Written by: Averroes
(1.0) Introduction
Facts
The Kuala Lumpur High Court ordered that three Muslim children to be returned back to the their mother (Loh Siew Hong), after they were unilaterally converted to Islam. The husband was responsible for the conversion, who is currently in prison over a drug offence.
They were converted in 2019 as she was being hospitalised after being assaulted by the husband. The children, who were Hindus previously were converted by the Perlis religious authorities without the consent of the mother, but father only. This caused her to lose contact and custody of the children.
Despite a December, 2019 and March, 2021 High Court order to return the children to Loh's sole custody, which were valid and enforceable, she was still unable to embrace the children. This caused contempt of court, as it was suggested that the respondents ignored the court order for return of children.
The lawyer representing the respondent responded that Loh actually consented to have the children under the Welfare Department's care which she consented. Taking care of the children were the respondents and they even made communications with the mother. It would be odd if a kidnapper maintained communications with a mother.
Legal Process
Loh filed an application through a notice of motion on February 13, naming Nazirah Nanthakumari Abdullah, the senior preacher for Hidayah CentreFoundation and other parties detaining her three children as the respondents.
Loh was finally reunited with them. Her children was located in the adjoining witnesses room, guarded by policemen. Court granted a writ of habeas corpus for the immediate release of the three children from unlawful detention.
Writ of habeas corpus is where, a person could report an unlawful detention or imprisonment, thus court would then allow order for custody of the person. However, the court did not quash or invalidate the children's conversion, therefore it would mean they remained as Muslims with a Hindu mother.
Public Reaction
From the outside, around 100 individuals from different Islamic NGOs convened outside the court complex to express their concerns that, if the children were returned to the mother, what would happen to their Islamic religion?
The mufti of Perlis stated that, they would not take further action for the custody of the children, but they are only concerned, about the religion of the children.
Others claim that, it would be inhumane to separate the children from their biological mother as it would be traumatizing and emotionally heart-breaking to do so. The father converted the child, just so that the mother could not get in touch with the children as a form of revenge. Religion was used as a tool for retribution.
(2.0) Legal Analysis
(2.1) Syariah Law
According to Hukum Syarak, hadanah, or custody and guardianship is the responsibility of a person over children who are unable to to care for him or herself in terms of wellbeing, education and development. To ascertain the responsibility, we must observe the utmost priority so that their lives would not be devastated by the parent's divorce.
The ulema or jurists believe that the mother is more entitled to custody if the child is not mumayyiz (not aged more than 7 to 9 years old). If they are mumayyiz, can differentiate between bad and good, they have a choice to choose to stay with the father or mother.
For Loh's situation, Islamic jurists states that if the mother is non-Muslim, then custody rights should be given among the Muslim family members by judicial order. This is so that the child would be raised in according to Islam, which this based upon the Quranic verse 4:141.
However, Hanafi jurisprudence allows non-Muslim mothers to take care of Muslim children. This is because, they do not dictate the religion of the mother to disqualify custody, as mother's love do not change with religion.
However, other Islamic jurisprudence does not allow it, as the children may consume pork or other haram substances while growing up. Shafie' jurisprudence follows that, when father converts to Islam, the children must follow.
(2.2) Civil Law
Guardianship of Infants Act 1961
Under section 88, the court can order at any time the placement of a child in the care of father, mother or any other suitable party. Court will look at the child's best interest, parents' wishes and the child's own wishes.
For the caselaws below, court can order the custody to non-Muslim wife, since the marriage was done under the Law Reform (Divorce and Marriage) Act 1976 before the father converted to Islam. Hence, children and parents are still bound to civil law. Divorce also had to be done via the civil courts.
Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah [2004] 3 CLJ 156
In this landmark case, it was years before Loh and Indira, but it was among the cases that allowed the civil court to grant custody of the children to the mother. Though, the court attached a condition that the children would have to be raised as Muslims and not to be exposed to the Hindu faith.
Only the Syariah Court has jurisdiction to determine the validity of their conversion. The case also provided that consent of the converted spouse is already valid to convert the children to Islam.
Loh's case
The Perlis religious authorities defended the conversion. They knew that to convert a minor, both parents must consent. However, they continued on, believing that the mother would not appear. They based their legal arguments on a religious Perlis enactment, the children's interest in Islam, the father's consent and the incapability of the mother.
