PUTRAJAYA (Jan 10): In a unanimous decision, the appellate court has ruled the unilateral conversion to Islam of single mother Loh Siew Hong’s three minor children as unconstitutional. A three member panel also struck out a provision in the Perlis state Islamic enactment which allowed such conversions.
 
The panel led by Court of Appeal (COA) judge Datuk Hadhariah Syed Ismail said that the High Court judge had not addressed two pertinent issues in the judicial review proceedings previously brought by Loh, namely whether the unilateral conversion was lawful and whether the state enactment on allowing such conversions was constitutional.

“The failure of the High Court judge to answer these issues is a clear misdirection that is tantamount to error of law,” Hadhariah said after the panel deliberated for about half an hour on Wednesday.

She added that on the issue of unilateral conversion, the court is bound by the landmark 2018 Indira Gandhi case which held that both parents’ permission must be obtained before minor children can be converted to another religion.

“In this case, it is not disputed that the [mother] did not consent to the three children’s conversion to Islam,” she said about the conversion of the 15 year-old twin girls and the 13 year-old boy. 

In line with the decision, the court granted the reliefs sought by the 36 year-old single mother, which includes that the children are Hindu and that their conversion certificate is null and void.

Per the reliefs sought, the court also ruled that the state enactment, namely Section 117(B) of the Administration of the Religion of Islam 2006 which allows unilateral conversion of a minor, is unconstitutional and invalid.

On Wednesday, counsels for the respondents — Perlis Islamic Religious and Malay Customs Council (MAIPs), Perlis Registrar of Mualaf, state mufti Datuk Dr Mohd Asri Zainul Abidin and the state government — argued that there is a Bahasa Malaysia (Malay) version of the Federal Constitution as the authoritative text which has been prescribed by the Yang di-Pertuan Agong (YDPA).

This, they argued, is with reference to Article 160B of the Federal Constitution which states that when the Constitution has been translated to the national language, the YDPA may “prescribe” it to be the authoritative text, prevailing over the English language one.

It has to be noted that in the 2018 landmark decision, the apex court unanimously said that the English version of the Federal Constitution is authoritative since it has not been shown that the YDPA had prescribed the Malay translation to be authoritative.

The apex court said that in Indira’s case, the English version of the word “parent” in Article 12(4) Federal Constitution refers to both parents and prevails over the Malay translation of “ibu atau bapa” (mother or father).

Addressing this point, the COA ruled on Wednesday that there was no evidence of such a prescription.

“We are of the opinion [that] there is no clear evidence that [the] YDPA has prescribed the Bahasa Malaysia Federal Constitution as the authoritative text. Hence, [on the] interpretation of Article 12(4) of the Federal Constitution, we are still following the English version,” Hadhariah said.

The panel, which also included Datuk Hashim Hamzah and Datuk Azhahari Kamal Ramli, made no order as to costs.

Loh had appealed High Court judge Datuk Wan Ahmad Farid Wan Salleh’s decision last May, in which he ruled that her three children had not stopped professing the religion of Islam even under Loh’s care.

Wan Ahmad also said that there was no evidence before him to indicate that the children had reverted to the Hindu religion. Thus, he ruled that, for the welfare of the children, the status quo ought to be maintained.

Loh filed a judicial review in March 2022, seeking declarations that her children are Hindu — her ex-husband Muhammad Nagahswaran Muniandy’s religion prior to his conversion — and to reverse the registration of her children’s conversion to Islam in July 2020.

Loh was represented by A Srimurugan, Dr Shamsher Singh Thind and J Gunamalar. Senior counsel Mohamed Haniff Khatri Abdulla appeared for MAIPS, while Perlis state legal adviser Mohd Radhi Abas appeared for the other respondents.

The single mother who was present at the proceedings on Wednesday, did not speak to the press after the case. MAIPS has indicated that it will be appealing the decision.

Loh had filed for divorce from her ex-husband in December 2019, which was finalised in September 2021. In March 2021, she secured a final court order, giving her full and sole custody of the three children.

Despite this, she claimed that her children were kept from her, as they had been placed under the care of the Social Welfare Department. She was finally reunited with them when the High Court granted her habeas corpus application in February last year.  

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