Thursday, December 8

Indira Gandhi vs Muhamad Reduan revisited


THE couple was Hindus and married under the civil law but the husband later became a Muslim and also converted their three young children to Islam without the consent of their mother.

The mother objected the children’s conversion citing Article 12 (4) of the Federal Constitution.

However, both the Syariah Court and the Court of Appeal reaffirmed the single-parent-consent conversion of faith based on a misinterpretation and or misconstruction of the overarching Article 12 (4) without referring to the Interpretation article 160 (1)S. 2(95)and the 11th Schedule of the Federal Constitution.

A correct interpretation of Article 12 (4) requires the court to consider or construe the words ‘his’ and ‘parent’ under Article 12 (4) in accordance with the explanation given under S.2(95)of the 11th Schedule of Article 160 (1)of the Federal Constitution (supra).

Ss.2(94) and(95) and the 11th Schedule provide respectively “words importing the masculine gender include females; “words in the singular include the plural”, and vice versa (for my own simplicity).

Hence ‘parent’ include ‘parents’ for our purpose.

There is nothing wrong with Article 12 (4) in its singular provision or his in masculine gender.

The Federal Constitution is the supreme law of the federation under Article 4 and its supremacy or primacy is therefore unquestionable and all laws enacted after Merdeka Day are void to the extent of inconsistency or incompatibility with the Federal Constitution or a state law is void to the extent of being inconsistent with the federal law under article 75 of the Federal Constitution.

A state law such as the Perak Islam Religion Enactment 2014 may be void to the extent of its inconsistency with a federal law such as the Federal Constitution Article 12 (4).

It is not easy to decide on the ratio decidendi from the long circumlocutory or convoluted Federal Court judgement but the mother (Indira Gandhi) had won a pyrrhic victory although she still could not get to see her youngest daughter until the police deem it fit to execute the court order under Article 121 (3) of the Federal Constitution.

A long drawn-out litigation.

Robert Chiu,

Amicus Curiae