PUTRAJAYA, Jan 10 — The Court of Appeal today unanimously decided to quash the unilateral conversion of three Hindu children to Islam by their Muslim convert father, and ruled in their Hindu mother Loh Siew Hong’s favour as it applied the Federal Court’s decision in M. Indira Gandhi’s case.
Court of Appeal judge Datuk Hadhariah Syed Ismail, who chaired the three-man panel, also said a Perlis state law provision that allows conversion of children to Islam with just one parent’s consent is unconstitutional.
The Court of Appeal granted all nine orders that Loh asked for in her legal challenge against her children's unilateral conversion to Islam, including declaring the three children are adherents of Hinduism.
The other nine court orders which Loh won today include an order to quash the July 7, 2020 certificates of conversion to Islam which were issued to the three children; an order to compel the Perlis Registrar of Mualaf to remove the three children's names from the Perlis registry of Muslim converts; and a declaration that Section 117(b) of a Perlis state law (which allows children to be converted without both parents' consent) is unconstitutional and invalid.
In her brief grounds, Hadhariah said the High Court had not addressed the two key issues in the lawsuit, which was whether unilateral conversion is unlawful and whether Section 117(b) of the Perlis state law – which allows unilateral conversion of children to Islam –- is unconstitutional as it contradicts Article 12(4) of the Federal Constitution.
"The failure of the High Court judge to answer these two issues is a clear misdirection that is tantamount to an error of law," she said.
Hadhariah also made it clear that the Federal Court's decision in Indira's case – that unilateral conversion is invalid – is still a binding decision on the lower courts, and said Loh did not consent to her three children to become Muslim converts.
"On the issue of unilateral conversion, we are bound by the decision in Indira Gandhi which held that consent of both parents must be obtained before minor children can be converted to other religion.
"In this case, it is not disputed that the appellant mother did not consent to the three children's conversion to Islam," she said.
While all four respondents, including the Perlis Islamic Religious and Malay Customs Council (MAIPs) and the Perlis government had this morning tried to argue that the authoritative text of the Federal Constitution should be the Malay language translation instead of the original text in English, the Court of Appeal today stressed that the English text is still the authoritative one.
"In respect of the issue of whether there is a prescription of the Bahasa Malaysia version of the Federal Constitution being the authoritative text, we are of the opinion there is no clear evidence that the Yang di-Pertuan Agong has prescribed the Bahasa Malaysia Federal Constitution as the authoritative text, hence interpretation of Article 12(4) of the Federal Constitution, we are still following the English version.
"Therefore we are bound by the interpretation of Article 12(4) in Indira Gandhi's case, meaning the word 'parent' in Article 12(4) means both parents, therefore Section 117(b) of the Administration of the Religion of Islam Enactment 2006 is unconstitutional," Hadhariah said.
Section 117(b) originally required the consent of “ibu dan bapa” (mother and father) for children or those aged below 18 to convert to Islam, but Perlis amended it in 2016 to allow the conversion of children if there is consent from “ibu atau bapa” (mother or father).
This means that the Court of Appeal today declared the current Section 117(b) – which allowed children to be converted to Islam without getting both parents' consent – is against the Federal Constitution.
The other two judges on today’s panel are Datuk Hashim Hamzah and Datuk Azhahari Kamal Ramli.
On March 25, 2022, Loh filed a court challenge through a judicial review application at the High Court, naming the four respondents as the Perlis registrar of Muslim converts, MAIPs, the Perlis mufti and the Perlis state government.
The High Court on May 11, 2023 dismissed Loh’s challenge against the conversion of her three children to Islam without her consent.
Loh had appealed, and this was the appeal which the Court of Appeal decided on today.
What the lawyers argued
Earlier this morning, the Court of Appeal's three-judge panel heard submissions from all parties in the case.
Loh's lead lawyer A. Srimurugan had highlighted to the Court of Appeal that it was undisputed that Loh's consent was not obtained for the conversion of her three children to Islam and she had challenged the unilateral conversion.
