Chang Ah Mee (F) v Jabatan Hal Ehwal Agama Islam Majlis Ugama Islam Sabah, 11-12-2002

• Judge: Datuk Ian H.C. Chin
• Judgment Date: 11 December 2002
• Court: High Court (Malaysia)
• Record Number: S24-56-1999

MALAYSIA

IN THE HIGH COURT IN SABAH & SARAWAK AT SANDAKAN

ORIGINATING SUMMONS NO.S24-56-1999

BETWEEN

CHANG AH MEE (F) … PLAINTIFF

AND

JABATAN HAL EHWAL AGAMA ISLAM

MAJLIS UGAMA ISLAM SABAH … 1ST DEFENDANT

MAJLIS UGAMA ISLAM SABAH … 2ND DEFENDANT

THE GOVERNMENT OF SABAH … 3RD DEFENDANT

IN OPEN COURT

THE 11TH DAY OF DECEMBER 2002

J U D G M E N T

Introduction

1. This is an application, filed on 10 August 1999, by the Plaintiff, Chang Ah Mee who is the mother of one Junior Staphie Khoo (“infant”) for a declaration that the conversion on 17 July 1998 by the Jabatan Hal Ehwal Agama Islam Majlois Ugama Islam Sabah of her son to a Muslim be declared null and void.

Facts of case

2. In 1995 the Plaintiff was married to one Khoo Tak Jin (“the father”) out of which wedlock the infant was born in 1996. Then unbeknown to the Plaintiff the father converted to the Islamic faith on 23 January 1998 and the infant was also converted on 17 July 1998 without the consent of the Plaintiff. Then on 28 July 1998 the father obtained an order from the Syariah Lower Court declaring his marriage null and void and granting him custody of the infant but this order was subsequently reversed by the Syariah High Court on 4 November 1998 This High Court then on 13 November 1998 granted custody to the Plaintiff pursuant to an application made in a pending proceeding The facts present no problem. It is the jurisdiction of this court to hear the present application that is being called into question by all the Defendants while the Plaintiff questions the legality of the conversion of the infant to Islam which latter issue I will deal with first.

Legality of Conversion

3. This issue has nothing to do with religion but with the interpretation of the provisions of a Sabah legislation called the Administration of Islamic Law Enactment 1992, more particularly section 68 which reads:

68 For the purpose of this Part, a person who is not a Muslim may convert to Islam if he attains the age of baligh according to Islamic Law and provided that if a person is below eighteen (18) years of age consent shall be obtained from the parents or his guardian.

The term “parents” mentioned in that section is in the plural which literal and ordinary interpretation means the father and the mother (or persons acting as such) while the singular form would mean either the father or the mother. But that section also confer upon a guardian the right to give consent. The conjunction “or” indicates that either the parents or the guardian could give consent. The term “guardian” and his duties are dealt...