In this post, I examine an ongoing legal custody battle between a Hindu woman, Indira Gandhi Mutho against her former husband Pathmanathan Krishnan, who converted from Hinduism to Islam in 2009. At the heart of this battle is the fact that Krishnan, who now goes by the Muslim name Muhammad Riduan, obtained custody over the children through the unilateral conversion of their children to Islam via the Syariah (Ar. sharīʿa) High Court without his wife’s knowledge. Gandhi challenged Krishnan’s conversion of her children in the civil court system and obtained an annulment of their conversion in 2013. But Krishnan successfully appealed the decision in the Civil Court of Appeals in 2016, on grounds that civil courts do not have jurisdiction over this matter, as it is under the purview of the syariah courts under the Federal Constitution. The complex and ambiguous nature of jurisdiction in this case illustrates the problems associated with Malaysia’s dual legal system in which there is no clear system to resolve a family law dispute between a divorced Muslim convert and non-Muslim.
In 2013, the civil Federal High Court ruled in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & ORS that the conversion certificates of Gandhi’s children to Islam should be declared null and void. Krishnan had not converted the three children aged twelve, eleven, and eleven months to Islam in accordance with the Administration of the Religion of Islam (Perak) Enactment 2004.[1] According to the court, there was no disputed that the children were not present before the converting authority and did not utter the two clauses of the affirmation of faith.[2] Furthermore, the Court concluded that the “converts’” rights were to be upheld through international rights and standards, as well as Articles 11 and 12(4) of Malaysia’s Federal Constitution.
The case gets extremely interesting on questions of jurisdiction. Krishnan argued that, under Section 101(2) of the Enactment,[3] the certificate was conclusive proof of the facts stated therein. But the court dismissed his claim because it argued that Article 121(1A) of the Federal Constitution did not take away the powers of the civil courts the moment a matter comes under the jurisdiction of the syariah courts. The civil high court reasoned that it had jurisdiction over this matter because both parties must come within the purview and province of the syariah courts in order for a case to be considered solely within that latter jurisdiction. Because the petitioner was non-Muslim, the court held that she had no standing to appear in the syariah courts even if the syariah courts were to allow it.[4] Furthermore, the court reasoned that “The Syariah Court is a creature of state law and does not have jurisdiction to decide on the constitutionality of matters said to be within its exclusive purview and province. Only the superior civil courts, being a creature of the constitution can.”[5]
This opinion was significant because it made the claim that civil courts are superior to syariah courts on the basis of their establishment through constitutional rather than state law. This outcome is quite striking because it seems at odds with the letter of the law. According to Article 121(1A) of the Federal Constitution, the two federal high courts of Malaysia “shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.” The Constitution does not specify any superiority of the federal civil courts over the syariah courts. Beyond the superiority question, the civil high court reasoned that, constitutionally, the petitioner had the right to challenge the respondent’s actions and assert her rights under the Fundamental Liberties provisions in Part II of the Federal Constitution as well as under the Guardianship of Infants Act 1961 in civil courts. Furthermore, the Court determined that it not only had the general powers referred to in section 23 of the Courts of Judicature Act 1964 but also had residual or reserve powers to hear complaints from any citizen alleging violation of his or her rights whether under federal law or a state enactment.[6] These references to Gandhi’s constitutional rights brought into question how civil rights under the Federal Constitution interact with religious rights in Muslim family law cases in Malaysia more broadly.
In response to the civil high court’s decision on jurisdiction, Krishnan successfully appealed his case to the civil Court of Appeals in 2015 in Pathmanathan Krishnan v. Indira Gandhi Mutho & Other Appeals. The Court of Appeals held that, first, the judicial commissioner had no jurisdiction to determine the issue of the children’s conversion to Islam because the validity of conversion was “a matter falling under the exclusive jurisdiction of the Shariah Court under section 50 of the Administration of the Religion of Islam (Perak) Enactment 2004.”[7] Second, the Court held that the learned judicial commissioner had “committed a grave error when he approached the jurisdiction issue” by venturing into the constitutional construct of the fundamental liberties. The hearing, according to the Court of Appeals, should have been “simply on the constitutionality of the conversion process.”[8] The Court of Appeals reasoned that, because the lower court had introduced constitutional issue, its judgment ought to be set aside. Last, the Court of Appeals stated that, under Article 12(4) of the Constitution, power over the choice of religion for children under the age of 18 is held only by one parent. This conclusion directly contradicted the High Court’s determination that both parents must agree on the religion of their children.[9] As an aside, the Court of Appeals also took up the question of international norms in interpreting the Constitution and stated that that practice of referring to international law was not “in tandem with the accepted principles of constitutional interpretation.”[10]
These points of disagreement between the civil courts and syariah courts on question of jurisdiction over child conversion and custody are remarkable for the way they display real consequences of grey areas caused by the jurisdictional separation between “syariah” and “civil” in the Malaysian legal system. This legal dispute between a Hindu woman and her former husband, a Muslim convert , not only tests the limits of jurisdiction in Malaysia’s legal system, but also brings up questions about the unilateral conversion of children to Islam in a country that is only 61 percent Muslim, yet operates separate civil and syariah courts. (By contrast, members of non-Muslim religious traditions with substantial populations in Malaysia such as Buddhists, Christians, and Hindus do not have separate religious courts to deal with family law issues, and instead go to civil courts to deal such issues.) The dispute also raises questions about the standards regulating conversion, whether minors are capable of converting, and what their rights are in such cases. Finally, the case raises question of women’s rights: when Article 12(4) of Malaysia’s Constitution outlines that “the religion of a person under the age of eighteen years shall be decided by his parent or guardian,” does “parent” mean both parents and guardians, husband and wife, or only the husband? At this point, this dispute has been ongoing for eight years during which time Indira Gandhi has not been able to be with her children due to the ambiguity of jurisdiction in such matters in Malaysia’s civil courts and shari’a courts.
[1] Administration of the Religion of Islam (Perak) Enactment 2004, State Legislative Assembly of Perak (2004), Section 96(1) (providing that, for a person’s conversion to Islam to be valid (a) the person must utter in reasonably intelligible Arabic the two clauses of the affirmation of faith; (b) at the time of uttering the two clauses of the affirmation of faith, the person must be aware that they mean “I bear witness that there is no God but Allah and I bear witness that the Prophet Muhammad SAW is the Messenger of Allah”; and (c) the utterance must be made of the person’s own free will).
[2] Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & ORS (High Court Malaya, Ipoh, July 25, 2013), Paragraphs 71, 78, & 79.
[3] Administration of the Religion of Islam (Perak) Enactment 2004, Section 101(2) (“A certificate of Conversion to Religion of Islam shall be conclusive proof of the facts stated in the Certificate.”).
[4] Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak, Paragraphs 14 & 25.
[5] Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak, Paragraphs 11 & 18.
[6] Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak, Paragraph 21.
[7] Pathmanathan Krishnan v. Indira Gandhi Mutho & Other Appeals (Court of Appeal, Putrajaya, December 30, 2015), Paragraphs 40-43.
[8] Pathmanathan Krishnan v. Indira Gandhi Mutho (2015).
[9] Krishnan v. Gandhi Mutho, Paragraphs 62 & 63.
[10] Krishnan v. Gandhi Mutho, Paragraphs 66-71.