[2018] 3 CLJ 145

INDIRA GANDHI MUTHO v. PENGARAH JABATAN AGAMA ISLAM PERAK & ORS AND OTHER APPEALS
FEDERAL COURT, PUTRAJAYA
ZULKEFLI AHMAD MAKINUDIN PCA; RICHARD MALANJUM CJ (SABAH AND SARAWAK); ZAINUN ALI FCJ; ABU SAMAH NORDIN FCJ; RAMLY ALI FCJ
[CIVIL APPEALS NO: 01(f)-17-06-2016 (A), 01(f)-18-06-2016 (A) & 01(f)-19-06-2016 (A)]
29 JANUARY 2018

ADMINISTRATIVE LAW: Judicial review - Legality of decisions of public authorities - Reviewing approach - Conversion to Islam - Conversion of non-Muslim children to Islam - Legality and constitutionality of administrative action taken by Registrar of Muallafs in exercise of statutory powers - Whether High Court had exclusive jurisdiction to exercise supervisory powers - Whether Syariah courts conferred with power to review administrative decisions of authorities - Whether judicial power could be removed from civil courts - Whether jurisdiction of Syariah court must be expressly conferred by state legislation - Whether relief sought in nature of inherent powers of civil court - Whether Syariah court has no jurisdiction over non-Muslims and non-Muslims had no locus before Syariah court - Whether effect of art. 121(1A) of Federal Constitution to oust jurisdiction of civil courts when subject matter relates to Islamic religion - Whether High Court seised with jurisdiction, to exclusion of Syariah court, to hear matter - Courts of Judicature Act 1964, ss. 23, 24 & 25 - Rules of Court 2012, O. 53

CONSTITUTIONAL LAW: Courts - Civil and Syariah courts - Whether distinct in nature and status - Civil court - Whether established under the Federal Constitution and vested with inherent judicial powers - Syariah court - Whether creatures of state legislation - Whether akin to inferior tribunal - Interpretation of art.121(1A) of Federal Constitution - Whether not to be interpreted in isolation - Whether granting exclusive jurisdiction to Syariah court in all matters of Islamic law

JURISDICTION: Syariah court - Conversion to Islam - Conversion of non-Muslim children to Islam - Certificate of conversion - Issues on conversion - Validity - Whether within jurisdiction of Syariah court - Whether within realm of constitutional and administrative law - Whether should jurisdictionally be triable before civil court - Administration of Religion of Islam (Perak) Enactment 2004, s. 50(3)(b) - Proper interpretation - Whether conferring jurisdiction to Syariah Court to determine validity of a person's conversion to Islam - Federal Constitution, arts. 8(2), 12(4)

ISLAMIC LAW: Conversion to Islam - Conversion of non-Muslim children to Islam - Certificate of conversion - Certificate issued by Registrar of Muallafs - Whether valid - Whether ss. 96 & 106 of Administration of the Religion of Islam (Perak) Enactment 2004 has effect of excluding High Court's power to review issuance of certificate of conversion by Registrar of Muallafs - Requirements in ss. 96 & 106 - Whether cumulative - Language of s. 101(2) - Whether purporting to oust judicial review - Whether precluded High Court from reviewing Registrar of Muallafs' decision

ISLAMIC LAW: Registrar of Muallafs - Statutory power - Conversion to Islam - Issuance of certificate of conversion - Exercise of powers thereof - Legal limits to exercise of legal powers thereof - Validity of Certificate of Conversion - Whether ss. 96 & 106 of Administration of the Religion of Islam (Perak) Enactment 2004 has effect of excluding High Court's power to review issuance of certificate of conversion by Registrar of Muallafs - Requirements in ss. 96 & 106 - Whether cumulative - Language of s. 101(2) - Whether purporting to oust judicial review - Whether precluded High Court from reviewing Registrar of Muallafs' decision

FAMILY LAW: Children - Conversion - Conversion of non-Muslim children to Islam - Whether consent of both parents must be sought - Whether both parents ought to have equal rights in upbringing of children - Whether conversion of one spouse to Islam altered antecedent legal position - Consideration of welfare of child - Equality of parental right - Whether certificate of conversion issued without consent of one parent contravened art. 12(4) of Federal Constitution and Guardianship of Infants Act 1961, ss. 5 & 11

These present appeals arose from an application for judicial review of the administrative actions of an executive body in exercise of its statutory powers. The facts were that the appellant and the sixth respondent were married under the Law Reform (Marriage and Divorce) Act 1976 ('the LRA'). There were three children of the marriage. On 11 March 2009, the sixth respondent converted to Islam and subsequently, the appellant received documents from the sixth respondent showing that her three children had been converted to Islam and that the Pengarah Jabatan Agama Islam Perak had issued three certificates of conversion to Islam on the said three children. The documents also showed that the Registrar of Muallafs had registered the children as Muslims. Aggrieved, the appellant filed an application for judicial review at the High Court for an order of certiorari to quash the certificates of conversion to Islam of the children. The appellant contended that the issuance of the certificates of conversion to Islam by the Registrar of Muallafs were ultra vires and illegal. It contravened the provisions of ss. 96 and 106(b) of the Administration of the Religion of Islam ('Perak') Enactment 2004 ('the Perak Enactment 2004'), ss. 5 and 11 of the Guardianship of Infants Act 1961 ('GIA') and art. 12(4) read together with art. 8(2) of the Federal Constitution. At the High Court, it was held that art. 121(1A) of the Federal Constitution does not confer jurisdiction for constitutional interpretation on the Syariah courts to the exclusion of the civil courts. The Judicial Commissioner ('JC') declared that the requirements of ss. 96 and 106 of the Perak Enactment must be complied with by the Registrar of Muallafs in issuing the certificates of conversion. Section 101(2) which states that the certificates shall be conclusive proof of the fact stated therein, was held not to oust the jurisdiction of the court where there is patent non-compliance with the statutory requirements. Accordingly, the JC found that the High Court had exclusive jurisdiction to hear the application. The High Court decision was reversed by the Court of Appeal, which had rejected the JC's approach in determining the constitutionality of the conversion process. The Court of Appeal held that the High Court had no power to question the decision of the Registrar of Muallafs or to consider the Registrar's compliance with the statutory requirements of ss. 96 and 106 of the Perak Enactment. The Court of Appeal took the position that the fact that a person had been registered in the Registrar of Muallafs as stated in the certificates of conversion was proof that the conversion process had been done to the satisfaction of the Registrar. Thus, the appellant in these appeals appealed against the said decision of the Court of Appeal. The Federal Court granted leave for the following questions of law (i) whether the High Court had the exclusive jurisdiction pursuant to ss. 23, 24 and 25 and the Schedule of the Courts of Judicature Act 1964 ('CJA') (read together with O. 53 of the Rules of Court 2012 ('the ROC')) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Perak Enactment; (ii) whether a child of a marriage under the LRA (a civil marriage) who had not attained the age of 18 years must comply with both ss. 96(1) and 106(b) of the Perak Enactment before the Registrar of Muallafs or his delegate may register the conversion to Islam of that child; and (iii) whether the mother and the father (if both are still surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam could be issued in respect of that child.

Please subscribe to CLJ Shariah for full judgment