within the jurisdiction. At the outset, it must be observed that, in matters broadly of Islamic law, the power of States to legislate and the subject-matter jurisdiction of the Syariah courts coincide. They are all in the paragraph 1 and are the same. Under the paragraph 1, if a State has authority to legislate on a matter, then it is also necessarily within the subject-matter jurisdiction of the Syariah courts. However, this does not mean that the Syariah court automatically gains its jurisdiction over any cause involving such a matter, as there is an [2016] 1 LNS(A) xvii Legal Network Series 23 additional caveat before it gains jurisdiction, i.e. the parties to the cause must all profess the religion of Islam (the personam jurisdiction aspect). Personam jurisdiction aspect In the instant case, one of the parties (properly a party) to the cause was a non-Muslim and hence the Syariah court did not have any personam jurisdiction over the matter. This fact has already caught the attention of many, but what has not caught their attention is the fact that most of the respondents in the High Court (the Appellants in the instant appeal) were also not “persons professing the religion of Islam” within the paragraph 1. Is the Ministry of Education one professing the religion of Islam? Is the office of the Director of the Islamic Religious Affairs of Perak one professing the religion of Islam? The answer is ‘no’. In the context of the paragraph 1, religion attaches to an individual and not to an institution. Ordinarily, in any judicial review application, as it was so in the present case, the primary respondent will be an administrative authority. An administrative authority is not person professing any religion in the context of the paragraph 1. Hence, ordinarily a judicial review application will necessarily be outside the jurisdictional boundary of Syariah courts, i.e. the personam jurisdiction aspect will not ordinarily be satisfied in cases of judicial review applications. Leaving that aside, to approach the matter most simply, Indira Ghandi cannot bring an action before the Syariah court. This suffices to say that the matter was outside the jurisdiction of the Syariah court. [2016] 1 LNS(A) xvii Legal Network Series 24 It must be borne in mind that if she is not allowed go to the civil courts, she has no place within our land to go to for justice. That is not the law of our land and that is not what the article 121(1A) says. All that the article 121(1A) says is that that the civil courts shall have no jurisdiction if it is a cause over which the Syariah courts have jurisdiction, as stressed by Hamid Sultan JCA. It must be added that it was not disputed that Indira Ghandi was properly a party to the action and had the requisite locus standi to bring the action. Any parent has certain responsibilities towards and rights in matters affecting his or her child. A reference to section 5 of the Guardianship Act 1961 may help those who will look for authority to support this proposition. The section 5 reads as follows:
5. Equality of parental rights
(1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal. (2) The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father. As the personam jurisdiction aspect is not satisfied, it is not necessary to analyse whether the cause is within the subject-matter jurisdiction of the [2016] 1 LNS(A) xvii Legal Network Series 25 Syariah courts. However purely for academic purposes, it will be analysed whether the matter falls within the subject-matter jurisdiction of the Syariah courts. Subject matter jurisdiction aspect The subject matter in issue in the instant case is ‘conversion’. Under what sub-paragraph of the paragraph 1 does it fall under?
This is a difficult question to answer. Taken at face value, none of the sub-paragraphs cover conversion. It must be borne in mind that conversion is a matter that is transitional in nature, which the author will call a ‘transreligional’ matter. The sub-paragraph (a) does not cover conversion because it only applies to persons already professing the religion of Islam. Equally sub-paragraph (c) will not help as Malay custom cannot have anything to do with conversion to the religion of Islam, which is a ‘transreligional’ matter. Possibly sub-paragraph (h) may be wide enough to cover conversion as it includes “determination of matters of Islamic law or doctrine”. It is not proposed to dwell into this question further but it will be taken that the sub-paragraph (h) covers conversion for the purposes of this paper, although it is a subject that requires research on its own right. Assuming sub-paragraph (h) covers conversion, then it is a matter falling within the authority of a State to legislate and hence within the subjectmatter jurisdiction of the Syariah courts. This does not mean that in such cases, the cause is within the jurisdiction of the Syariah courts. This is because, apart from the fact that the respondent is usually an authority and thus not professing any religion within paragraph
1, when a purported [2016] 1 LNS(A) xvii Legal Network Series 26 convert challenges the conversion, the underlying dispute is whether he is a Muslim / a person professing the religion of Islam. If a court finds that the conversion is a nullity ab initio, then it follows that he has not been, at any time, a Muslim / a person professing the religion of Islam. In fact if a Syariah court were to try a conversion case and at the end find that the purported conversion is a nullity ab initio, then it would only have wasted its time as it would have had no jurisdiction to hear the case in the first place and will have no jurisdiction to make any decision at the end. A civil court can only decline jurisdiction if the cause is within the jurisdiction of Syariah courts.
When a claimant raises an issue as to validity of his own conversion ab initio before a civil court, how can the court decide that it does not have jurisdiction until it decides whether the conversion is valid or void ab initio? If it is void ab initio, then the claimant was not a Muslim / a person professing the religion of Islam, and hence would properly be before the civil court. Whenever an issue as to jurisdiction is raised before a civil court, it must positively decide the issue (in one way or another) and not decline to decide. Analysis of Balia Yusof JCA’s grounds The author reached a conclusion that the matter brought by Indira Ghandi was outside the jurisdiction of Syariah courts, as much as the conclusion reached by Hamid Sultan JCA. However Balia Yusof JCA arrived at a conclusion that is the straight opposite. For a proper understanding of the subject, the grounds of Balia Yusof JCA must be finely analysed.
[2016] 1 LNS(A) xvii Legal Network Series 27 In concluding that the matter was within the Syariah court jurisdiction and hence outside the jurisdiction of the civil courts, Balia Yusof JCA substantially relied on the case of Hj. Raimi bin Abdullah v. Siti Hasnah Vangarama bt Abdullah and another appeal decided by the Federal Court. In that case, the Federal Court dealt with an appeal arising from an application made by the respondent Siti Hasnah Vangarama bt Abdullah. The respondent’s application was in effect for a declaration that her conversion to Islam was null and void ab initio. The respondent was born in Aug 1982. When she was one year and three months old, in Nov 1983, both her parents converted to the religion of Islam at Pahang. As part of the conversion process, the father made a statutory declaration saying that he had voluntarily embraced Islam together with his five children (which included the respondent). However, the Registrar of Muallaf at Pahang issued conversion certificates only to the parents and not to any of the children. By 1989, the whole family moved from Pahang to Penang. In 1989, the family was in desperate straits. The respondent and two of her siblings were sent to the Ramakrishna orphanage in Penang (a Hindu organisation). By end of 1989, the mother passed away. That was immediately followed by the Director of Islamic Religious Department of Penang, through its enforcement officers, removing the respondent (along with her two siblings) from the orphanage. On the very day, the Director got the respondent, then aged seven years only, to go through the process of conversion and to sign the certificate of conversion and had the certificate of conversion issued to the respondent by the relevant authority in Penang. [2016] 1 LNS(A) xvii Legal Network Series 28 The Director placed the three children in an Islamic religious school. The respondent ran away and was subsequently returned to the Director. The Director then placed the respondent under the charge of an officer called Puan Sabariah.
Then the respondent was transferred to a Children’s Home in Penang, and then back to the Director and finally returned to the Children’s Home in Penang by an order of the Juvenile Court. The respondent again ran away from the Children’s Home. Hence, the respondent applied to the High Court in essence for a declaration that the purported conversion made at Penang in 1989 was a nullity ab initio. The Federal Court visited paragraph 1 of the Ninth Schedule to the Federal Constitution, in particular sub-paragraph (a), namely “Islamic law, personal and family law of persons professing the religion of Islam”, and said in the peculiar context of the case that “whether a person is a Muslim or not is a matter falling under the exclusive jurisdiction of the Syariah Court.” It was said that the factual context was peculiar because the Federal Court concluded that on the date of the alleged conversion in 1989, the respondent was already a Muslim, because the respondent was already converted to the religion of Islam in 1983 when her father made the statutory declaration not only covering himself but also his five children including the respondent. In the absence of challenge to the 1983 conversion, the respondent was already a Muslim by 1989 and hence the question of validity of the conversion in 1989, if any, should only be decided by the Syariah court.
In fact any decision as to validity of the 1989 [2016] 1 LNS(A) xvii Legal Network Series 29 conversion by whichever court will not affect the status of the respondent if she was already Muslim since 1983. The Federal Court took particular note that the respondent did not challenge the 1983 conversion (see paragraph 29). The court also acknowledged that if the Syariah court were to decide that the 1983 conversion was not valid, then the civil courts would have the jurisdiction to decide the disputed conversion in 1989. The passage of the Federal Court must be repeated in verbatim below: [31] … We hold that the matter of conversion of the plaintiff together with her father in 1983 ought to be determined first by the Syariah Court, then only the issue of the alleged conversion in 1989 could appropriately be determined by the civil court. The resultant true understanding from the case is that any dispute as to conversion is a matter falling within the jurisdiction of civil courts. Balia Yusof JCA, with due respect, misunderstood the Hj Raimi’s case and applied it contrary to its true meaning.
If Hj Raimi’s case was correctly applied, the result would have been the opposite. It is not within the scope of this paper to analyse whether the Federal Court was correct in holding that there was a conversion in 1983. Considering such a question will involve questions as to right of parents to convert their child without the consent of the child and whether such a conversion would be contrary to article 11(1) of the Federal Constitution, which is only lightly discussed near to the end of this paper. [2016] 1 LNS(A) xvii Legal Network Series 30 For completeness, it must be said that not only the factual matrix was peculiar in Hj Raimi’s case with two purported conversions, but the State enactment was equally so. The State enactment applicable to the 1983 conversion was the Administration of the Religion of Islam and the Malay Custom of Pahang Enactment 1982. Unlike the Perak Enactment, it did not require children to utter the Affirmation of Faith for conversion but merely required the consent of a parent who himself or herself converts. The relevant section was section 101 of the Pahang Enactment, which read as follows:
101. Minor converted to the Religion of Islam. No person under the age of eighteen years shall be registered as having been converted to the Religion of Islam otherwise than with the approval of his parents or guardian: Provided that if his mother, father or guardian is converted to the Religion of Islam …, he may be registered as having been converted to the Religion of Islam. Having held as above, the Federal Court a little confusingly made a further remark in passing that “it would be highly inappropriate for the civil court to determine the validity of the conversion of any person to the religion of Islam as this is strictly a religious issue. As such the civil court shall have no jurisdiction by reason of art 121(1A).” Does the article 121(1A) say that the civil court shall have no jurisdiction if it is a strictly a religious issue? No. [2016] 1 LNS(A) xvii Legal Network Series 31 The question is not whether conversion is strictly a religious issue, but whether it falls within one of the sub-paragraphs within the paragraph 1 of the Ninth Schedule to the Federal Constitution so that the matter will be within the subject-matter jurisdiction of the Syariah courts. If so, the jurisdiction of the civil courts would be ousted by the article 121(1A) provided that all parties to the action profess the religion of Islam.
