KUALA LUMPUR - Malaysia's highest court declared on Monday (Jan 29) that the consent of both parents is needed to change a child's religion, voiding the unilateral conversion of Hindu mother M. Indira Gandhi's children by her Muslim ex-husband and ending her nearly decade-long ordeal.
The Federal Court ruling has drawn a line under a searing debate over whether Muslim parents can convert a child without the consent of their non-Muslim spouse, as the judges decided that the word "parent" in the Constitution cannot be read literally and referred to both parents where applicable, as "both parents have equal rights."
Article 12(4) of the Constitution states that the religion of a person under the age of 18 years shall be decided by his parent or guardian.
"Since the children were not present (during the conversion), and the conditions were not fulfilled, the registrar has no power to register them as Muslims," Tan Sri Zainun Ali said when reading out a summary of the 99-page judgment that comes after 14 months of deliberation.
She was referring to the Registrar of Muallafs (Muslim converts), which the apex court said had acted beyond its powers when authorising the conversion in 2009.
The five-member panel was led by Court of Appeal president Zulkefli Ahmad Makinudin, whose own court had in 2015 upheld the conversion of Ms Indira's three children, reversing a 2013 High Court ruling that set aside the registrar's decision.
"Today, surprisingly the Federal Court had made the decision which the elected representatives of this country has failed [to make]," said Ms Indira's lawyer M. Kulasegaran. He was referring to Parliament's decision last August to not proceed with a statutory amendment that would have barred unilateral conversions.
De facto law minister Azalina Othman Said said in a statement on Monday the government's decision in August was due to the prevailing legal interpretation of the Constitution at the time.
"In line with today's development that trumps previous decisions, I will bring the matter to the attention of the Cabinet," she said.
Ms Indira's ex-husband, Mr Mohd Riduan Abdullah, formerly K. Pathmanathan, converted the three children three weeks after he embraced Islam. The Syariah Court granted Mr Riduan custody of the three children soon after their conversion to Islam.
The two elder children - daughter Tevi Darshiny, 20, and son Karan Dinesh, 18 - have stayed with their mother despite their conversion, but her youngest daughter, eight-year-old Prasana Diksa, was abducted by the father when she was 11 months old and has remained with him since. Mr Riduan has gone into hiding and failed to appear for numerous court hearings.
In 2014, Ms Indira secured a court order compelling the police to find Prasana and return the child to her, However the then national police chief Khalid Abu Bakar refused to execute the order, citing jurisdictional conflicts between the secular and Syariah Courts.
"Even thought we have won this case she is not here and that is the saddest part," Ms Indira told reporters on Monday, saying the police have no more excuses not to locate Prasana.
New police chief Mohamad Fuzi Harun told The Straits Times that the force will abide by the court order but efforts to locate Prasana have so far been in vain.
"We have exhausted our resources in trying to locate the child but so far, to no avail. In fact, a report has been submitted to relevant parties for scrutiny," the Inspector General of Police said.