Unilateral Conversion
by Shanthi Dairiam
Based on witness testimony by Indira Gandhi
1. Background
1.1 This is a complex case involving conflict of civil law and Islamic law jurisdictions brought about by the conversion of a Hindu husband to Islam, and subsequently, unilaterally converting the children from that marriage to Islam. Further complications ensued after he abducted the youngest child, Prasana Diksa (Prasana) — then 11 months old — from the mother and disappeared. Over 12 long years, including going in and out of court seeking justice, Indira Gandhi’s quest to be reunited with her youngest child remains unsuccessful.
1.2 Indira Gandhi a/p Mutho (Indira)’s marriage to Patmanathan a/l Krishnan in 1993 was registered under civil law, namely the Law Reform (Marriage and Divorce) Act 1976 (LRA). Sixteen years later, Patmanathan converted to Islam on 11 March 2009, and changed his name to Muhammad Riduan bin Abdullah (Riduan). Following an argument, he forcibly took the youngest child, leaving the two elder children, Tevi Darsiny and Karan Dinish, with Indira.
1.3 The following month, Indira discovered that the Pengarah of the Jabatan Agama Islam Perak had issued all three of her children with certificates of conversion to Islam. In addition, on 3 April 2009 the Syariah court had granted Riduan custody of the children. However, the Syariah court order was not served on Indira.
1.4 Knowing of the conversion of her husband to Islam, Indira filed an application in the High Court in 2010 for custody of the three children under provisions of the LRA, and obtained an order to that effect. Riduan was served that custody order but failed to comply. The two eldest children have been with Indira all this time. The youngest, however, was not returned to her even though Riduan was cited for contempt of the 2010 custody order.
1.5 Because of Riduan’s failure to hand over the child to Indira, she applied and successfully obtained a committal order in 2014 containing a provision, inter alia, requiring the bailiff and a police officer to execute the custody order against Riduan. At the same time, she also obtained a recovery order under section 53 of the Child Act 2001.
1.6 The Inspector General of Police (IGP) refused to execute the warrant of committal and the recovery order on grounds that the police faced a dilemma as there were two conflicting custody orders, one from the Syariah court granting custody to Riduan, and the other, the High Court order granting custody to Indira. The IGP was of the view that if he complied with executing the committal or recovery order, he would be in contempt of the Syariah court. Until today, the matter has not been resolved. Riduan cannot be found, and Indira has not seen or been reunited with her child.
2. Findings
2.1 Issues of concern
(a) Kidnap and separation of mother from child
2.1.1 The kidnapping of an 11-month-old breastfed infant and separating her from her mother is a grave offence. Despite filing several cases to recover her daughter, and obtaining a custody order of all her children from the High Court in 2010 and another court order for Riduan to return this child, Indira has not been reunited with her youngest daughter after 12 long years. This is in breach of the Child Act 2001.
(b) Unilateral conversion of children who were minors
2.1.2 After converting to Islam, Riduan obtained a conversion certificate of all his children from the Jabatan Agama Islam Perak, without Indira’s knowledge. In 2013, Indira successfully petitioned the civil courts to quash the unilateral conversions of her children and obtained custody of them.
2.1.3 This matter has been in and out of court because of the question of jurisdiction of Islam and Islamic affairs within the dual legal system of Malaysia. After a period of five years, in January 2018, the Federal Court issued a unanimous decision in favour of Indira Gandhi, voiding the children’s certificates of conversion (Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545).
2.1.4 Prior to this, the High Court held in favour of Indira, quashing the conversion certificates and granting her custody (Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 5 MLJ 552). The High Court decision, however, was overruled by the Court of Appeal, which held that religious conversion was a matter exclusively for the Syariah courts to decide (Pathmanathan a/l Krishnan (also known as Muhammad Riduan bin Abdullah) v Indira Gandhi a/p Mutho and other appeals [2016] 4 MLJ 455).
2.1.5 This latter decision was in violation of the Guardianship of Infants Act 1961 (GIA), where both parents are equal guardians, and both have the right to make all decisions pertaining to their children. It was also contrary to article 8.1 of the Federal Constitution, which guarantees that all persons are equal before the law and entitled to the equal protection of the law. Article 8(2) further provides that there shall be no discrimination against citizens on the grounds of religion, race, descent, place of birth or gender, in any law. The constitutional right to equality must be the basic premise by which all provisions of the Federal Constitution, including on matters of jurisdiction and conversion, should be interpreted.
(c) Court orders not complied with
2.1.6 As noted, in 2010, Indira Gandhi obtained a High Court custody order of all her children, and on this basis in 2014, another High Court Order was issued to Riduan to return Prasana to her mother. He did not comply with this order, with impunity, and has been held in contempt of court.
