Muslim-convert mum fails in bid for leave to appeal over restoration of kids’ conversion to Islam

A Muslim-convert mother and the Federal Territory Registrar of Muallaf are unable to proceed with their appeals to the Federal Court to reinstate her unilateral conversion of her two children to Islam.

This follows a unanimous decision by a three-man Federal Court panel today, dismissing their applications for leave to pursue their appeal to the Federal Court.

In civil cases, litigants must obtain leave from the Federal Court before they can proceed with their appeals.

Given the Federal Court’s refusal to grant leave to the children’s mother and the Registrar of Muallaf, the decision of the High Court on Oct 16, 2018, quashing the unilateral conversion to Islam of the two children who were born in a civil marriage, stands.

Court of Appeal president Rohana Yusuf who presided with Federal Court judges Mohd Zawawi Salleh and Nallini Pathmanathan held that the issue in the case concerning administrative law on whether the children’s conversion registered by the Registrar of Muallaf was in accordance with the law, was identical to the case of Indira Gandhi as decided by the Federal Court.

Rohana also said the issue of the interpretation of Article 12 (4) of the Federal Constitution had also been settled in the decision of Indira’s case.

In the Indira Gandhi case, a five-man Federal Court panel decided in January 2018 that the consent of both parents is required before a child born in a civil marriage can be converted to Islam.

Indira, a Hindu mother, had challenged the conversion of her three children, done unilaterally by her Muslim-convert ex-husband.

“We reiterate that it is our stand that the courts should adhere to the doctrine (stare decisis doctrine) strictly to maintain certainty in the law, and we say this is not a proper case to depart from our prior decision,” Rohana said in the court proceedings conducted online today.

The stare decisis doctrine is a legal doctrine that binds courts to the legal precedent set by the previous court on similar cases.

Rohana said it was not the court’s function to ascertain the competence of a person wishing to convert one religion to another, adding that it was a non-justiciable matter.

“The function of the court is confined to the administrative aspect of the public function of the Registrar of Muallaf which has to be exercised in accordance with the law,” Rohana said.

She said the mother and the Federal Territory Registrar of Muallaf could not be given leave to pursue their appeal as they had failed to fulfil the requirements under Section 96 of the Courts of Judicature Act 1964.

The father of the children, a Buddhist, filed a judicial review in the High Court to quash the conversion of his two children who were converted to Islam in May 2016 by their mother without his knowledge or consent.

The children were born in a civil marriage to the couple who were then Buddhist but were converted to Islam unilaterally by their mother who converted to Islam in 2015.

The identities of the family cannot be disclosed due to a High Court order issued on May 21, 2018.

The children’s father succeeded in his judicial review bid to quash the unilateral conversion to Islam of his children. Their mother and the Registrar of Muallaf lost their appeals in the Court of Appeal on Oct 27 last year.

On the custody of the children, the appellate court’s decision in September 2018 granting full custody of the children to the father was upheld following the mother’s failure to obtain leave to pursue her appeal in the Federal Court.

In today’s proceedings, the court heard submissions from lawyer Sulaiman Abdullah representing the Registrar of Muallaf, Arham Rahimy Hariri for the mother, K Shanmuga for the father and senior federal counsel Shamsul Bolhassan representing the education ministry director-general and the government.

Sulaiman had urged the court to grant leave, saying there were 12 legal questions for the Federal Court to determine, including on issues pertaining to the welfare and best interest of the child.

Shanmuga, representing the father of the children, said the proposed legal questions involved matters that had been decided in the Indira Gandhi case.

Shamsul meanwhile supported the application for leave to be granted, saying the legal questions were related to the children’s rights.