STATES must take proactive steps to ensure their provisions concerning the conversion of minors are in line with the Federal Constitution, legal experts said.

Their comment comes after Perlis mufti Mohd Asri Zainul Abidin maintained that the conversion of three children by the state religious department is legal under state law.

The experts said the mufti’s interpretation is wrong, adding that the decision in M. Indira Gandhi’s case – where the apex court interpreted “parent” to mean both father and mother – is precedent and must be complied with.

However, others argued that the constitution’s Malay version definition of “parent” as “ibu atau bapa” (mother or father) must be taken as the authoritative version.

Malaysian Centre for Constitutionalism and Human Rights director Fahri Azzat said states have a duty to abide by the constitution.

“If the court has ruled it that way (conversion of minors requires consent of both parents), as a responsible government, you should acknowledge it and take steps to amend your provisions to conform with the Federal Constitution,” he told The Malaysian Insight.

“The problem is that they (states) are looking at it from a political and religious perspective, but those have no standing in the law.”

Perlis amended section 117 of the Administration of the Religion of Islam Enactment in 2016 to say that the conversion of minors can be done with the consent of either the “father or mother”.

This is a stark contrast to that of the actual enactment, which stated that the conversion of minors need the consent of “father and mother”.

Fahri said though Asri was right in his interpretation before Indira’s case, he is wrong now.

“Either he is negligent and did not take legal advice, or he knows this fact and is (knowingly) saying something untrue.

“It is unconstitutional and (he is) a sitting duck for anyone who wants to take legal action.”

The unilateral conversion of children has again made headlines when three Hindu children were converted without the consent of their mother.

Loh Siew Hong’s ex-husband changed the faiths of their 14-year-old twin daughters and 10-year-old son from Hindu to Islam without her agreement.

The single mother, who has been reunited with her offspring following a habeas corpus hearing on Monday, said she will be challenging the conversion via a judicial review.

Malaysian Shariah Lawyers Association president Musa Awang agrees that the Federal Court ruling must be complied with.

“In Indira’s case, the court determined ‘parent’ to mean both mother and father, so Perlis and other states must follow.”

The father’s move to abduct the children and convert them without the consent of the mother is wrong and does not reflect the teachings of Islam, he added.

“Embracing Islam and taking care of children are two completely different things. Our society celebrates religious sentiments more than the beauty and goodness of Islam.

“It is as if Islam condones severing the relationship between mother and child on the basis of maintaining the religion of the child, when in reality, such an attitude does not reflect the beauty and goodness of Islam.”

Malay version of constitution is authoritative

Prominent lawyer Mohd Haniff Khatri Abdulla, meanwhile, is of the view that the constitution’s Malay text must be applied before the English version.

“The Malay text defines ‘parent’ as ‘mother or father’. In English, it says ‘parent’; singular, not plural. The apex court interpreted it as ‘parent’ equates ‘parents’.

“If there is a Malay text, then the prevailing text is the Malay text. If it says ‘mother or father’, then Indira may be wrong.”

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

In the Bahasa Malaysia translation, the phrase “ibu atau bapa” is used, which changes the meaning to “mother or father”.

Haniff said it is important to clarify whether the Malay text is authoritative, as it will eliminate the need to refer to past court decisions involving unilateral conversion of children – like Indira’s case or R. Subashini’s case, both based on the English version.

He also said when Loh’s children were registered as Hindus with the National Registration Department, Loh, a Buddhist, did not protest.

“When the children were born, the registered faith of their father is Hindu and the mother is Buddhist. The children were registered as Hindus (following the father) and she did not object.

“Why does this arise now? She did not exercise her rights then, so why is she claiming that she is against the religion now?”

Loh’s ex-husband allegedly converted to Islam in 2020. Their three children were converted without her presence at the Perlis religious department the same year. – February 24, 2022.