2.1.7 The police have not enforced the 2015 Court of Appeal recovery order to locate the kidnapped child. They have failed to track the husband and penalise him for kidnap and for not returning the child to her mother. Further, the police have failed to enforce the 2014 High Court committal order, issued after the ex-husband was found guilty of contempt for not returning child to mother.
(d) Conflict of jurisdiction and access to justice for Indira Gandhi
2.1.8 A dual legal system governs Muslim and non-Muslim personal laws. Article 121(1A) of the Federal Constitution excludes the civil courts from hearing matters relevant to the Syariah courts or if involving Muslim parties and vice versa. This has created much conflict of legal jurisdiction with far-reaching effects on personal and family matters leaving the non-Muslim spouse with no access to justice.
2.2 Rights violated/standards not adhered to/failure of duty bearers (state)
2.2.1 Among the rights violated in this case include the right of Indira to custody of her infant child; the right not to be not separated from her child without cause; the right to equal guardianship of children as per the GIA; the right to make decisions on the religion of children as an equal guardian; the right to equality as per article 8(2) of the Federal Constitution; and the right to natural justice.[1]
2.2.2 At the national level, the following standards were not adhered to:
(a) Under the Child Act 2001, it is an offence to take a child away without consent of the parent/guardian who has lawful custody (section 52). If a child has been taken away from the person with lawful custody, the court may issue a recovery order, which must be complied with (section 53).
(b) Under the GIA (revised 1988), a mother shall have the same custody rights and authority as the law allows to a father, and the rights and authority of the mother and father shall be equal (section 5(1)). Indira’s children were converted to Islam by the religious authorities without her consent.
(c) In exercising the powers conferred by section 11 of the GIA, the court or judge shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent(s), as the case may be.
(d) The 2018 Federal Court ruling that unilateral conversion of children is illegal.
(e) Article 8(1) of the Federal Constitution that guarantees equality for all and equal protection of the law; while article 8(2) provides for non-discrimination on the basis of gender.
2.2.3 Several international standards were not upheld as well:
(a) Article 3 of the UN Convention on the Rights of the Child (CRC), which states that the best interests of the child shall be a primary consideration.
(b) Article 16(f) of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) that bestows equal guardianship rights of parents, and places the interests of children as paramount in all cases.
(c) Article 9(1) of the CRC, which obliges States Parties to “ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine… that such separation is necessary for the best interests of the child”, and article 9(3), which notes that “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the best interests of the child".
2.2.4 Details of the Malaysian Government’s failure to uphold the national and international human rights standards highlighted above are as follows:
(a) A dual legal system separately governs Muslim and non-Muslim personal laws, and article 121(1A) of the Federal Constitution excludes the civil courts from hearing matters relevant to the Syariah courts or if involving Muslim parties and vice versa. This questionable interpretation[2] has created much difficulty especially in cases when a husband converts to Islam. The conflicting jurisdictions have far-reaching effects on the guardianship and custody of children, their religious conversion, maintenance, inheritance, and funeral rites of a deceased spouse. Conflict of jurisdiction is detrimental as it prevents access to justice for a non-Muslim spouse. This must be resolved as per the CEDAW Committee’s 2018 Concluding Observations for Malaysia.
54. The Committee reiterates its previous recommendation (see CEDAW/C/MYS/CO/2 para. 14) that the State party undertake a process of law reform to remove inconsistencies between civil law and Syariah law, including by ensuring that any conflict of law with regard to women’s rights to equality and non-discrimination is resolved in full compliance with the Constitution and the Convention (CEDAW/C/MYS/CO/3-5).
The State has taken no action to resolve the conflict between the civil and Syariah systems since this matter was raised by the CEDAW Committee in 2006. Neither has it prohibited the unilateral religious conversion of children by the father who converts to Islam, also a CEDAW Committee recommendation.
