A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa
KUALA LUMPUR, Jan 26 — The Selangor Islamic Religious Council (Mais) is attempting to ask the Federal Court to reinstate the 2015 conversion of five young non-Muslim children to Islam when they were aged in the range of around three and nine years old.
This comes after both the High Court and Court of Appeal had quashed the children’s conversions, which were done unilaterally by the Muslim convert father without the non-Muslim mother’s consent.
Today, the Federal Court is scheduled to hear the application for leave to appeal by both the Mais chairman and the Mais registrar of muallaf or Muslim converts.
In Malaysia, those who wish to appeal in a lawsuit to the Federal Court would first have to seek leave to appeal.
If the Federal Court grants leave to appeal, it would then hear the appeal before proceeding to decide on the appeal. If the Federal Court does not grant leave to appeal, it would be the end of the matter and the Court of Appeal decision in the mother’s favour would stand.
Here are the facts
Based on court documents sighted by Malay Mail through a file search, the mother W and the father L — both initially non-Muslims — had married in a civil marriage in 2009 and had five children in the non-Muslim marriage. Malay Mail is withholding the names of the parents in the interest of the children.
In May 2018, the father L initiated divorce proceedings through the civil courts without the mother W’s knowledge.
On November 1, 2018, the father himself converted to be a Muslim, and on the same day also had their five children converted to Islam without the mother’s consent. Mais claimed the father had brought the five children to the Gombak district Islamic religious office.
On the day of their conversion, the eldest child was still nine, while the other children were aged nine, six, five, and the youngest child was still aged three years old. The eldest and youngest child were due to turn 10 and four years old respectively in the year 2018.
While the couple’s divorce process was ongoing and before it was finalised in December 2020, Mais had in an August 13, 2019 letter written to the mother to confirm that the five children had been converted to Islam. In an affidavit, the mother said she did not know of the children’s conversion until she received the Mais letter.
Based on court documents, the mother said she believed the children who were still young and who did not know Arabic could not have uttered the Shahadah or the proclamation of faith to convert to Islam and said they would not have understood it, while also saying as a whole that the conversion is invalid as it was done without her consent as their mother.
Based on court documents, Mais secretary Ahmad Shahir Makhtar claimed the five children’s conversion via the uttering of the Shahadah was made before two witnesses named Mohd Amir Al-Karim Ng Abdullah and Maskur Che Ma, and believes the conversion procedures were fulfilled.
Amir in court documents claimed that he had explained about Islam to the five children and that their conversion was done before Mais officer Mazlina Osman, while Ahmad Shahir believed the five children were given explanations about the Shahadah‘s meaning and a Muslim’s duties and obligations and the consequences of conversion to Islam and responsibility towards non-Muslim family members.
On September 6, 2019, the mother filed a lawsuit through a judicial review, naming five respondents namely Mais, the Mais registrar of Muslim converts, the Education Ministry director-general, the government of Malaysia and the father L. Both the Education Ministry director-general and the government of Malaysia did not object to the case.
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 at the High Court in Shah Alam 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.
On August 20, 2021, a Court of Appeal panel composed of judges Datuk Azizah Nawawi, Datuk Abu Bakar Jais, Datuk Seri Mariana Yahya unanimously dismissed the appeal by Mais and the Selangor registrar of converts against the 2020 High Court decision favouring the mother W.
This meant that the Court of Appeal maintained and upheld the High Court decision which had quashed the five children’s unilateral conversion.
In both the appeal bids to the Court of Appeal and Federal Court, only Mais and the Selangor registrar of muallaf or Muslim converts appealed against the decision to quash the children’s unilateral conversion to Islam.
The three others which the mother W had sued — the father himself, the Education Ministry director-general and the government of Malaysia — did not appeal against the High Court’s and Court of Appeal’s decisions in the mother’s favour. These three including the father L remain part of the lawsuit at the Federal Court level.
Who was given legal custody of the children?
When contacted, lawyer Toh Lee Khim — who represents the mother and the children — confirmed to Malay Mail that the father had previously absconded with or taken away four of the children and had not informed the whereabouts of the children until today, while currently only the youngest child is with the mother.
The High Court — which had quashed the five children’s unilateral conversion to Islam — had in its July 2020 judgment also noted that the father L had not attended and was not represented in court after his lawyer had withdrawn from the case, while also noting that the location of the father and four of the children were unknown throughout the court hearing.
It is understood that there was a court order on January 29, 2019 for the father to hand over the passports of the children and to inform where they were located, with his subsequent non-compliance resulting in the High Court in Kuala Lumpur issuing an order for contempt of court against the father on February 6, 2020.
Based on court documents, the custody for all five children was actually given by the courts 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. The couple became formally divorced in December 2020.
M. Indira Gandhi speaks to the press at the Ipoh police district headquarters November 18, 2021. — Picture by Farhan Najib
Deja vu?
If all these sound familiar, there are actually other unilateral religious conversion cases that have reached the court in recent years.
The most well-known might be that of Hindu mother M. Indira Gandhi, who had succeeded in obtaining a Federal Court ruling in 2018 that quashed her ex-husband’s unilateral conversion of her three children to Islam without her knowledge or consent.
The Ipoh mother is however still waiting to be reunited with the youngest of her three children, who was snatched away by the Muslim convert then-husband just before he converted the children and sought child custody rights in the Shariah court.
Indira has since sued the police and the Home Ministry over the authorities’ alleged failure to arrest her ex-husband and return her daughter who was abducted by him.
A High Court judicial commissioner has also questioned the police’s seriousness in locating the fugitive ex-husband and the abducted child.
Separately, there is also a case involving an initially non-Muslim couple in Selangor, with the High Court in October 2018 quashing the Buddhist father’s two children’s unilateral conversion to Islam in Kuala Lumpur by the Buddhist-turned-Muslim mother.
Following the Court of Appeal’s October 2021 decision again in the Buddhist father’s favour, the Muslim convert mother and the Federal Territories Registrar of Muslim Converts have filed for leave to appeal at the Federal Court.
Their leave to appeal matter is scheduled for case management on March 28 and scheduled to come up before a Federal Court panel on April 12, based on the court’s e-filing system.
Yesterday, the Court of Appeal was also scheduled to hear an appeal by Mais and the Selangor registrar of Muslim converts in a unilateral conversion case involving three children that were born in a civil marriage and raised as Hindus. Like today’s case, Mais and the Selangor registrar are the ones appealing against the quashing of the conversion of the three children who are living with the Hindu mother, while the Muslim convert father is not the one appealing.
The Court of Appeal case yesterday — which involved similar legal issues to today’s case involving W and L and their five children — did not proceed for hearing, after Mais lawyer Mohamed Haniff Khatri Abdulla had raised questions on whether there exists a Malay translation of the Federal Constitution that could be the authoritative text instead of the English version which has been used as the authoritative text for decades.
Checks by Malay Mail show that the Court of Appeal case involving the three Hindu-born children’s religious status is scheduled for case management on February 25.