PUTRAJAYA - In a majority decision, the Court of Appeal has ruled that Muslim conversion issues are exclusively within the Syariah Court's jurisdiction.
However, the dissenting judge in the three-man panel believes that the conversion could be questioned in the civil courts.
The panel was deciding on an appeal by the Government against an earlier decision by the Ipoh High Court to quash the conversion certificates of the three children of kindergarten teacher M. Indira Gandhi.
Justice Hamid Sultan Abu Backer ruled that the Administration of Religion of Islam (Perak) Enactment 2004, which allowed for the conversion, was not entirely protected by Article 121(1a) of the Federal Constitution.
Article 121(1a) separates Malaysia's dual law system as it states that the civil court has no jurisdiction in matters within the Syariah Court.
"Of the 113 sections in the Enactment, only Part 4 on Syariah Court refers to its jurisdiction, the rest do not come under Article 121," he said, adding that this meant that the conversion could be questioned by way of judicial review.
The children had been converted to Islam by Indira's ex-husband Muhammad Riduan Abdullah, formerly known as K. Patmanathan, in 2009.
Justice Hamid also stated that the conversion was done by the father without the child even making the oath to convert, which rendered it null and void.
However, the panel's majority decision ruled that from a subject matter approach, a person's conversion to the Muslim faith was exclusively within the jurisdiction of the Syariah Court.
Both Justices Balia Yusof Wahi and Badariah Sahamid found that without jurisdiction, the High Court was incorrect to allow Indira's judicial review against the conversion.
"It is purely a matter of religion," said Justice Balia, who chaired the panel.
The panel then set aside the High Court's decision to quash the conversion but made no order as to cost.
Since the eldest of the three had turned 18 earlier this year, the court made no change to the quashing of her conversion.
Justice Balia said the written judgment would be made available in full on Jan 4.
Speaking to reporters after the hearing, Indira said she was saddened by the decision and wondered when the case would be resolved.
"It's dragged on for so many years, I have no clue what will happen to my children," she said on the verge of tears.
"Why should I go to Syariah Court? I'm not a Muslim," she said when asked if she would consider taking the case there.
The legal saga began in April 2009 when Riduan took his youngest child, Prasana Diksa, then 11 months old, and converted the child and his two siblings - Tevi Darsiny, then 12, and Karan Dinish, then 11 - to Islam.
On Oct 29 the same year, Riduan obtained a Syariah Court order that awarded him custody of the children.
In the following custody battle, the Ipoh High Court granted Indira full custody of the three children and on March 11, 2010, Riduan was ordered to return Prasana to Indira.
On July 25, 2013, Indira won a four-year legal battle to quash the conversion certificates of her children.
Meanwhile, Muslim groups have applauded the Court of Appeal ruling, saying that it clarified the separation of jurisdiction between civil and Syariah courts.
Malaysian Syariah Lawyers Association president Musa Awang said it would help strengthen the Syariah court from being overruled by the civil courts.
"I agree with the ruling. It is accurate and correct. The Syariah court holds exclusive jurisdiction in religious conversion matters," he said.
The recent challenges against Syariah matters before the civil courts, Musa said, had created a "chaotic and confusing" situation, adding that the spirit of the Article 121 (1A) of the Federal Constitution was not respected.
Ikatan Muslimin Malaysia (Isma) president Abdullah Zaik Abdul Rahman said it accepted the decision as it meant the children's Muslim faith would be protected.
"However, we hope that this decision does not cause harm to the family's welfare, meaning that they can continue to live in a good and harmonious environment," he said.
However, Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism vice-president Jagir Singh said by pushing the conversion cases to the Syariah courts, the civil courts appeared to have "abdicated their duty".
"It is with genuine fear that the decision allowing unilateral conversion of a child by one parent will open the floodgates to abuse," he said.
Non-Muslims, added Jagir, would have no remedy as they could not testify in a Syariah court, making conversion battles a one-sided affair.
Both Malaysian Bar president Steven Thiru and G25 spokesman Datuk Noor Faridah Ariffin said that they would wait for the full written judgment to be released before making an "informed decision."