ONE IMPORTANT CONSTITUTIONAL LAW CASE OF

THE LAST DECADE

Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors

[2013] 5 MLJ 552

Constitutional Law II

Continuous Assessment (10%)

Name: Winnie Choong Su Win

Matrics Number: LEB 150 144

Lecturer: Professor Emeritus Dato Dr. Shad

Saleem Faruqi

Date of Submission: 25 May 2017

 ACKNOWLEDGMENTS

This paper shall be divided into 4 parts. Each part will be discussed as
followed.

I. Brief facts of the case.

II. Constitutional law issues at stake.

III. Courts decision on each issue.

IV. Significance of the case to Constitutional Law.

I. BRIEF FACTS OF THE CASE

The applicant in this case was Indira Ghandhi. She underwent a civil
marriage with the 6th Respondent, Pathmanathan in 1993. In 2009, he
embraced Islam. Without her consent, he converted their three children, aged
12 years, 11 years and 11 months to Islam.

On discovering the 1st respondent (Pengarah Jabatan Agama Islam

Perak) had registered the childrens conversion and issued certificates of
conversion bearing their Muslim names and that the Shariah High Court had
granted the 6th respondent custody, care and control of the children, the
applicant filed the instant judicial review application for several matters, inter
alias:

i. an order of certiorari to quash the certificates for non-compliance

with s 99, 100 and 101 of the Administration of the Religion of
Islam (Perak) Enactment 2004 (The Enactment).

ii. an order of prohibition to restrain the second respondent from

registering the children as Muslims or muallaf pursuant to the
Enactment.

iii. sought a declaration that the certificates were null and void for
contravening s 106(b) of the Enactment and/or s 5 and 11 of the
Guardianship of Infants Act 1961 and/or Article 12(4) read with
Article 8(2) of the Federal Constitution (Constitution).
II. CONSTITUTIONAL LAW ISSUES AT STAKE

In this case, there are 6 constitutional law issues at stake:

Whether the conversion of the children from a civil marriage to Islam by

the converted parent without the consent of the non-converting parent
would:

A. violates Article 12 of the Federal Constitution.

B. violates Article 8 of the Federal Constitution.

C. violates Article 11 of the Federal Constitution.

D. violates international norms and conventions.

E. violates the principle of natural justice due to non-hearing of the

non-converting parent and the children.
III. COURTS DECISION ON EACH ISSUE

A. Whether it violates Article 12 of the Federal Constitution.

Article 12 is the rights in respect of education, in particular, Article 12(4)

reads, the religion of a person under the age of eighteen years shall be
decided by his parent or guardian. In relation to this, the Supreme Court in
Teoh Eng Huat v Kadhi, Pasir Mas & Anor1 held that, the law applicable to an
infant prior to her conversion is civil law, the right of religious practice of the
infant shall therefore be the guardian on her behalf until she becomes a major.
In short, in the case of non-Muslims, the parent or guardian normally have the
choice of the minors religion.

Now, another question arises, which is, parent means single parent or
both parents? The court was in a view that the interpretation as stating that the
consent or choice of a single parent would suffice would be to create conflict
and chaos for the family unit. While guardianship rights would include the right
to decide on the type of education including religious education, including
conversion of the minor child. Where parents cannot agree they are of course
expected to allow sense and sensibility to prevail and to maintain the status quo
until the minor child reaches 18 years old and then the child would be able to
choose for his own.

B. Whether it violates Article 8 of the Federal Constitution.

Article 8 is the equality provision of the Federal Constitution, which

provides all person are equal before the law and entitled to the equal protection
of the law and there shall be no discrimination against citizens on the ground of
religion, gender in any law. Basically, the equal rights of guardianship of both
parents to a civil marriage are clearly spelt out under the Guardianship of
Infants Act 1961. s 5 provides that, 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. The court also held that, the equality protection must
be interpreted purposively to prevent inequality, which in this case, the equal

1 [1990] 2 MLJ 300, p 302.

rights with respect to the upbringing and education of a minor child. Also, the
court further held that, when there are 2 possible interpretations, the one that
is consistent with the other constitutional provisions and in particular, the other
fundamental liberties provisions should prevail. If it were to say that the parent
in Article 12(4) refers to only single parent, then it would fall foul of Article 8 as
there was discrimination on the ground of religion, race and gender.

