Hj Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah and Another Appeal [2014] 3 SHLR 1

Case: Hj Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah and Another Appeal [2014] 3 SHLR 1

Court: Federal Court (Putrajaya)

Topic: Jurisdiction of Court to Determine A Person’s Conversion to Islam

Facts

1.     The Respondent’s father, Subramaniam a/l Bangaraih, along with his wife Latchumy a/p Ramadu and their five children, including the Respondent, converted to Islam in 1983.   They were issued new names, with the father becoming Mohd Yusof bin Abdullah and the mother becoming Siti Aisyah bt Abdullah.   At that time, the Respondent was one year old.

2.     The Respondent’s parents then made a statutory declaration affirming their conversion, which was registered with Majlis Agama Islam Pahang.

3.     The certificate of conversion was issued to the Respondent’s parents, but the Respondent and her siblings did not receive their certificates until 1989.

4.     In 2009, the Respondent initiated legal proceedings against the Appellants in the High Court.  Among other things, she sought declarations and orders stating that-

(a)  The Appellants had wrongly and unlawfully subjected her to a religious conversion process when she was seven years old.

(b)  The Sijil Akuan Masuk Islam (Certificate of Conversion to Islam) dated 28 December 1989, executed by the Respondent, was ineffective and null and void from the beginning.

(c)  The Director General of the National Registration Department should be instructed to take immediate action to rectify their records regarding the Respondent. This includes restoring her original Indian name on her identity card and removing the word ‘Islam’.

5.     However, the Appellants separately applied to have the Respondent’s originating summons struck out, and the High Court granted their application.  As a result, the Respondent’s legal action was dismissed.

6.     The Respondent appealed, and the Court of Appeal ruled in favor of the appeal. It was ordered that the Respondent’s originating summons be converted into a writ and sent back to the High Court for trial.

7.     The Court of Appeal also decided that the legal burden was on the Appellants to satisfy the Court that the subject matter of the action was such that it fell exclusively within the jurisdiction of the Syariah High Court of Penang since it was the Appellants who were making the striking out applications and the Appellants had not discharged the legal burden.

8.     Dissatisfied with the outcomes of the proceedings, the Appellants brought the matter to the Federal Court to determine the issues of jurisdiction.

Issue

1.     Whether the Civil or Syariah Court had the jurisdiction to determine whether a person professed Islam or not?

2.     Whether the conversion of Respondent to Islam in 1983 was valid?

Ratios

Whether the Civil or Syariah Court had the jurisdiction to determine whether a person professed Islam or not?

1.     Section 121 (1A) of the Federal Constitution provides on the matter of judicial power of the Federation which reads-

“There shall be two High Courts of co-ordinate jurisdiction and status, namely

(a)  one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

(b)  one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.

(1A) The court referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Court.”   [Emphasis Added]

2.     To decide further on the issue of jurisdiction, the Federal Court has made a reference to the case of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 where it was held by His Lordship that Syariah Court has the jurisdiction to deal with the matter relating to conversion to Islam saved and expressed under all State Enactments and the Act.

3.     The reference also has been made to the case of Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia [1999] 1 MLJ 266 where the Court found that the intention of legislature to remove the jurisdiction of the ordinary courts was to prevent the High Court from exercising judicial review over the decisions of the Syariah High Court.

4.     It has been alluded with much clarity by this Federal Court in which it referred to the decision of James v Government of Malaysia [2012] 1 MLJ 721 and Lina Joy v Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585 where both Court held that apostasy was a matter within the exclusive jurisdiction of the Syariah Court and not of civil court.

5.     The Federal Court had decided that the application of the Respondent to convert out of Islam fall within the exclusive jurisdiction of the Syariah Court and the Civil court shall have no jurisdiction in the matter.

Whether the conversion of Respondent to Islam in 1983 was valid?

1.     Based on the abovementioned authorities, it was established by the Federal Court that the determination of whether someone is a Muslim or not falls exclusively under the jurisdiction of the Syariah Court.

2.     As far as the present case is concerned, it is undisputed that the Respondent’s parents, along with her siblings, converted to Islam in 1983.  This fact is supported by the late father’s statutory declaration mentioned earlier.

3.     According to the law, the religion of a minor is determined by their parent or guardian.   This is provided in Article 12(3) and (4) of the Federal Constitution, along with provisions of the Guardianship of Infants Act 1961.

4.     Therefore, as the Respondent was a minor, aged one year and three months, in 1983, her father actually had the right to determine her religion.

5.     The Appellants argued that the events in 1983 were lawful and valid, and the Respondent was converted to Islam along with her father.  This falls within the father’s right.

6.     The Federal Court finally held that the matter of conversion of the Respondent together with her father in 1983 should be determined first by the Syariah Court, then only the issue of conversion in 1989 could appropriately be determined by the Civil Court.

1.     The Syariah Court has the jurisdiction to hear the matter of conversion of the Respondent in 1983 over the Civil Court.

2.     The appeal was allowed with costs.

3.     The order of the Court of Appeal was accordingly set aside.

Key Take Away

1.     Under the Malaysian Law, it is essential to recognize that the Syariah Court holds jurisdiction over matters pertaining to the conversion to Islam and renunciation of the Islamic faith. This means that these issues fall within the exclusive purview of the Syariah Court, rather than the Civil Court.

2.     This exclusive jurisdiction of the Syariah Court demonstrates the recognition and importance given to Islamic religious matters within the Legal System of Malaysia and the need for individuals seeking to renounce Islam to navigate the appropriate legal channels within the Syariah Court.

 

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