The Federal Court’s decision in the unilateral conversion of Indira Gandhi’s children is a welcomed one. The grounds of judgment by the Federal Court is 99 pages long and it is well worth a read for its excellent scholarship and detailed analysis of the law.
At the risk of grossly oversimplifying the grounds of judgment, the three key points of the judgment are:
(1) The High Court can review the actions of the Registrar of Muallafs being a public authority exercising statutory powers under the Administration of the Religion of Islam (Perak) Enactment 2004 (‘the Perak Enactment’).
(2) The conversion of a child to Islam must comply with the Perak Enactment.
(3) Both parents of a child must consent to the conversion of a child to Islam.
The issue in Indira Gandhi’s case has always been whether the conversion of Indira Gandhi’s children to Islam by her ex-husband was lawful. For a child to be converted to Islam, the provisions of the Perak Enactment must be complied with. To put it more simpler, the procedures and perhaps ritual related to the converion as stipulated under the Perak Enactment were not done thus could put the conversion as questionable.
Indira Gandhi’s case was never about religion, it has always been whether the Registrar of Muallafs, the public authority responsible for registering the children as Muslims, have complied with the provisions of the Perak Enactment.
The Registrar of Muallafs is a creature of the Perak Enactment. It is a public authority. Like any other public authority, it must act in accordance with the law. In this case, the Federal Court decided that the Registrar of Muallafs did not comply with the Perak Enactment and therefore the conversion of Indira Gandhi’s children were null and void (had no effect). It is a purely legal issue. Nothing more, nothing less.
This seemingly innocuous issue has been blown out of proportions by many parties, in particular, the media and the religious interest groups. The media created a sensation and played up the misleading narrative of civil courts against Syariah courts. The religious interest groups, presumably acting on religious bravado, portrayed it to be an attack on Islam.
These are all smokescreen and mirrors. It was never about whether the civil courts or the Syariah courts is superior. Each court plays a different function under the Federal Constitution.
The civil courts’ role is to interpret the law and declare the law. And one of the civil courts’ main functions is to judicial review, i.e. to check on the Executive when it has acted in excess of its powers under the law.
The Syariah courts’ role is to decide on matters under the State List and as provided under the relevant state legislation. It is not the Syariah court’s role to judicial review. The Federal Constitution does not provide so.
In this case, the Registrar of Muallafs had acted in excess of its powers under the Perak Enactment. That is why it is before the civil courts instead of the Syariah courts.
The subtext of the media reporting on this case is Islam versus other religions. Religious interest groups who did not appreciate that this case is purely legal quite happily jumped on this bandwagon with the media as the mule for the bandwagon.
In this age of post-truth where ‘fake news’ is rampant, the least a responsible media organisation could do is to stop sensationalism and cease stoking religious ill-will as it had done in this case. Because it was never about religion.