Indira Gandhi – A tale of two systems

 |Nov 16, 2016
Jurisdiction battle between the secular and syariah courts in Malaysia persist.
Jurisdiction battle between the secular and syariah courts in Malaysia persist.

Sandwiched between the parallel legal systems of syariah and the Westminster styled secular courts is one – Indira Gandhi and her marriage to K. Patmanathan aka Riduan Abdullah.

Held captive as pawns in that battle are their three children.

In particular is the youngest child Prasana.

Thrown out the window in this debate is the law, good advocacy, the common sense and maturity required to deal with such problems.

So too is the absence of lawyers (and at least one High Court judge) with the skills, competence and capacity to deal with a situation as complex as this particular matter.

Lawyers appearing before TV cameras yet again, unable to resist leading questions in the glare of unwanted publicity, fall into all sorts of traps by their inadequate and ill-informed responses to this problem.

The result is that ‘perfect storm’ in the matter of Indira Gandhi vs Muhammad Riduan Abdullah.

The Federal Court of Malaysia now appears to have fallen into the same trap with their attempts at enlivening the jurisdiction of the Perak High Court over the syariah courts.

It is a jurisdiction the High Court of Perak is simply not vested with.

The Federal Court of Malaysia is now embarking on an adventure which is likely to precipitate a constitutional crisis and escalate the matter into a fight between an established constitutionally recognised syariah jurisdiction pitting it against a secular jurisdiction attempting to encroach into the jurisdiction and powers of the constitution and the syariah courts.

Choices between secular and theocratic

This matter relates to a conflict between secular and theocratic legal systems.

Islam of itself cannot be justifiably described as non-secular although many secularists mistakenly believe it to be the case.

At the heart of this debate is the yet to be matured parallel legal systems of syariah courts and the secular Westminster system of justice for the non-Muslim communities in Malaysia.

The Westminster system of secular courts was imposed on the Malays by the British colonial administration long before its independence from Britain.

That system has endured since and is embraced by the mainly Indian and Chinese Malaysians and a handful of elite, urban, English educated Malays.

The syariah courts on the other hand are of more recent import and a creature of Malaysia’s constitution, vested with exclusive powers to deal with all matters relating to the religion of Islam.

Chronology of events leading to the current situation

The parties were married in April 1993.

Sometime in 2009, the husband is said to have forcibly taken the child Prasana, the youngest of the three children then 11 months old, from the mother and without her consent.

In that same year the husband, after having converted himself and his children to Islam ‘without the mother’s knowledge or consent’, obtained an interim order from the syariah court in Perak for custody over all the children.

The Perak syariah court made permanent orders awarding the husband custody over the children.

In 2010, the secular civil division of the High Court on an application by the mother, made a set of conflicting orders giving custody of Prasana to the mother.

It also issued a further order, for delivery of the child Prasana from the father’s control to the mother.

Prasana was never returned to the mother.

That was a mischief by the Perak High Court and a perfect example of judicial activism.

The police were ordered to intervene.

They did not.

The child was not in the custody or control of a stranger.

There was no immediate or present danger to the children for the police to intervene.

At least there was nothing in the mother’s application to address any perceived danger supported by evidence from her.

The High Court’s decision was not a valid one.

There were clear jurisdictional issues and unresolved constitutional conflicts the police were likely aware of at the time the High Court’s order came through.

With the benefit of hindsight, the IGP Khalid Abu Bakar’s call was a right one to make in the circumstances.

In 2013, the same High Court quashed the certificate of Islamic conversion issued by the syariah jurisdiction with respect to Prasana and her conversion to Islam.

Later in 2013, the mother applied to commit the husband to prison for refusing to deliver the Prasana to her.

In 2013, the husband filed an affidavit contending that the syariah court orders relieved him of having to comply with the orders of the civil High Court to return Prasana to the mother.

In 2013, the Ipoh High Court quashed the conversion of Prasana to Islam.
In 2013, the Ipoh High Court quashed the conversion of Prasana to Islam.

The High Court decision – A clash of jurisdictions

In 2013, the husband filed an affidavit contending that the syariah court orders relieved him of having to comply with the orders of the civil High Court (secular) to return Prasana to the mother.

Whether that decision by the High Court of Perak in 2013 quashing the certificate of conversion is irreversible or curable by an administrative act Nunc pro tunc has never been explored by the parties.

The High Court appears to have overstepped its jurisdiction in respect of the orders it made in this matter.

Whether the High Court has a right, the authority, the power or the jurisdiction to ‘de convert’ (or reverse a conversion) an individual from Islam or any other religion is more than simply doubtful.

The High Courts of Malaysia under the constitution have no jurisdiction over disputes involving the practice and administration of the religion of Islam.

It is an exclusive power only the syariah courts are empowered by the constitution to exercise jurisdiction over.

How then did the High Court of Perak vest itself with the powers to do what it did in quashing the conversion certificate issued to the husband and his children?

It is objectively likely that on an application by the father, the decision of the High Court to cancel the certificate of Islamic conversion could have been reversed and quashed.

That job now appears to have been dealt with lawfully by the Court of Appeal.

Much of the problem in this case concerning a clash of jurisdiction lies in the misunderstanding of meaning of the exclusive jurisdiction vested in the syariah courts on matters of the Islamic religion against all other courts in Malaysia.

Indira’s lawyers could have mounted a constitutional challenge against the syariah court’s decision to overrule (which is what it in effect did) the High Court’s decision as being invalid in that it usurps and infringes judicial power.

They did not.

