On 25th July 2013, the Ipoh High Court for the first time quashed the conversion of 3 minor children to Islam because their mother had not been consulted or consented to the conversion, and because the children themselves were not present before the Pendaftar Muallaf to utter the two Affirmations of Faith. The judgment is here.
On 24th January 2014, the Judicial Commissioner Tuan Lee Swee Seng delivered several decisions in relation to applications for a stay of the above Judgment made by the Father and the Perak State Government.
The Court initially dismissed the Father’s application to recuse the Judicial Commissioner from hearing the stay application.
Then, in the afternoon, the Court:-
a) dismissed an objection by the Mother’s lawyers that the Father should not be heard until he purges his contempt and delivers the estranged couple’s youngest child as required by a previous Custody Order in favour of the Mother
b) dismissed the Father’s application for a stay
c) allowed a conditional stay of the Perak State Government’s application for stay but only in relation to conversions done after the decision in July (without affecting the three children in this case itself).
The following are counsel’s notes of the decision on the recusal and on the stay pronounced in open court, and made available to LoyarBurok:-
(11.30 a.m.) Recusal decision:-
This is an application by R6 the Husband to recuse the Court from the stay application on grounds that there is a real danger of bias on the part of the JC
The perception formed by the Husband applicant is that since I had allowed leave for committal against him, I should not continue hearing his application for stay. The other ground is that since I have delivered the decision in favour of the wife in the judicial review application, I should also refrain and recuse myself from hearing the stay application on grounds of possible biasness.
I realize that in some cases as the proverb goes, perception is reality. But when such a perception is applied in the context of recusing a Judge or a JC from hearing a case, the matter has to be scrutinized more strictly as to whether there is a reasonable basis for the fear of biasness.
The case is fixed before a Judge or JC in all courts based on the normal routine procedure of rostering and rotation system of some kind. When a matter is fixed before a Judge or JC, he cannot on the flimsiest reasons recuse himself from hearing the matter either on grounds that someone else can also hear it or that the matter is difficult or so called sensitive.
It would be a dereliction of his duty if he does it. He remembers his oath of office he has taken to discharge his duties faithfully to the best of his ability and to preserve protect and defend the Constitution. He should be the first to recuse himelf if he cannot decide any matter before him with a clear conscience or that he is conflicted out or that he knows the parties as in the litigants, or that he had dealings in the past before with the parties such that perception would arise that he may be biased in favour of the party with whom he had some relationship in the past.
There may be also cases where in interlocutory applications before the Judge or jc, he had made some findings of fact or law which may affect the outcome of the full trial. Other than that, he should proceed to hear the case fixed before him and decide like all cases taking into consideration all relevant factors based on his understanding of the law as may be submitted by counsel and with a clear conscience.
Like all decisions of the Court, the party may not be happy with the decision and of course that party can always appeal. On appeal, the judge or JC is legally bound to give his reasons for disagreeing with that litigant. In fact, it is stated that the unsuccessful litigant is the most important person in the litigation process and he deserves to to receive the grounds of decision from the court he appealed from so that an appellate court can either affirm or reverse that decision.
There is a presumption that a judge or JC hearing a case would be impartial, so when the allegation of a possible bias on his part is raised, he ought to look at the grounds dispassionately. The fact that I had granted leave for committal is based on a prima facie case. As provided for in the Rules of Court 2012, it is generally heard ex parte. The matter has been fixed for hearing and the Husband has filed in his affidavit. He is not disputing that he has not allowed the youngest child to be with the mother according to the Order of the civil court. However, he is saying that he has a valid defence as the Syariah court order prevails over the civil court order, and that he is covered under it and are obliged to comply with it.
This court will of course hear all parties before making a decision in that case. There is no fear that merely because I am hearing that committal case, for which leave has been granted based on a prima facie case, then I would gravitate towards biasness against the husband in the current application for stay. The current stay application will be heard based on the established principles of law and if any party is unhappy with the decision, there is always the right to appeal.
As for the fact that the same JC is hearing the stay when he has heard the judicial review application, that argument is a non starter. Applications for stay would normally come up before the same Judge or JC that had earlier heard the judicial review or trial or application before him. The Judge or JC decides because it is a further extension of the matter before him and there have been many occasions when a stay is granted based on whether there has been special circumstances shown or that the appeal if successful would prove to be nugatory.
Looking at the overall circumstances of this case, and the perception of the Husband, which I trust his learned counsel can help to correct, I am confident that I would have no difficulty deciding it based on my understanding of the law as it applies to stay and taking into consideration all relevant factors and with clear conscience.
I would thus dismiss this application. I exercise my discretion and make no order as to costs.
Enc. 50 [Application by R6 – the Father / Husband]
This is R6 application for stay. Generally, stay is not granted with respect to a declaratory order or a certiorari order, as there is no execution therefrom that would require a stay. However, a stay of the application of the order may still be granted if there are special circumstances. The fact that this issue of law is a difficult issue is, with respect, not a special circumstance.
About the only special circumstance perhaps is the issue as to who the children may marry, but then they are not of marriageable age yet and we do not have to worry about that issue for the moment.
SFC En Noor Hisham gave the example of what if the father of the children has left behind a huge estate. Again, we do not have to worry about that because what will be delayed is the final determination as to how the estate will be distributed according to the faith of the children as may be finally determined by the Court.
Looking at the overall circumstances of this case, the Court should have in mind the status quo before the impugned act. There is no special circumstance to justify a stay and so the stay by R6 is dismissed with no order as to costs.
Enc. 49 [Application by R1 – R3: State Government of Perak, the Pendaftar Muallaf and the Jabatan Agama Islam Perak]
With respect to Enc 49, it is R1- R3’s application for stay with respect to the application of the Court Order to cases after the decision of the Court. This application for stay would not prejudice the Wife in any way. Being a public law issue, it would of course affect the parent / parents who are involved as in objecting to the conversion of his or her children. There is no evidence before the Court that there are cases where such objections has been raised.
With respect to the 16 cases pending registration between August 2013 to October 2013, if any parent is affected, they must be allowed full liberty to come before any court of law for the necessary reliefs.
As it is, there is no evidence that the cases pending registration of conversion are cases similar to this case.
I exercise my discretion to grant stay of the Order of this Court with respect to future cases only pending the disposal of the appeal on condition that parties write for an early date of hearing and that the Pendaftar Muallaf shall endeavor to get the consent of both parents where possible, and further that any parent so affected will be at liberty to apply to Court for the necessary reliefs.
The Applicant Wife may also at the Court of Appeal, should the decision be affirmed by the Court of Appeal, ask for relevant consequential orders arising out of this conditional stay with respect to the application of this Court order on future cases pending the disposal by the Court of Appeal.
Again, I exercise my discretion and make no order as to costs.
The above represents brief grounds and full grounds shall be given on appeal.
Coram: Tuan Lee Swee Seng JC
Applicant: K. Shanmuga, M. Kulasegaran, Aston Paiva and N. Selvam
R1 – R3: Puan Norazura Mokhtar, Assistant State Legal Adviser Perak
R4 – R5: Tuan Noor Hisham bin Ismail, Senior Federal Counsel
R6: Hatim Musa (Mohd Fitri Asmuni)