Federal constitution supersedes state laws: expert, on children’s alleged unilateral conversion
Constitutional law expert Datuk Prof Shad Saleem Faruqi says single mother Loh Siew Hong seems to have inalienable custody rights in this case, based on the high court order granted to her in 2020. – Hakam pic, February 18, 2022
PENANG – The Perlis religious authorities may have been ill-advised in reportedly deciding to sanction the conversion of three minors without the consent of their mother Loh Siew Hong, said a constitutional law expert.
Datuk Prof Shad Saleem Faruqi said that under Article 75 of the federal constitution, federal law reigns supreme over state laws, including shariah ones.
He said that there is a need for all quarters to obey the federal constitution.
"Perhaps the parties involved in the conversion were not schooled well (on the matter), or they were ill-advised over it," he said when contacted.
The Federal Court had ruled in 2018 that any conversion of religions involving minors needs the consent from both parents.
“It is clearly stated. The term is plural, not singular,” he said.
Shad also said that the mother seems to have inalienable custody rights in this case, based on the high court order granted to her in 2020.
Asked if a constitutional crisis is brewing, Shad said that it is more of an interpretation than anything else.
But there is the issue of needing to obey court decisions too, he said.
Last night, Perlis mufti Datuk Mohd Asri Zainul Abidin had lambasted critics over the alleged conversion of Penangite Loh’s three children, saying that her consent is not necessary according to the state’s laws.
During a public talk, Asri – popularly known as Dr Maza – said this is because Perlis Islamic laws do not need both parents to agree to the conversion, as it can be done solely by either the father or mother, or by a legal guardian.
Loh was awarded sole custody of her three children – twin girls aged 14 and a boy aged 10 – who were reportedly converted to Islam two years ago by her former husband without her knowledge.
Earlier this week, she filed a habeas corpus application at the Kuala Lumpur High Court to compel the return of her three children into her custody, as she alleges that they are being held illegally by the Perlis Islamic Religious Affairs Department.
‘One plus one may not equal two’
Meanwhile, lawyer Nizam Bashir said today that Loh’s struggle to gain full custody of her children is not a straightforward legal case, contrary to what some legal quarters may profess it to be.
He said Asri is not entirely wrong in stating that the children’s conversion should be upheld and protected, but on the same token, it is also wrong to separate Loh from her children.
He explained that in some instances, an offence has occurred if everyone chooses to believe what the Federal Court had ruled in the 2018 landmark Indira Gandhi case.
The apex court had ruled that she should have custody of her three children after her husband, who converted to Islam, separated from her and took her children.
Indira was reunited with two of her children, while her estranged husband is believed to have fled with her eldest daughter.
But Nizam pointed out that under Article 11 of the federal constitution, it is stated that a person is free to profess his or her faith under the country’s supreme law.
Children may be recognised as having capacity to decide on matters of faith
Nizam also claimed that based on international human rights norms on children, it is spelt out that a child is allowed to embrace any religion upon his or her evolving conscience and thinking capacity.
This means that while children may still be minors under the law, they can also be legally recognised as being mature enough to decide for themselves on such a matter.
“Sometimes, a 5-year-old is mature, and sometimes another child of the same age is not.
“There are varying degrees. It is a grey area. Hence, the court needs to deliberate on all factors.
“One plus one may not equal two. The understanding of religion differs among children,” said Nizam.
Court ruling must be made with children’s best interests in mind
Ultimately, the court must decide on the best interests of the child, especially if their parents are divorcing, said Nizam in an interview.
In his view, it is also regrettable if the court is forced to split up a family, especially the bond between a mother and their children.
“A mother should not be separated from her children on most accounts.”
The last thing stakeholders in this matter should come across is an emerging polarisation between Muslims and non-Muslims that could ensue as a result of the family dispute at hand, Nizam added. – The Vibes, February 18, 2022
PENANG – The Perlis religious authorities may have been ill-advised in reportedly deciding to sanction the conversion of three minors without the consent of their mother Loh Siew Hong, said a constitutional law expert.
