As a result of the S Shamala and M Jeyaganesh case, five appeals were filed - four by the husband and one by the wife at the Court of Appeal.

  • Ridzwan appeal's over the High Court's decision in dismissing his preliminary objection that the court had no jurisdiction to hear custody cases as the children had converted to Islam;
  • His appeal on holding him for contempt when he refused to abide by the civil court's order to return the children to Shamala;
  • The husband appealing a warrant of arrest issued by the Syariah Court against his wife had been set aside by the civil court;
  • Ridzwan appeal over the High Court's decision in giving actual custody to his wife, Shamala is cross-appealing against the decision seeking sole custody and the removal of the caveat she cannot influence her children's faith; and
  • Shamala appealing to nullify the conversion of her children to Islam.

Following this, the Court of Appeal three-member panel headed by Justice Abdull Hamid Embong recognised the case involves important constitutional matters.

Since constitutional matters are within the realm of the apex court, it had decided to grant leave to appeal and transfer the case there. Hence, Monday's hearing.

Questions to apex court

Five questions, which were agreed by the Court of Appeal and posed to the Federal Court to decide on Monday are:

1. Whether Section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires (beyond the powers) of Article 12 (4) of the Federal Constitution (specifically concerning the right to determine the religion of the children under the age of 18 shall be determined by the parent or guardian) and Article 8 regarding equality rights?

2. Whether the same section in state law is inconsistent with federal law namely Section 5(1) of the Guardianship of Infants Act 1961, and is therefore invalid;

3. Regarding Article 121 (1A) of the Federal Constitution, where a custody order of children is made, which court, between the Syariah Court or the High Court is the higher authority.

4. When there is conversion of children of a civil marriage to Islam by one parent without the consent of the other, are the rights of remedy for the non-Muslim parent is vested in the High Court?;

5. Does the Syariah Court have jurisdiction to determine the validity of conversion of a minor into Islam, once it had been registered by the Registrar of Muallafs (Registrar for newly-converted Muslims).

 

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