KUALA LUMPUR, Jan 25 — The Court of Appeal today did not proceed to hear a court case revolving around a Muslim convert father’s conversion of his three young children to Muslim without the Hindu mother’s consent or knowledge, as a new issue popped up today regarding the alleged existence of an official translation of the Federal Constitution to the Malay language.
Today was initially scheduled for the hearing of the appeal by both the Selangor Registrar of Muslim converts and the Selangor Islamic Religious Council (Mais) against the Hindu mother’s successful quashing of the three children’s unilateral conversion.
Just before the court hearing could start this morning, the lawyer for both Mais and the Selangor Registrar of Muslim converts, Mohamed Haniff Khatri Abdulla, highlighted to the Court of Appeal about the possible existence of an authoritative Malay version of the Federal Constitution.
Haniff Khatri pointed to a November 29, 2021 posting by a portal named Samudera regarding the remarks of Datuk Julita Ilhani Abd Jabbar, whom he described to be a lawyer.
Haniff quoted Julita Ilhani as saying that the Yang di-Pertuan Agong had in 2003 “launched” the Attorney General’s Chambers’ (AGC) Malay translation of the Federal Constitution and also cited her as claiming that it is the authoritative text.
Article 160B states that: “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.”
Haniff argued that Article 160B of the Federal Constitution does not require the Malay translation of the Federal Constitution to be tabled in Parliament to become authoritative, and argued that the Agong’s “launching” of the Malay translation could amount to “prescribing” it as authoritative.
“To me, ‘launching’ itself would most probably be in accordance with Article 160B, YDPA appeared, Article 160B doesn’t require tabling in Parliament,” he told the Court of Appeal in an online hearing over the video-conferencing platform Zoom.
Haniff Khatri said Datuk Zainal Rijal Abu Bakar, who is also a lawyer for Mais, had sought to obtain information but had yet to receive confirmation from the AGC regarding the Malay translation.
Haniff Khatri said this was an important point to be clarified as he said there would be no need to refer to past court decisions involving unilateral conversion of children to Islam — such as in M. Indira Gandhi’s case or in R. Subashini’s case — if the Malay translation of the Federal Constitution is authoritative, as he said these past court cases have all used the Federal Constitution in the English language.
The Federal Court’s unanimous decision in 2018 in Indira’s case had said the English version of the Federal Constitution is authoritative since it has not been shown that the Yang di-Pertuan Agong has prescribed the Malay translation to be authoritative, and ultimately concluded that it was unlawful for a parent to unilaterally convert the children to Islam without seeking the other parent’s consent.
For the Federal Constitution's Article 12(4) which says a 'parent or guardian' shall decide the religion of a person under the age of 18 for matters such as religious instruction, the Federal Court had in Indira’s case said the English version of 'parent' prevails over the Bahasa Malaysia translation of 'ibu atau bapa' (mother or father), and had also pointed out that the Federal Constitution's Eleventh Schedule says words in the singular (e.g. parent) should be interpreted to include the plural (e.g. parents), and vice versa.
English or BM as the authoritative text?
Based on Malay Mail’s check of the AGC’s Federal Legislation portal where official text of laws in Malaysia including the Federal Constitution can be accessed, both the English version and Malay translation of the Federal Constitution were displayed.
The Federal Constitution displayed were from the latest reprint dated October 15, 2020, with the Malay translation of the Federal Constitution as of October 2020 having this note on its very first page: 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.
The note would mean that the Malay translation of the Federal Constitution was stated to be “only a translation” by the AGC, and that it is not law unless and until it has been prescribed as authoritative.
According to the list of amendments at the end of the Federal Constitution as viewed by Malay Mail, Article 160B is an amendment that was introduced through the Act A1130 and which came into force from September 28, 2001. The Federal Constitution for Malaysia has been in existence since 1963 when Malaysia was formed.
The other reason raised by Haniff Khatri today was that the main issues that would be heard in today’s case would also be the same issues that would be raised tomorrow at the Federal Court in a separate case also involving a Muslim convert father’s unilateral conversion of five young children to Islam without the wife’s knowledge.
Haniff Khatri said he would also raise the issue about the possible existence of an authoritative Malay translation of the Federal Constitution at the Federal Court tomorrow, as he is also involved in the court case there.