Even without reference to the paragraph 1, why it is ‘inappropriate’ for the civil courts to decide the validity of conversion? What is the difficulty that a civil court may have in checking whether the process of conversion was duly complied with, such as uttering the Affirmation of Faith by the purported convert, etc? With due respect, it is neither inappropriate nor poses any difficulty for the civil courts to decide the issue at hand. In making the above discussed remark, the Federal Court referred to its previous decision in Soon Singh A/L Bikar Singh V. Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Anor [1999] 1 MLJ 489. That was a case where the question was whether the applicant had converted out of Islam and not any dispute over his original conversion to Islam. What the applicant asked for in that case was “a declaration that the plaintiff, having renounced the religion of Islam and re- embraced the Sikh faith, is no longer a Muslim; ....” The Federal Court in that case held that the issue of conversion out of Islam was a matter within the jurisdiction of the Syariah courts.
These are called apostasy or murtad cases. In the absence of ‘conversion-out’, the ‘conversion-in’ stood and he was a Muslim / a person professing the religion of Islam amenable to the jurisdiction of the Syariah courts. [2016] 1 LNS(A) xvii Legal Network Series 32 It is not within the ambit of this paper to analyse whether ‘conversion-out’ falls within the paragraph 1 of the Ninth Schedule to the Federal Constitution, and accordingly it is not proposed to dwell into that subject save for saying that that jurisprudence does not affect the analysis in respect of ‘conversion-in’ cases that is undertaken in this paper. In the case of Soon Singh, the Federal Court referred to Dalip Kaur V. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1, another apostasy case decided by the Supreme Court. In that case, Dalip Kaur, the mother of a deceased convert son applied to the court for a declaration that her deceased son was at the time of his death not a Muslim. The civil court assumed jurisdiction and tried the case at full length and found that the convert son had not converted out as a matter of fact. There was no dispute as to the original ‘conversion-in’, which was voluntarily done by the son a few months prior to his death with a view to marrying a Muslim girl. The son converted to the religion of Islam on 1 June 1991. The convert son went through an engagement ceremony with his girlfriend, a Muslim girl, on 28 Sept 1991.
The wedding was scheduled to take place on 25 Nov 1991. In the meantime, the convert son fetched his fiancé from home to work in the night of 2 Oct 1991, and he was found dead the next day on 3rd Oct 1991. The plaintiff, the mother of the convert son, claimed that his son had converted out by a deed poll signed by him on 9 Sept 1991. The handwriting expert who compared 10 signatures of the deceased opined that the signature on the deed poll did not belong to the deceased. The judge having heard the factual matrix of the case found that the deceased [2016] 1 LNS(A) xvii Legal Network Series 33 did not sign the deed poll and did not convert out, and hence remained a Muslim at the time of this death. On appeal, it was agreed by consensus of parties that the question will be referred to fatwa committee. The fatwa committee returned its finding that the deceased was a Muslim at the time of his death. This concluded the matter and the plaintiff was not then allowed to re-open the case. It is repeated that it is not within the ambit of this paper to analyse ‘conversion-out’ cases. Caution before applying precedents in conversion cases This is an area of jurisprudence known for its controversy and plenitude of conflicting decisions. Any judge applying a precedent from this jurisprudence must be mindful of at least three principles, which follow:
1) The precedent is not per in curium. 2) The precedent is not contrary to the law rendering it of no effect (see the Badiaddin principle) 3) Applying the precedent does not compromise the constitutional oath taken by the judge by virtue of which he or she holds office. The third principle above is what Hamid Sultan JCA calls “constitutional oath jurisprudence” and has often stressed at many instances including in the instant appeal. The foremost duty of the judge is to preserve, protect and defend the Constitution. [2016] 1 LNS(A) xvii Legal Network Series 34 Judges of the civil courts, unlike those of the Syariah Courts, take a constitutional oath under article 124 of the Federal Constitution materially in the format in the Sixth Schedule to the Federal Constitution, the essence of which is that his or her foremost duty is to preserve, protect and defend the Federal Constitution. The Sixth Schedule reads as follows: I, ..................................................., having been elected (or appointed) to the office of ............................do solemnly swear (or affirm) that I will faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution. … (emphasis added) In this context, the article 121(1A) must be revisited. Under article 121(1A), the civil courts have no jurisdiction if it is a matter falling within the jurisdiction of the Syariah courts.
It must be remembered that article 121(1A) was inserted by section 8(c) of the Constitution (Amendment) Act 1988, which itself has to be read subject to the Federal Constitution (see article 4(1) of the Federal Constitution), i.e. in the present context, subject to the Sixth Schedule to the Federal Constitution. Accordingly, if a Syariah court’s decision infringes a constitutionally protected right of a party, then the civil courts, as guardians of the constitution, may question the same . This will have to be done by way of a judicial review application. It must be noted that the judicial review powers of the High Court are conferred by paragraph 1 of the Schedule to the Courts of Judicature Act 1964.
It [2016] 1 LNS(A) xvii Legal Network Series 35 must be observed that it is a jurisdiction without any fetter. To avoid any doubt, by section 4 of the Act, the provisions of the Act shall prevail in the event of any inconsistency or conflict between its provision and any other written law (other than the Federal Constitution only). In a judicial review, the court checks the process by which any authority or person in power reached its or his decision. Checking the ‘process of decision making’ does not involve any Islamic law or any matter spelled out in the paragraph 1 to the Ninth Schedule to the Federal Constitution.
It must be emphasised that at a plain reading of paragraph 1 of the Ninth Schedule to the Federal Constitution, it contains no jurisdiction similar to that contained in the paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (i.e. the judicial review jurisdiction). Accordingly, the judicial review jurisdiction of the civil courts is not in any way affected by the article 121(1A). Once this point is clear, the next question is whether the judicial review jurisdiction, as conferred by the paragraph 1 to the Schedule to the Courts of Judicature Act 1964, includes a power to so judicially review a decision of the Syariah court. As there is absolutely no fetter to this jurisdiction conferred by the paragraph 1 of the Schedule to the Courts of Judicature Act 1964, a decision made by a Syariah court is no exception to this jurisdiction. Support for this proposition can in general be found in the judgement of Hamid Sultan JCA, when his Lordship said “[w]hat the civil courts cannot do is to intervene in the lawful decision of the Syariah Courts made within its jurisdiction and not in excess of its jurisdiction.” Conclusion [2016] 1 LNS(A) xvii Legal Network Series 36 Having visited and discussed the plethora of laws, cases, principles and the grounds of Balia Yusof JCA in the instant appeal, with due respect, it is opined that any issue as to validity of conversion is a matter within the jurisdiction of the civil courts, whether the parties to the action are all Muslims / persons professing the religion of Islam or not, which Hamid Sultan JCA said with simplicity as this: “certificate of conversion has nothing to do with the jurisdiction of the Syariah Court”. 8. The second issue
The author having subscribed to the view that the first issue, namely whether the civil courts have jurisdiction to hear the challenge to conversion certificate, must be answered in the affirmative, now moves on to the second issue, namely; whether issuance of the conversion certificates contravened the provisions of the Perak Enactment and thus a nullity and liable to be quashed? It was contended by Indira Ghandi that sections 96 and 106 of the Perak Enactment were not complied with. It must be observed that the basic requirements for conversion are set out in the section 96. In the case of minor children, there are some additional requirements called for by the section 106. In the instant case, the section 96 issue must be considered first. If it is found that section 96 was not complied with, then it would not be necessary to decide if the section 106 additional requirements were satisfied. Under section 96, the intending convert must utter the Affirmation of Faith.
He or she must do so understanding what it means. He or she must do so [2016] 1 LNS(A) xvii Legal Network Series 37 out of his or her own free will. A person incapable of speech may, instead of uttering, convey the Affirmation of Faith in sign language. In the instant case, the two elder children were with Indira Ghandi and it is not disputed that they did not utter the Affirmation of Faith. As far as the youngest child is concerned, it was aged 11 months at the time of the alleged conversion and was with the father. It cannot be, and is not, disputed that the youngest too did not utter the Affirmation of Faith. In fact the conversion was documentarily done by their father and the children had no, and could not have had any, knowledge of it. This is not disputed. It follows that it is not doubted that the section 96, and hence the statutory requirements for conversion, were not complied with. Hence, it is not necessary to consider the additional requirements of parental consent in the section 106. Under section 100 of the Perak Enactment, the convert must apply to the Registrar of Muallaf for registration as a muallaf. If the Registrar is satisfied that the section 96 requirements are satisfied, then he may register the conversion in the Register of Muallaf. Upon such registration, under section 101(1) of the Perak Enactment, the Registrar shall issue a certificate of conversion. In the instant appeal, it is not disputed that the requirements for registration under the section 100 was not satisfied. Accordingly, the Registrar acted in excess of authority and contravention of statute in registering the purported conversion and issuing the certificates of conversion, rendering the certificates thus issued a nullity ab initio (see Badiaddin principle). [2016] 1 LNS(A) xvii Legal Network Series 38 Hamid Sultan JCA so held. However Balia Yusof JCA felt restrained from so holding by section 101(2) of the Perak Enactment which provides that “a certificate of Conversion … shall be conclusive proof of the facts stated in the Certificate.” This calls for a detailed discussion of section 101(2) and its application to the facts of the instant case. At the outset, what did the conversion certificate say? All it said was that the applicants named in the schedule therein (the father and the three children) were registered in the Register of Muallaf. The “original names” of the purported converts. Their “Islamic names”. The “Islamic date” next to each of their Islamic names. The file number next to each of the Islamic dates. The certificate was signed on behalf of the Registrar of Islamic Religious Department of Perak. That was all. The certificate is reproduced in Hamid Sultan JCA’s judgment. The certificates did not say that the children uttered the Affirmation of Faith. The fact that needed to be established by Indira Ghandi, in order to nullify the certificate, was only that the requirements of section 96 was not satisfied, ie, essentially the three children did not utter the Affirmation of Faith and nothing else. This fact was not even disputed. This alone, without more, renders the certificate a nullity ab initio. Purely for academic purposes, hypothetically if the certificate had said (which the certificate did not do) that the purported converts named therein had uttered the Affirmation of Faith, can that fact be challenged? It is opined that even then it can be challenged for the following reasons. [2016] 1 LNS(A) xvii Legal Network Series 39
Firstly, when an applicant proves the facts necessary to establish that the certificate is a nullity ab initio, the certificate is legally non-existing. In such case, it does not matter what is stated in the certificate which is legally non-existing, i.e. a nullity. Secondly, in a judicial review application, if a Registrar can hide behind what he himself self-servingly said in the certificate, it will in effect bar any judicial review of the process by which he issued the certificate. Judicial review jurisdiction, conferred on the civil courts (who are guardians of the constitution – in Hamid Sultan JCA’s language, the entrusted supreme policeman of the constitution) by the Courts of Judicature Act 1964 (a federal legislation) cannot be ousted by s 101(2) of the Perak Enactment (a state legislation). Reference is made to article 75 of the Federal Constitution which provides that in case of inconsistency between a State law and a Federal law, the latter shall prevail. Thirdly, section 101(2) is inconsistent with section 5 of the Evidence Act 1950 (a Federal legislation) and thus cannot have any effect of overriding section 5.