Srimurugan had argued that the High Court's dismissal of her court challenge should be set aside, as the "miscarriage of justice" when the High Court did not address or decide on the two critical issues of whether unilateral conversion of minors is unconstitutional and whether the Perlis state law provision contradicted the Federal Constitution.
He pointed out that the Federal Court had in Indira's case already decided that unilateral conversion of children is unconstitutional and unlawful, arguing that this is also why Section 117(b) should be struck down for being unconstitutional.
Srimurugan pointed out that the three children were non-Muslims at the time of their birth, and the twins were only aged 11 years and eight months and the youngest child aged nine years and one month when they were converted to Islam, saying: "Based on the Age of Majority Act, anybody below 18 is a minor and they have no legal capacity to embrace any religion and religion of child must be determined by parents."
Srimurugan also cited the High Court's 2003 decision in the case of Chang Ah Mee, where the High Court had observed that both father and mother would have equal right over a child and the word "parent" in Article 12(4) must mean both parents if both are still alive, as allowing just one of the parents to choose the infant's religion would mean depriving the other of their right as a parent under Article 12(4) to choose the child's religion.
Srimurugan said unilateral conversion by a parent — regardless of what religion is involved — would mean the other parent's right to consent is being taken away and would not be a decision made in the child's interest, saying: "You are not thinking about the welfare and interest of the child, you are thinking about yourself, when that happens, the child becomes ping pong in a court of law. The court has to send a very strong message that we cannot condone this. There must be equal parenting rights. If you read it in that fashion, then you realise why unilateral conversion cannot be justified."
Srimurugan said: "My submission is the mother's plight has to end today, she has suffered long and hard, we can't afford to have another Indira Gandhi case anymore, it takes a toll on children." In Hindu mother Indira's case which similarly involved unilateral conversion of her children by the Hindu-turned-Muslim father, she had spent many years in the courts before successfully obtaining the quashing of the unilateral conversion.
"And I urge this court not only to quash the certificates of conversion, but to send a strong message that no court will condone unilateral conversion, this has to end," he said.
Perlis state legal adviser Mohd Radhi Abas, which represented three respondents in the case (Perlis registrar of mualaf, Perlis mufti, Perlis state government), argued that the certificates of conversion to Islam for the three children had been legally and validly issued, as Section 112 of the Perlis state law is conclusive evidence of the facts stated in it.
Among other things, Mohd Radhi had argued that the word "parent" in the Federal Constitution's Article 12(4) should refer to the father or mother instead of both parents, and claimed that Hansard records in Parliament and the Yang di-Pertuan Agong's launching of a Malay translation of the Federal Constitution in 2003 are the reasons why the Malay version of the Federal Constitution should be the authoritative text.
Article 160B states: “Where this Constitution has been translated into the national language, the Yang di-Pertuan Agong may prescribe such national language text to be authoritative, and thereafter if there is any conflict or discrepancy between such national language text and the English language text of this Constitution, the national language text shall prevail over the English language text.”
But the Malay translation of the Federal Constitution (both its 2010 and 2020 reprints) has this note on its very first page, stating: “Teks ini HANYALAH TERJEMAHAN oleh Jabatan Peguam Negara bagi Federal Constitution. Melainkan jika dan sehingga ditetapkan sahih di bawah Perkara 160B Perlembagaan Persekutuan, teks ini bukan perundangan”.
In English, the note means: “This text is ONLY A TRANSLATION by the Attorney General’s Chambers for the Federal Constitution. Unless and until prescribed as authoritative under Article 160B of the Federal Constitution, this text is not law.”
Acknowledging that the Federal Constitution's Malay translation carries this note by the Attorney-General's Chambers (AGC), Mohd Radhi argued that it was "wrong for the AGC to put that notation" and described it as an alleged "error by the AGC", insisting that the AGC is not the legislator and the Malay translation should be the authoritative text.
