The two judges who had advised the attorney-general (A-G) on unilateral child conversions have disqualified themselves from hearing two contentious interfaith custody cases.
Datuk Linton Albert, who chaired the three-man bench, told the Court of Appeal that Datuk Mohd Zawawi Salleh and Datuk Umi Kalthum Abdul Majid had opted out to avoid conflict of interest.
"I have consulted them and they have recused themselves because justice must also be seen to be done."
The Court of Appeal registry has fixed September 10 to hear the application.
Lawyer K. Shanmuga, who appeared for clerk S. Deepa and kindergarten teacher M. Indira Gandhi, prompted the court whether it was proper for Zawawi and Umi to hear the applications since both had advised Attorney-General Tan Sri Abdul Gani Patail on family law reform for non-Muslims.
"Zawawi (then head of Shariah division in the A-G's Chambers) had been advising Gani," he said.
Umi said she had been sitting in meetings with the A-G in her capacity as head of the civil division on the same subject.
Before adjourning, Albert asked counsel and Senior Federal Counsel Suzana Atan whether they had any objection to him sitting in the new panel to be constituted later. There was none.
On June 26, Gani and Inspector-General of Police Tan Sri Khalid Abu Bakar applied to the Court of Appeal to be made parties in custody battles between two Hindu mothers and their ex-husbands who converted to Islam.
Gani and Khalid have stated that the High Courts in Seremban and Ipoh had exceeded their authority in issuing recovery orders to the police to locate the children of Deepa and Indira, who are with their ex-husbands.
They said if their applications to be intervene were allowed, they want the Court of Appeal to stay the High Court orders to compel police to locate Muhammad Ridzuan Abdullah and Izwan Abdullah.
Khalid said he was in a quandary because there were two custody orders, from the High Court and Shariah High Court, and executing one would mean he was showing disrespect to the other.
The shariah courts had granted both fathers custody of the children.
Gani and Khalid said a stay of the orders was vital or else their attempts to appeal would be futile as the status of the High Court and Shariah Court under Article 121 (1A) of the Federal Constitution had to be determined.
One view is that the civil court is superior to the Shariah Court while another stand is that both are of equal status.
Gani in a statement on June 26 said both cases were of public interest and touched on religious sensitivities, and have the potential to threaten public order.
The Seremban High Court on April 7 granted Deepa custody of Sharmila and Mithran, both of whom had been converted to Islam by Izwan last year without Deepa's knowledge.
Judge Datuk Zabariah Mohd Yusof said the court had the power to dissolve Deepa's civil marriage with Izwan and provide the reliefs, including custody.
Two days later, Izwan abducted Mithran, saying it was for the child's "protection".
She then obtained a recovery order from the High Court on May 21 to get police to search for Izwan and Mithran.
In Indira's case, ex-husband Ridzuan has also yet to hand over their youngest daughter to her despite a 2010 Ipoh High Court order awarding her custody of their three children.
Ridzuan has held on to Prasana Diksa since April 2009 when she was 11-months old.
The Shariah High Court in Ipoh had in 2009 given Ridzuan custody of the three children after he unilaterally converted them to Islam.
But, in July last year, the Ipoh High Court, quashed the certificates of conversion of the three children and ruled that the certificates were null and void because they were unconstitutional.