©LoyarBurok (Used by permission)
by Malaysian Centre for Constitutionalism & Human Rights (MCCHR)
On Thursday, 25 July 2013, His Supreme Eminenceness Lord Bobo allowed a beatific smile to flash across his most noble visage. In the Ipoh High Court, Judicial Commissioner Lee Swee Seng made a decision in a judicial review that has reverberated around the world. And the universe. And beyond.
For the first time in Malaysia, the Court quashed the conversion certificates of three children, and ruled that both parents must consent to the conversion of a child to Islam, and that a child who is converted must also utter with knowledge of its consequences the two Affirmations of Faith.
The case was one of the strategic litigation cases done by volunteer lawyers from the Malaysian Centre for Constitutionalism and Human Rights, aka the Pusat Rakyat LoyarBurok (who some say are the sexiest lawyers in the world).
The full grounds of judgment, recently made available to LoyarBurok, is well worth a read (all 79 pages of it!) and is found here:
Indira Gandhi – Lee Swee Seng Judgment.
In brief, the learned Judicial Commissioner decided as follows:
A. Preliminary objection on jurisdiction of High Court
The preliminary objection that the Syariah courts had jurisdiction over the matter was dismissed. The Federal Court decision of Latifah binti Mat Zin was followed, pointing out that not only must the Court have been vested expressly with jurisdiction over the subject matter of dispute by legislation, but also all parties to the dispute must be Muslims. The Court rejected the arguments by the Respondents that the mother should be made to go to the Syariah Courts.
The Court also followed the decision of Hishamuddin JCA in Dato’ Kadar Shah Tun Sulaiman which said that “the High Court had supervisory powers over the Syariah Courts just as the High Courts have supervisory powers over other inferior tribunals like, for instance, the Industrial Court”.
In addition, the Court applied the decisions of the Court of Appeal in Manoharan Malayalam (which in turn applied the decision of David Wong J in the David Linggi case) in holding that the rules as to locus standi were loosened when there was a bona fide complaint by a concerned citizen of a vi9olation of the Constitution by the government or its agent.
B. Whether both parents must consent
After considering various provisions of the Federal Constitution and the Guardianship of Infants Act and the previous Federal Court decision of Subashini, the Court held as follows:
1. That although the reasoning in Subashini on this question was probably obiter dicta, since it was a pronouncement of the Federal Court, His Lordship would consider himself bound by it (though he cogently disagreed with the reasoning at length) and hence the word “parent” in Article 12(4) was construed to mean one parent, and the act of converting one’s child without the consent of the other parent was held not to violate Article 8′s guarantees of equality.2. However, the right to “life” and “liberty” protected by Articles 5 , and the right to freedom to practise one’s religion in Article 11(1), included within it a right to determine one’s child’s religious upbringing and education.
Thus, the action of the Respondents in registering the conversion without the mother’s consent was held to be unconstitutional.
C. Right to natural justice
By registering the conversion without giving an opportunity to the mother to be heard, the Respondents had breached the rules of natural justice.
D. Breach of Administration of the Religion of Islam (Perak) Enactment 2004
The Court held that not only were both parents consent required notwithstanding the wording of section 106 (which said in the Malay version “ibu atau bapa” could consent), the child must also comply with section 96. That section required the person converting of his or her own free will to utter in reasonably intelligible Arabic the two clauses of the affirmation of faith, and when uttering the same must be aware that they mean “I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad SAW is the Messenger of Allah“.
Since it was common ground that the children were never present at the time of the purported conversion, this section was also infringed.
E. Breach of Malaysia’s international obligations
The Court also applied the
Noorfadilla case, and considered that Malaysia’s ratification of the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination Against Women, imposed on Malaysia a legal obligation to give effect to the rights set out in those Conventions.
Applying the “Bangalore Principles on the Domestic Application of International Human Rights Norms”, the Judge interpreted the Federal Constitution and the Perak state law consistently with international human rights norms (and in fact found that there was no discrepancy between certain rights protected internationally and the fundamental liberties protected by our Federal Constitution). Accordingly, he held also that both parents consent was required before a child could be converted to Islam.
The Judge therefore issued an order of certiorari to quash the 3 certificates of conversion in respect of the children, and declared that the certificates were null and void and of no effect. No order as to costs were made as this was a matter of public interest.
The Judge’s known penchant for literary judgments found fruition in his postcript, reproduced in full below:
This decision is not a victory for anyone but a page in the continuing struggle of all citizens to find that dynamic equilibrium in a country of such diverse ethnicities; pursuing peace in less than a homogeneous society, giving space to one another where religious sensitivities are concerned, tolerance and respect to our neighbours in pursuit of the Truth and Reality.Let God be God and let him work sovereignly in the lives of our children; let our children be our children and the adults they will soon become in the fullness of time.Let them take responsibility for their actions in seeking and finding him though as the poets say, he is not far from each one of us.Whilst we may be confident of the journey we have taken, for faith is the assurance of things hoped for and the conviction of things not seen, yet we must appreciate that others may take a different path.That aside love, peace and harmony should reign supreme in our hearts and in our homes knowing that our differences need not divide us and that in seeking the divine, we must also seek to understand our neighbours better, confident of the fact that there is no compulsion in religion and that whatever faith we belong to, we shall always have the highest regard for another and desire their greatest good.