JUDGMENT

Zaleha Zahari JCA:

[1] Consequential upon this court's decision to dismiss the appellant counsel's oral application to recuse members of this panel from hearing this appeal, counsel for the appellant, Encik Haris bin Mohamad Ibrahim, informed the court that he intends to lodge an appeal to the Federal Court against that decision. My reasons for dismissing the oral application to recuse are as follows:

[2] What transpired when this appeal was called for hearing on 19 September 2007 was this. The appellant's counsel informed the court that at case management stage before the registrar, he had applied for this appeal to be fixed for hearing before a panel of non-Muslim Court of Appeal judges. As all of the members of this panel convened to hear the cases listed on that day (including this appeal) were all Muslims, he is seeking an adjournment to enable him to file a formal application for this appeal to be fixed for hearing before a panel of judges who are not of the Islamic faith. The appellant's counsel's objection is a general one, that of a class, ie, all Court of Appeal judges of the Islamic faith. Alternatively, it may be construed as the appellant's preferred choice as to the faith of the judges who should be empanelled to hear this appeal, ie, non-Muslim Court of Appeal judges.

[3] The reason given for the adjournment is clearly without precedent. True, the court has a discretion to grant an adjournment, but the circumstances must warrant the exercise of such a discretion. I viewed the reason for the adjournment with great concern. Firstly, I am of the view that it was not open for litigants to dictate the religious faith of the judges who should be empanelled to hear a particular appeal. To allow an adjournment to enable such an application to be filed may be construed that such an application would be entertained. Such an attempt should, in my considered opinion, be nipped in the bud. The application for the adjournment was accordingly refused.

[4] After this ruling was made, the appellant's counsel did not proceed to present his submissions on the merits of the appeal. He then made an oral application to recuse members of this panel from proceeding to hear this appeal on the same ground, because the judges empanelled to hear this appeal are of the Islamic faith. He then informed the court that he would be referring to an affidavit which he intended to file in support of the formal application to recuse Court of Appeal judges of the Islamic faith from hearing this appeal had his initial application for an adjournment been allowed.

[5] To this development the position taken by this court was, that the case would be stood down to enable the appellant's counsel to file the affidavit which he intended to refer to, and the case be recalled after he had done so. We observed Encik Haris conferring with Encik Malik Imtiaz (who was appearing together with him), after which he informed the court that he was prepared to present his submissions as to why members of this panel should recuse themselves from hearing this appeal without reference to any affidavit.

[6] The reasons advanced as to why members of this panel should not hear this appeal were these. The appellant is the wife of Ariffin Mohamad (also known as "Ayah Pin"). The appellant's apprehension of Muslim judges hearing this appeal arises from the fact that the Terengganu Islamic Council had issued a fatwa stating that Ayah Pin's teachings were deviant. The appellant is concerned that Muslim judges would adopt a personal stance in line with the "Amal Maaruf Nahi Mungkar" (ie, to encourage good and avoid sin) principle. Reference was also made to a statement allegedly made by the then Chief Justice that common law should be replaced by Islamic law.

[7] The unanimous decision of the panel members that day was not to allow the oral application for recusal. On my part, the reason why I did not recuse myself was this. Firstly, in a multi-racial, multi religious societ