It must be explained why it is said that section 101(2) is inconsistent with section 5 of the Evidence Act 1950. At the outset, the long title to the Evidence Act 1950 reads “An Act to define the law of evidence”. Sections 2 and 3 of the Act read together delivers the effect that the Act applies to all judicial proceedings before any civil court. Now sections 4 and 5 of the Act must be considered, which are reproduced below: 4. Presumption [2016] 1 LNS(A) xvii Legal Network Series 40 (1) Whenever it is provided by this Act that the court may presume a fact, it may either regard the fact as proved unless and until it is disproved, or may call for proof of it. (2) Whenever it is directed by this Act that the court shall presume a fact, it shall regard the fact as proved unless and until it is disproved. (3) When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. 5. Evidence may be given of facts in issue and relevant facts Evidence may be given in any suit or proceeding of the existence or nonexistence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation--This section shall not enable any person to give evidence of a fact which he is disentitled to prove by the law relating to civil procedure. Section 5 confers the right on a litigant to tender evidence of any fact in issue, subject only to a caveat that a litigant may be debarred from giving such evidence only if a law relating to ‘civil procedure’ disentitles him from so doing. Accordingly, section 101(2) cannot take away that right, unless section 101(2) is a law relating to civil procedure. Section 101 entitled “Conversion Certificate of Conversion to the Religion of Islam” has nothing to do with civil procedure. [2016] 1 LNS(A) xvii Legal Network Series 41 Another exception to the right conferred under the section 5 is found in section 4(3) of the Act. Under section 4(3), when a litigant proves one fact and the Act (the Evidence Act 1950) declares that fact be conclusive proof of another fact, the other party is disallowed from disproving the latter fact deemed to be proved. The Act has so declared proof of one fact to be the conclusive proof of another fact only in two instances, respectively in section 41 in respect of certain judgments and in section 111 in respect of legitimacy of children born during marriage when the couple was in access to each other. Section 101(2) of the Perak Enactment is out of place to gain any exception to the right conferred under section 5 of the Evidence Act. With due respect, Balia Yusof JCA failed to make due observation at the outset of the facts stated in the certificate in holding that section 101(2) rendered the conversion or the certificate unchallengeable. Had his Lordship considered the observations made hereinabove, again with due respect, the result must have been different. Before concluding the discussion on section 101(2), it is pertinent to consider the majority decision of the Court of Appeal in Saravanan Thangathoray V. Subshini Rajasingam & Another Appeal [2007] 2 CLJ 451, which was relied on by Balia Yusof JCA in holding as his Lordship did. In that case, in less than three months after the date of conversion of a husband as stated in the conversion certificate, the wife petitioned for divorce under section 51(1) of the Law Reform (Marriage and Divorce) Act 1976, which reads as follows: 51. Dissolution on ground of conversion to Islam
[2016] 1 LNS(A) xvii Legal Network Series 42 (1) Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce: Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion. (emphasis added) The wife having so applied in less than three months after the date of conversion stated in the certificate challenged the ‘date of conversion’ therein. The court, by majority, through application of section 112(2) of the Selangor Enactment, which is in pari materia with section 101(2) of the Perak Enactment, held that the ‘date of conversion’ stated in the certificate was conclusive proof of the ‘date’ and accordingly the wife’s petition was premature. In that case, the certificate of conversion was not challenged, but only the date stated therein. It would have been different if the certificate itself was challenged with the result that the court cannot rely on anything stated in the certificate until the issue of validity of the certificate is first decided. With due respect, that case had no application or relevance to the case of Indira Ghandi, where the conversion itself was challenged from the root, and Balia Yusof JCA, again with due respect, misdirected himself in applying that case to the case before his Lordship. In conclusion, it is opined that the section 101(2) cannot be any bar to Indira Ghandi proving the facts and the process by which the certificate was issued. In the absence of any hindrance by the section 101(2), it cannot
[2016] 1 LNS(A) xvii Legal Network Series 43 be doubted that there was absolute non-compliance of the section 96, the statutory requirements for conversion, rendering the purported conversion and the certificate a nullity ab initio and liable to be quashed by the court, as did Lee Swee Seng J in the High Court and upheld by the dissenting judge in the Court of Appeal, Hamid Sultan JCA. By now, both the issues due for determination has been considered at length and the reasoned views and opinion have been expressed, namely the matter carried by Indira Ghandi was within the jurisdiction of the civil courts and that the conversion certificates were liable to be quashed. However, that would not suffice to complete this paper, but articles 11 and 12 of the Federal Constitution must be discussed, as Balia Yusof JCA also relied on article 12 and discussed article 11 in the course of arriving at the conclusion that his Lordship did. 9. Articles 11 and 12 of the Federal Constitution Balia Yusof JCA referred to article 12(4) of the Federal Constitution and to the Federal Court decision in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147 and made a remark in passing that article 12(4) allows either parent to convert his or her child to the religion of Islam. As rightly pointed out by Hamid Sultan JCA, article 12(4) is housed under the article entitled “Rights in respect of education”. This section has nothing to do with conversion, and it is sad that some decisions have treated the ‘education’ related provision as a ‘conversion’ provision. The difference is not that of an apple and orange but a marble and pumpkin as [2016] 1 LNS(A) xvii Legal Network Series 44 Hamid Sultan JCA well said. It is hoped that the following distinct passage of Hamid Sultan JCA in the instant appeal will put an end to the anathema of misapplying article 12(4) to conversion cases: … Article 12(3) and 12(4) of the Federal Constitution has nothing to do with conversion. It only permits a parent or guardian from deciding the religion of the child for purpose of worship of a religion ... Selecting the religion does not mean the child has been converted. Balia Yusof JCA was of the view that the right of either parent to convert his or her child without consent of his or her spouse was not contrary to article 11 of the Federal Constitution. With due respect, the view cannot be justified. Article 11 reads as follows:
11. Freedom of religion (1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it. “Every person”, what does it mean? It is opined that “person” includes children and there is nothing in the constitution to discriminate against children nor to disregard the fact that children are humans with feelings and legitimate desires too. Although children are subject to parental control, it should not be taken to mean they are slaves (or something near to it) of parents. By virtue of article 11, a child has the right to practice his religion. It is the author’s view that “his” religion here means the religion that he was born under or the religion that he has already been practicing. If either [2016] 1 LNS(A) xvii Legal Network Series 45 parent (or even both parents) can force a child, say aged 17 and thus still a minor, into any other religion, that would be a step nearer to treating the child as a slave (or something near to it) of either parent (or both parents) as opposed to wards of parents or guardians. This principle is well contained in the Perak Enactment, as like in most other State enactments, that requires not merely the parental consent in cases of conversion of children, but requires that the child himself or herself to voluntarily embrace the religion of Islam. Now returning to the other issue of one parent dealing with religion of the child without the consent of the other parent, a few words must be said.
If one were to interpret any provision in the law as allowing either parent to decide the religion of their child, that will only create a battle of religions, as the father may select one and the mother another. Accordingly, any law allowing “a parent” to deal with the religion of a child must be construed as meaning “the parents” if they are both alive. Parliament must take due steps to amend the law for the sake of clarity if necessary. Returning to the case at hand, article 12(4) has no application to it precisely for the reasons stated by Hamid Sultan JCA and article 11 would be infringed if the child (a person) is disallowed from practicing “his” religion at the unilateral decision of his parent (or parents). Accordingly, it is opined that the act of the Registrar in issuing the certificates in the instant case, among other matters already discussed at length, also evidences an infringement of article 11. 10. Conclusion
[2016] 1 LNS(A) xvii Legal Network Series 46 Having reviewed the instant case at length thus far, it is now time to write the conclusion to the paper. With due respect, the challenge to the conversion is a matter within the jurisdiction of the civil courts at least for the reason that Indira Ghandi, a legitimate party in the case, was a non-Muslim. The purported conversion was a nullity ab initio at least for non-compliance with section 96 of the Perak Enactment, which is an undisputed fact. Section 101(2) does not help the Appellants in this case in any way at least because the certificate nowhere said that the children uttered the Affirmation of Faith, which was the central fact in issue in this case. It will only be hoped that the precedents created by the majority decision in this case and in a few other alike cases will be corrected by due process of law. ____________________________________________________
The Court of Appeal penned down on 30 December 2015 its decision in the much publicised conversion case of Pathmanathan A/L Krishnan v. Indira Ghandi a/p Mutho, which was heard together with two other appeals before the same panel. The two other appeals were brought against Indira Ghandi a/p Mutho respectively by the Director of the Islamic Religious Affairs of Perak & Ors and by Ministry of Education Malaysia & Another. All the three appeals arose from the decision of Lee Swee Seng J made in the matter of one judicial review application made by Indira Ghandi against six respondents including Pathmanathan, the Director of the Islamic Religious Affairs of Perak and Ministry of Education.
