Mais loses final appeal to restore five kids' unilateral conversion to Islam, Federal Court upholds Indira decision where both parents' consent needed

·8-min read
Chief Justice Tun Tengku Maimun Tuan Mat is pictured at the Opening of the Legal Year 2022 at the Palace of Justice in Putrajaya January 14, 2022. — Picture by Yusof Mat Isa
Chief Justice Tun Tengku Maimun Tuan Mat is pictured at the Opening of the Legal Year 2022 at the Palace of Justice in Putrajaya January 14, 2022. — Picture by Yusof Mat Isa

KUALA LUMPUR, Jan 26 — The Selangor Islamic Religious Council (Mais) today failed in its final court bid to reinstate the 2018 conversion of five young children to Islam when they were aged in the range of around three and nine years old.

A three-judge panel in the country’s highest court chaired by Chief Justice Tun Tengku Maimun Tuan Mat unanimously ruled in favour of the mother and dismissed the application for leave to appeal filed by both the Mais chairman and the Mais registrar of muallaf or Muslim converts.

In reading out the decision, Tengku Maimun pointed out that Section 117 of the Administration of the Religion of Islam (Selangor) enactment clearly stated that both the mother and the father must agree to their children’s conversion.

“This is our unanimous decision. The application does not meet the threshold of Section 96 of the Courts of Judicature Act for leave to be granted.

“The issue before us has been settled by the decision of this court in M. Indira Gandhi’s case. The courts below were therefore correct in following Indira Gandhi.

“Further the provision of Section 117 of the enactment is very clear that a person who is not Muslim may convert to the religion of Islam if he is of sound mind and attain 18 years or if he has not attain, the mother and father must consent to the conversion.

“The application is therefore dismissed,” Tengku Maimun said.

The court also awarded RM30,000 as costs to the mother.

The Federal Court had earlier heard the submissions from Mais’ lawyer, Mohamed Haniff Khatri Abdulla, and Toh Lee Khim, the lawyer for the children’s mother.

The two other judges on the Federal Court panel today were Datuk Vernon Ong Lam Kiat and Datuk Sri Hasnah Mohammed Hashim.

In Malaysia, those who wish to appeal in a lawsuit to the Federal Court would first have to seek leave to appeal.

For the uninitiated, the M. Indira Gandhi case — hailed as a landmark decision that reaffirms the civil courts’ constitutional role and powers — saw the Hindu mother succeeding in obtaining a Federal Court ruling in 2018 that quashed her ex-husband’s unilateral conversion of their three children to Islam without her knowledge or consent.

The case also cleared up the confusion by declaring that unilateral conversions of children to Islam are unlawful.

In this case, Mais had sought to appeal against a lower court ruling that granted the mother’s (named only as W) application to revoke the conversion of her five children to Islam, made unilaterally by her ex-husband (known as L).

The father converted the five children, aged between three and nine, in November 2018 without W’s knowledge and consent.

She only knew that the children had become Muslims after receiving a letter from Mais in August 2019.

The case started on September 6, 2019 when the mother filed a judicial review in the High Court challenging her children’s unilateral conversion to Islam.

She named Mais, the Mais registrar of Muslim converts, the Education Ministry director-general, the government of Malaysia and the father L as the five respondents.

Both the Education Ministry director-general and the government of Malaysia did not object to the case back then.

In the judicial review, the mother sought court orders to quash the children’s conversion and their registration as Muslim converts and for the court to order both Mais and the Selangor registrar of Muslim converts to cancel the children’s registration and remove the children’s registration as Muslim converts from Mais and the registrar’s records.

On July 21, 2020, High Court judge Datuk Seri Tun Abd Majid Tun Hamzah ruled in favour of the mother, deciding that the five children’s conversion to Islam were invalid under a Selangor state law and quashed both their conversion and their registration as Muslim converts.

Among other things, the High Court judge had ruled that the Federal Court’s latest decision in 2018 in Hindu mother M. Indira Gandhi’s case — where it was decided that children’s conversion to Islam need both parents’ consent — was binding.

