Indira Gandhi v Pengarah Jabatan Agama Islam Perak (2018): Landmark Case in Malaysia

Yvonne Tew

Georgetown University Law Center

In 2009, Indira Gandhi, a Hindu mother of three children, turned to the courts when her husband left after an argument, forcibly taking their youngest child, an eleven-month old daughter, with him. She had learnt that he had converted to Islam and then converted all three of their children without her knowledge. He had then obtained custody orders for the children from the Sharia court. Indira Gandhi petitioned the civil courts to quash the unilateral conversions of her children and obtain custody of them. Initially, the High Court held in favor of Indira Gandhi, quashing the conversion certificates and granting her custody (in the matter of Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & Ors [2013] [hereinafter Indira Gandhi (HC)]). The High Court decision was, however, overruled by the Court of Appeal, which held that religious conversion was a matter exclusively for the Sharia courts to decide (in the matter of Pathmanathan a/l Krishnan v. Indira Gandhi a/p Mutho [2016]).

Indira Gandhi’s protracted legal battle finally reached the Malaysian Federal Court. Her case, which had been in the public eye for almost a decade, was emblematic of broader contestations over the role of Islam in the Malaysian state and the judicial authority of the civil courts in relation to the religious courts.

In January 2018, the Malaysian Federal Court issued a unanimous decision in favor of Indira Gandhi, voiding the children’s certificates of conversion (in the matter of Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & Ors [2018] (Indira Gandhi (FC)) – in which there is both a main and a concurring judgment). The apex court’s decision is a landmark in Malaysian constitutional jurisprudence for several reasons. First, the Court quashed the unilateral conversions of the children, ruling that the constitutional right to equality requires that both parents consent to change the religion of minor children. The Federal Court interpreted Article 12(4) of the Federal Constitution of Malaysia, which states that “the religion of a person under the age of eighteen years shall be decided by his parent or guardian,” as requiring the consent of both parents. It took a broad and purposive approach to interpreting the equal protection right, holding that the right of a “parent” to determine a child’s religious upbringing meant that both parents have an equal say in deciding a child’s conversion (Indira Gandhi (FC) at [181]).

A second significant implication is the Federal Court’s express declaration of the civil courts’ authority vis-à-vis the religious courts. Specifically, the Court affirmed that the civil courts have authority to decide matters relating to Islamic law when constitutional issues are involved (Indira Gandhi (FC) at [92]-[98]) – an immensely significant clarification of the jurisdictional boundaries between the civil courts and Sharia courts, a contentious issue in Malaysia. Over the past two decades, civil courts have increasingly deferred matters to the authority of the Sharia courts (for more detail, see Yvonne Tew, “Stealth Theocracy”, 58, Virginia Journal of International Law 31). In Indira Gandhi, the Federal Court markedly departed from earlier precedent, declaring it “unduly simplistic” that “since matters of conversion involve Islamic law and practice” the Sharia Courts “must have jurisdiction over such matters to the exclusion of the civil courts”(Indira Gandhi (FC) at [104]). It was unequivocal that the civil courts retained jurisdiction over such constitutional matters.

Third, and crucially, the Indira Gandhi decision firmly entrenched the constitutional basic structure doctrine in Malaysian jurisprudence. In a sweeping opinion, the Malaysian Federal Court referred to its own decision the year before in Semenyih Jaya v. Pentadbir Tanah Daerah Hulu Langat [2017] 3 Malayan L.J. 561, to entrench the notion that certain fundamental features of the Constitution are protected from alteration. The Court declared that “the power of judicial review is essential to the constitutional role of the courts, and inherent in the basic structure of the Constitution” and thus “cannot be amended or altered by Parliament by way of a constitutional amendment” (Indira Gandhi (FC), at [48]). In articulating the scope of the constitution’s basic structure, the Court explained that:

The Federal Constitution is premised on certain underlying principles…. [T]hese principles include the separation of powers, the rule of law and the protection of minorities; these principles are part of the basic structure of the Constitution. Hence, they cannot be abrogated or removed. (Indira Gandhi (FC), at [90])

The constitutional amendment at stake in this case related to Article 121(1A) of the Malaysian Constitution, which provides that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Sharia courts.” Parliament had introduced this provision in 1988, when it passed amendments attempting to curb the judiciary’s powers. Specifically, it sought to remove a provision in Article 121(1) that vested judicial power in the courts, while also introducing Article 121(1A) which demarcated the jurisdiction of the civil and religious courts. The Federal Court in Indira Gandhi directly addressed Article 121(1A) and the 1988 constitutional amendment, making clear that Article 121(1A) “does not oust the jurisdiction of the civil courts nor does it confer judicial power on the Syariah Courts” (Indira Gandhi (FC), at [92]). In effect, the Court nullified the 1988 constitutional amendment by declaring that Article 121(1A) “does not oust the jurisdiction of the civil courts nor does it confer judicial power on the Sharia courts” and “Parliament does not have the power to make any constitutional amendment to give such an effect.” Such an amendment “would be invalid, if not downright repugnant to the notion of judicial power inherent in the basic structure of the constitution” (Indira Gandhi (FC), at [92]).

The Indira Gandhi decision solidified the principle that judicial power lies solely with the courts and expressly entrenched the courts’ power as part of the basic structure of the Malaysian Constitution. That the Malaysian Federal Court was willing to assert its power in the fraught area of religion and law makes it all the more remarkable. The Federal Court’s opinion reveals an account of the basic structure that is intrinsically connected to the civil courts’ powers of judicial review and constitutional interpretation (Indira Gandhi (FC), at [104]). Indira Gandhi (FC) exhibits the Malaysian apex court powerfully recommitting to upholding constitutionalism and the rule of law “in accordance with the judiciary’s proper constitutional role” (Indira Gandhi (FC), at [37]-[38]).

Yvonne Tew is Associate Professor of Law at Georgetown University Law Center.

Suggested citation: Yvonne Tew, “Indira Gandhi v Pengarah Jabatan Agama Islam Perak (2018): Landmark Case in Malaysia” IACL-IADC Blog (12 December 2019), https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-the-commonwealth/2019/12/12/indira-gandhi-v-pengarah-jabatan-agama-islam-perak-2018-landmark-case-in-malaysia-1