(b) Article 12(4) of the Federal Constitution, which states that the religion of a person under the age of 18 shall be decided by his parent or guardian, is ambiguous since it is subject to interpretation and does not answer the question of whether it is either parent or both parents who can convert their child. Not rectifying this anomaly is a failure of Parliament. Moreover, Indira’s case was just one in a series where without their mothers’ consent, fathers had unilaterally converted the children to Islam.[3]
It is reasonable to assume that there will be more such cases where men in particular may convert to Islam to absolve themselves of responsibility arising from an existing marriage. Legal reform in this area is thus crucial as argued by the National Council of Women’s Organisations (NCWO):
The question here is, should the Islamic authorities encourage this kind of cruel and irresponsible behaviour on the part of the husband who wants to convert to Islam? One would expect the religious authorities to guide the husband on the path of righteousness before he is allowed to convert. To allow the husband to convert without enquiring into his background and determining his real motive for wanting to convert is to allow him to abuse and make a mockery of Islam.[4]
(c) The LRA (Amendment) Bill was tabled for a first reading in November 2016. It included a new section 88A which addressed unilateral conversion. The Dewan Rakyat passed the Bill in August 2017 but without the proposed section 88A, likely due to what it sought to change:
Where a party to a marriage has converted to Islam, the religion of any child of the marriage shall remain as the religion of the parties to the marriage prior to the conversion, except where both parties to the marriage agree to a conversion of the child to Islam, subject always to the wishes of the child where he or she has attained the age of eighteen years
The law as it stands today is against the non-converting spouse. This is again a failure of Parliament. In April 2009, the Cabinet decided that children of parents where one of them opts to convert, must continue to be raised in the common religion at the time of marriage. This decision has not yet been adopted or legislated. Further developments with regard to conversions, however, are encouraging. In 2018, the Federal Court unanimously ruled that the unilateral conversion of Indira’s three children was null and void, holding that the consent of both parents was needed to convert a minor.
(d) To date, the police have not complied with the 2015 Court of Appeal recovery order to find the kidnapped child’s whereabouts, They have failed to track Riduan or penalise him for kidnap and not returning the child to her mother, despite the 2014 High Court committal order. The IGP’s argument about the conflict of court custody orders reflects his interpretation of the law, in contradiction of the decision of the High Court.[5] When the Executive, in this case the police, refuses to execute an order of the High Court, it leaves the public without a remedy, and sends a message that the police are above the law.
Their actions also begs the question of the separation of powers. In 2020, the IGP stated, “I know where he (Indira’s ex-husband) is, so I ask him to come forward and let’s resolve this, and he can remain in the country where the children will receive complete education. Don’t hide anymore".[6] According to then-Malaysian Bar President Abdul Fareed Abdul Gafoor, “It is not for the police in such cases to mediate between the enforcement of the decision of the Federal Court and the parties of the case, or to strive for a ‘win-win’ outcome to the case. It is imperative, within our constitutional scheme, that the various branches of Government, and the agencies that constitute these branches, comply and act in accordance with the pronouncements of such court orders.”[7]
(e) According to section 53(4) of the Child Act 2001, “Any person who intentionally obstructs an authorized person from exercising the powers under [the recovery order granted under] subsection (3) commits an offence and shall on conviction be liable to imprisonment for a term not exceeding three years and to whipping not exceeding six strokes. But if law enforcement officers themselves refuse to execute a committal or recovery order, what are the consequences for the police? The law does not seem to have an answer. It is left to the victim to sue the IGP and the police for non-compliance with the court order. This is a gross failure of the system.
2.3 Victim impact
2.3.1 The trauma and anguish of separation from her infant daughter experienced by Indira from 2009 till today, and not seeing her daughter or being part of the child’s life for 12 years or more, is a gross human rights violation.
2.3.2 The two children who were 11 and 12 when they were illegally converted by the father have been subjected to trauma and stress as well, and have missed a normal childhood. They are sometimes under pressure to practise Islam. Living with Indira, there are moments of fear of being taken away by the Jabatan Agama. Growing up, Indira often would not let them play with other children and there were times when they missed school.
2.3.3 The unilateral conversion of children to Islam in Malaysia carries a burden on the child who has been converted. In Malaysia once a person becomes Muslim, it is a criminal offence to leave the religion. This leaves the child with no option as an adult to choose their religion as they were converted when they could not give consent. The impact of unilateral conversion of minors to Islam is also that, besides being unfair to non-Muslims, it entrenches inequalities in Malaysia and does so in the name of Islam. It implies that a Muslim parent, even if newly converted, has more rights than a non-Muslim parent.
2.3.4 Indira has experienced immense financial loss and stress going in and out of court to compel the authorities to recover her child, but to no avail. She has been unable to have job stability because of the time taken to pursue legal action, make around a dozen police reports, hold press conferences, and sue the IGP for inaction. She was working as a kindergarten teacher before having to give up her job.
3. Recommendations
3.1 The Government must seek sustainable, just and consistent legal solutions to the issue of unilateral conversions binding all States of the Federation and preventing anomalies and different standards of justice in different States, including because of the conflict in jurisdictions arising from Malaysia’s dual legal system (civil and Islamic). As noted in the CEDAW Committee’s 2006 Concluding Observations to the Government’s first report on its implementation of the CEDAW Convention:
13. The Committee is concerned about the existence of the dual legal system of civil law and multiple versions of Syariah law, which results in continuing discrimination against women, particularly in the field of marriage and family relations. The Committee is also concerned about the State party’s restrictive interpretation of Syariah law, including in the recent Family Law (Federal Territories) Amendment Act 2005, which adversely affects the rights of Muslim women. The Committee is further concerned about the lack of clarity in the legal system, particularly as to whether civil or Syariah law applies to the marriages of non-Muslim women whose husbands convert to Islam.
