Federal Court decision in Indira Gandhi case hailed as sensible, logical

KUCHING, Jan 29: State Parti Keadilan Rakyat (PKR) chief Baru Bian welcomed the decision of the Federal Court in the Indira Gandhi case as a long-awaited judicious and rational judgment backed by sound reasoning.

“It is a breath of fresh air after a long and arduous struggle for Indira Gandhi. In fact, reading the summary of the judgment, one’s response at every point is ‘yes, but of course’ and we wonder why Indira Gandhi and her family had to be put through the agony of the long court proceedings in the first place,” the Ba Kelalan state assemblyman said in a statement today.

He said its rational and correct that the Court made it clear that where one party is a non-Muslim, the Syariah Court cannot extend its own jurisdiction over that person and the proper forum is the Civil Courts.

Although the Court in this case was deciding on the Administration of the Religion of Islam (Perak) Enactment 2004, the principles elucidated in this case apply to all State Syariah enactments.

He also urged the Sarawak legislature to take note of the statement that ‘the State must claim ownership over the matters that fall within the jurisdiction of the syariah courts by providing for it expressly in its legislation’ otherwise the syariah courts are excluded from deciding on matters which fall within Item 1 of the State List in the Federal Constitution. There must be express and clear provisions in the State enactment.

He said that the Court is in fact declaring that the Civil Courts have supremacy over Syariah courts, and their judicial power cannot be constrained by Parliament. The Federal Constitution is supreme, the power of the Civil Courts is unshakable, and that supports PKR’s stand that Malaysia is a secular country.

On the issue of conversion of a minor, the correct position has been stated, which is that the consent of both parents is required for a minor to be converted to Islam, he added.

“This unanimous decision by the five-member Federal Court is indeed a landmark case in Malaysia. It is a clear and cogent judgment that will hopefully put an end to cases of unilateral conversions of minors. It is also a badly needed definitive statement on the limits of the powers and the jurisdiction of the Syariah Courts.

“I add my voice to that of Indira Gandhi’s lawyer M Kulasegaran that the Federal Court had the courage and moral conviction to do what Parliament lacked the testicular fortitude to carry out. It gives us new hope that the minority communities still have recourse in the courts even when their government fails them.

“However it remains to be seen whether the IGP will now be as equally courageous as the Federal Court judges to finally arrest the ex-husband of Indira Gandhi. Indira Gandhi deserves more than a victory on paper,” said the prominent lawyer.

Earlier today in Putrajaya, the Federal Court granted an appeal by Indira Gandhi challenging the conversion of her three children to Islam by her ex-husband Muhammad Riduan Abdullah.

The Star reported that in landmark decision, the Apex Court nullified the conversion of Indira’s three children, Tevi Darshiny, 20; Karan Dinesh, 18; and Prasana Diksa, eight, in a unanimous decision by the five-judge panel led by Court of Appeal president Justice Zulkefli Ahmad Makinudin.

Chief Judge of Sabah and Sarawak Justice Richard Malanjum, Justices Zainun Ali, Abu Samah Nordin and Ramly Ali were the other judges on the panel.

Reading out the summary of the 99-page judgment, Justice Zainun said consent of both parents must be sought and the Article 12 (4) that stated the word “parent” should not be construed literally.

“It must require the consent of both parents. Custody of the children, appellant, has dominant influence in their lives.

“Serious interference in their lives, would be a very wrong thing.

“The word ‘parent’ is a case of being lost in translation. Both parents have equal rights,” she said.

There has been a longstanding dispute over the word “parent” in Article 12 (4), as there is an argument that the consent of a parent may suffice.

However, Indira’s anguish as a mother is not over yet.

“My daughter (Prasana) is still missing. I want to see her. I really need to hold her. It has been nine years. When is she going to come back?” she told reporters after the Apex Court delivered its verdict here Monday, The Star reported.

“Even though we have won this case, she is not here. My two elder children are still waiting to hear the news.”

Indira has not seen her daughter since she was taken away by Indira’s ex-husband when she was just 11 months old.

Riduan was reportedly not seen at the court today.

The Federal Court on April 29, 2016 had ordered the Inspector-General of Police to execute a warrant of arrest for Riduan, who had disobeyed the Ipoh High Court’s order to return Prasana to her mother after granting Indira full custody of her children.

However, former IGP Tan Sri Khalid Abu Bakar refused to carry out that order, claiming there were contradicting orders from the Syariah Court and the civil courts. — DayakDaily