The Perlis enactment, must have been section 117 of the Administration of the Religion of Islam Enactment 2006 (Perlis enactment) it states that, a person who is not a Muslim may convert to the religion of Islam if he is of sound mind and 18 years old or if under 18, parent or guardian consents to conversion.
However, this law does not state that the consent of "both" parents are required. Only one is enough, which was the father. In fact, most Syariah enactments had not been amended to fit the 2018 Federal Court decision.
The Perlis enactment, particularly section 117 is contrary to the Federal Court decision in 2018 of Indira Ghandi, where both parents must consent, not only one.
Indira Ghandi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals, [2018] 1 MLJ 545;
This case is very similar to Loh's situation. Indira had three children, the same as Loh and that her husband also converted the children to Islam without her consent. The husband obtained custody of the children. The wife later sough judicial review for the administrative power of the registrar to issue certificate of conversion, under the Perak enactment.
The High Court then quashed the certificates and ordered the custody of the children. The Court of Appeal reversed the decision, therefore Indira appealed to the Federal Court. It was finally held that, since that the registrar was exercising a statutory function, the High Court had jurisdiction.
This is because, the issue of certificate did not involve Islamic or personal law, despite elements of conversion. It was not concerned about the status of children as Muslims, but the legality and constitutionality of administrative powers of the registrar, which was the issuance of the certificates of conversion.
It was ultra vires for the following reason. The children did not even utter the two clauses of affirmation of faith and not present before the registrar to issue the certificate, hence the failure of registrar's administrative powers.
Furthermore, the children were still bound to Guardianship of Infants Act 1961 (GIA), not Islamic Family law. Under sections 5 and 11 GIA and article 12(4) read with the 11th Schedule of the Federal Constitution, the consent of both parents are required before conversion of minors into Islam. Therefore, the certificates were void, since only the father unilaterally converted the children.
(3.0) Closing remarks
If we compare between Loh and the Indira Ghandi case, the former case obtained custody only while the religion of the children still remains intact. Contrast to Indira Ghandi, both custody was obtained and that the children had to revert back to Hinduism.
For Loh, even if her children remained as Muslims, love transcends beyond the boundaries of religion. For example, Rohana Abdullah was raised by her Chinese kindergarten teacher, Chee Hoi Lan, after she was left by her own parents as an infant. She was even deprived of Malaysian citizenship.
What touched Malaysians was that, she was raised as a Malay-Muslim, despite the Chinese heritage of her caretaker. This signals that, if any mother had a different religion than her children, she would not take a second glance and raise them with all love and affection.
(4.0) References;
Sharanjit Singh. (February, 2022) Judge orders children to be returned to Loh immediately. Retrieved from, https://www.nst.com.my/news/crime-courts/2022/02/773202/judge-orders-children-be-returned-loh-immediately
Tee, K. (February, 2022) KL High Court orders immediate release of Hindu mother Loh Siew Hong's children. Retrieved from, https://www.malaymail.com/news/malaysia/2022/02/21/kl-high-court-orders-immediate-release-of-hindu-mother-loh-siew-hongs-child/2042874
P Ramasamy (February, 2022) Loh custody case, overzealous religious officials caused the problem. Retrieved from, https://www.freemalaysiatoday.com/category/opinion/2022/02/20/loh-custody-case-overzealous-religious-officials-caused-the-problem/
FMT Reporters (February, 2022) Court's decision expected, says Perlis mufti. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/02/21/courts-decision-expected-says-perlis-mufti/
FMT Reporters (January, 2022) Let me live like everyone else, says woman raised by Chinese teacher. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/01/15/let-me-live-like-everyone-else-says-woman-raised-by-chinese-teacher/
Mogana Sunthari Subramaniam (2018) Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia. Discussion Paper No.15. Nagoya University Center for Asian Legal Exchange.
Azlan Shah Nabees Khan and Mohd Al Adib Samuri. (2020) Unilateral Conversion of Minors to Islam: Legal Discourse and Muslim Converts' Narrative on Custody and Religious Rights in Malaysia. Kajian Malaysia (early view)
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