2. Background facts
Indira Ghandi was married to Pathmanathan in 1993. The couple had three children. In March 2009, the husband converted to Islam. At this time, the children were respectively aged 12 years, 11 years and 11 months. Immediately after his conversion, he procured from the Islamic Religious Affairs of Perak certificates of conversion of the three children purportedly under the Administration of the Religion of Islam (Perak) Enactment 2004, which is a state legislation (“the Perak Enactment”). Indira Ghandi had no knowledge of the purported conversion of the children. At the material time, the two elder children were with Indira Ghandi and the youngest with Pathmanathan. It is apparent that, at the material time, the two elder children had no knowledge of their conversion, and the youngest aged 11 months only could not have had any knowledge of his conversion. Upon coming to know of the certificates of conversion, Indira Ghandi instituted an action before the High Court by way of judicial review to challenge the issuance of the certificates of conversion. In the judicial review application, she named as respondents Pathmanathan, the Director of Islamic Affairs of Perak, the Ministry of Education and three others. The High Court allowed the application and quashed the certificates. All the six respondents appealed to the Court of Appeal through a total of three appeals.
3. Decision of the Court of Appeal The panel in the Court of Appeal comprised Balia Yusof bin Hj Wahi JCA, Badariah binti Sahamid JCA and Hamid Sultan bin Abu Backer JCA. The panel heard all the appeals together. The panel was divided in its decision. Balia Yusof JCA, with whom Badariah JCA concurred, found in favour of the Pathmanathan and other five appellants (“the Appellants”). Hamid Sultan JCA found in favour of Indira Ghandi. The result was a decision by majority, with Hamid Sultan JCA dissenting, allowing all the three appeals with no order as to costs. This paper will analyse the case from the perspectives both of the majority decision and of the dissenting judgment. In undertaking this task, it will be helpful first to set out the judgment of Balia Yusof JCA and then of Hamid Sultan JCA, followed by the author’s review of them.
4. Judgment of Balia Yusof JCA
Balia Yusof JCA first proposed to resolve the issue of jurisdiction of the High Court to entertain the judicial review application in question. His Lordship framed the question as to whether the High Court had “jurisdiction to deal with the issue of conversion to the religion of Islam”. His Lordship adopted an approach what his Lordship called “subject matter approach”. Taking this approach, his Lordship came to the following conclusion in two sentences: … whether a person is a Muslim or not is a matter falling under the exclusive jurisdiction of the Syariah Court. The determination of the validity of the conversion of any person to the religion of Islam is strictly a religious issue and it falls within the exclusive jurisdiction of the Syariah Court. In coming to the above conclusion, his Lordship relied on the Federal Court decision in Hj Raimi bin Abdullah v. Siti Hasnah Vangarama bt. Abdullah [2014] 3 MLJ 757, particularly the following passage: Article 121 of the Federal Constitution clearly provided that the civil court shall have no jurisdiction on any matter falling within the jurisdiction of the Syariah Court. … Whether a person was a Muslim or not was a matter falling under the exclusive jurisdiction of the Syariah Court. It would be highly inappropriate for the civil court, which lacks jurisdiction pursuant to art 121, to determine the validity of the conversion of any person to the religion of Islam as this is strictly a religious issue.
Therefore, the question of the plaintiff’s conversion in 1983 fell within the exclusive jurisdiction of the Syariah Court. (emphasis added) His Lordship further relied on sections 50(2)(b) (x) and (xi) of the Perak Enactment which confers the following subject matter jurisdiction, subject to the general limitation that the section applies only when all parties to the action are Muslims:
(x) a declaration that a person is no longer a Muslim;
(xi) a declaration that a deceased person was a Muslim or otherwise at the time of his death (emphasis added)
On that basis, his Lordship stressed and repeated his Lordship’s conclusion in the following words: A plain reading of the aforesaid provisions puts it beyond doubt that the power to declare the status of a Muslim person is within the exclusive jurisdiction of the Syariah High Court. It followed that on that ground alone, his Lordship would allow the appeal, ie, disallow the challenge by Indira Ghandi to the conversion certificates. However his Lordship felt impelled to proceed to deal with the merits of the challenge by Indira Ghandi, i.e. whether the conversion certificates were issued contrary to the law and thus a nullity ab initio. In dealing with the merits of the challenge, his Lordship considered sections 96 and 106 and sections 100 and 101 of the Perak
Enactment, which are reproduced in order below: 96. Requirement for conversion to the religion of Islam.
1) The following requirements shall be complied with for a valid conversion of a person to the religion of Islam:
(a) the person must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith;
(b) at the time of uttering the two clauses of the Affirmation of Faith the person must be aware that they mean “I bear witness that there is no God but Allah and I bear witness that the Prophet Muhammad S.A.W. is the Messenger of Allah”; and (c) the utterance must be made of the person's own free will. 2) A person who is incapable of speech may, for the purpose of fulfilling the requirement of paragraph (1)(a), utter the two clauses of the Affirmation of Faith by means of signs that convey the meaning specified in paragraph (i)(b).
106. Capacity to convert to the religion of Islam.
For the purpose of this Part, a person who is not a Muslim may convert to the religion of Islam if he is of mind and:- (a) has attained the age of eighteen years; or (b)if he has not attained the age of eighteen years, his parent or guardian consents in writing to his conversion.
100. Registration of Muallafs.
1) A person who has converted to the religion of Islam may apply to the Registrar in the prescribed form for registration as a muallaf. 2) If the Registrar is satisfied that the requirements of section 96 have been fulfilled in respect of the applicant, the Registrar may register the applicant's conversion to the religion of Islam by entering in the Register of Muallafs the name of the applicant and other particulars as indicated in the Register of Muallafs. 3) … 4) … 5) …
101. Certificate of Conversion to the Religion of Islam.
1) The Registrar shall furnish every person whose conversion to the religion of Islam has been registered a Certificate of Conversion to the Religion of Islam in the prescribed form. 2) A certificate of Conversion to Religion of Islam shall be conclusive proof of the facts stated in the Certificate. The merits of the challenge, as framed by Indira Ghandi was twofold. Firstly, section 96 was not complied with because the children did not utter the two clauses of the Affirmation of Faith (“the Affirmation of Faith”). Secondly, section 106 was not satisfied because she did not give her consent for the purported conversion. It was not disputed that the three children (the youngest of which was only 11-month old) did not utter the Affirmation of Faith, and therefore the “requirements for conversion to the religion of Islam” set out in the section 96 were not complied with. However the issue of whether section 106 was
contravened was a disputed one.
It was Indira Ghandi’s argument that the consent of “parent or guardian” required in the section 106 meant the consent of the “parents” in this case. To the contrary, the Appellants argued that it meant either parent. Before addressing sections 96 and 106, his Lordship directed his Lordship’s mind to section 101(2) of the Perak Enactment and relied on it to say that a certificate of conversion was not challengeable because pursuant to the section, the facts stated in the certificates of conversion are conclusive proof thereof. His Lordship pointed out that the conversion certificates stated “the fact of conversion” and “the fact that the persons named therein has been registered in the Registrar of Muallafs.” Having held that, by virtue of the section 101(2), the conversion certificates are not open to challenge, his Lordship however also said that any challenge to the certificates must be made at the Syariah court.
In dealing with the issue of conclusiveness of conversion certificates, his Lordship also relied on the decision in Saravanan Thangatoray v. Subashini Rajasingam & Another Appeal [2007] 2 CLJ 451 made by the Court of Appeal by majority (which was affirmed by the Federal Court again by majority as reported in [2008] 2 CLJ 1). In Saravanan’s case, a husband converted to Islam and subsequently the wife petitioned for divorce under section 51(1) of the Law Reform (Marriage and Divorce) Act 1976. Under this section, when a spouse converts to Islam, the other spouse who has not so converted may petition for divorce. The section also imposes a limitation that a petition under this section may only be presented after expiry of three months from the date of the conversion. In opposition the petition, the husband contended that the petition was filed within the period of three months after conversion, but the wife argued otherwise. The date of conversion was disputed. In resolving the issue as to the date of conversion, the Court of Appeal (by majority) held that the date stated in the certificate of conversion was conclusive proof thereof, by virtue of section 112(2) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (“the Selangor Enactment”) which is in pari materia with section 101(2) of the Perak Enactment. Relying on the above, Balia Yusof JCA in the instant appeal was of the view that the certificate of conversion is not open to challenge and said that “the High Court has to accept the facts stated [in the conversion certificates] and it is beyond the powers of the [High Court] to question the same.” Having so discounted the challenge at the outset, his Lordship however dwelled into the question of whether a single parent can give the requisite consent in the section 106, and answered this question in the affirmative.
In so answering, his Lordship relied on the remarks made by the Federal Court, by majority, in Subashini a/p Rajasingam v. Saravanan a/l Thangathoray and other appeals [2008] 2 CLJ 1 with regard to the meaning of “parent” appearing in article 12(4) of the Federal Constitution. The remark made by the Federal Court in relation to the article 12(4) in that case was that “[e]ither husband or wife has the right to convert a child of the marriage to Islam”.
The article 12 reads as follows:
12. Rights in respect of education
1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth:- a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or b) …
2) Every religious group has the right to establish and maintain institutions for the education of children in its own religion …
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. His Lordship relied on Subashini’s case to say that there was no violation in the case before his Lordship of article 11(1) of the Federal Constitution, which reads as follows:
11. Freedom of religion
1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it. The decision of his Lordship can now be conveniently summarised as follows: 1) The jurisdiction to decide the issue of validity of conversion is exclusively vested in the Syariah courts, and as such by virtue of article 121(1A) of the Federal Constitution, the matter is outside the jurisdiction of the High Court. 2) Section 101(2) of the Perak Enactment renders the certificates of conversion unchallengeable. 3) Any challenge to the certificates of conversion must be taken before the Syariah court. 4) The right of either parent to consent for conversion is entrenched in article 12(4) of the Federal Constitution and it does not run contrary to article 11 of the Federal Constitution.