Mohamed Haniff Khatri Abdulla, the lead lawyer for MAIPs today, similarly also argued that the Yang di-Pertuan Agong's 2003 launch of the Malay translation of the Federal Constitution would be enough for it to be prescribed to be the authoritative text. He claimed there is no requirement for the Malay translation to be gazetted in order for it to be made authoritative.
Haniff Khatri argued that the Federal Court's decision in Indira's case would be wrong to rely on the English version of the Federal Constitution as the authoritative text.
But Srimurugan said the Perlis state legal adviser's arguments on the official text of the Federal Constitution contradicts what the then attorney-general Tan Sri Idrus Harun had said during the Opening of the Legal Year event in January 2023, where the latter proposed for the Malay translation to be prescribed to be the authoritative text and that the proposal is subject to the Yang di-Pertuan Agong's approval.
"That is in the Opening of the Legal Year, where AG says AGC also proposes prescription of Federal Constitution. It's still in process, this is confirmed by the AG himself at the Opening of the Legal Year last year. So this statement by the AG contradicts every other argument they bring to court," he said, adding that there is also no official gazetted Malay text of the Federal Constitution.
"Members of Parliament may say so many things in Parliament and recorded in Hansard, just because they say it does not mean it becomes lawful. Prescription is not mere launching, prescription has to be official act," he said, adding that there has to be some "official process" instead of just a "launch".
Even in the High Court judgment which had dismissed Loh's challenge against her three children's unilateral conversion, High Court judge Datuk Wan Ahmad Farid Wan Salleh said the word "prescription" in Article 160B would need more than the Yang di-Pertuan Agong's presence at an official function.
The High Court judge also said he could confidently say with certainty that the Malay translation is not the authoritative text of the Federal Constitution, as the Federal Constitution's Malay translation's first page itself carries the caveat note and acknowledges that the translation is yet to be prescribed under Article 160B.
The High Court judge followed the Federal Court's decision in the Indira case in using the English text of the Federal Constitution as the authoritative version.
Earlier during the hearing, the Court of Appeal's panel's chairman Hadhariah had at one point remarked that the Federal Court's decision in Indira's case has to be respected, as it had studied the matter in detail before deciding that unilateral conversion is unconstitutional.
"Because the Federal Court, in order to decide whether unilateral conversion is valid or not, it is not simple one sentence, the Federal Court researched everything, the wording used in Federal Constitution, the policy issue, equal parenting, welfare of the children," she said.
Loh was also represented today by lawyers Gunamalar Joorindanjn, Shamsher Singh Thind, and Thian Yee Chin.
MAIPs was also represented today by Aidil Khalid, Muhammad Hariz Md Yusoff, Danial Farhan Zainul Rijal and Ali Huzaifah Sharif Ahmed.
Perlis assistant legal adviser Ainul Wardah Shahidan also represented the other three respondents, the Perlis registrar of mualaf, the Perlis mufti and the Perlis state government.
Following the Court of Appeal's decision that Loh's children's unilateral conversion to Islam were quashed, MAIPs' lawyer Haniff Khatri informed the Court of Appeal that he had instructions from his client to not withdraw its appeal against its failed bid to get access to Loh's children for purposes such as providing Islamic lessons.
Haniff said that MAIPs would appeal the decision which quashed Loh's children's conversion to Islam, and that this would involve filing an application for leave to appeal at the Federal Court. (At the Federal Court stage, the Federal Court's leave has to be obtained first before it would proceed to hear an appeal.)
Haniff then asked for the other appeal on MAIPs bid to gain access to Loh's children to be deferred to another date, and for him to provide updates to the Court of Appeal subsequently on whether MAIPs had succeeded in obtaining leave to appeal today's decision. If MAIPs fails to obtain leave to appeal today's decision, Haniff said he would withdraw the bid to gain access to Loh's children.
The Court of Appeal scheduled April 22 for mention of MAIPs bid to get access to Loh's children.
Read here for a quick summary by Malay Mail of the key events in Loh's case and what the High Court decided in the two cases that were appealed to the Court of Appeal today.
The twins are due to turn 16 this year, while the youngest child is due to turn 13 this year.