C. Whether it violates Article 11 of the Federal Constitution.

Article 11 concerns freedom of religion. The practice of one religion

would include the teaching of the tenets of faith to ones children. Indeed, Article
11 is inextricably tied up with Article 5(1) of the Federal Constitution where no
person shall be deprived of his life or personal liberty save in accordance with
the law. Life has been understood to be more than just mere existence. It is
not just physical life sustained by food but emotional, intellectual and spiritual.
It includes the right to choose ones religious belief and to teach ones religious
beliefs to ones children.

The court also in the view that if right to life extends to the right to
livelihood as expressed in Tan Tek Seng v Suruhanjaya Perkhidmatan & Anor2,
then it surely must be extended to encompass the spiritual and religious
aspects of life as well. The right to find meaning and purpose of human life in
things spiritual or in religion, which might well be a life long journey, must
certainly be an integral part of the right to life guaranteed under Article 5(1) of
the Federal Constitution.

In this case, for a non-Muslim parent, not to be able to teach his or her
children the tenets of his or her faith would be deprived of his or her
constitutional rights not just under Article 11, but also Article 5(1) and 3(1) of
the Federal Constitution. The court also laid down the test to be used in
interpreting constitutionally guaranteed rights as spelt out in Sivarasa Rasiah v
Badan Peguam Malaysia & Anor3, which says, In testing the validity of the state
action with regard to fundamental rights, what the court must consider is

2 [1996] 1 MLJ 261.

3 [2010] 2 MLJ 78.
whether it directly affects the fundamental rights or its inevitable effect of
consequence on the fundamental rights is such that it makes their exercise
ineffective or illusory.

With that, the acts of the 6th respondent and the other respondent in
authorizing the conversion of the minor children to Islam without the consent of
the non-converting parent is unconstitutional.

D. Whether it violates international norms and conventions.

i. Universal Declaration of Human Rights (UDHR)

UDHR is part of the corpus of our law. Article 3 of the UDHR states that
everyone has the right to life, liberty and security of person. Article 18 of the
UDHR provides that, Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion or belief, and
freedom, either alone or in community with others and in public or private, to
manifest his religion or belief in teaching, practice, worship and observance.
While Article 26 of the UDHR provides that, Parents have a prior right to choose
the kind of education that shall be given to their children.

By taking these articles into account, an interpretation of the

Fundamental Liberties provisions that best promote our commitments to the
international community is to be enjoined. An interpretation of Article 12(4), 8(1),
8(2) of the Federal Constitution vesting equal rights in both the parents to
decide on a minor childs religious upbringing and religion would be falling in
tandem with such international human rights principle and would place beyond
a pale of doubt that there is no discrimination on ground of race, religion or
gender.
 ii. Convention on the Rights of the Child (CRC)

CRC was ratified by Malaysia on 17 February 1995. Based on Article 8(1)4 and
8(2)5 of the CRC, the court was in the view that the applicant, as a non-Muslim
in a majority-Muslim country must be allowed to profess and practice their
religion within their family. Indeed, it is the 6th respondents constitutional right
to decide to embrace a new religion. However, he is not to exercise that right
with respect to the children of the civil marriage in the manner as to denude and
deprive the wife with respect to her rights as a guardian of the children nor to
deprive the children of their rights to decide which religions of their parents to
embrace in the fullness of time when they reach 18 years old.

iii. Elimination of All Form of Discrimination against Women

(CEDAW)

CEDAW was ratified on 5 July 1996. Article 16(1) and 5 of CEDAW

stress that, both parents, the father and mother, must have the same rights and
common responsibilities in all matters relating to their children, including their
upbringing and development.

E. Whether it violates the principle of natural justice due to non-

hearing of the non-converting parent and the children.

The court held that even if the consent of a single parent would suffice
under s 106(b) of the Perak Enactment, there is nevertheless a need to give
then non-converting parent the right to be heard. This is even more necessary
for the said parent, as in this case, the applicant would be deprived of her rights
altogether where the decision regarding the religious upbringing of the child is
concern. The Federal Court in Datuk Hj Mohammad Turfail bin Mahmud & Ors
v Dato Ting Check Sii6, stated that right to be heard is an integral part of the

4 Article 8(1) of the CRC requires states parties to undertake to respect the right of the child to preserve
his or her identity, including nationality, name and family relations as recognized by law without unlawful
interference.
5 While Article 8(2) states that Where a child is illegally deprived of some of all of the elements of his or
her identity, State Parties shall provide appropriate assistance and protection, with a view to re-
establishing speedily his or her identity.
6
[2009] 4 MLJ 165.
rules of natural justice. Failure to observe natural justice renders a decision
void as observed by the Privy Council decision from Malaysia in Surinder Singh
Kanda v Government of the Federation of Malaysia7

IV. SIGNIFICANCE OF THE CASE TO CONSTITUTIONAL LAW

The reason why this case is chosen for the purpose of this paper is
because Indiras case is one of the most high-profile among a string of legal
cases that have been highly debated over the role of Islam in Malaysia, where
about 60% of the population is Muslim, most of them ethnic Malay8.

