The Court of Appeal today adjourned its hearing of the S Shamala vs Dr M Jeyaganesh custody appeals, pending the Federal Court's decision on the Lina Joy apostasy case.

Justice Mokhtar Sidin said the apex court's decision would have a bearing on the issue of jurisdiction between the civil and syariah courts and, therefore, this appeals case.

"If the Lina Joy appeal is decided against her, as far as I am concerned, we are bound by the case... as it would determine (the issue of) jurisdiction," said Mokhtar.

The date for the next hearing will only be set after lawyers for both parties hand in their full submissions, which Mokhtar stipulated should be within the next three months.

Joy, a Malay convert to Christianity formerly known as Azlina Jailani, is appealing against the appellate court's ruling that upheld the National Registration Department's decision to retain her religion as 'Islam' on her identity card.

Among the questions the Federal Court is considering is in that case is whether Soon Singh vs Perkim Kedah - which declared that the civil courts retain their jurisdiction unless an express jurisdiction is conferred to Syariah Court - was rightly decided.

Mokhtar is sitting with Mohd Ghazali Mohd Yusoff and Zulkefli Ali Ahmad Makinudin to hear four appeals by Muslim convert Jeyaganesh, and two appeals by his wife Shamala, against five Kuala Lumpur High Court decisions made separately in 2003 and 2004.

In his appeals, Jeyaganesh is:

- disputing the Kuala Lumpur High Court's powers to grant Shamala custody (on April 4, 2003) of their two sons, then aged four and two, since he had converted them to Islam and they would therefore come under the Syariah court's jurisdiction;

- appealing against the high court's decision (on Sept 11, 2003) to cite him for contempt when he refused to return the children to their mother after he had taken them on May 8, 2003; he argued that as he had obtained an ex-parte hadanah (custody) order from the Syariah court, the latter prevails over the civil court order; and

- appealing against the judgment (on Sept 11, 2003) that Shamala was not bound to attend a hearing of the syariah court, which had issued a warrant of arrest against her for refusal to attend.

Shamala, meanwhile, is appealing against the high court's decision (on April 13, 2004) that it had no jurisdiction to hear the matter of her children's conversion, which she argued was null and void as she had no knowledge of any conversion.

She has filed a cross-appealed against the court's decision (on July 20, 2004) that granted her and Jeyaganesh joint custody of their children. (While the court had granted her the day-to-day care of her sons, it prohibited her from imparting her religious beliefs to them.)

Jeyaganesh has also appealed the judgment on grounds that he should get sole custody of the children since they are Muslim.

Non-Muslim 'discomfort'

In court today, Mokhtar urged Shamala's counsel, R Sivarasa, to make a formal withdrawal of an application that had been made to the Federal Court pertaining to a matter of constitutional jurisdiction.

Mokhtar said that, if the Federal Court decides against the Joy appeal and this is then followed by a Court of Appeal decision against Shamala, counsel may argue that it was not within the appellate court's powers to have decided so in the first place.

Sivarasa objected by saying that the application had been filed much earlier and had been discontinued as the high court's decisions on the matter had rendered that exercise moot.

He also said the Joy appeal was fundamentally different from the Shamala case as the former involved a Muslim who had renounced Islam, while the latter concerned conversion to Islam of the children of a non-Muslim.

Mokhtar insisted, however, that the possibility of reviewing the Court of Appeal's decision remained as long as the application is not formally withdrawn.

"Suppose we decide against you, you may decide that it is not in our jurisdiction (to do so). You should go back to the high court and withdraw that (application), then you proceed with (this)," he said.

Meanwhile, a lawyer holding a watching brief for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism told the court that non-Muslims feel uncomfortable with the all-Muslim quorum of the presiding judges.

"Justice must not only be done. It must also be seen to be done... Non-Muslims are likely to feel uncomfortable when the tribunal consists entirely of Muslims," said A Kenesan Ingam.

This triggered objections from counsel for Jeyaganesh, M Menon, who said such remarks were "totally unwarranted".

Mokhtar said Kenesan was free to write to the Court of Appeal president or the chief justice with his objections.

"I'm happy if I am excused from this case, as it is a very sensitive issue," he noted.