KUALA LUMPUR (Feb 3): The High Court has scheduled May 21 to deliver its decision on an originating summons (OS) filed by M Indira Gandhi and 13 others that challenges the validity of certain states' laws regarding the unilateral religious conversion of minors.

Judge Datuk Aliza Sulaiman set the date after hearing submissions from counsels in the case.

Representing the plaintiffs, lawyer Rajesh Nagarajan from Messrs Raj & Sach argued that state laws that allow for unilateral conversion of a child below the age of 18 years are inconsistent with Article 12(4) of the Federal Constitution. They also contradict established Federal Court precedents.

The plaintiffs highlighted two key constitutional pillars:

i) Article 12(4), which states that the religion of a person under 18 is decided by their "parent or guardian". In a landmark 2018 ruling, the apex court interpreted "parent" as parents. Therefore, both parents’ permission is needed in conversion cases.
ii) Article 75, which establishes that federal law prevails over any inconsistent state law, rendering the latter void to the extent of the inconsistency.

Senior federal counsel Ahmad Hanir Hambaly @ Arwi, appearing for the Federal Territories and the states, argued that the Federal Court’s decision in the 2018 Indira Gandhi unilateral conversion case cannot be regarded as a binding authority to declare Section 106 of the Perak Enactment and its inter-state counterpart provisions — including Section 95 of Administration of Islamic Law (Federal Territories) Act 1993 [Act 505] — as unconstitutional.

"Section 95 of Act 505 is cloaked with a strong presumption of constitutionality. This presumption is based on the recognition that the legislature is essentially deemed to understand the needs of the people," he said.

The plaintiffs filed the originating summons (OS) in March 2023, primarily to nullify unilateral conversion in seven states and the Federal Territories. They claimed that the state enactments contravened Article 12 (4) of the Federal Constitution, as interpreted in Indira's landmark 2018 case on unilateral conversion.

Defendants in the suit are the governments of Johor, Perlis, Melaka, Kedah, Negeri Sembilan and Perak, and the Federal Territories.

The government of Pahang, which was initially also a defendant, was removed from the suit after it amended its state laws to prevent unilateral conversion.

Counsel Danial Farhan Zainul Rijal, from the Chambers of Zainul Rijal lawfirm who appeared for Federal Territory Islamic Religious Council (MAIWP) as one of the interveners, contended that the plaintiffs lack the requisite locus standi to maintain this action because the they failed to show any genuine grievance or personal injury.

"Therefore, their invocation of this court’s jurisdiction is not for the genuine purpose of obtaining relief for a wrong done to them, but rather for the collateral purpose of challenging the sanctity of State Enactments and Hukum Syarak in the abstract," he said.