It also involved several constitutional issues at once. More interestingly,

it involved an embittered spouse (6th respondent) who secretly converting their
children and using the countrys dual legal system to again an upper hand in
custody battles.

I also think that this case is significant and plays a fundamental role in
our justice system as well. Indiras case is no ordinary family dispute but it has
become a racial-religious monster that provides a fertile ground for rising
extremism. Now, one of the preliminary issues before the court was whether
the Syariah Court had the jurisdiction to hear the case. We all know that Islam
is the state religion and Muslims are subject to a dual legal system. While
Syariah Courts handle family law cases involving Muslims, civil courts handle
those involving non-Muslims.

Based on the High Courts judgment, the court referred to Latifah bte
Mat Zin v Rosmawati bte Sharibun & Anor9, it was held that if one of the parties
is a non-Muslim, the Syariah Court does not have jurisdiction over the case,
even if the subject matter falls within its jurisdiction, it works vice versa for the
civil court. This is because non-Muslims would therefore face a legal
disadvantage when their case is heard by an Islamic court because basically
they are not allowed to appear or defend for their own case. Hence, it is very

7
[1962] MLJ 169.
8
http://hakam.org.my/wp/index.php/2017/04/11/faith-divides-us-malaysian-families-are-being-torn-
apart-by-the-secret-conversion-of-children-to-islam/#more-13788
9
[2007] 5 MLJ 101.
smart of the 6th respondent, who converted himself to Islam so that he would
have an upper hand in getting the custody for the child.

Here, the key question to ask is whether can a converted parent

unilaterally convert the religion of the child without the non-converted parents
consent? The High Court had given several heads up to that and I think that it
was fairly reasonable. The constitution says that the religion of a child under 18
years old should be decided by the parent or guardian. It sounds fair enough
but what exactly means by parent? Does that means the approval of both
parents are needed to decide the childs religion or otherwise? To answer this
question, the High Court refers to Article 12(4) of the Federal Constitution and
says this, If the framers had wanted the decision of a single parent to be all-
sufficient in any and every situation, they could have used the expression
decided by either of his parents or decided by any one of his parents
or even decided by his father or mother Also, the fact that the
interpretation as stating that the consent or choice of a single parent would
suffice would be to create conflict and chaos for the family unit. Hence, it would
be fair enough to say that in the event when either parents do not meet eye-to-
eye when it comes to the issue of converting their childs religion, they should
wait until their child attains the age of majority and decide by themselves as the
time comes.

I also like how the court put equality into picture in this case. I absolutely
agree with what the court said, that is, A constitutional provision has to be
interpreted to be consistent with the other constitutional provisions of a
Constitution. By saying this, it further enforces that father and mother have
equal rights and none of the parties should have overriding power over each
other. It was clearly spelt out under the Guardianship of Infant Act 1961 as well.
s 5(1) says this, 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. The equality protection must be interpreted purposively to prevent
inequality, which concerns the equal right with respect to the upbringing and
education of a minor child.
 Some would argue that, it is too far-fetch and stretching to say that
parent in Article 12(4) includes both of the parents. Law must be interpreted in
consonant with the intention of the framers and the framers could not have
intended any class of citizens to be without remedy when it comes to a thing so
important as the conversion of ones child to a religion. Was the intention of the
framers to give only a single parent the right to decide the religious upbringing
including the conversion of the minor child and leave the other parent helplessly?
A parents constitutional rights should read together with Article 8, 5 of the
Federal Constitution. Our constitution is always a living document and it is not
just mere words engraved onto a cold stone. I believe of its existence is always
to govern and protect our rights at its own capacity in a way that it should not
be construed narrowly. By saying the consent of both parents are needed when
it comes to the conversion of the childs religion is nowhere unreasonable but it
is in consonant with the fundamental liberties as laid down in our Constitution.

In conclusion, this case is fairly important to our constitution. However,

little did I know; this case was further brought to the Court of Appeal for hearing.
The judgment was then slightly different with the High Court judgment.
Nonetheless, I am still highly obsessed how the High Court in reviewing those
constitutional issues at stake.

(939 words)