Court of Appeal rules Syariah Court has exclusive jurisdiction over conversion issues

Justice Datuk Balia Yusof Wahi, chairing a three-member bench that included Justices Datuk Dr Hamid Sultan Abu Backer and Datuk Dr Badariah Sahamid, held that matters relating to Islam, religious issues and whether a person is Muslim, fell exclusively under the Syariah Court.

"We are of the view that the subject matter (conversion) strictly falls under the Syariah Court," said Justice Balia in the majority decision.

Concurring with him was Justice Badariah while Justice Hamid Sultan dissented.

The panel made the ruling after allowing appeals by the director of the Perak Islamic Religious Department and two others, the Government of Malaysia, Education Ministry and the children's father, Muhd Riduan Abdullah, formerly known as K.Patmanathan.

The six appellants were appealing against the Ipoh Civil High Court's decision quashing the certificates of conversion of the three children.

In 2009, the Ipoh Syariah High Court gave Muhd Riduan custody of his two boys and a daughter after he converted them to Islam in April 2009 when the children were aged 12 and 11 years, and 11 months.

The three children are now aged 18, 17 and seven.

The Ipoh Civil High Court had also declared the custody order as null and void as the Syariah High Court had no jurisdiction to grant the custody order when the other party (the mother) was not a Muslim.

The court made the order after allowing a judicial review application by the mother of the children, M. Indira Gandhi, a kindergarten teacher, for an order that the certificates of conversion were null and void and of no effect.

Justice Balia said the issues before the panel were whether the Civil High Court had the jurisdiction to hear the conversion case and over the High Court's decision in quashing the certificates of conversion.

He said in arriving at the ruling, the panel had considered the provision of Sections 96 and 106 of the Perak Administration of the Religion of Islam Enactment 2004 on the process of conversion and Section 50 on the Syariah Court's jurisdiction.

He also said that the court had dealt with Section 101 of the enactment on the powers of the Registrar of Mualaf (converts) relating to the certificates of conversion.

"Based on the enactment and after having heard submissions and cases cited by both parties, we allow the appeals and set aside the orders made by the Ipoh High Court. We make no order as to costs," said Justice Balia.

Justice Hamid Sultan, in his dissenting decision, said the whole process of conversion of the three children was a nullity from the beginning.

He said under the enactment, a person who wanted to convert to Islam must make the application by himself and had to take the oath and recite the Kalimah Syahadah (proclamation of faith).

He said the children must make the application for the conversion with their father's consent, but in this case the application was made by the father.

Justice Hamid said the situation in Malaysia was nebulous due to different approaches by the courts relating to conversion issues, and it would not be settled as long as judges did not appreciate the rule of law and supremacy of the constitution.

"In my view, the whole process of the certificates of conversion by the Registrar of Mualaf was a nullity from the beginning and had nothing to do with the judicial review application at the Civil High Court," he said.

Outside the court, Indira, 40, who was in tears, told reporters that she was very disappointed with the ruling.

"It has been seven years, and I cannot get justice in Malaysia. I want to continue my life with my children. They are my children but I have no clue as to what is going to happen to them," she said.

Indira's lawyer M.Kulasegaran said he would get his client's instruction on whether to appeal over today's outcome.

Counsel Hatim Musa, who represented Muhd Riduan, said it was the best decision at this stage and it would also bind other states with similar law on religious conversion and jurisdiction of the Syariah Court.