A COURT decision in Malaysia on 29 January has challenged the application of sharia by Islamic religious authorities in this Muslim-majority country.
A panel of five judges in Malaysia’s highest legal tribunal, the Federal Court, ruled in favour of a challenge by a Malaysian Hindu, Indira Gandhi, to her ex-husband’s conversion of their three children to Islam, in 2009, without her consent.
Her ex-husband, K. Pathmanathan, left his Hindu faith that year to embrace Islam, adopting the Muslim name Muhammad Riduan Abdullah. His marriage to Mrs Gandhi broke up, and, shortly after his conversion, he changed the religious status of the three children to Muslim.
At the time, their eldest daughter was 12, their son 11, and the youngest daughter, Prasana, was barely one year old. Riduan Abdullah took Prasana from the family home, and disappeared.
A series of court battles ensued. In 2013, Mrs Gandhi brought the matter before the High Court in the Malaysian city of Ipoh, which declared the conversions of the three children null and void.
Two years later, the Malaysian Court of Appeal reversed the decision for the two younger children by the Ipoh High Court, declaring that the case fell under the sharia court, and that the civil courts had no jurisdiction over such matters.
Mrs Gandhi’s legal team then took the matter to the Federal Court, which issued its decision in her favour. It ruled that the religious identity of the children could not be changed without the consent of both parents. In interpreting Article 12(4) of the Federal Constitution, which states that the religion of a person under the age of 18 years shall be decided by his or her parent or guardian, the Federal Court ruled that the phrase “parent or guardian”, although in the singular, included both parents.
The decision of the five Federal Court judges, most of whom are themselves Muslim, was unanimous. The panel also ruled that the right to judicial review of such cases falls under the jurisdiction of the civil courts, not the sharia courts, as the latter have limited jurisdiction over matters pertaining to Muslims only.
The Malaysian police force is attempting to track down Riduan Abdullah, whose whereabouts, and those of his now ten-year-old daughter Prasana are unknown. Meanwhile, the two older children are reported to have declared themselves as Hindus in the wake of the Federal Court decision.
The decision has been widely welcomed in Malaysia. A former Federal Court judge, Gopal Sri Ram, said that the decision demonstrated that the Malaysian Constitution was a secular charter and not an Islamic constitution, and that “the essence of the judgment must be taught in all our schools so that future generations understand its importance.”
The Malaysian Society for the Promotion of Human Rights (PROHAM), a multi-faith group which includes Muslim representation, argued that the decision was in line with Article 14 of the United Nations Convention on the Rights of the Child. Datuk Kuthubul Zaman, who chairs PROHAM, urged all parties “to respect this decision and work towards a united Malaysia where all are equal before the law irrespective of religion, class, and gender”.
Eugene Yapp, the director of RFL Partnership, a Malaysian network for the promotion of religious freedom, said that the decision represented “a first major push-back against the tide of Islamisation by a major institution that is long overdue. It is welcomed by large segments of society, especially non-Muslim minorities.”
Conservative Muslim groups have opposed the decision. The Mufti of Perak, the supreme Islamic legal authority in that Malaysian state, said that “this is as though the country has no religion,” and that it was like “making Hindus of Muslims”. His counterpart in the Malaysian state of Pahang, Mufti Abdul Rahman Osman, spoke against the Federal Court decision, saying that “under-age children follow the religion of whichever parent has taken to Islam.”
The president of the Malaysian Association of Muslim Scholars, Abdul Halim Abd Kadir, said: “We are concerned that . . . there is a possibility of conflict between religious adherents in this country that may spark violence in society.” He went on: “I am simply carrying out my duty as a Muslim, to speak out against this.”
Professor Peter Riddell is Vice-Principal Academic at Melbourne School of Theology, and professorial research associate in history at SOAS, University of London.