KUALA LUMPUR, April 12 — A Buddhist-turned-Muslim mother today failed to convince the country’s highest court to grant her leave to restore her two children’s unilateral conversion to Islam.
Following the three-judge panel at the Federal Court's decision today, this means that the Court of Appeal's decision -- in favour of the woman’s Buddhist ex-husband and which overturned the unilateral conversion of their two children last year — still stands.
Today’s Federal Court panel also unanimously dismissed the applications for leave to appeal filed by the Muslim convert mother and the Federal Territories Registrar of Muslim Converts.
The two parents are not named to protect their privacy.
Court of Appeal president Tan Sri Rohana Yusuf who chaired today’s Federal Court panel, cited the doctrine of stare decisis in their ruling as the issues raised by the appellants were identical to those previously decided in the Federal Court’s 2018 decision in M. Indira Gandhi’s case.
Stare decisis, meaning “to stand by things decided” in Latin is a judicial doctrine under which a court follows the principles, rules, or standards of its prior decisions or decisions of higher tribunals when deciding a subsequent case with arguably similar facts.
“With respect to the issue of stare decisis, we reiterate that it is our stand that the courts should adhere to the doctrine strictly to maintain certainty in law and we say this is not a fit and proper case to depart from our prior decision.
"The function of the court is confined to the administrative aspect of the public functions of the Registrar of Muslim Converts which has to be exercised in accordance with the law.
“And finally we are also of the view that it is not the function of the court to ascertain the competence of a person wishing to convert from one religion to another and it is a matter nonjusticiable.
“In view of reasons we set out above, we do not find the threshold of Section 96 of the Courts of Judicature Act to have been met, we therefore dismiss both applications and we make no order to cost,” she said in delivering the panel’s brief decision through video-conferencing.
The Federal Court had earlier heard the submissions from lawyers Datuk Sulaiman Abdullah appearing for the Federal Territories Registrar of Muslim Converts, Arham Rahimy Hariri for the Muslim convert mother and K. Shanmuga for the Buddhist father.
The two other judges on the Federal Court panel today were Datuk Seri Mohd Zawawi Salleh and Datuk Nallini Pathmanathan.
In Malaysia, those who wish to appeal in a lawsuit to the Federal Court would first have to seek leave to appeal.
For the uninitiated, the M. Indira Gandhi case — hailed as a landmark decision that reaffirms the civil courts’ constitutional role and powers — saw the Hindu mother succeeding in obtaining a Federal Court ruling that quashed her ex-husband’s unilateral conversion of their three children to Islam without her knowledge or consent.
The case also cleared up the confusion by declaring that unilateral conversions of children to Islam are unlawful.
Also present in the online hearing today were the father’s other lawyers Honey Tan Lay Ean, Tay Kit Hoo and Kee Hui Yee.
Apart from Sulaiman, lawyers Nizam Bashir and Zulkifli Che Yong had also represented the Federal Territories of Muslim Converts.
Lawyer Tan Kim Kiek held a watching brief for the Malaysian Bar.
Background of today’s case
Court of Appeal judge Datuk Azizah Nawawi (then a High Court judge) had in her October 16, 2018 decision said it was not disputed that the two children were converted without the consent of both parents and with the children’s certificates of conversion to Islam issued without the father’s consent, further noting that the court is then bound by the Federal Court’s January 29, 2018 decision in Ipoh mother M. Indira Gandhi’s case.
Azizah had noted that the Federal Court had in interpreting the Federal Constitution decided in Indira’s case that the consent of both parents — if both are still alive — is required before a certificate of conversion to Islam can be issued to a child who is from a civil marriage, before citing the need to follow the precedent set by the Federal Court.
The High Court had noted that the couple had married in 2006, and that the mother in December 2015 converted to Islam and with the Muslim convert mother then having both children registered as Muslims about five months later when they were aged eight and three.
The High Court had also in the same October 2018 decision granted two orders sought by the non-Muslim father.