Syariah courts and conflicts within secularism

In brief, the jurisdiction of the syariah courts that are relevant to this matter are as follows:

Article 121 (1A) of the Federal Constitution: it cloaks the syariah courts with exclusive jurisdiction in the administration of Islamic laws, giving syariah courts exclusive power and jurisdiction over Muslims on matters relating to their religion.

Where a conflict between a Muslim and non-Muslim party is concerned on matters relating to Islam, referred by one of those parties to the syariah court, the law is clear that only the Muslim party has standing and may be heard to the exclusion of the non-Muslim party.

That is the constitutional position where conflict of laws is concerned.

This situation finds a number of parallels in places like India where the term secular has evolved to find new meanings and definitions, breaching even the wall of separation of state and church.

In India, there are several marriage laws which operate in isolation to the exclusion of mainstream ‘secular’ marriage acts, along strict religious and caste lines.

There are a number of other ‘inconsistencies’ in India’s re interpretation of secularism and equality before the law.

India is a highly respected member of the comity of nations, the decisions of its courts continue to have persuasive effect on the direction and decision of cases before courts of many Commonwealth states including Malaysia.

Where syariah begins and ends

As state courts, the syariah has territorial jurisdiction only within the respective state boundaries.

There is no clear authority on cross vesting in the syariah system.

The syariah courts have exclusive jurisdiction and authority to decide in regards to Muslims on matters of family laws in respect of marriage, divorce, custody, guardianship and maintenance of children, matrimonial property, and alimony.

Although the powers and jurisdiction of the syariah courts is not limited to that mentioned above alone.

Where the court’s jurisdiction may be limited or is silent on a particular matter, the state and federal legislatures are able to legislate to remedy deficiencies with legislation.

Considering the majority the government enjoys in parliament, it is not difficult for it to pass legislation to assist the syariah courts fill in any gaps in its authority and powers in the existing legislation.

The challenge to secularism and the rise of theocracy are not by Muslims alone.

What is not controverted in the facts of this particular case are, that the couple separated then divorced and the husband took the youngest child with him defying a secular court order to return the child to the mother.

In the process the husband achieved what many may see as an unfair advantage over his wife in the custody battle by converting his family sans his ex-wife to the religion of Islam.

An important point to note here is that by the act of converting the children and himself to Islam, K. Patmanathan aka Riduan ensured his former wife Indira Gandhi and any rights she may have claimed under the secular civil jurisdiction was necessarily lost or excised with the exclusive protection he now enjoys placing himself and his children within the jurisdiction of the syariah court and outside the jurisdiction of the secular courts

Riduan’s and the children’s interests by their conversion, takes precedence over any decision or claim by Indira in the secular courts in a nation where Islam is the official religion.

It is also the only religion that enjoys the exclusive protections under the constitution of the King, the legislature and the sultans of each of Malaysia’s states.

Islam also is the religion of the majority.

The undercurrent of mistrust between Malaysia’s Muslims and non-Muslims was elevated in recent times when Christians breached an age old constitutional convention, requiring non-Muslims to refrain from proselytising to Muslims, converting them to other religions.

The Indira Gandhi matter appears to be a further attempt at highlighting the encroachment of the jurisdiction of syariah courts into a weakened and politicised secular non-syariah legal system when in conflict with syariah.

Indira Gandhi (left) and her lawyer M. Kula Segaran.
Indira Gandhi (left) and her lawyer M. Kula Segaran.

What does unilateral mean in this context

The term “unilateral conversion” raised in the context of this particular case suggests that the word unilateral was confined or ought to be confined to the definition of a single individual undertaking something.

That narrow definition for convenience, fails to consider that the institution of marriage joins two parties into one entity in which, the differences between the parties (especially in a vedic marriage promise) when solemnised by marriage make the two parties by agreement into one.

The decisions are then as man and wife.

The decisions become unilateral in most respects concerning the marriage and the children till it is dissolved.

The Hindu (vedic) marriage is a patrimonial affair in which the decisions of the male prevail on behalf of the entity.

This position is no different in marriages solemnised under Christian, Islamic of Jewish traditions.

The fact the children were minors at the time of conversion is relevant here.

Under the common law and legislation, children have no legal capacity.

It is always a parent who makes that choice as to what religion the child was burdened for in life.

That could be a single parent, one parent or both in a more harmonious marriage or union.

Where is the vice in a conversion between believers anyway?

Following the dissolution of their marriage, Patmanathan appears to have taken refuge in another set of rules to his advantage – syariah.

This gave him and his children an advantage over Indira and her claims.

The problem here is with dealing with the reality of the two parallel civil systems; syariah on the one hand and the secular civil courts on the other.

Indira’s marriage to Patmanathan is irreconcilably over.

Her children are likely to be raised in a casteless community whatever the shortcomings of Islam may be.

They will have open to them greater opportunities, the MIC or Hindraf and the DAP who now seek to interplead have never ever offered her or her community.

Indira Gandhi’s concerns and focus should have been that her children are accessible to her instead of allowing her lawyers and the media to conduct a trial by media against Islam and the syariah courts.

The Federal Court of Malaysia by attempting to coerce Patmanathan into their jurisdiction is an exercise in constitution busting.

It is attempting what in the west is referred to disparagingly as judicial activism.

This matter rightfully belongs in the jurisdiction of the syariah courts and the decision of the Perak High Court was flawed, unconstitutional and unenforceable.

The Federal Court should not dignify or legitimise that flawed decision of the Perak High Court if it is to hear this matter.

 

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Gopal Raj Kumar is a MO reader and contributor.