Datuk Prof Shad Saleem Faruqi said that under Article 75 of the federal constitution, federal law reigns supreme over state laws, including shariah ones.
He said that there is a need for all quarters to obey the federal constitution.
"Perhaps the parties involved in the conversion were not schooled well (on the matter), or they were ill-advised over it," he said when contacted.
The Federal Court had ruled in 2018 that any conversion of religions involving minors needs the consent from both parents.
“It is clearly stated. The term is plural, not singular,” he said.
Shad also said that the mother seems to have inalienable custody rights in this case, based on the high court order granted to her in 2020.
Asked if a constitutional crisis is brewing, Shad said that it is more of an interpretation than anything else.
But there is the issue of needing to obey court decisions too, he said.
Last night, Perlis mufti Datuk Mohd Asri Zainul Abidin had lambasted critics over the alleged conversion of Penangite Loh’s three children, saying that her consent is not necessary according to the state’s laws.
During a public talk, Asri – popularly known as Dr Maza – said this is because Perlis Islamic laws do not need both parents to agree to the conversion, as it can be done solely by either the father or mother, or by a legal guardian.
Loh was awarded sole custody of her three children – twin girls aged 14 and a boy aged 10 – who were reportedly converted to Islam two years ago by her former husband without her knowledge.
Earlier this week, she filed a habeas corpus application at the Kuala Lumpur High Court to compel the return of her three children into her custody, as she alleges that they are being held illegally by the Perlis Islamic Religious Affairs Department.
‘One plus one may not equal two’
Meanwhile, lawyer Nizam Bashir said today that Loh’s struggle to gain full custody of her children is not a straightforward legal case, contrary to what some legal quarters may profess it to be.
He said Asri is not entirely wrong in stating that the children’s conversion should be upheld and protected, but on the same token, it is also wrong to separate Loh from her children.
He explained that in some instances, an offence has occurred if everyone chooses to believe what the Federal Court had ruled in the 2018 landmark Indira Gandhi case.
The apex court had ruled that she should have custody of her three children after her husband, who converted to Islam, separated from her and took her children.
Indira was reunited with two of her children, while her estranged husband is believed to have fled with her eldest daughter.
But Nizam pointed out that under Article 11 of the federal constitution, it is stated that a person is free to profess his or her faith under the country’s supreme law.
Children may be recognised as having capacity to decide on matters of faith
Nizam also claimed that based on international human rights norms on children, it is spelt out that a child is allowed to embrace any religion upon his or her evolving conscience and thinking capacity.
This means that while children may still be minors under the law, they can also be legally recognised as being mature enough to decide for themselves on such a matter.
“Sometimes, a 5-year-old is mature, and sometimes another child of the same age is not.
“There are varying degrees. It is a grey area. Hence, the court needs to deliberate on all factors.
“One plus one may not equal two. The understanding of religion differs among children,” said Nizam.
Court ruling must be made with children’s best interests in mind
Ultimately, the court must decide on the best interests of the child, especially if their parents are divorcing, said Nizam in an interview.
In his view, it is also regrettable if the court is forced to split up a family, especially the bond between a mother and their children.
“A mother should not be separated from her children on most accounts.”
The last thing stakeholders in this matter should come across is an emerging polarisation between Muslims and non-Muslims that could ensue as a result of the family dispute at hand, Nizam added. – The Vibes, February 18, 2022
It would be interesting to read of Asri's response to this constitutional law expert.
ReplyDeleteBut just like the Indira Gandhi's case, Mdm Loh may be subjected to more merry-go-round.
And these muslims claim to be doing allah's work. Ptui!!!
The actual situation is more convoluted than that.
ReplyDeleteOn any civil or criminal matters , it is true that the Federal Constitution overrides State Laws.
However, as the Perlis authorities, led by the Mufti, consider this an Islamic Religious matter, State Islamic Laws apply.
So , is this an Islamic Religious Matter, or the jurisdiction of Civil Law ?