By P. Ramakrishnan
Ramakrishnan: The consent of both parents in mandatory in cases involving children of minor age. The Federal Constitution states this. So what happened in the High Court on 11 May 2023?
The High Court’s dismissal on 11-5-2023 of the single mother’s judicial review application to nullify her children’s unilateral conversion was not only disappointing, but alarming as well.
Without going into the merits of the case as reported, my main concern is that the High Court was not guided by the provisions of the Federal Constitution. In cases involving children of minor age, the consent of both parents is mandatory. This is explicitly clear in the Federal Constitution.
In Loh Siew Hong’s case, the single mother had contended that she did not give consent for her children to be converted to Islam. This is the core issue in this matter. This is the underlying contentious issue. This is the fundamental requirement under the Federal Constitution.
Any other supporting evidence to show that the children were observing the rituals of Islam doesn’t carry any weight to validate their conversion.
Even if her children were practising Islam in their daily lives 15 months ago while under Loh’s custody – as claimed in an affidavit by the Perlis Islamic Religious and Malay Customs Council (MAIP) – it absolutely does not nullify the provision of the Federal Constitution. This is a 15-month-old reference. What is the present status 15 months later? We are not told what the present situation is. Are they still practising Muslims?
Loh’s affidavit had denied this assertion. But this fact did not make any difference. According to the judge, Loh’s denial only amounted to a bare denial and nothing more and that she did not deny the affirmative assertion that the children continued to profess Islam while under her custody – which was 15 months ago!
Why was more weightage given to the claim by the religious authorities regarding the status of the children which was 15 months old as compared to Loh’s disagreement of that claim? Loh’s assertion was simply dismissed as a “bare denial.”
Among others, she is seeking declarations that her children are Hindu and that the children are legally unfit to embrace Islam without her approval. She is also seeking a declaration that the Perlis state’s legal provision that allows for one parent to unilaterally convert a child is unconstitutional.
But the court felt that the force of evidence supported the dismissal of Loh’s application:
1. The children had recited the kalimah syahadah to convert to Islam on July 7, 2020;
2. There was no evidence that the children had reverted to the Hindu religion;
3. The children were practising the Islamic religious rituals;
4. The court was satisfied that the legal requirements under the state’s legal provision allowed for one parent to convert a child unilaterally.
Based on the above, the KL High Court dismissed Loh’s application.
As far as the Federal Constitution is concerned, these are non-issues and have no bearing on the requirement of consent by both parents. It is mandatory and must be adhered to overriding the so-called “force of evidence” cited by the honourable judge.
By now it must be beyond question – after the Federal Court had ruled in the case of Indira Gandhi – the consent of both the parents is essential before children of minor age could be converted to Islam. This is an absolute necessity for the conversion to be legally binding. Without this consent from both parties, the so-called conversion is not legally valid.
In Loh’s case, her husband abducted her children in 2019 without her knowledge and ran away to Kedah and unilaterally converted his children in 2020.
It was only when she came to be aware of her children’s whereabouts that Loh successfully initiated court proceedings to obtain custody of her children in 2021. But the children were not released to her. Loh was only reunited with them in early 2022 via a court order.
It is bewildering that the High Court has completely shut its eye to the provisions of the Federal Constitution. It is a wonder how a state religious enactment could override the Federal Constitution!
It is a betrayal of fundamental rights when the judiciary fails as the guardian of rights.
First published at this link on 15 May 2023
(The views expressed are those of the contributor and do not necessarily reflect the views of Rebuilding Malaysia.)P Ramakrishnan is the long-serving former president of Aliran who served three and a half decades on its executive committee, has been with Aliran since its inception in 1977. Now an ordinary Aliran member, he continues to highlight issues of public interest to a larger audience.