The case then went on to the Court of Appeal.

And on August 20 last year, an all-Muslim three-judge panel at the Court of Appeal unanimously dismissed the appeal by Mais and the Selangor registrar of muallaf, upholding the High Court decision.

In both the appeal bids to the Court of Appeal and Federal Court, only Mais and the Selangor registrar of muallaf appealed against the decision to quash the children’s unilateral conversion to Islam.

The other three whom the mother first sued — her ex-husband L, the Education Ministry director-general and the government of Malaysia — had not appealed against either the High Court or Court of Appeal decisions even though they remained part of the suit at the Federal Court level.

In W’s case, the High Court noted in its July 2020 judgment that the father L had not attended court hearings and had been unrepresented after his lawyer withdrew from the case. The High Court also noted that the location of the father and four of the children were unknown throughout the court hearing.

It is understood that a court order was issued on January 29, 2019 requiring the father to submit the passports of the children and to disclose their whereabouts.

The High Court slapped the father with a contempt of court notice on February 6, 2020 for non-compliance.

Based on court documents, the court then awarded custody of all five children to the mother.

On September 22, 2020, another High Court judge — as part of the couple’s divorce — granted sole custody, guardianship, care and control of the five children to the mother.

W and L were formally divorced in December 2020.

Prior to the Federal Court’s decision today, the lawyer for Mais, Mohamed Haniff, argued that there was a constitutional issue that needed to be clarified.

He asserted that there is a Bahasa Malaysia translation of the Federal Constitution and argued that the BM version, and that it should be taken as the authoritative version as the terms ibu and bapa have been defined.

In Article 12(4) of the Federal Constitution, the term “a parent or guardian” shall decide the religion of a person under the age of 18 for matters such as religious instruction is used in the English text.

In the BM translation of the Constitution, the phrase ibu atau bapa is used instead, which changes the meaning slightly to “mother or father”.

Mohamed Haniff said the leave appeal proposed before the Federal Court involved the question of whether there is a constitutionally valid Federal Constitution in the national language already prescribed by the Yang di-Pertuan Agong under Article 160B.

Article 160B states that the King may prescribe the translated Constitution to be authoritative and the Bahasa Malaysia version will prevail over the English version.

Mohamed Haniff then produced a news article which reported the King officiating the Attorney General’s Chambers’ (AGC) Malay translation of the Federal Constitution in September 2003.

The Mais lawyer argued that this official ceremony can be taken as an indication of the prescription by the King.

He insisted that this was an important point to be clarified, arguing that there would then 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 the R. Subashini’s case, which were based on the English language — if the BM translation of the Federal Constitution is the authoritative version.

Mohamed Haniff is also representing Mais in a separate unilateral conversion case involving another Muslim convert father who converted his three children without their Hindu mother’s knowledge or consent.

The case was scheduled for hearing at the Court of Appeal yesterday, but the panel did not proceed.

In her submission today, Toh produced a copy of the Federal Constitution in the national language obtained from the AGC’s Federal Legislation website.

The Malay translation of the Federal Constitution copy 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.

Toh argued that the 2003 ceremony attended by the King should not be construed as prescribing the Federal Constitution in the national language as a valid text.

Toh said there was no evidence of any prescription adduced then, which was the sole reason the Federal Court in Indira Gandhi’s case proceeded on the basis of the English version of the Constitution as the authoritative text.

In reply, Tengku Maimun said the Federal Court made a unanimous decision in 2018 in Indira’s case on the language issue, ruling the English version of the Federal Constitution is the authoritative text since it has not been shown that the Yang di-Pertuan Agong has prescribed the Malay translation to be authoritative.

She pointed out that the court had ultimately concluded that it was unlawful for a parent to unilaterally convert the children to Islam without seeking the other parent’s consent.

She added that the Federal Constitution's Eleventh Schedule said that words in the singular (eg parent) should be interpreted to include the plural (eg parents), and vice versa.

* An earlier version of this article contained an error which has since been rectified.

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