5. Judgment of Hamid Sultan JCA
Hamid Sultan JCA, the dissenting judge in this appeal, started off by visiting the framework of the Perak Enactment, which contained 113 sections in 11 parts. His Lordship opined that not all the provisions in the Enactment are protected by article 121(1A) of the Federal Constitution so as to be out of the realm of civil courts. His Lordship emphasised the meaning of the article 121(1A), which reads as follows:
(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. His Lordship identified that the article 121(1A) is largely applicable to Part IV entitled “Syariah Jurisdiction”, which contains 23 sections numbered from sections 44 to 66. His Lordship said that it is only to some of these sections that the article 121(1A) applies.
His Lordship simplified this in two sentences by saying that: i. “the civil courts’ judicial review powers in the administrative decision of the state or its agencies and/or its officers” are not excluded by the article 121(1A); and ii. “[w]hat the civil courts cannot do is to intervene in the lawful decision of the Syariah Courts made within its jurisdiction and not in excess of its jurisdiction.” His Lordship framed the questions in the appeal as whether the matter of exercise of the powers of the Pendaftar Muallaf came within the jurisdiction of the Syariah court. If the answer is in the negative, then any decision made by the Pendaftar Muallaf is subject to the judicial review powers of the civil courts. In determining the jurisdiction of the Syariah court, his Lordship visited section 50(3)(b) of the Perak Enactment which set out the civil jurisdiction of the Syariah High Court and read as follows: (3) The Syariah High Court shall-- (a) in its criminal jurisdiction, …
[2016] 1 LNS(A) xvii Legal Network Series 13 (b) in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims and the action or proceedings relate to:- (i) betrothal, marriage, ruju', divorce, annulment of marriage (fasakh), nusyuz, or judicial separation (faraq) or any other matter relating to the relationship between husband and wife. (ii) any disposition of or claim to property arising out of any of the matters set out in subparagraph (i); (iii) the maintenance of dependants, legitimacy, or guardianship or custody (hadhanah) of infants; (iv) the division of, or claims to, harta sepencarian; (v) wills or gifts made while in a state of marad-almaut; (vi) gifts intervivos; or settlements made without adequate consideration in money or money's worth by a Muslim; (vii) wakaf or nazr; (viii) division and inheritance of testate or intestate property; [2016] 1 LNS(A) xvii Legal Network Series 14 (ix) the determination of the persons entitled to share in the estate of a deceased Muslim or the shares to which such persons are respectively entitled; (x) a declaration that a person is no longer a Muslim; (xi) a declaration that a deceased person was a Muslim or otherwise at the time of his death; and (xii) other matters in respect of which jurisdiction is conferred by any written law. In dealing with the subject-matter jurisdiction of the Syariah court, his Lordship discounted in particular the subsections (x) and (xi), which were relied on by Balia Yusof JCA, because (x) empowers the Syariah court to declare that a person is no longer a Muslim and (xi) to declare that a deceased person was Muslim or otherwise at the time of his death. The case has nothing to do with the matters covered in either of these subsections. His Lordship seemed to have at the forefront of his Lordship’s mind the following: i) None of the limbs of section 50(3)(b) of the Perak Enactment conferred the jurisdiction on the Syariah court to determine any question as to conversion. ii) None of the limbs of section 50(3)(b) of the Perak Enactment clothed the Syariah court with any jurisdiction to judicially [2016] 1 LNS(A) xvii Legal Network Series 15 review any administrative action including the one by the Registrar of Muallaf in issuing a certificate of conversion. iii) To the contrary, the civil courts are conferred the jurisdiction to judicially review any administrative action (see paragraph 1 of the Schedule to the Courts of Judicature Act 1964). iv) Accordingly, the subject-matter jurisdiction to decide an issue of conversion or an application to judicially review the administrative action of the Registrar of Muallaf was vested in the civil courts.
His Lordship put his foot down and concluded that “[i]n the instant case, the Pendaftar Muallaf certificate of conversion has nothing to do with the jurisdiction of the Syariah Court and/or decision of the Syariah Court as asserted in Article 121 (1A) of the Federal Constitution”. This will answer the pivotal issue in the case, ie, the jurisdictional issue. However, answering the question as to jurisdiction does not answer the appeal in its entirety, as the next issue, if the High Court had the requisite jurisdiction to judicially review the matter of issuance of the conversion certificates, is whether the High Court rightly quashed the conversion certificates by exercise of that jurisdiction. Before moving on to the next issue, leaving aside the question of subjectmatter jurisdiction of the Syariah courts, his Lordship was mindful of the limitation to the personam jurisdiction in the section 50(3)(b), ie, the Syariah court has jurisdiction only when all parties to the action are Muslims, which was not the case in the appeal before his Lordship. [2016] 1 LNS(A) xvii Legal Network Series 16 Now moving on to the next issue, it was not disputed that the requirements for conversion set out in section 96 of the Perak Enactment was not complied with, i.e. none of the children uttered the Affirmation of Faith, particularly the youngest of them being only 11-month old and the other two being with the mother,
Indira Ghandi. His Lordship was also of the view that the parental consent required in section 106 was not complied with, although this was a controversial issue in this appeal. It followed that his Lordship answered the next issue (whether the conversion certificates should be quashed) in the affirmative and concluded that “the administration order of the Pendaftar Muallaf is a nullity ab initio and ought to be set aside of right for non-compliance of section 96 and 106 of the [Perak Enactment]”.
In so concluding, his Lordship reminded that the principle enunciated in Badiaddin bin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 MLJ 393 (“the Badiaddin principle”) equally applies in judicial review matters. Before concluding his judgment, his Lordship helpfully observed that article 12(4) of the Federal Constitution “has nothing to do with conversion” and that “[i]t only permits a parent or guardian from deciding the religion of the child for purpose of worship of a religion other than his own” and thereby put an end to the anathema of applying the article 12 to conversion cases as was done in Subashini’s case. It is recalled that the article 12 is entitled “Rights in respect of education” and the articles 12(3) and (4), which must be read together, provide as follows:
[2016] 1 LNS(A) xvii Legal Network Series 17 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) 6. The author’s review The issues for determination in the appeal were as follows: i) Whether the High Court had the jurisdiction to hear the judicial review application which mounted a challenge to the conversion certificates? ii) If the above question is answered in the affirmative, whether the conversion certificates were issued in non-compliance with the provisions of the Perak Enactment and thus a nullity and liable to be quashed? Each of the issues will in turn be addressed at length below.
That will be followed by discussion of a few other matters arising in the course of the respective judgments of Balia Yusof JCA and Hamid Sultan JCA and finally conclusion. 7. The first issue [2016] 1 LNS(A) xvii Legal Network Series 18 Before moving on, at the outset, it must be noted that the “civil courts”, meaning High Court, Court of Appeal and the Federal Court are the only courts constituted by the Federal Constitution (in Part IX entitled “Judiciary”). At face value, if a matter is within the jurisdiction of the Syariah courts, then the civil courts will have no jurisdiction over it. This is the result of article 121(1A) of the Federal Constitution, which was inserted into the Federal Constitution by Constitution (Amendment) Act 1988. Accordingly, the question is whether the issue brought by Indira Ghandi is one falling within the Syariah court jurisdiction. In order to rightly understand the jurisdiction of the Syariah courts, it is important to understand the legislative power of States to legislate in matters broadly relating to Islamic law, because the jurisdiction of the Syariah courts is tied to the said legislative power. This is explained below. Article 74(2) of the Federal Constitution provides that a State may legislate only in respect of matters falling within the State List (Second List) or Concurrent List (Third List) in the Ninth Schedule to the Federal Constitution. The article 74(2) reads as follows: … the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.
Only paragraph 1 of the State List contains matters relating to Islamic law and Syariah courts. Accordingly, that is the only part that one has to look [2016] 1 LNS(A) xvii Legal Network Series 19 at to determine the boundaries both of the legislative power of States in matters connected to Islamic law and of the jurisdiction of Syariah courts. Paragraph 1 is reproduced below (the splitting and alphabetical subnumbering of the paragraph, which is not so done in the actual text, is added by the author for ease of reading): Ninth Schedule -
State List 1. Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya: [2016] 1 LNS(A) xvii Legal Network Series 20 a) Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; b) Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; c) Malay customs; d) Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; e) mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; f) the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of [2016] 1 LNS(A) xvii Legal Network Series 21 any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; g) the control of propagating doctrines and beliefs among persons professing the religion of Islam; h) the determination of matters of Islamic law and doctrine and Malay custom. (emphasis and alphabetical sub-paragraphing added) At this juncture, it must be pointed out that there are two schools of thoughts. One school looks at State legislations (such as the Perak Enactment) for the jurisdiction of Syariah courts.
