PUTRAJAYA: A unilateral conversion dispute involving two minors born to a woman who embraced Islam and her Buddhist ex-husband will likely set the stage for a revisit of two controversial cases decided on by the apex court, a lawyer says.
Nizam Bashir said the ruling in M Indira Gandhi v Perak Registrar of Muallafs last year held that a couple who enter into a civil marriage cannot unilaterally convert their children to Islam without the consent of the non-converting party.
“However, the facts of the present case before the Court of Appeal is different,” he told reporters after the adjournment of a Court of Appeal ruling here today.
He also cited the ruling by the then-Supreme Court in Teoh Eng Huat v Kadhi of Pasir Mas Kelantan, also known as the Susie Teoh case, in which the apex court set aside a High Court ruling that minors can decide on their religion of choice.
“We believe the High Court decision is correct as international convention now seems to suggest that a child has the right to profess a religion,” he added.
He said whatever the outcome in the appellate court, this case would go to the Federal Court as it involves constitutional points.
Nizam and Sulaiman Abdullah are representing the Federal Territories Registrar of Muslim Converts (Muallaf) in an appeal following the High Court ruling last year allowing the judicial review of the non-Muslim father to revoke the conversion of his children to Islam.
High Court judge Azizah Nawawi said she was bound by the ruling in the Indira case, delivered by a five-member Federal Court bench on Jan 29, 2018.
Indira, a Hindu mother, had filed a similar judicial review application to challenge her Muslim convert ex-husband’s unilateral conversion of their three children – then aged 11, 10 and just over 11 months old – to Islam without the knowledge and consent of either her or the children.
In the present case, the husband went to court to invalidate the 2016 unilateral conversion to Islam and certificates of conversion of his children, who were born in a civil marriage when his ex-wife was a Buddhist.
The children, then aged eight and three, were converted without the father’s knowledge and consent.
That was also the day that he filed a fresh application to divorce his wife at the Shah Alam High Court.
The identities of all parties are being kept confidential as the father, represented by K Shanmuga and Honey Tan, obtained a court order last year.
Lawyer Arham Rahimi Hariri, who is representing the Muslim mother, said the Court of Appeal postponed the hearing as one of the judges had recused herself since she was on the bench which decided last September that custody of the children should be given to the father.
He added that all parties to the appeal wanted to reinstate the Federal Territories Islamic Religious Department (Jawi) director-general, the education ministry director-general and the government of Malaysia as respondents.
“In the High Court, the Attorney-General’s Chambers did not actively participate in the proceeding as they did not file an affidavit and provide written submissions,” he said.
The Court of Appeal has rescheduled the hearing to Oct 29.