PUTRAJAYA: The Perlis Islamic Religious and Malay Customs Council (MAIPs) has gone to the Federal Court in an attempt to revisit a 2018 apex court ruling that the unilateral conversion of minor children is unconstitutional without the consent of both parents in a civil marriage.
It filed a leave application yesterday to appeal a Court of Appeal ruling handed down on Jan 10 this year.
A three-member appeals court bench chaired by Justice Hadhariah Syed Ismail had allowed single mother Loh Siew Hong’s appeal and set aside a High Court ruling that declared the unilateral conversion of her three minor children to Islam in Perlis four years ago constitutional.
Under Section 96 of the Courts of Judicature Act 1964, leave is granted only if there are novel constitutional or legal questions of public importance raised for the first time.
The applicant has filed four questions of laws which they say merit a full hearing of the appeal, including whether the ruling in Indira’s case was wrong since the court did not follow the Bahasa Malaysia text of the Federal Constitution.
In Indira’s case, a five-member apex court bench unanimously ruled that the conversion of children required the consent of both parents, even if one spouse had subsequently embraced Islam.
Justice Zainun Ali, who delivered the unanimous judgment of the apex court on Jan 28 2018, said allowing a child to be converted with the consent of only one parent would give rise to practical conundrums.
“A purposive reading of Article 12(4) of the constitution that promotes the welfare of the child and is consistent with good sense would require the consent of both parents (if living) for the conversion of a minor child,” she said.
In the appeals court ruling last month, Hadhariah, who sat with Justices Hashim Hamzah and Azhahari Kamal Ramli, said the High Court judge had misdirected himself by not following the legal principle established in Indira’s case.
She said there was no evidence that the Yang di-Pertuan Agong had prescribed the Malay text of the constitution as the authoritative text.
“Hence, we must follow the English text in interpreting Article 12(4) of the constitution,” she said, adding that the word “parent” in the English text refers to both parents.
In a media statement, the Chambers of Zainul Rijal, the applicant’s solicitors, said it named Loh as the respondent to the application and that leave to appeal was being requested as the Court of Appeal had ruled that the decision in Indira’s case is good law.
“We have been instructed that the conversion by the father in the present case is valid under the constitution as the words ‘parent’ and ‘parents’ (appear) 13 times in the English text.
However, the 11th Schedule of the Constitution states that words in the singular include the plural, and words in the plural include the singular, the statement said.
The statement also said the solicitors have been instructed to emphasise that the conversion of the children did not affect the relationship with their mother (Loh), who is not a Muslim.
“It is the responsibility of the Muslim community to provide aid to the converts to freely practice and maintain the faith,” it said, adding that lawyer Haniff Khatri Abdullah will lead the applicant’s legal team.
Loh’s children were unilaterally converted to Islam by her former husband Muhammad Nagahswaran Muniandy in Perlis in 2020.
Loh took the matter to court, seeking a declaration that a provision in the state enactment allowing a parent to unilaterally convert minor children was unconstitutional.
She also wanted a declaration that her twin daughters, aged 15, and son, aged 12, were still Hindus.
Last May, the High Court dismissed Loh’s judicial review application, saying there was no evidence that the three children stopped professing Islam after she gained custody of them.
In his ruling, Justice Wan Farid Wan Salleh also said the Perlis state registrar of converts was satisfied that the legal requirements of Section 107(1) of a 2006 Perlis state enactment had been adhered to and that the children had professed the syahadah proclamation voluntarily.
However, his decision was overruled by the Court of Appeal.