The other looks at the Federal Constitution, more particularly paragraph 1 of the Ninth Schedule thereto. With due respect, it is erroneous to look at State legislations for jurisdiction of Syariah courts and the correct approach is to look at paragraph 1. The sub-paragraph marked as (f) above provides that “Syariah courts … shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph”. This is the jurisdictional boundary of the Syariah courts, and their jurisdiction is neither more nor less than that. In fact, even apart from the sub-paragraph (f), if one starts looking at State legislations for the jurisdiction, an anomaly will be created. Different States may purportedly confer, in fact as they have done, jurisdiction of [2016] 1 LNS(A) xvii Legal Network Series 22 different scopes on their Syariah courts. When a controversial matter comes before a civil court, it has to hypothetically decide whether the matter is within the jurisdiction of the Syariah court. If every Syariah court has a different jurisdiction, then which Syariah court jurisdiction is the civil court to look at? This is what was said as the ‘anomaly’ that will result if one looks at State legislations for Syariah court jurisdiction. As far as civil matters are concerned, a plain reading of the sub-paragraph (f) above tells that in order for the Syariah courts to gain jurisdiction over a cause, two aspects must be satisfied. The first aspect is that all parties to the cause profess the religion of Islam (which the author will call “personam jurisdiction”). The second is that the subject matter is one included within the paragraph, i.e. included in any of sub-paragraphs as (a) through (h) above (which the author will call “subject-matter” jurisdiction). Logically, sub-paragraph (f) would be excluded from the list of subject-matter jurisdiction as it defines the jurisdiction of the Syariah courts rather than providing any subject matter which would fall within the jurisdiction. At the outset, it must be observed that, in matters broadly of Islamic law, the power of States to legislate and the subject-matter jurisdiction of the Syariah courts coincide. They are all in the paragraph 1 and are the same. Under the paragraph 1, if a State has authority to legislate on a matter, then it is also necessarily within the subject-matter jurisdiction of the Syariah courts. However, this does not mean that the Syariah court automatically gains its jurisdiction over any cause involving such a matter, as there is an [2016] 1 LNS(A) xvii Legal Network Series 23 additional caveat before it gains jurisdiction, i.e. the parties to the cause must all profess the religion of Islam (the personam jurisdiction aspect). Personam jurisdiction aspect In the instant case, one of the parties (properly a party) to the cause was a non-Muslim and hence the Syariah court did not have any personam jurisdiction over the matter. This fact has already caught the attention of many, but what has not caught their attention is the fact that most of the respondents in the High Court (the Appellants in the instant appeal) were also not “persons professing the religion of Islam” within the paragraph 1. Is the Ministry of Education one professing the religion of Islam? Is the office of the Director of the Islamic Religious Affairs of Perak one professing the religion of Islam? The answer is ‘no’. In the context of the paragraph 1, religion attaches to an individual and not to an institution. Ordinarily, in any judicial review application, as it was so in the present case, the primary respondent will be an administrative authority. An administrative authority is not person professing any religion in the context of the paragraph 1. Hence, ordinarily a judicial review application will necessarily be outside the jurisdictional boundary of Syariah courts, i.e. the personam jurisdiction aspect will not ordinarily be satisfied in cases of judicial review applications. Leaving that aside, to approach the matter most simply, Indira Ghandi cannot bring an action before the Syariah court. This suffices to say that the matter was outside the jurisdiction of the Syariah court. [2016] 1 LNS(A) xvii Legal Network Series 24 It must be borne in mind that if she is not allowed go to the civil courts, she has no place within our land to go to for justice. That is not the law of our land and that is not what the article 121(1A) says. All that the article 121(1A) says is that that the civil courts shall have no jurisdiction if it is a cause over which the Syariah courts have jurisdiction, as stressed by Hamid Sultan JCA. It must be added that it was not disputed that Indira Ghandi was properly a party to the action and had the requisite locus standi to bring the action. Any parent has certain responsibilities towards and rights in matters affecting his or her child. A reference to section 5 of the Guardianship Act 1961 may help those who will look for authority to support this proposition. The section 5 reads as follows:
5. Equality of parental rights
(1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal. (2) The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father. As the personam jurisdiction aspect is not satisfied, it is not necessary to analyse whether the cause is within the subject-matter jurisdiction of the [2016] 1 LNS(A) xvii Legal Network Series 25 Syariah courts. However purely for academic purposes, it will be analysed whether the matter falls within the subject-matter jurisdiction of the Syariah courts. Subject matter jurisdiction aspect The subject matter in issue in the instant case is ‘conversion’. Under what sub-paragraph of the paragraph 1 does it fall under?
This is a difficult question to answer. Taken at face value, none of the sub-paragraphs cover conversion. It must be borne in mind that conversion is a matter that is transitional in nature, which the author will call a ‘transreligional’ matter. The sub-paragraph (a) does not cover conversion because it only applies to persons already professing the religion of Islam. Equally sub-paragraph (c) will not help as Malay custom cannot have anything to do with conversion to the religion of Islam, which is a ‘transreligional’ matter. Possibly sub-paragraph (h) may be wide enough to cover conversion as it includes “determination of matters of Islamic law or doctrine”. It is not proposed to dwell into this question further but it will be taken that the sub-paragraph (h) covers conversion for the purposes of this paper, although it is a subject that requires research on its own right. Assuming sub-paragraph (h) covers conversion, then it is a matter falling within the authority of a State to legislate and hence within the subjectmatter jurisdiction of the Syariah courts. This does not mean that in such cases, the cause is within the jurisdiction of the Syariah courts. This is because, apart from the fact that the respondent is usually an authority and thus not professing any religion within paragraph
1, when a purported [2016] 1 LNS(A) xvii Legal Network Series 26 convert challenges the conversion, the underlying dispute is whether he is a Muslim / a person professing the religion of Islam. If a court finds that the conversion is a nullity ab initio, then it follows that he has not been, at any time, a Muslim / a person professing the religion of Islam. In fact if a Syariah court were to try a conversion case and at the end find that the purported conversion is a nullity ab initio, then it would only have wasted its time as it would have had no jurisdiction to hear the case in the first place and will have no jurisdiction to make any decision at the end. A civil court can only decline jurisdiction if the cause is within the jurisdiction of Syariah courts.
When a claimant raises an issue as to validity of his own conversion ab initio before a civil court, how can the court decide that it does not have jurisdiction until it decides whether the conversion is valid or void ab initio? If it is void ab initio, then the claimant was not a Muslim / a person professing the religion of Islam, and hence would properly be before the civil court. Whenever an issue as to jurisdiction is raised before a civil court, it must positively decide the issue (in one way or another) and not decline to decide. Analysis of Balia Yusof JCA’s grounds The author reached a conclusion that the matter brought by Indira Ghandi was outside the jurisdiction of Syariah courts, as much as the conclusion reached by Hamid Sultan JCA. However Balia Yusof JCA arrived at a conclusion that is the straight opposite. For a proper understanding of the subject, the grounds of Balia Yusof JCA must be finely analysed.
[2016] 1 LNS(A) xvii Legal Network Series 27 In concluding that the matter was within the Syariah court jurisdiction and hence outside the jurisdiction of the civil courts, Balia Yusof JCA substantially relied on the case of Hj. Raimi bin Abdullah v. Siti Hasnah Vangarama bt Abdullah and another appeal decided by the Federal Court. In that case, the Federal Court dealt with an appeal arising from an application made by the respondent Siti Hasnah Vangarama bt Abdullah. The respondent’s application was in effect for a declaration that her conversion to Islam was null and void ab initio. The respondent was born in Aug 1982. When she was one year and three months old, in Nov 1983, both her parents converted to the religion of Islam at Pahang. As part of the conversion process, the father made a statutory declaration saying that he had voluntarily embraced Islam together with his five children (which included the respondent). However, the Registrar of Muallaf at Pahang issued conversion certificates only to the parents and not to any of the children. By 1989, the whole family moved from Pahang to Penang. In 1989, the family was in desperate straits. The respondent and two of her siblings were sent to the Ramakrishna orphanage in Penang (a Hindu organisation). By end of 1989, the mother passed away. That was immediately followed by the Director of Islamic Religious Department of Penang, through its enforcement officers, removing the respondent (along with her two siblings) from the orphanage. On the very day, the Director got the respondent, then aged seven years only, to go through the process of conversion and to sign the certificate of conversion and had the certificate of conversion issued to the respondent by the relevant authority in Penang. [2016] 1 LNS(A) xvii Legal Network Series 28 The Director placed the three children in an Islamic religious school. The respondent ran away and was subsequently returned to the Director. The Director then placed the respondent under the charge of an officer called Puan Sabariah.
Then the respondent was transferred to a Children’s Home in Penang, and then back to the Director and finally returned to the Children’s Home in Penang by an order of the Juvenile Court. The respondent again ran away from the Children’s Home. Hence, the respondent applied to the High Court in essence for a declaration that the purported conversion made at Penang in 1989 was a nullity ab initio. The Federal Court visited paragraph 1 of the Ninth Schedule to the Federal Constitution, in particular sub-paragraph (a), namely “Islamic law, personal and family law of persons professing the religion of Islam”, and said in the peculiar context of the case that “whether a person is a Muslim or not is a matter falling under the exclusive jurisdiction of the Syariah Court.” It was said that the factual context was peculiar because the Federal Court concluded that on the date of the alleged conversion in 1989, the respondent was already a Muslim, because the respondent was already converted to the religion of Islam in 1983 when her father made the statutory declaration not only covering himself but also his five children including the respondent. In the absence of challenge to the 1983 conversion, the respondent was already a Muslim by 1989 and hence the question of validity of the conversion in 1989, if any, should only be decided by the Syariah court.
In fact any decision as to validity of the 1989 [2016] 1 LNS(A) xvii Legal Network Series 29 conversion by whichever court will not affect the status of the respondent if she was already Muslim since 1983. The Federal Court took particular note that the respondent did not challenge the 1983 conversion (see paragraph 29). The court also acknowledged that if the Syariah court were to decide that the 1983 conversion was not valid, then the civil courts would have the jurisdiction to decide the disputed conversion in 1989. The passage of the Federal Court must be repeated in verbatim below: [31] … We hold that the matter of conversion of the plaintiff together with her father in 1983 ought to be determined first by the Syariah Court, then only the issue of the alleged conversion in 1989 could appropriately be determined by the civil court. The resultant true understanding from the case is that any dispute as to conversion is a matter falling within the jurisdiction of civil courts. Balia Yusof JCA, with due respect, misunderstood the Hj Raimi’s case and applied it contrary to its true meaning.
If Hj Raimi’s case was correctly applied, the result would have been the opposite. It is not within the scope of this paper to analyse whether the Federal Court was correct in holding that there was a conversion in 1983. Considering such a question will involve questions as to right of parents to convert their child without the consent of the child and whether such a conversion would be contrary to article 11(1) of the Federal Constitution, which is only lightly discussed near to the end of this paper. [2016] 1 LNS(A) xvii Legal Network Series 30 For completeness, it must be said that not only the factual matrix was peculiar in Hj Raimi’s case with two purported conversions, but the State enactment was equally so. The State enactment applicable to the 1983 conversion was the Administration of the Religion of Islam and the Malay Custom of Pahang Enactment 1982. Unlike the Perak Enactment, it did not require children to utter the Affirmation of Faith for conversion but merely required the consent of a parent who himself or herself converts. The relevant section was section 101 of the Pahang Enactment, which read as follows:
101. Minor converted to the Religion of Islam. No person under the age of eighteen years shall be registered as having been converted to the Religion of Islam otherwise than with the approval of his parents or guardian: Provided that if his mother, father or guardian is converted to the Religion of Islam …, he may be registered as having been converted to the Religion of Islam. Having held as above, the Federal Court a little confusingly made a further remark in passing that “it would be highly inappropriate for the civil court to determine the validity of the conversion of any person to the religion of Islam as this is strictly a religious issue. As such the civil court shall have no jurisdiction by reason of art 121(1A).” Does the article 121(1A) say that the civil court shall have no jurisdiction if it is a strictly a religious issue? No. [2016] 1 LNS(A) xvii Legal Network Series 31 The question is not whether conversion is strictly a religious issue, but whether it falls within one of the sub-paragraphs within the paragraph 1 of the Ninth Schedule to the Federal Constitution so that the matter will be within the subject-matter jurisdiction of the Syariah courts. If so, the jurisdiction of the civil courts would be ousted by the article 121(1A) provided that all parties to the action profess the religion of Islam.
