Why are unilateral conversions still an issue in Malaysia?

 

Loh Siew Hong was reunited with her three children following a High Court decision in Kuala Lumpur last week. (P David Marshel pic)

PETALING JAYA: A single mother, Loh Siew Hong has regained custody of her three children who were converted to Islam without her permission but the issue of unilateral conversions is far from over.

Many observers thought the 2018 Federal Court ruling on the M Indira Gandhi case had settled the issue of unilateral conversions. The apex court had then ruled that the words “parent or guardian” under Article 12 (4) of the Federal Constitution meant both parents or guardians.

The Loh case has reignited a fierce debate on the conversion issue.

Perlis mufti Asri Zainul Abidin defended the conversion of Loh’s children, saying it was in line with the relevant enactment in Perlis that allows for unilateral conversions. Others raised the issue of the discrepancy between the English and Bahasa Malaysia (BM) versions of the Federal Constitution.

FMT spoke to lawyers Fahri Azzat and Ravi Nekoo on these issues.

Implications of the 2018 Federal Court ruling

Fahri said the Indira Gandhi case determined that civil courts had supervisory jurisdiction over inferior tribunals and courts, including the shariah courts.

Noting how the Federal Constitution did not exclude the civil court’s supervisory role over the shariah courts, he said there was procedural impropriety in the conversion of Indira’s children, which warranted their conversion certificates being quashed.

“Constitutionally, both parents have to consent to their child’s change of religion, failing which the conversion is null and void,” he said.

Differences between English and Malay text

Asri contended that unilateral conversions were legal under the Bahasa Malaysia version of the Federal Constitution, which states that either parent could agree to the child’s conversion.

He said the Raja of Perlis, Tuanku Syed Sirajuddin Syed Putra Jamalullail, who became Yang di-Pertuan Agong in 2003 was instrumental in issuing an authoritative Malay text of the Federal Constitution.

When asked whether there was a discrepancy between the English and Malay versions, Fahri said: “It is not true”.

“The authoritative version of the Federal Constitution is the English version, not the BM version, which has not attained legal status or authority,” he said. “To talk about a discrepancy between an authorised version and an unofficial one is a non-starter.”

State law and the Federal Constitution

Ravi said the Federal Constitution was the supreme law of the country.

“The states are given powers to make laws by the Federal Constitution,” he pointed out.

Fahri too said the state law could not supersede the Federal Constitution.

State powers concerning Islam

Fahri said although administration of Islam was under the purview of the states, this was a very rough or simplistic account of the matter.

He said only civil courts had powers of interpretation over laws that related to statutes and enactments, including shariah law.

Position of the Federal Court and the shariah court

Fahri noted that the superior courts, such as the High Court, Court of Appeal, and Federal Court, were directly named and provided for in the Federal Constitution.

However, this is not the case with shariah courts, which have to be established by state enactments. “Theoretically, if a state did not pass laws establishing the administration of Islamic law, it would not exist,” said Fahri. “That is not the case with civil courts, which existed since the nation’s independence in 1957.”

Dispute over jurisdiction

Ravi said there should not be any dispute as Article 75 of the Federal Constitution stated that if any state law was inconsistent with federal law, then the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.

“The Federal Constitution is clear in that regard,” he said.

Power of Shariah Court to conduct judicial reviews

In wading into the debate, PAS called for the shariah court to be granted judicial review powers when it came to conversions.

Fahri believes PAS does not know “what it is asking for”, saying there is no such concept in Islamic law. “It (judicial review) is a wholly Western judicial concept,” he said. - FMT