The first court order granted by the High Court then was to quash the conversion of religion of the two children and to quash the decision of the Federal Territories Islamic Religious Department (Jawi) director-general and the Federal Territories Registrar of Muslim Converts to issue the Kad Akuan Agama Islam or certificates of conversion dated May 11, 2016 to the two children.
The second order granted by the High Court then was to compel both Federal Territories Islamic Religious Department (Jawi) director-general and the Federal Territories Registrar of Muslim Converts to cancel the two children’s registration as Muslim converts in their records or the Muslim converts’ register.
The case then went on to the Court of Appeal.
On October 27 last year, a three-judge panel at the Court of Appeal unanimously upheld the High Court’s 2018 decision which ruled in favour of the Buddhist father by quashing his two children’s unilateral conversion to Islam by the Buddhist-turned-Muslim mother.
In both the appeal bids to the Court of Appeal and Federal Court, only the mother and Federal Territories Registrar of Muslim Converts appealed against the decision to quash the children’s unilateral conversion to Islam.
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 couple, initially both Buddhists, had married in a civil marriage in 2006 and were living in Selangor with their two children.
The wife converted to Islam on December 29, 2015 while the couple was going through a divorce initiated jointly on December 17, 2015. As part of the initial divorce process, both parents had agreed that the children would not be influenced into embracing any new religion until they became adults and there was a March 2016 interim court order to prevent the children from being converted.
Due to the change in the wife’s religious status, the couple set aside the initial divorce process on May 10, 2016 as the divorce proceedings had to be made under a different legal provision. On the same day, the March 2016 order was also set aside along with the setting aside of the initial divorce process.
On May 11, 2016, the mother was said to have secretly converted the two children — aged eight and three — to Islam in Kuala Lumpur without informing the father and without the father’s consent, which then resulted in the current court case.
On June 14, 2016, the father had filed his court challenge over the children’s unilateral conversion, by filing 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 mother.
Separately, the father had on May 11, 2016 filed a fresh application for divorce under the required legal provision.
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 and custody 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 — who turn 14 and 10 this year — will remain with the father.
Today’s hearing
In the hearing conducted through video-conferencing, Sulaiman argued that Indira Gandhi’s case cannot be the sole determinant point on the present appeal before the court.
In his submission, Sulaiman ultimately said the court's role was that of a child’s guardian by deciding what is in the best interest of the child and the focus should be on what the children want.
He noted that precedent cases like Indira’s are depicted as one where a child’s right is overlooked since the courts had only scrutinised the rights of either parents in cases concerning unilateral conversion.
“Where does the child go? So I would say the case of Indira Gandhi is far from solving all issues but has in fact exacerbated the issue. Nobody seems to be talking about the child, everyone is talking about the rights of the father, mother.
“But basically we come to question that ultimately the courts are the guardians of the child and they decide what is in the best interest of the child.
“This issue is still an open issue. I would submit that it is an issue of law that needs to be determined by the Federal Court that is set up expressly for this kind of problem. Only the Federal Court can decide on these constitutional issues,” he said.
Separately in the convert mother’s grounds for leave application, Arham Rahimy in his submission touched on the erroneous reliance on Article 12(4) of the Federal Constitution in Indira Gandhi’s case on unilateral conversion and the doctrine of stare decisis.
The father’s lawyer K. Shanmuga however argued that the appellants’ application for leave was an abuse of process, as both parties had insisted to continue with the suit despite the Federal Court having dismissed a similar leave application previously filed by the Selangor Islamic Religious Council (Mais) and the Mais registrar of muallaf.
“I should also point out that we have raised in our written submissions just a few months ago on January 26, 2022, a different panel of this court had dismissed an application for leave on very similar questions that essentially seeks a revisit of Indira Gandhi’s case.
“We had asked the applicants to look at the decision and withdraw their applications and they chose not to and persisted in this matter.
“Therefore we respectfully submit that their position is an abuse of process and we ask therefore the applications be dismissed with cost,” he said.
Shanmuga was referring to a Federal Court January 26 decision where a three-judge panel dismissed the bid by Mais to reinstate the 2018 unilateral conversion of five young children to Islam by their father when they were aged in the range of around three and nine years old.
