M. Indira Gandhi is requesting Chief Justice Tun Arifin Zakaria and judge Tan Sri Raus Sharif to recuse themselves from hearing her case. – The Malaysian Insider file pic, February 26, 2016.Kindergarten teacher M. Indira Gandhi, who is appealing to reverse the Courts of Appeal ruling on unilateral conversion of her minor children, has requested that Chief Justice Tun Arifin Zakaria and his number two Tan Sri Raus Sharif be excluded from hearing her case.
Her lawyer M.Kulasegaran said he informed Federal Court judge Datuk Zaharah Ibrahim that both judges had made known their legal opinions in similar cases and as such they should recuse themselves from hearing the case.
“I also requested that the Federal Court bench be gender based, multi-racial and multi-religious," he told The Malaysian Insider after a case management before Zaharah.
Kulasegaran, who is also a federal lawmaker, said Zaharah instructed him to write to the Federal Court registrar on his request.
She said Arifin would also be notified, he added.
Administratively, it is the chief justice who decides who sits on a bench.
Kulasegaran said the Federal Court would convene on May 19 to hear Indira's application whether to grant leave before the merit of the case was heard.
On January 28, her lawyers submitted eight legal questions of public importance to obtain leave from the apex court.
Indira's lawyers would have to convince the Federal Court bench in her leave application that the questions posed were raised for the first time or had constitutional importance.
Many in the legal fraternity were of the opinion that the issues to be reviewed were whether Article 121 (1A) of the Federal Constitution ousted the jurisdiction of the civil court to hear conversion cases.
The other issue was whether a Muslim convert spouse Islam could change the religion of children without the consent and knowledge of the non-converting parent.
On December 30, the Court of Appeal, in a majority ruling, held that the civil court had no jurisdiction to hear conversion cases as that was a matter for the shariah court to decide.
However, Datuk Dr Hamid Sultan Abu Backer, who dissented, held that Indira’s children should have made the application to convert, which was not the case here.
Malaysian Bar president Steven Thiru said the appellate court's ruling relied primarily on two Federal Court cases, both of which were not appropriate authorities to come to a right decision.
He said in the case of Subashini Rajasingam v Saravanan Thangathoray, the discussion by the Federal Court on the meaning of the word “parent” in Article 12(4) of the Federal Constitution was only a passing remark.
“It is, therefore, not a binding statement of the law,” Steven said.
He said in the case of Haji Raimi Abdullah v Siti Hasnah Vangarama Abdullah, it was not a contest between one parent who had converted to Islam and one who had not.
“The principles underlying the decision in that case cannot, therefore, apply in Indira’s case.”
Steven added that in Indira’s case, only one parent had converted and as such, Section 50 of the Administration of the Religion of Islam (Perak) Enactment 2004 could not apply.
Further, he said, the shariah court could only hear and determine all actions and proceedings if all the parties were Muslims.
“As Indira is a non-Muslim, the Court of Appeal’s reliance on this provision is regrettably misplaced.” – February 26, 2016.
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