PUTRAJAYA (May 14): Single mother Loh Siew Hong, who has been embroiled in a legal battle over her three minor children's religious status with the Perlis religious authorities, has succeeded in her appeal at the Federal Court, which has ruled that her children remain non-Muslim.
This follows the apex court's decision on Tuesday, which quashed the Perlis Islamic Religious and Malay Customs Council’s (MAIPs) bid to challenge the Court of Appeal’s (COA) verdict earlier this year, which ruled that the unilateral conversion of Loh’s three minor children was unconstitutional.
The ruling also essentially means that the appellate court's decision stands — that is, that the state enactment, namely Section 117(b) of the Perlis Administration of the Religion of Islam Enactment 2006, which allows for the unilateral conversion of a minor, is unconstitutional and invalid.
In a unanimous decision, the three-member panel led by Chief Justice Tun Tengku Maimun Tuan Mat dismissed Maips, the Perlis Registrar of Mualaf, Perlis Mufti Datuk Dr Mohd Asri Zainul Abidin, and the state government's leave application to appeal the COA's ruling, on the grounds that their application has already been decided (in a precedent case), and there was no need for the Federal Court to ventilate the matter further.
FC: Application essentially seeks to revisit Indira Gandhi decision on unilateral conversion
Tengku Maimun, who sat along with Federal Court judges Tan Sri Nallini Pathmanathan and Datuk Abu Bakar Jais, said that the application for leave essentially seeks to revisit the 2018 landmark decision in M Indira Gandhi where the court decided that both parents’ permission must be obtained before minor children can be converted to another religion.
In that landmark case, the apex court unanimously said that the English version of the Federal Constitution is the authoritative one, since it had not been shown that the Yang di-Pertuan Agong (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) of the Federal Constitution refers to both parents and prevails over the Malay translation of “ibu atau bapa” (mother or father).
On Tuesday, the Chief Justice zoomed in on the three core matters that had to be decided on:
First: If the Malay version of the Federal Constitution has been prescribed according to the Constitution. — For this, the panel noted that the relevant provision is Article 160B of the Constitution, which specifies when the Bahasa Melayu text may become the authoritative text. They noted that the appellants' counsels did not address the panel on this specific article.
Tengku Maimun noted that the court below had made findings on this issue, and therefore, saw no reason for it to be ventilated further at the apex court.
Second: If the word "parent" and "parents" were used interchangeably in the Constitution, which was not addressed in Indira Gandhi. — For this, the panel ruled that this had been covered in the landmark case, and there was no need to revisit it.
Third: The Indira Gandhi decision is confined to the Federal Territories and is not applicable to Perlis. — For this, the panel noted that the landmark decision was binding throughout the nation and they were unable to accept the argument that the landmark decision was only confined to the Federal Territories.
Panel peppered counsels with questions
These issues arose from the submissions of the appallents' counsels, Mohamed Haniff Khatri Abdulla and Perlis state legal adviser Mohd Radhi Abas. Haniff argued that there is a Bahasa Melayu version of the Federal Constitution as the authoritative text which had been prescribed by the YDPA in September 2003.
Their submissions were peppered by questions and observations by the panel. Tengku Maimun noted that since the Indira Gandhi decision to the present, there has been no evidence that the Malay text has been prescribed. She also highlighted that the notation on the Malay version of the supreme law of the land only states that it is a form of translation, and not law.
She added that this issue could easily be resolved if the Attorney General's Chambers issued a statement, if there is such an authoritative text.
Mohd Radhi submitted that Islamic enactments fall under the state's jurisdiction, and if that state allows for unilateral conversion, the Federal Court cannot encroach on it. To this, Tengku Maimun observed that if that were taken as a sound argument, then the impact of decisions by the apex court would only be applicable selectively.
Loh: I don't want Maips to disturb me again and again
Earlier this year, the COA reversed the High Court's decision on the conversion of the 15-year-old twin girls and the 13-year-old boy, ruling that the High Court had failed to add whether the unilateral conversion was lawful and whether the state enactment on allowing such conversions was constitutional.
Loh's ex-husband Muhammad Nagahswaran Muniandy had converted the children in July 2020.
Speaking to the press following the decision on Tuesday, a grateful Loh said that she just wanted Maips to "leave her alone".
"[I am] very happy [with] the decision and I really don't want Maips to disturb me again and again," she said, flanked by her lawyers J Gunamalar, A Srimurugan, and Dr Shamsher Singh Thind.
Haniff told the press that he was unhappy with the decision as there were sound constitutional questions to be considered by the bench.