PUTRAJAYA: A Muslim-convert mother and the Federal Territory Registrar of Muallaf cannot proceed with their appeals to the Federal Court to reinstate the unilateral conversion of her two children to Islam.
This followed a unanimous decision by a Federal Court three-member panel in dismissing their applications for leave to pursue their appeal to the Federal Court.
In civil cases, litigants must first obtain leave from the Federal Court before they can proceed with their appeals.
Following 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 Justice Rohana Yusuf, who presided with Federal Court judges Justices 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.
Justice Rohana also said the issue of the interpretation of Article 12(4) of the Federal Constitution has also been settled in the decision of Indira Gandhi's case.
In the Indira Gandhi case, the Federal Court five-man panel decided, in January 2018, that the consent of both parents was required before a child born in a civil marriage can be converted to Islam.
Indira Gandhi, 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,” Justice Rohana said in the court proceedings conducted virtually.
The stare decisis doctrine is a legal doctrine that binds the courts to follow legal precedents set by the previous court on similar cases.
Justice 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 is a matter that was non-justiciable.
"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,” Justice Rohana said.
She said the mother and the Federal Territory Registrar of Muallaf could not be given leave to pursue their appeal as they failed to fulfil the requirements under Section 96 of the Courts of Judicature Act 1964.
The father of the children, a Buddhist, had filed a judicial review in the High Court to quash the conversion of his two young children who were converted to Islam in May 2016 by their mother without his knowledge and consent.
The children were born into 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 to grant 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 Datuk 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 that there are 12 legal questions for the Federal Court to determine among others on issues pertaining to the welfare and best interest of the child.
Shanmuga representing the father of the children said that the proposed legal questions involved matters that had been decided in the Indira Gandhi's case.
Senior federal counsel Shamsul Bolhassan supported the application for leave to be granted saying that the legal questions were related to the child’s rights. - Bernama