This article first appeared in Forum, The Edge Malaysia Weekly on February 28, 2022 - March 6, 2022

On the face of it, 34-year-old single mother Loh Siew Hong appears to have got what she sought, which is the custody of her three children.

But the reality is far from it. Although the High Court ordered that the children be returned to their mother, they would have to remain Muslims — even though their conversion was unconstitutional, according to Malaysian civil law.

This follows from the Federal Court ruling in 2018 that the conversion of minors to another religion can only be done if both parents consent to it. Based on the judgment, Loh has been wronged. But it is a battle that she has to fight another day — if she chooses to do so at all.

As for Muslim religious groups aligned with Perlis mufti Datuk Dr Mohd Asri Zainul Abidin, they are assured that the children will continue to be Muslims.

The question of the children’s faith being reversed is only talked about by politicians. The principal person that could possibly initiate such an action — Loh herself — has clearly stated that the religion her children follow does not matter as long as they are together as a family.

On this score, Mohd Asri and Muslim non-governmental organisations that support his stand would have to be content with the fact that the children will grow up under the care of their non-Muslim mother. Their fears that the children could be raised in an environment that leads them to become “less of a Muslim” is a matter that is beyond their control.

Nevertheless, what stood out in the entire episode is the prudent manner in which the judiciary acted to deliver a swift and decisive verdict. The decision by the High Court, ordering the Welfare Department to release the children to their mother, was the right thing to do.

The latest decision by the judiciary is the second in recent months favouring mothers who are disadvantaged when it comes to matters concerning their children.

In September last year, the High Court ruled that the children of Malaysian women can be granted their mother’s nationality. Prior to the ruling, children born overseas to Malaysian women were not automatically granted Malaysian citizenship. In contrast, the children of Malaysian men who were born overseas are accorded citizenship automatically just by following the procedures and notifying the relevant embassy.

This left many Malaysian mothers with children who had been born overseas experiencing a tough time when they returned home. All aspects of the children’s lives were affected, from the schools they could attend right up to their employment, because they were treated as foreign nationals.

Coming back to Loh’s case, although the matters of custody and her children’s religion have been resolved, there remain some grave issues that need to be addressed.

The fact that the consent of both parents is required before a minor can be converted to another religion is well documented in the religious space of Malaysia. The Federal Court, in a 100-page judgment in February 2018, ruled that the mother and father, provided both are still alive, must be present before a certificate of conversion to Islam can be issued to a child from their marriage solemnised under civil law.

A kindergarten teacher, Indira Gandhi, initiated a suit after her ex-husband left the house in 2009 and took their three children with him. He converted to Islam and subsequently converted the children as well, when they were only 11 years, 10 years and 11 months old, to gain custody of them.

Indira has spent time with her two older children. But she has not been able to see or get in touch with her youngest child despite the court ruling that compels the police to locate her former husband and reunite her with her youngest child.

The landmark judgment by the Federal Court’s Tan Sri Zainun Ali made several wide-ranging decisions beyond the issue of unilateral conversion. It concluded that the Federal Court decision was superior to that of any other courts as it was enshrined in the constitution and that the powers of the Syariah Court are limited to state laws and civil matters involving Muslims only.

It also ruled that the Syariah Court does not have jurisdiction over non-Muslims or decisions taken in civil courts.

Given the wide-ranging publicity surrounding the Indira case, were those responsible for the conversion of Loh’s children not aware of the implications of the 2018 Federal Court judgment? Were they not aware that both parents must give their consent before the certificate of conversion can be issued?

The Perlis mufti’s explanation that the state Islamic law allows for conversion of minors to take place even if only one parent agrees to it is questionable because of the Federal Court decision in 2018. According to a constitutional expert, the Federal Court’s decision overrides state law and Perlis would need to update its legislation to reflect the judgment.

Loh obtained an interim order for custody of her three children in 2019 and the full award came in March the following year. The children were supposedly converted two years ago, which means it happened after she obtained the interim order for custody.

According to Mohd Asri, they were not aware that Loh had legal custody of the children, and not their father, who had converted to Islam and is currently in jail for drug-related offences.

If the mufti or the Penang-based Islamic foundation that had taken care of the children knew about the custody order given to Loh in 2019, would they have refrained from converting the children?

Now that they are aware of the circumstances under which the conversion of the three children took place, will they withhold their objections to any move to make the conversions null and void?

Nobody has the answer to these questions except for the parties involved in the matter. But for mothers who are suffering a similar fate as Loh and Indira, they can seek solace in the judiciary’s adherence to the principles of fairness and the rule of law.

As for Loh and her children, the best that anyone can do for them is to give them space and let them live their lives within a system that allows non-Muslim mothers to take care of and be with their Muslim children.

M Shanmugam is a contributing editor at The Edge

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