A three-judge panel led by Justice Nallini Pathmanathan granted the 32-year-old woman leave to challenge a split decision handed down by the Court of Appeal last year.
“Although this case concerns the distinction between renunciation and ab initio (never a Muslim) cases, a distinction that has been addressed in a number of cases, this case requires a ventilation of a number of novel and publicly important questions, all of which of course are contained in the questions of law as well,” she added.
The bench approved seven legal questions, including one which involves Section 103 of the Pahang Enactment, a provision which the Federal Court has yet to interpret.
“It requires an order from a court, apart from the shariah court, placing a child into the custody of the converted parent, mualaf, for the section to be applicable,” she said.
Nallini said it was undisputed that no custody or other relevant order had been issued by a civil court in the present case.
‘Consent of both parents required’
She said that based on the Indira Gandhi case, recently endorsed by the Federal Court in Loh Siew Hong’s case, it is clear that the consent of both parents is required for the conversion of a minor.
Nallini said, in the present case, the lower courts had deemed the father to have consented to the conversion because he was of the Muslim faith.
“It needs to be determined if this is sufficient to meet the constitutional requirement of consent in Article 12(4) of the Federal Constitution,” she said.
She said there were also questions about the mother’s consent and its sufficiency for the purpose of Article 12(4).
Also on the bench hearing the application were Justices Rhodzariah Bujang and Hanipah Farikullah.
The woman was represented by Surendra Ananth and New Sin Yew, while state legal adviser Saiful Edris Zainuddin appeared for the Pahang government.
Najid Hussain represented the Pahang Islamic Religious and Malay Customs Council.
In 2023, the High Court dismissed the woman’s application for leave to challenge her conversion.
The woman, from the Jakun tribe, had contended that she was unilaterally converted by her mother at the age of two. She also claimed to have not recited the declaration of faith, known as the “kalimah syahadah”, at the point of conversion.
On Oct 3 last year, the Court of Appeal, in a 2-1 majority ruling, dismissed the woman’s appeal from that decision. Justices Che Ruzima Ghazali and Azhahari Kamal Ramli held that the woman’s appeal had no merit.
Delivering the majority decision, Azhahari said the shariah court was the proper forum to determine her religious status as the case involved a renunciation of faith.
He held that the woman’s appeal had no merit as her religious status, as stated in her mother’s conversion certificate, is being “Muslim together with her mother”.
The court also noted that the woman’s biological father – who did not marry her mother – was also a Muslim and it deemed that the father had consented to her conversion.
Justice Wong Kian Kheong dissented.