Even without reference to the paragraph 1, why it is ‘inappropriate’ for the civil courts to decide the validity of conversion? What is the difficulty that a civil court may have in checking whether the process of conversion was duly complied with, such as uttering the Affirmation of Faith by the purported convert, etc? With due respect, it is neither inappropriate nor poses any difficulty for the civil courts to decide the issue at hand. In making the above discussed remark, the Federal Court referred to its previous decision in Soon Singh A/L Bikar Singh V. Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Anor [1999] 1 MLJ 489. That was a case where the question was whether the applicant had converted out of Islam and not any dispute over his original conversion to Islam. What the applicant asked for in that case was “a declaration that the plaintiff, having renounced the religion of Islam and re- embraced the Sikh faith, is no longer a Muslim; ....” The Federal Court in that case held that the issue of conversion out of Islam was a matter within the jurisdiction of the Syariah courts.
These are called apostasy or murtad cases. In the absence of ‘conversion-out’, the ‘conversion-in’ stood and he was a Muslim / a person professing the religion of Islam amenable to the jurisdiction of the Syariah courts. [2016] 1 LNS(A) xvii Legal Network Series 32 It is not within the ambit of this paper to analyse whether ‘conversion-out’ falls within the paragraph 1 of the Ninth Schedule to the Federal Constitution, and accordingly it is not proposed to dwell into that subject save for saying that that jurisprudence does not affect the analysis in respect of ‘conversion-in’ cases that is undertaken in this paper. In the case of Soon Singh, the Federal Court referred to Dalip Kaur V. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1, another apostasy case decided by the Supreme Court. In that case, Dalip Kaur, the mother of a deceased convert son applied to the court for a declaration that her deceased son was at the time of his death not a Muslim. The civil court assumed jurisdiction and tried the case at full length and found that the convert son had not converted out as a matter of fact. There was no dispute as to the original ‘conversion-in’, which was voluntarily done by the son a few months prior to his death with a view to marrying a Muslim girl. The son converted to the religion of Islam on 1 June 1991. The convert son went through an engagement ceremony with his girlfriend, a Muslim girl, on 28 Sept 1991.
The wedding was scheduled to take place on 25 Nov 1991. In the meantime, the convert son fetched his fiancé from home to work in the night of 2 Oct 1991, and he was found dead the next day on 3rd Oct 1991. The plaintiff, the mother of the convert son, claimed that his son had converted out by a deed poll signed by him on 9 Sept 1991. The handwriting expert who compared 10 signatures of the deceased opined that the signature on the deed poll did not belong to the deceased. The judge having heard the factual matrix of the case found that the deceased [2016] 1 LNS(A) xvii Legal Network Series 33 did not sign the deed poll and did not convert out, and hence remained a Muslim at the time of this death. On appeal, it was agreed by consensus of parties that the question will be referred to fatwa committee. The fatwa committee returned its finding that the deceased was a Muslim at the time of his death. This concluded the matter and the plaintiff was not then allowed to re-open the case. It is repeated that it is not within the ambit of this paper to analyse ‘conversion-out’ cases. Caution before applying precedents in conversion cases This is an area of jurisprudence known for its controversy and plenitude of conflicting decisions. Any judge applying a precedent from this jurisprudence must be mindful of at least three principles, which follow:
1) The precedent is not per in curium. 2) The precedent is not contrary to the law rendering it of no effect (see the Badiaddin principle) 3) Applying the precedent does not compromise the constitutional oath taken by the judge by virtue of which he or she holds office. The third principle above is what Hamid Sultan JCA calls “constitutional oath jurisprudence” and has often stressed at many instances including in the instant appeal. The foremost duty of the judge is to preserve, protect and defend the Constitution. [2016] 1 LNS(A) xvii Legal Network Series 34 Judges of the civil courts, unlike those of the Syariah Courts, take a constitutional oath under article 124 of the Federal Constitution materially in the format in the Sixth Schedule to the Federal Constitution, the essence of which is that his or her foremost duty is to preserve, protect and defend the Federal Constitution. The Sixth Schedule reads as follows: I, ..................................................., having been elected (or appointed) to the office of ............................do solemnly swear (or affirm) that I will faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution. … (emphasis added) In this context, the article 121(1A) must be revisited. Under article 121(1A), the civil courts have no jurisdiction if it is a matter falling within the jurisdiction of the Syariah courts.
It must be remembered that article 121(1A) was inserted by section 8(c) of the Constitution (Amendment) Act 1988, which itself has to be read subject to the Federal Constitution (see article 4(1) of the Federal Constitution), i.e. in the present context, subject to the Sixth Schedule to the Federal Constitution. Accordingly, if a Syariah court’s decision infringes a constitutionally protected right of a party, then the civil courts, as guardians of the constitution, may question the same . This will have to be done by way of a judicial review application. It must be noted that the judicial review powers of the High Court are conferred by paragraph 1 of the Schedule to the Courts of Judicature Act 1964.
It [2016] 1 LNS(A) xvii Legal Network Series 35 must be observed that it is a jurisdiction without any fetter. To avoid any doubt, by section 4 of the Act, the provisions of the Act shall prevail in the event of any inconsistency or conflict between its provision and any other written law (other than the Federal Constitution only). In a judicial review, the court checks the process by which any authority or person in power reached its or his decision. Checking the ‘process of decision making’ does not involve any Islamic law or any matter spelled out in the paragraph 1 to the Ninth Schedule to the Federal Constitution.
It must be emphasised that at a plain reading of paragraph 1 of the Ninth Schedule to the Federal Constitution, it contains no jurisdiction similar to that contained in the paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (i.e. the judicial review jurisdiction). Accordingly, the judicial review jurisdiction of the civil courts is not in any way affected by the article 121(1A). Once this point is clear, the next question is whether the judicial review jurisdiction, as conferred by the paragraph 1 to the Schedule to the Courts of Judicature Act 1964, includes a power to so judicially review a decision of the Syariah court. As there is absolutely no fetter to this jurisdiction conferred by the paragraph 1 of the Schedule to the Courts of Judicature Act 1964, a decision made by a Syariah court is no exception to this jurisdiction. Support for this proposition can in general be found in the judgement of Hamid Sultan JCA, when his Lordship said “[w]hat the civil courts cannot do is to intervene in the lawful decision of the Syariah Courts made within its jurisdiction and not in excess of its jurisdiction.” Conclusion [2016] 1 LNS(A) xvii Legal Network Series 36 Having visited and discussed the plethora of laws, cases, principles and the grounds of Balia Yusof JCA in the instant appeal, with due respect, it is opined that any issue as to validity of conversion is a matter within the jurisdiction of the civil courts, whether the parties to the action are all Muslims / persons professing the religion of Islam or not, which Hamid Sultan JCA said with simplicity as this: “certificate of conversion has nothing to do with the jurisdiction of the Syariah Court”. 8. The second issue
The author having subscribed to the view that the first issue, namely whether the civil courts have jurisdiction to hear the challenge to conversion certificate, must be answered in the affirmative, now moves on to the second issue, namely; whether issuance of the conversion certificates contravened the provisions of the Perak Enactment and thus a nullity and liable to be quashed? It was contended by Indira Ghandi that sections 96 and 106 of the Perak Enactment were not complied with. It must be observed that the basic requirements for conversion are set out in the section 96. In the case of minor children, there are some additional requirements called for by the section 106. In the instant case, the section 96 issue must be considered first. If it is found that section 96 was not complied with, then it would not be necessary to decide if the section 106 additional requirements were satisfied. Under section 96, the intending convert must utter the Affirmation of Faith.
