PUTRAJAYA (Oct 27): The Court of Appeal (COA) has on Wednesday upheld the Kuala Lumpur High Court decision three years ago to annul the conversion of two underaged children by their mother, from Buddhism to Islam.

Justice Datuk Mohamad Zabidin Md Diah, who led the three-member bench, said the decision was unanimous.

“We are of the view that the High Court judge and this Court of Appeal bench are bound by the Federal Court decision in the M Indira Gandhi case. There is no appealable error in this matter. We find there is no merit in the appeal.

“The decision of the High Court judge is affirmed, and this court makes no order as to costs,” he said.

Sitting with Justice Zabidin were Justices Datuk S Nantha Balan and Datuk Nordin Hassan.

The names of the mother, the children and their father could not be disclosed by the media following a court order.

The mother converted to Islam sometime at the end of 2015, and she later converted the children to Islam, by bringing them to the Registrar of Muallaf in 2016.

At present, the children — a girl aged 13 and a nine-year-old boy — are placed under the custody of their father, who is a businessman.

The father had in his judicial review application named the mother, the Federal Territory Registrar of Muallaf, the director-general of the Education Ministry, the director-general of the Federal Territories Islamic Department and the federal government as respondents in the judicial review application at the High Court.

This led to the mother and the Registrar of Muallaf filing the appeal to the COA and this present hearing.

In the Indira Gandhi case, the Federal Court, which is the apex court, had ruled that the consent of “both parents” is a must in conversion cases.

This follows the apex court defining the word "parent" in the Federal Constitution to mean both parents and not one in religious conversion matters.

Meanwhile in an immediate response, the Registrar of Mualaf's counsel Nizam Bashir, when contacted by theedgemarkets.com, said he would seek further instructions on whether to file a motion for leave to appeal to the Federal Court.

Nizam, who appeared with counsels Zulkifli Che Yong and Ikmal Ibrahim, had first argued that the father had not exhausted his avenues before filing the judicial review and the High Court was wrong in granting leave (permission) to hear the merits of his judicial review.

He also told the court that unlike in the Indira Gandhi case, where her children were never brought before the Registrar of Muallaf, the children in the current case were brought before the Federal Territories Registrar of Muallaf where they willingly recite the 'syahadah' (affirmation of faith).

“This present case is clearly distinguishable from the facts in the Indira Gandhi matter. The certificate of conversion should have been deemed valid and the civil courts actually have no jurisdiction to decide on the matter,” Nizam said, adding the High Court did not take this into consideration.

“Furthermore, this court should adopt the Federal Court decision in the Subashini case. The conversion is safe and sound, and this court should not intervene. We say this court is not bound by the Indira Gandhi case, as the difference is the children had appeared before the Registrar,” he added.

In the Subashini case, it ruled the conversion of one of her children to Islam by the converted former husband was legal and the civil court had no jurisdiction, as it is within matters of the purview of the Syariah Court.

Justices Zabidin and Nantha Balan interjected and said that however, in this case, both the children are underaged.

“They are not adults but are minors,” both judges responded.

However, Nizam argued that Article 11 of the Federal Constitution stipulates every person has the right to profess and practise his own religion, and every person here does not distinguish the person to be an adult or a minor.

Meanwhile, Ahram Rahimi, who appeared for the mother, said this court is not bound to follow the precedent set by the Federal Court in the Indira Gandhi case, as in the case of Datuk Menteri Baginda where former lord president Raja Azlan Shah said the court is not bound to follow a judicial precedent if there is an error, when it comes to matters pertaining to the Constitution.

“Here the High Court judge was wrong in applying Article 12(4) (the religion of a person under the age of 18 shall be decided by his parent or guardian) and not Article 12(3) (no person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own). We say the High Court did not consider this,” Ahram said.

“The word parent here also does not mean both parents,” he argued further.

Lawyer Rohani Ibrahim, who also appeared with Ahram for the mother, when contacted said she has received instructions from her client to file an application to obtain leave to appeal to the Federal Court.

"We felt there is a need to challenge the interpretation of Article 12(4) of the Federal Constitution as decided in the Indira Gandhi decision," she said.

Article 12(4) states the religion of a person under the age of 18 shall be decided by the parent or guardian.

The father's counsel K Shanmuga, who appeared with lawyer Honey Tan, said the Indira Gandhi case is the most recent decision, and that the High Court and the COA are bound by it.

“This is a public law challenge whether the conversion was lawful or whether there is illegality, impropriety that led to this.

“We say that this court is bound by the decision in [the] Indira Gandhi [case] which was a unanimous decision by the Federal Court. There is also nothing wrong with the apex court decision in the Indira Gandhi matter,” he added.

Shanmuga cautioned if the appellate court decides to depart from the Indira Gandhi matter, they may seem to follow the High Court's decision on Susie Teoh.

Susie Teoh was 17 years and eight months old when she became a Muslim. Her father Teoh Eng Huat, a Buddhist, could not locate her and he took the Jabatan Agama in Kelantan to court.

The High Court ruled that the father’s right to decide the religion and upbringing of the infant (under 18) is allowed “subject to the condition that it does not conflict with the principles of the infant’s choice of religion guaranteed to her under the Federal Constitution”. In other words, the infant has a right to choose her own religion if she does it on her own free will.

Meanwhile, senior federal counsel Nik Isfahanie Rahman, who appeared for the federal government and the Education Ministry, said the Attorney-General's Chambers viewed that this court is bound by the Federal Court decision in the Indira Gandhi matter, where the conversion has to be agreed by both parents.

In October 2018, then High Court judge Datuk Azizah Nawawi (now COA judge) in quashing the children's conversion said the court was bound by the decision in the Indira Gandhi case.