The FC, answering the first leave question in the affirmative, concluded that the power to review the decision of the Registrar of Muallafs, being an executive body, rested solely with the civil courts and not the Syariah Courts.
In answering the first leave question, Zainun Ali FCJ emphasised that that the determination of the present appeals “did not involve the interpretation of any Islamic personal law and practice, but rather with the more prosaic questions as to the legality and constitutionality of administrative action taken by the Registrar (of Muallafs)
The Second Leave Question
The second leave question was whether a child of a marriage registered under the LRA who has not attained the age of 18 years must comply with both sections 96(1) and 106(b) of the Perak Enactment before the Registrar of Muallafs may register the child’s conversion to Islam.
Section 96(1) of the Perak Enactment provides that in order for a conversion of a person to Islam to be valid, the person converting must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith. In addition, at the time of uttering the two clauses, the person must be aware of the meaning of the clauses and must utter them based on the person’s own free will. Section 106(b) of the same enactment provides that a person below the age of 18 may convert if he is of sound mind and his parent or guardian consents in writing to his conversion.
The FC answered the second leave question in the affirmative and held that the requirements in sections 96 and 106 are mandatory and must be complied with. It found that the children of Indira and Riduan did not utter the two clauses of the Affirmation of Faith and were not present before the Registrar of Muallafs before the certificates of conversion were issued. As the mandatory statutory requirements were not fulfilled, the Registrar of Muallafs had no jurisdiction to issue the certificates of conversion. The lack of jurisdiction by the Registrar of Muallafs therefore rendered the certificates issued a nullity.
The FC then considered whether section 101(2) of the Perak Enactment, which provides that a certificate of conversion to Islam shall be conclusive proof of the facts stated in the certificate of conversion, had the effect of excluding the HC’s power to review the issuance of those certificates. This argument was rejected by the FC. First, the FC held that the court’s supervisory jurisdiction to determine the legality of an administrative action (i.e. the issue of the certificates of conversion) by the Registrar of Muallaf could not be excluded even by an express ouster clause (Anisminic Ltd v The Foreign Compensation Commission and Another
 2 AC 147 (HL)).
Further, and in any event, the FC opined that the language of section 101(2) did not purport to oust judicial review. The provision merely states that the certificate of conversion is conclusive proof of the facts stated therein, that is, that the person named in the certificate has been converted to the religion of Islam, and his name has been entered in the Registrar of Muallafs. In the present appeals, the fact
of the conversion or the registration of Indira’s children was not challenged – what was challenged was the legality
of the conversion and registration.
The Third Leave Question
The third leave question considered whether the mother and father (if both are surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam could be issued in respect of the child.
According to the FC, this issue involves the interpretation of the expression “parent” in Article 12(4) of the Constitution
. The FC cited Articles 12(3) and 12(4) of the Constitution which provide:
“(3) No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.
(4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
” (Emphasis added
The FC also considered the national language (Bahasa Malaysia) translation of Article 12(4) was differently worded thus:
“(4) Bagi maksud Fasal (3) agama seseorang yang di bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya
.” (Emphasis added
In view of the inconsistency between the Bahasa Malaysia and English versions of Article 12(4), it was contended that the Bahasa Malaysia version prevailed over the English version pursuant to Article 160B of the Constitution which provides, inter alia
, that the Yang di-Pertuan Agong may prescribe a translated text in Bahasa Malaysia to be the authoritative version. However, the FC agreed with the HC that since the requisite prescription of the national language version by the Yang di-Pertuan Agong under Article 160B had not been effected, the authoritative version is the English version.
The FC then referred to the Eleventh Schedule
to the Constitution (read together with Article 160(1)
) which provides that, in interpreting the Constitution, “words in the singular include the plural, and words in the plural include the singular
”. The FC explained that the reason “parent” is used in Article 12(4) is to provide for a situation where the child has only one parent, i.e. a single parent situation. Where both parents exist, the Eleventh Schedule is to be relied on, that is the plural form of the word, i.e. “parents
” is to be used and accordingly, the decision on the religion of a child is to be decided by both parents.
Finally, the FC upheld the equality of parental rights in respect of an infant (which is defined to include any child who has not attained the age of majority) as embodied in inter alia
sections 5 and 11 of the Guardianship of Infants Act 1961 (“GIA”) which provides that “a mother shall have the same rights and authority as the law allows to a father
” in relation to the custody or upbringing of an infant and that the court “shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be
”. The FC held that the GIA would still apply to the children of Indira and Riduan notwithstanding the latter’s conversion to Islam as conversion does not absolve a person of antecedent obligations.
Both parents’ consent was therefore necessary before the certificates of conversion to Islam could be issued and the FC answered the third leave question in the affirmative.
In light of its answers to the leave questions, the FC allowed Indira’s appeal. At the same time, the FC also ordered the majority decision of the CA to be set aside and affirmed the decision and orders of the HC.
In a rare development in Malaysian jurisprudence, the FC applied the doctrine of prospective ruling and ruled that its decision in FC Indira Gandhi
is to have prospective effect. This means that the decision will not affect decisions made by the courts prior to the date of the FC’s judgment, i.e. 29 January 2018.
The FC Indira Gandhi
decision has been rightly commended for its sound judgment and cogent analysis of the complex constitutional and family law issues of the case. The decision has brought some judicial certainty to this hitherto troubled area of jurisprudence. The FC’s interpretation of Articles 121(1) and 121(1A) of the Constitution clearly demonstrates the jurisdictional limits of the Syariah Courts and the supremacy of the civil High Courts. Its interpretation of Article 12(4) of the Constitution
and sections 5 and 11 of the GIA removes any doubt that the consent of both parents is required before a certificate of conversion can be issued, except in a single-parent situation.
However, as an apex court, a future panel of the FC has the power to, and may depart from, the reasoning and judgment of FC Indira Gandhi
. It is therefore imperative that Parliament reintroduce Clause 7 which had at the last moment been withdrawn from the Law Reform (Marriage and Divorce)(Amendment) Bill 2016 that was passed to amend the LRA in August 2017. Clause 7, which sought to introduce a new section 88A into the LRA, had provided:
Where a party to a marriage has converted to Islam, the religion of any child of the marriage shall remain as the religion of the parties to the marriage prior to the conversion, except where both parties to the marriage agree to a conversion of the child to Islam, subject always to the wishes of the child where he or she has attained the age of eighteen years.
Arising from FC Indira Gandhi
, it has been reported that the Government may consider reintroducing Clause 7 (Star Online, 30 January 2018). It remains to be seen whether the Government has the political will to make this a reality.