MAIS v. N [2023] SLRAU 11

Selangor Syariah Court of Appeal (Shah Alam)

An Appeal to Determine the Status of Religious Affirmation

1.    The Respondent converted to Islam on 16 September 2002 at the Gombak Barat Islamic Religious Department at the age of 18, after meeting a Bangladeshi national who promised to marry her. However, the man disappeared before the marriage could take place.

2.    On 18 March 2012, the Respondent married M a/l N in Ulu Bernam following Hindu rites. However, the marriage could not be registered as the Respondent’s MyKad indicated her religion as Islam. From this marriage, the Respondent had a daughter, D a/p M, who was also recorded as Muslim on her MyKad.

3.    The Respondent also stated that she had never practiced the teachings of Islam since her conversion. Instead, she continued to follow Hindu practices such as fasting, celebrating Deepavali, and fulfilling vows during the Thaipusam festival. Based on these grounds, the Respondent applied on 27 March 2014, requesting to be declared as no longer a Muslim.

4.    The Syariah High Court granted the Plaintiff’s application pursuant to subsection 61(3)(b)(x) of the Administration of Islamic Law (Selangor) Enactment 2003.

5.    The Court declared the Respondent, is no longer a Muslim.

6.    Aggrieved by the decision, the Appellant appealed to the Syariah Court of Appeal.

2.    Whether the Respondent provided sufficient evidence to prove that they are no longer of the Islamic faith, based on their current beliefs and practices?

(a) The Appellant argued that the Respondent did not dispute the conversion process nor provide evidence of any incompleteness. The witnesses presented by the Appellant proved that the conversion was properly carried out. Therefore, the Respondent’s registration by the Registrar of Converts should be recognized as confirmation of their Muslim status under subsection 113(2) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 [“Enactment No.1 of 2003”].

(b) The Appellant argued that the Learned Judge erred in doubting the Respondent’s conversion to Islam based solely on the Respondent’s testimony, without supporting evidence. The Respondent’s witnesses were not present during the conversion process on 16 September 2002. The Appellant contended that the conversion should not have been questioned, as the Declaration of Conversion and the Register of Converts prove it was properly completed and registered.

(c)  Regarding the process of conversion to Islam under the law, the Court respectfully refers to sections 108 and 107  of the Enactment No.1 of 2003 which stated-

“ Moment of conversion to the religion of Islam

 

108. A person is converted to the religion of Islam and becomes a Muslim as soon as he finished uttering the two clauses of the Affirmation of Faith provided that the requirements of section 107 are fulfilled; and that person shall thereupon be referred to as a muallaf

 

Requirements for conversion to the religion of Islam

 

107. (1) The following requirements shall be complied with for a valid conversion of a person to the religion of Islam:

 (a) the person must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith;

 

(b) at the time of uttering the two clauses of the Affirmation of Faith the person must be aware that they mean “I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad S.A.W. is the Messenger of Allah”; and

 

(c) the utterance must be made of the person’s own free will

(d) The Court held that the Respondent fulfilled one of the definitions of a Muslim as stated in paragraph 2(1)(e) Enactment No.1 of 2003 as follows-

“Muslim” means—

(a) a person who professes the religion of Islam;

(b) a person either or both of whose parents were at the time of the person’s birth, a Muslim;

(c) a person whose upbringing was conducted on the basis that he was a Muslim;

(d) a person who is commonly reputed to be a Muslim;

(e) a person who has converted to the religion of Islam in accordance with section 108; or

(f) a person who is shown to have stated, in circumstances in which he was bound by law to state the truth, that he was a Muslim, whether the statement be oral or written;

 

(e)  On this first issue, the Court was satisfied that the Respondent, through their witnesses, failed to prove any legal defects in the conversion process. Therefore, the Court agreed with the Appellant’s second ground of appeal that the Learned Judge erred in finding that the Respondent’s conversion had not been fully proven.

2.    Whether the Respondent provided sufficient evidence to prove that they are no longer of the Islamic faith, based on their current beliefs and practices??

(f)   The Respondent presented three witnesses; the mother, the husband and her sibling.  They confirmed that the Respondent continued to practice Hinduism after converting to Islam.

(g) The Court also held that these witnesses were biased, given their familial relationship with the Respondent.

(h)  The Court held that all claims made by the Respondent regarding their religious practices and beliefs had to be proven. In the Court’s opinion, these claims and statements did not fall within the definition of Iqrar as provided under section 17 of the Syariah Court Evidence (State of Selangor) Enactment 2003[“Enactment No.5 of 2003”]. The Court respectfully referred once again to the case of AYG v. MAIS 10XXX-XXX-0XXXX-XXXX, where the Syariah Appeal Court held:

“Based on the above section, iqrar was a confession made by an individual regarding an obligation or liability owed to another concerning a certain right. It was not a confession made by an individual about themselves. Therefore, it was clear that the Appellant’s claim concerning themselves in the trial did not constitute iqrar. Since the Appellant’s claim was not an iqrar, they were required to present evidence and testimony in Court to substantiate their claim.”

(i)    The Court referred to the case of KOA v. Majlis Agama Islam Selangor (MAIS) & Another [2017] SLRAU 41,  where the Syariah Appeal Court of Selangor, in its judgment on 21 June 2017, stated:

“We agreed with the Appellant’s arguments and the authorities cited that non-Muslim witnesses were eligible to provide testimony based on section 83(2) of the Evidence Enactment. However, we would like to emphasize that the admissibility of any bayyinah evidence provided by a non-Muslim regarding a Muslim varies depending on the case and the evidence presented. This means that evidence from a non-Muslim is not to be accepted absolutely… We draw attention once again to paragraph 20 of this judgment, where the Appellant’s statements concerning themselves, claiming to have practiced the beliefs and teachings of Christianity, are evidence that must be further substantiated by the Appellant with certain quantities and qualities of proof, whether through witnesses or documents.”

(j)    The Court held that it was not safe to rely entirely on the testimony of these witnesses in determining the Appellant’s religious beliefs and faith.

(k)  Regarding the argument that the Appellant continued to practice a non-Islamic way of life, the Court wished quoted and reiterated the opinion of the Appeal Panel in the case of Majlis Agama Islam Selangor v. HYF (Appeal Case No. 1XXXXXXXXXXXXXXXX) which stated that:

“If thereafter, they do not practice the teachings of Islam or continue to live a non-Islamic lifestyle, they become sinful and rebellious until they repent.”

(l)     The Court agreed with the findings of the Appeal Panel in that case, stating that a failure by any Muslim to practice the teachings of Islam does not result in the loss of an individual’s faith. Similarly, engaging in sinful acts, such as consuming haram food or drinks, is acknowledged as a sin but does not invalidate one’s faith or lead to being considered outside of Islam.

(m)  The Court further held that the Respondent’s conversion process was carried out following the requirements of section 107 Enactment No.1 of 2003.

2.    The order issued by the Learned Judge of the Syariah High Court of Shah Alam on 30 May 2022 in Case No: 10XXX-XXX-XXXX-XXXXX is hereby revoked.