Haniff had also said that the Federal Court had in October last year heard a court case involving the validity of Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 — which enables Shariah courts in Selangor to carry out the judicial review function — and that it is pending a decision, saying that it would support Mais’ arguments in today’s unilateral conversion case if the Federal Court finds Section 66A to be valid and would “limit” this case from being brought to the civil courts. “Of course, if not in our favour, it becomes redundant and need not necessarily be argued here.”
Federal counsel Natrah Mazman, who represented the Malaysian government today, then said she would check on this matter regarding the Malay translation of the Federal Constitution as it was just only raised by Haniff Khatri today.
Haniff Khatri asked for today’s appeal to not be heard today, and be deferred until the Federal Court decides on tomorrow's case or until there is confirmation from the AGC on whether the Malay translation of the Federal Constitution had been launched.
Lawyer Sa’adiah Din, who represented the Hindu mother and her three children who are seeking to quash their conversion to Islam, did not object to the postponement request.
“We are hearing for the first time this morning whatever Encik Haniff brought up before this court, but I have no problem if this matter is adjourned. I have no objection to that, for the clarification to be made. I think this is a very important issue, we are also looking forward to see whether or not there is a BM version of the Federal Constitution,” she said.
Natrah did not object to Haniff Khatri’s request for today’s hearing to be postponed.
The Muslim convert father, who did not appeal the High Court decision that quashed his children’s unilateral conversion but remains a party to the case, was not represented by lawyers today.
Court of Appeal judge Datuk Suraya Othman, who was chairing the three-judge panel today, said it needs to be verified whether there was such a launching by the Yang di-Pertuan Agong and then directed for the case to go for case management for new court dates to be fixed.
The two other judges on the panel today are Datuk Azizah Nawawi and Datuk Hashim Hamzah.
What happened in this case
Based on the High Court judgment and other court documents sighted by Malay Mail via a file search, the couple who were initially both non-Muslims had married in a civil marriage in 2001, with their three children raised in and taught the Hindu religion.
On March 16, 2015, the father brought the three children — without the Hindu mother’s knowledge or consent or presence — to a mosque in Batu Muda, Selangor, where he then converted himself and the children to Islam. At that time, the children were months away from reaching the ages of 13, 11 and eight that year.
On March 17, 2015, the father brought the three children to the Hidayah Centre Foundation in Taman Melawati for the filling up of religion conversion forms and to register the children’s conversion to Islam. This was also without the mother’s knowledge or consent.
The mother on March 18 and March 19, 2015 lodged two police reports respectively regarding the children’s conversion and the alleged forcing of putting on their thumbprints on forms at the Hidayah Centre Foundation, and had also on March 19, 2015 wrote a letter to the Federal Territories Islamic Religious Council to complain about her children’s alleged forced conversion into Islam.
Mais later wrote on May 26, 2015 to the mother to confirm it had received her complaint regarding the children’s conversion and would investigate it, and in a June 3, 2015 letter told her that the registration of the children’s conversion to Islam was validly done according to existing laws.
The civil High Court in Kuala Lumpur on June 23, 2015 gave the mother the custody, care and control of the three children. Following the couple’s March 2019 divorce, the mother was given guardianship, custody, care and control of the three children and they are understood to be living with her.
In April 2019, the mother and the three children filed a lawsuit via a writ of summons against the father, the Selangor chief registrar of “muallaf” or Muslim converts, Mais, the Selangor state government and the Malaysian government. The Selangor state government later no longer remained part of the lawsuit.
On September 29, 2020, High Court judge Datuk Mohd Zaki Abdul Wahab in the High Court in Shah Alam decided that the conversion of the three children — aged 13, 11 and eight at the year of their conversion in 2015 — to Islam was invalid and that their conversion could not be registered by the Selangor registrar of Muslim converts.
Among other things, the judge ruled that a child’s conversion to Islam requires the consent of both parents, citing a Selangor state law and two court decisions (the Federal Court in Indira’s case and the Court of Appeal regarding a Buddhist-turned-Muslim mother’s unilateral conversion of two children without the Buddhist father’s consent) which the judge said was binding on the High Court.
The High Court judge had declared that the three children’s conversion to Islam were invalid and quashed, and ordered Mais to update its records to give effect to the court decision that the three children’s conversion were invalid, and also ordered the father, Mais and the Selangor registrar of Muslim converts to pay a combined RM12,000 in costs.
Mais and the Selangor registrar of Muslim converts then filed an appeal against the High Court decision, which was scheduled to be heard today by the Court of Appeal but will now be heard at a later date instead.
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