KUALA LUMPUR, July 12 — The court should be careful not to put too much weight into two young children’s comments on what they think about Islam, a lawyer has said.
This is in relation to a legal dispute between a Buddhist father and a Muslim convert mother over their children’s religious status.
The Buddhist father’s lawyer K. Shanmuga noted that the lawyers for the Federal Territories Islamic authorities had said that the two children were allegedly “attracted” to Islam.
Shanmuga said the lawyers had based their claim on the remarks of a Shah Alam High Court judge who had interviewed the two children before deciding on child custody, noting that the judge did not mention anything about the duo being “attracted” to Islam.
“There’s nothing about ‘attracted’. They just wanted to follow the mother,” he told the High Court in Kuala Lumpur.
Shanmuga had read out the High Court in Shah Alam judge Hayatul Akmal Abdul Aziz’s comments, who interviewed the children on August 18, 2017 on why they had went to the mosque and whether they were forced by their mother to do so.
According to the excerpt, Hayatul had said the elder child, a girl then aged just slightly more than nine, “informed me that they were the one who had wanted to follow their mother to the mosque”.
The excerpt also showed the Shah Alam judge stating that the girl had said she was the one who had wanted to fast and wear the hijab or Muslim headscarf “even though the mother didn’t ask her to do so”, with the judge also saying: “The young boy who was five years old was a bit quiet initially but once he warmed up to me, he concurs with his sister.
Shanmuga noted that the Shah Alam judge’s interview with the children was about a year after they were unilaterally converted to Islam in May 2016 by the Muslim convert mother, also pointing out the children were “still young”.
“Given their age, it should not be something taken too much into consideration at this stage,” he said.
“Perhaps at the older stage, at their teens,” he added.
“We are talking about a child only aged three at the time of conversion and seven or eight (years old) for the girl,” he said.
Today was the second day of hearing of the Buddhist father’s legal challenge to invalidate the 2016 unilateral conversion to Islam and certificates of conversion of his two children, who were born in a civil marriage when his now ex-wife was still a Buddhist.
The names of the family, including the father and mother aged 46 and 42 respectively, cannot be disclosed due to a court order.
The lawsuit filed on June 14, 2016 is against five respondents, namely the Federal Territories Islamic Religious Department (JAWI) director-general, the Federal Territories Registrar of Muslim Converts, the education ministry director-general, the government of Malaysia and the Muslim convert mother.
The two children, then aged eight and three, were converted to Islam on May 11, 2016 without the father’s knowledge and consent. That was also the day that he had filed a fresh application for divorce at the Shah Alam High Court.
The elder child is now aged 10, while the younger child will be turning six later this year.
Earlier today, the Federal Territories Registrar of Muallafs or Muslim converts’ lawyer Datuk Sulaiman Abdullah had argued that it was not in the “best interest”of the two children for their conversion to Islam to be quashed.
Sulaiman had cited various matters to back his argument, including the two children allegedly saying on May 11, 2016 when asked by an Islamic officer that they “like” Islam, and their 2017 interview by the Shah Alam judge.
He had also cited a Federal Territories Islamic Religious Department (Jawi) Islamic affairs assistant telling the civil High Court on October 5, 2017 that the children understood the “kalimah syahadah” or the Muslim affirmation of faith, as well as a Shariah court judge who had on May 7, 2018 affirmed the children’s conversion after interviewing them to determine if they were forced by the mother to convert.
In the separate child custody case, the High Court in Shah Alam had in April 2018 granted sole guardianship and custody of the two children to the ex-wife.
Lawyer Nizam Bashir, who also represented the FT Muslim converts registrar, today said the custody order meant that it is the Muslim convert mother “alone who decides whether the children profess or continue to profess the religion of Islam”.
“If she does so, in other words, she encourages the child to profess Islam, it is presumed that she acts in the best interests of the child,” he told the High Court, adding that the custody order makes the father’s objections being moot or irrelevant.
He argued that the custody order means that the Buddhist father’s role will only be as a “very interested observer”, to give “love and support to the child in the background” and who will have the “right to know but not the right to be consulted”.
Shanmuga argued however that the custody order was not relevant to decide if the children were properly converted to Islam.
“It’s irrelevant in considering the validity of the certificate of conversion, because my client’s consent is required as a matter of constitutional law,” he said, later citing the Federal Court’s landmark ruling in M. Indira Gandhi case where both parents’ consent are required for a child’s conversion to Islam.
He had also highlighted that the mother had allegedly herself said that she “tactically converted the children for the purpose of custody”.
Shanmuga said the father has appealed against the custody order with the court hearing date yet to be fixed, while the father’s application for a stay order on the custody order will be heard at the High Court on July 25.
Shanmuga also said it was not premature for his client to file this legal challenge as there was a “time limit” for filing of judicial review applications, saying: “We could not have waited and we should not have waited.”
Nizam had argued that the father should have used up alternative options in the Family Court first before filing this legal challenge, while Sulaiman had argued that this case was different from Indira’s case and that the latter should not be applied.
High Court judge Datuk Azizah Nawawi today fixed October 16 for lawyers of all parties to provide further clarification and to possibly deliver her decision.
The Malaysian Bar held a watching brief in this case.