KUALA LUMPUR, March 25 ― The Court of Appeal today deferred hearing the appeal by a Muslim convert mother against a High Court’s 2018 decision to quash her unilateral conversion of her two children to Islam.
This was due to one of the judges on the Court of Appeal’s three-member bench voluntarily disclosing that he knows the Muslim convert mother and the Buddhist father in this case.
Just before the appeal hearing could start today, Court of Appeal judge Datuk Vazeer Alam Mydin Meera this morning put on record that he would like to recuse himself from hearing the court case as he knows both the parents in this case, as it would not be proper for him to hear the case.
Datuk Lau Bee Lan, the judge who was chairing the Court of Appeal panel, then fixed June 29 as the new hearing date for the appeal.
Datuk Mohd Sofian Abd Razak was the other Court of Appeal judge on the panel today.
Previously, Court of Appeal judge Datuk Mary Lim Thiam Suan had also recused herself from hearing this appeal on June 25, 2019 as she was involved in previous court matters related to the couple in this case.
In this case, the mother is challenging her Buddhist ex-husband’s successful bid at the High Court in 2018 to quash their two children’s unilateral conversion to Islam.
Also appealing in this case is the Federal Territories Registrar of Muslim Converts.
The High Court had on May 21, 2018 ordered for the names and images of the mother who had converted from Buddhism to Islam, and the Buddhist father, as well as their two children to not be published. The names of all four individuals are withheld.
Background of the case
On June 14, 2016, the Buddhist father had filed his court challenge through a judicial review application 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.
On October 16, 2018, the High Court had granted two of the court orders sought by the Buddhist father, including the quashing of the two children’s conversion of religion and quashing of the decision by both the Jawi director-general and the FT Registrar of Muslim converts to issue the “Kad Akuan Agama Islam” or certificates of conversion on May 11, 2016 to the two children.
The High Court also granted a mandamus order to compel both the Jawi director-general and the FT Registrar of Muslim converts to cancel the registration of the children as Muslim converts in their records or Muslim converts’ register.
The couple who were both initially Buddhists had married in a civil marriage in 2006 and were living in Selangor, and had two children. The wife converted to Islam on December 29, 2015 while the couple was going through a divorce.
Due to the change in circumstances arising from the wife’s conversion to Islam and which required the divorce to be made under a different legal provision, the initial divorce process was set aside by the couple on May 10, 2016.
This court case at the Court of Appeal was sparked off as a result of the mother's secret conversion of the two children, then aged eight and three, to Islam in Kuala Lumpur on May 11, 2016 without the father’s knowledge and consent.
The father filed a fresh application for the divorce on May 11, 2016 under the required section. The High Court in April 2018 dissolved the marriage and granted the mother the sole guardianship and custody of the two children, while the Court of Appeal in September 2018 reversed the decision and granted sole guardianship, custody, care and control of the two children to the father.
In January 2020, the Federal Court rejected the mother’s application for leave to appeal the granting of custody to the father. This means that the two children will remain with the father.
The two children are now aged 13 and eight.
It is understood that the only court matter now is the appeal regarding the religious status of the two children.
The Buddhist father’s lawyers confirmed to reporters today that there was no court order for a stay but that all parties had agreed not to enforce the High Court’s decision — which had quashed the children’s unilateral conversion to Islam — until the appeal has been heard and decided by the Court of Appeal.
The Muslim convert mother was represented today by lawyers Arham Rahimy Hariri, Rohani Ibrahim and Nurul Ameera Sam Kamaruddin, while the Federal Territories Registrar of Muslim Converts were represented by lawyers Datuk Sulaiman Abdullah, Nizam Bashir, Zulkifli Che Yong, Azmi Mohd Rais and Mohamad Ikmal Ibrahim.
The Buddhist father was represented by lawyers K. Shanmuga, Honey Tan Lay Ean, Tay Kit Hoo, Kee Hui Yee.
Senior federal counsels Rosli Ahmad and Siti Asmath Che Man appeared for the three respondents who did not appeal but are part of the case, namely Federal Territories Islamic Religious Department (Jawi) director-general, the education ministry director-general, the government of Malaysia.
Lawyer Tan Kim Kek was present to hold a watching brief for the Malaysian Bar.
Earlier when Court of Appeal judge Vazeer Alam recused himself from hearing this case, Shanmuga had stood up to inform the court that lawyers were not aware that he knew the parents in this case.
Later, Arham Rahimy confirmed to reporters that the other lawyers too did not know of it and only knew about it when the judge voluntarily recused himself.
Arham Rahimy said that the Buddhist father’s lawyers will be seeking to cite new Federal Court judgements in other cases, namely the case relating to the successful bid by a Selangor woman born to a Muslim man and a Buddhist woman out of wedlock to be declared a non-Muslim, as well as a case where a Selangor state law’s provision was declared as invalid and unconstitutional as it touched on offences that fall under Parliament’s powers to make laws.
Arham Rahimy said that the Muslim convert mother’s lawyers will be seeking in this appeal to have the courts revisit the Federal Court’s decision in Hindu mother M. Indira Gandhi’s case which had quashed her Muslim convert ex-husband’s unilateral conversion of their three children to Islam without her knowledge and her consent.