He or she must do so understanding what it means. He or she must do so [2016] 1 LNS(A) xvii Legal Network Series 37 out of his or her own free will. A person incapable of speech may, instead of uttering, convey the Affirmation of Faith in sign language. In the instant case, the two elder children were with Indira Ghandi and it is not disputed that they did not utter the Affirmation of Faith. As far as the youngest child is concerned, it was aged 11 months at the time of the alleged conversion and was with the father. It cannot be, and is not, disputed that the youngest too did not utter the Affirmation of Faith. In fact the conversion was documentarily done by their father and the children had no, and could not have had any, knowledge of it. This is not disputed. It follows that it is not doubted that the section 96, and hence the statutory requirements for conversion, were not complied with. Hence, it is not necessary to consider the additional requirements of parental consent in the section 106. Under section 100 of the Perak Enactment, the convert must apply to the Registrar of Muallaf for registration as a muallaf. If the Registrar is satisfied that the section 96 requirements are satisfied, then he may register the conversion in the Register of Muallaf. Upon such registration, under section 101(1) of the Perak Enactment, the Registrar shall issue a certificate of conversion. In the instant appeal, it is not disputed that the requirements for registration under the section 100 was not satisfied. Accordingly, the Registrar acted in excess of authority and contravention of statute in registering the purported conversion and issuing the certificates of conversion, rendering the certificates thus issued a nullity ab initio (see Badiaddin principle). [2016] 1 LNS(A) xvii Legal Network Series 38 Hamid Sultan JCA so held. However Balia Yusof JCA felt restrained from so holding by section 101(2) of the Perak Enactment which provides that “a certificate of Conversion … shall be conclusive proof of the facts stated in the Certificate.” This calls for a detailed discussion of section 101(2) and its application to the facts of the instant case. At the outset, what did the conversion certificate say? All it said was that the applicants named in the schedule therein (the father and the three children) were registered in the Register of Muallaf. The “original names” of the purported converts. Their “Islamic names”. The “Islamic date” next to each of their Islamic names. The file number next to each of the Islamic dates. The certificate was signed on behalf of the Registrar of Islamic Religious Department of Perak. That was all. The certificate is reproduced in Hamid Sultan JCA’s judgment. The certificates did not say that the children uttered the Affirmation of Faith. The fact that needed to be established by Indira Ghandi, in order to nullify the certificate, was only that the requirements of section 96 was not satisfied, ie, essentially the three children did not utter the Affirmation of Faith and nothing else. This fact was not even disputed. This alone, without more, renders the certificate a nullity ab initio. Purely for academic purposes, hypothetically if the certificate had said (which the certificate did not do) that the purported converts named therein had uttered the Affirmation of Faith, can that fact be challenged? It is opined that even then it can be challenged for the following reasons. [2016] 1 LNS(A) xvii Legal Network Series 39
Firstly, when an applicant proves the facts necessary to establish that the certificate is a nullity ab initio, the certificate is legally non-existing. In such case, it does not matter what is stated in the certificate which is legally non-existing, i.e. a nullity. Secondly, in a judicial review application, if a Registrar can hide behind what he himself self-servingly said in the certificate, it will in effect bar any judicial review of the process by which he issued the certificate. Judicial review jurisdiction, conferred on the civil courts (who are guardians of the constitution – in Hamid Sultan JCA’s language, the entrusted supreme policeman of the constitution) by the Courts of Judicature Act 1964 (a federal legislation) cannot be ousted by s 101(2) of the Perak Enactment (a state legislation). Reference is made to article 75 of the Federal Constitution which provides that in case of inconsistency between a State law and a Federal law, the latter shall prevail. Thirdly, section 101(2) is inconsistent with section 5 of the Evidence Act 1950 (a Federal legislation) and thus cannot have any effect of overriding section 5.
It must be explained why it is said that section 101(2) is inconsistent with section 5 of the Evidence Act 1950. At the outset, the long title to the Evidence Act 1950 reads “An Act to define the law of evidence”. Sections 2 and 3 of the Act read together delivers the effect that the Act applies to all judicial proceedings before any civil court. Now sections 4 and 5 of the Act must be considered, which are reproduced below: 4. Presumption [2016] 1 LNS(A) xvii Legal Network Series 40 (1) Whenever it is provided by this Act that the court may presume a fact, it may either regard the fact as proved unless and until it is disproved, or may call for proof of it. (2) Whenever it is directed by this Act that the court shall presume a fact, it shall regard the fact as proved unless and until it is disproved. (3) When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. 5. Evidence may be given of facts in issue and relevant facts Evidence may be given in any suit or proceeding of the existence or nonexistence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation--This section shall not enable any person to give evidence of a fact which he is disentitled to prove by the law relating to civil procedure. Section 5 confers the right on a litigant to tender evidence of any fact in issue, subject only to a caveat that a litigant may be debarred from giving such evidence only if a law relating to ‘civil procedure’ disentitles him from so doing. Accordingly, section 101(2) cannot take away that right, unless section 101(2) is a law relating to civil procedure. Section 101 entitled “Conversion Certificate of Conversion to the Religion of Islam” has nothing to do with civil procedure. [2016] 1 LNS(A) xvii Legal Network Series 41 Another exception to the right conferred under the section 5 is found in section 4(3) of the Act. Under section 4(3), when a litigant proves one fact and the Act (the Evidence Act 1950) declares that fact be conclusive proof of another fact, the other party is disallowed from disproving the latter fact deemed to be proved. The Act has so declared proof of one fact to be the conclusive proof of another fact only in two instances, respectively in section 41 in respect of certain judgments and in section 111 in respect of legitimacy of children born during marriage when the couple was in access to each other. Section 101(2) of the Perak Enactment is out of place to gain any exception to the right conferred under section 5 of the Evidence Act. With due respect, Balia Yusof JCA failed to make due observation at the outset of the facts stated in the certificate in holding that section 101(2) rendered the conversion or the certificate unchallengeable. Had his Lordship considered the observations made hereinabove, again with due respect, the result must have been different. Before concluding the discussion on section 101(2), it is pertinent to consider the majority decision of the Court of Appeal in Saravanan Thangathoray V. Subshini Rajasingam & Another Appeal [2007] 2 CLJ 451, which was relied on by Balia Yusof JCA in holding as his Lordship did. In that case, in less than three months after the date of conversion of a husband as stated in the conversion certificate, the wife petitioned for divorce under section 51(1) of the Law Reform (Marriage and Divorce) Act 1976, which reads as follows: 51. Dissolution on ground of conversion to Islam
[2016] 1 LNS(A) xvii Legal Network Series 42 (1) Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce: Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion. (emphasis added) The wife having so applied in less than three months after the date of conversion stated in the certificate challenged the ‘date of conversion’ therein. The court, by majority, through application of section 112(2) of the Selangor Enactment, which is in pari materia with section 101(2) of the Perak Enactment, held that the ‘date of conversion’ stated in the certificate was conclusive proof of the ‘date’ and accordingly the wife’s petition was premature. In that case, the certificate of conversion was not challenged, but only the date stated therein. It would have been different if the certificate itself was challenged with the result that the court cannot rely on anything stated in the certificate until the issue of validity of the certificate is first decided. With due respect, that case had no application or relevance to the case of Indira Ghandi, where the conversion itself was challenged from the root, and Balia Yusof JCA, again with due respect, misdirected himself in applying that case to the case before his Lordship. In conclusion, it is opined that the section 101(2) cannot be any bar to Indira Ghandi proving the facts and the process by which the certificate was issued. In the absence of any hindrance by the section 101(2), it cannot
[2016] 1 LNS(A) xvii Legal Network Series 43 be doubted that there was absolute non-compliance of the section 96, the statutory requirements for conversion, rendering the purported conversion and the certificate a nullity ab initio and liable to be quashed by the court, as did Lee Swee Seng J in the High Court and upheld by the dissenting judge in the Court of Appeal, Hamid Sultan JCA. By now, both the issues due for determination has been considered at length and the reasoned views and opinion have been expressed, namely the matter carried by Indira Ghandi was within the jurisdiction of the civil courts and that the conversion certificates were liable to be quashed. However, that would not suffice to complete this paper, but articles 11 and 12 of the Federal Constitution must be discussed, as Balia Yusof JCA also relied on article 12 and discussed article 11 in the course of arriving at the conclusion that his Lordship did. 9. Articles 11 and 12 of the Federal Constitution Balia Yusof JCA referred to article 12(4) of the Federal Constitution and to the Federal Court decision in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147 and made a remark in passing that article 12(4) allows either parent to convert his or her child to the religion of Islam. As rightly pointed out by Hamid Sultan JCA, article 12(4) is housed under the article entitled “Rights in respect of education”. This section has nothing to do with conversion, and it is sad that some decisions have treated the ‘education’ related provision as a ‘conversion’ provision. The difference is not that of an apple and orange but a marble and pumpkin as [2016] 1 LNS(A) xvii Legal Network Series 44 Hamid Sultan JCA well said. It is hoped that the following distinct passage of Hamid Sultan JCA in the instant appeal will put an end to the anathema of misapplying article 12(4) to conversion cases: … Article 12(3) and 12(4) of the Federal Constitution has nothing to do with conversion. It only permits a parent or guardian from deciding the religion of the child for purpose of worship of a religion ... Selecting the religion does not mean the child has been converted. Balia Yusof JCA was of the view that the right of either parent to convert his or her child without consent of his or her spouse was not contrary to article 11 of the Federal Constitution. With due respect, the view cannot be justified. Article 11 reads as follows:
11. Freedom of religion (1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it. “Every person”, what does it mean? It is opined that “person” includes children and there is nothing in the constitution to discriminate against children nor to disregard the fact that children are humans with feelings and legitimate desires too. Although children are subject to parental control, it should not be taken to mean they are slaves (or something near to it) of parents. By virtue of article 11, a child has the right to practice his religion. It is the author’s view that “his” religion here means the religion that he was born under or the religion that he has already been practicing. If either [2016] 1 LNS(A) xvii Legal Network Series 45 parent (or even both parents) can force a child, say aged 17 and thus still a minor, into any other religion, that would be a step nearer to treating the child as a slave (or something near to it) of either parent (or both parents) as opposed to wards of parents or guardians. This principle is well contained in the Perak Enactment, as like in most other State enactments, that requires not merely the parental consent in cases of conversion of children, but requires that the child himself or herself to voluntarily embrace the religion of Islam. Now returning to the other issue of one parent dealing with religion of the child without the consent of the other parent, a few words must be said.
If one were to interpret any provision in the law as allowing either parent to decide the religion of their child, that will only create a battle of religions, as the father may select one and the mother another. Accordingly, any law allowing “a parent” to deal with the religion of a child must be construed as meaning “the parents” if they are both alive. Parliament must take due steps to amend the law for the sake of clarity if necessary. Returning to the case at hand, article 12(4) has no application to it precisely for the reasons stated by Hamid Sultan JCA and article 11 would be infringed if the child (a person) is disallowed from practicing “his” religion at the unilateral decision of his parent (or parents). Accordingly, it is opined that the act of the Registrar in issuing the certificates in the instant case, among other matters already discussed at length, also evidences an infringement of article 11. 10. Conclusion
[2016] 1 LNS(A) xvii Legal Network Series 46 Having reviewed the instant case at length thus far, it is now time to write the conclusion to the paper. With due respect, the challenge to the conversion is a matter within the jurisdiction of the civil courts at least for the reason that Indira Ghandi, a legitimate party in the case, was a non-Muslim. The purported conversion was a nullity ab initio at least for non-compliance with section 96 of the Perak Enactment, which is an undisputed fact. Section 101(2) does not help the Appellants in this case in any way at least because the certificate nowhere said that the children uttered the Affirmation of Faith, which was the central fact in issue in this case. It will only be hoped that the precedents created by the majority decision in this case and in a few other alike cases will be corrected by due process of law. ____________________________________________________
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