14. The Committee urges the State party to undertake a process of law reform to remove inconsistencies between civil law and Syariah law, including by ensuring that any conflict of law with regard to women’s rights to equality and non-discrimination is resolved in full compliance with the Constitution and the provisions of the Convention and the Committee’s general recommendations, particularly general recommendation.
3.2 The IGP must enforce the 2018 recovery order of the Federal Court, and pursue the immediate return of Prasana to her mother without delay.
3.3 It is imperative that Parliament reintroduce section 88A, which had been withdrawn at the last minute from the LRA Bill 2016 that was passed to amend the LRA in August 2017.[8] It is also imperative that the Government adheres to the earlier-mentioned Cabinet decision made in 2009 (see 2.2.4(c)).
3.4. In 2018, the Federal Court interpreted article 12(4) of the Federal Constitution, which states that, “the religion of a person under the age of eighteen years shall be decided by his parent or guardian”, as requiring the consent of both parents. This interpretation must be maintained in all future cases. It may be worth amending the wording of article 12(4) to remove all ambiguity.
3.5. It would be ideal and desirable for the police to have a fairer representation of the various ethnicities in Malaysia in its composition, including in senior positions.
4. Conclusion
4.1 Having exhausted all avenues to challenge the custody order, Indira’s ex-husband wilfully disobeyed this and refused to hand over the youngest child, Prasana, to Indira. He was found guilty of contempt in subsequent committal proceedings, and his appeal struck out. He was later issued with a warrant of committal, which he ignored. Riduan has been able to defy the law and court order because of the collusion of senior police officials, all of whom belong to the same religious group.
4.2 After Indira’s protracted legal battle finally reached the Federal Court, one law academic aptly observed, “Her case, which had been in the public eye for almost a decade, is emblematic of broader contestations over the role of Islam in the Malaysian state and the judicial authority of the civil courts in relation to the religious courts.”[9]
Endnotes
[1] By registering the conversion without giving an opportunity to the mother to be heard, Riduan and the Jabatan Agama Islam Perak’s Pengarah had breached the rules of natural justice.
[2] See Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 5 MLJ 552.
[3] For example, Subashini a/p Rajasingam v Saravan a/l Thangathoray [2007] 2 MLJ 705, and Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah [2011] 1 CLJ 568.
[4] Memorandum submitted by the National Council of Women’s Organisations (NCWO) to YAB Dato’ Sri Najib bin Tun Abdul Razak, Prime Minister of Malaysia, on 29 July 2013.
[5] The High Court had held that the custody order of the Syariah court was null and void since it had had no jurisdiction to grant the said custody order. The Syariah court is not competent to issue a custody order when one of the parties is not Muslim.
[6] See “IGP: Police know where Riduan is". New Straits Times Online. 31 January 2020, and Press Release | Respect Separation of Powers — Enforce Pronouncement of the Federal Court in the Indira Gandhi Case Without Delay. Malaysian Bar website. 3 February 2020.
[7] Press Release | Respect Separation of Powers — Enforce Pronouncement of the Federal Court in the Indira Gandhi Case Without Delay. Malaysian Bar website. 3 February 2020.
[8] As noted in a legal commentary, the 2018 Federal Court (FC) decision,
…clearly demonstrates the jurisdictional limits of the Syariah Courts and the supremacy of the civil High Courts. Its interpretation of Article 12(4) of the Constitution and sections 5 and 11 of the GIA removes any doubt that the consent of both parents is required before a certificate of conversion can be issued, except in a single-parent situation.
However, as an apex court, a future panel of the FC has the power to, and may depart from, the reasoning and judgment of FC Indira Gandhi. It is therefore imperative that Parliament reintroduce Clause 7 which had at the last moment been withdrawn from the Law Reform (Marriage and Divorce) (Amendment) Bill 2016 that was passed to amend the LRA in August 2017.
See Trevor Padasian (2018). “Malaysia: Unilateral Conversion In Malaysia: Back from the Brink”. Available at https://www.mondaq.com/trials-appeals-compensation/707818/unilateral-conversion-in-malaysia-back-from-the-brink.
[9]Yvonne Tew (2019). “Indira Gandhi v Pengarah Jabatan Agama Islam Perak (2018): Landmark case in Malaysia”. IACL-IADC Blog (12 December). Available at https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-the-commonwealth/2019/12/12/indira-gandhi-v-pengarah-jabatan-agama-islam-perak-2018-landmark-case-in-malaysia-1.