The Legality of Unilateral Child Conversion in Malaysia
Kamilia Khairul Anuar 16th March 2018

For Indira Gandhi, whose husband converted to Islam and attempted to unilaterally convert their daughter as well, a long legal battle came to an end when the Malaysian Federal Court handed down its judgment, declaring that the conversion had not followed proper administrative procedures and was therefore legally invalid.

Being a Muslim is a legal status in Malaysia – an individual who is in the eyes of Malaysian law a Muslim is subject to the jurisdiction of the Sharia court when it comes to personal and family matters. Indira’s case was a complex one, and involved questions regarding the appropriate jurisdiction of the civil and Sharia court, as well as the role of the best interests of the child and parental rights when it comes to matters of conversion and freedom of religion. The matter of unilateral child conversion is not new, and has been a lively topic in the public sphere in recent years. The clarity provided by the Indira Gandhi judgment is therefore most welcomed.

Similar to the Court of Appeal’s approach in the “bin Abdullah case”, the Federal Court separated the question of the legality of the conversion to Islam, and its validity – the former is within the jurisdiction of the civil law courts, whilst the latter is not. Upon examination of the Perak Enactment (the statute which specifies the scope of the Sharia courts’ jurisdiction in the Malaysian state of Perak), the Court distinguished between the jurisdiction to “declare that a person was no longer a Muslim” (based on the tenets of Sharia law) and the jurisdiction to decide on “the validity of the certificates of conversion issued by the Registrar”, i.e. whether the Registrar had acted within the proper scope of his powers. Whilst the Sharia courts had exclusive jurisdiction over the former, they did not have jurisdiction over the latter.

Characterising the case before it as a question of administrative law meant the Court was able to pull it out of the realm of religious law; out of the Sharia court’s jurisdiction. Having decided upon this, the Court emphasised that the power of judicial review was “inherent in the basic structure of the constitution. It cannot be abrogated or altered by Parliament.” Article 121 (1A) of the Federal Constitution, which establishes that civil courts were not to have jurisdiction over matters falling within the jurisdiction of the Sharia court, “must be interpreted against the background of the foundational principles and other provisions in the Constitution,” which includes “the separation of powers, the rule of law, and the protection of minorities.” Declining to hear a case citing lack of jurisdiction, then, is not a decision to be made lightly, and should not be done simply because the case concerns Islamic matters

The second crucial point is the Court’s interpretation of 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.” Much of the argument in favour of deeming the father’s unilateral conversion legal was focused on the fact that the singular term parent was used. However, the Court’s approach focused on the best interests of the child and recognised the reality that “conversion…is a momentous decision affecting the life of a child, imposing on him a new and different set of personal laws” – it would lead to considerable familial strife if a parent could unilaterally convert his child. Further reliance was placed on s.5 of the Guardianship of Infants Act 1961, which states 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.” Thus, the father in this case could not override the mother’s authority and convert their child without her consent.

As prominent local activist Zainah Anwar noted, the Federal Court’s decision shines the way forward for future disputes over the proper jurisdiction of the Sharia and civil law courts in Malaysia. It is to be hoped that when the “bin Abdullah case” is heard in the Federal Court, it too will be decided on similar grounds as the Indira Gandhi case. With this decision, the Federal Court has reiterated the fundamental importance of the court’s judicial review powers and the proper characterisation of cases as falling within the jurisdiction of the Sharia or civil courts. It has also centralised the child’s best interests and equality of parental rights in matters as impactful as the conversion of a child. It is another case which reaffirms the rule of law and restores confidence in the independence of the judiciary in Malaysia.

 

Author profile

Kamilia Khairul Anuar graduated from the Oxford BCL in 2017 and prior to that did her LLB at UCL. She currently works in Kuala Lumpur.

Citations

Kamilia Khairul Anuar “The Legality of Unilateral Child Conversion in Malaysia” (OxHRH Blog, 16 March 2018), <http://ohrh.law.ox.ac.uk/the-legality-of-unilateral-child-conversion-in-malaysia>[date of access]

Leave a Reply

Your email address will not be published. Required fields are marked *