MAJLIS AGAMA ISLAM SELANGOR (MAIS) v HO YOKE FAN @ NORHALIMAH BT ABDULLAH HO [2018] 2 ShLR

Majlis Agama Islam Selangor (MAIS) v Ho Yoke Fan @ Norhalimah bt Abdullah Ho [2018] 2 ShLR

Syariah Court of Appeal (Selangor)

Renunciation of Islam

Facts of the case

1.    Respondent filed an application for an order declaring that the Respondent is no longer a Muslim at Selangor Syariah High Court through case number 10300-043-0170-2011.  The Respondent named the Appellant as the Defendant.

2.    The Respondent was born in 18 March 1977, of Chinese descent, originally with faith in Buddhism.  The Respondent was raised by a Chinese family that adheres to the principles of Buddhism.

3.    The Respondent embraced Islam on September 8, 1999, at the Department of Islamic Affairs, Federal Territory of Kuala Lumpur.  The Certificate of Embracing Islam was issued by the Islamic Affairs Council of the Federal Territory of Kuala Lumpur after receiving the Respondent’s application.  Following the conversion, the Respondent requested the National Registration Department to update her Identification Card with the term ‘Islam’.  Additionally, the Respondent changed her name on the IC from Ho Yoke Fan to Norhalimah bt Abdullah Ho.

4.    On October 8, 2001, the Respondent married to a Muslim man named Indrasafri bin Aminudin.  The marriage ceremony was held in accordance with the Islamic Family Law Act (Federal Territories) 1984 (“Act 303”).

5.    On May 9, 2011, the Respondent filed an application at the Syariah High Court in Shah Alam, Selangor, seeking for a declaration to be officially recognized as non-Muslim under Section 61(3) of the Administration of Islamic Law Enactment (State of Selangor) 2003, citing the following reasons :

(a) Non-adherence to the Islamic way of life, including not complying with the pillars of Islam;

(b) Still practices Buddhism;

(c)  Never practised or been taught about Islam; and

(d) All of the Respondent’s relatives are of Chinese ethnicity and adhere to the customs of Buddhism, Christianity, and Atheism.

Issue

1.    Whether the learned judge had oversight in determining the facts and law when deciding that the Respondent’s conversion to Islam on 8 September, 1999, at the Department of Islamic Affairs, Federal Territory of Kuala Lumpur, did not fulfil the necessary pillars and conditions of the Syahadah?

2.    Whether the Syariah Court of Selangor has jurisdiction to declare that the Respondent is no longer a Muslim based on Section 61(3) of the Administration of Islamic Law Enactment (State of Selangor) 2003?

Ratios

1.    Whether the learned judge had oversight in determining the fact and law when deciding that the Respondent’s conversion to Islam on 8 September 1999, at the Department of Islamic Affairs, Federal Territory of Kuala Lumpur, did not fulfil the necessary pillars and conditions of the Syahadah?

(a) Section 85 of Administration of Islamic Law (Federal Territories) Act 1993, (Act 505) provides that-

“(1) The following requirements shall be complied with for a valid conversion of a person to 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.

(b) The criterias or prerequisites stipulated by Section 85 of the Act are considered as requirements in the Islamic Law to determine the validity of someone’s conversion to Islam.

(c)  Section 95 Administration of Islamic Law (Federal Territories) Act 1993, (Act 505) provides that-

For the purpose of this Part, a person who is not a Muslim may convert into Islam if he is of sound mind and-

(a)    has attained the age of eighteen years; or

(b)    if he has not attained the age of eighteen years, his parent or guardian consents to his conversion.

(d) If all these requirements are fulfilled, then someone’s acceptance of Islam is valid according to Hukum Syara’.  The legitimacy of one’s conversion to Islam comes into effect as soon as the individual completes the recitation of the two Syahadah declarations and complies with the stipulations of Section 85, encompassing those three conditions.

(e)  Section 86 Administration of Islamic Law (Act 505) explains that-

“A person is converted to Islam and becomes a Muslim as soon as he finishes uttering the two clauses of the Affirmation of Faith provided that the requirements of section 85 are fulfilled, and that person shall then be referred to as a muallaf.”

(f)   Consequently, based on the Court findings, the Court of Appeal maintained that the Respondent’s admission to Islam on September 8, 1999, is legitimate according to both legal provisions and Hukum Syara’, as all the necessary criterias specified in Section 95 and 85 of Act 505 have been fulfilled.

(g) The Court also found that the law provides that as soon as someone embraces Islam, they are subjected to all the responsibilities and as provided in Section 87 of (Act 505).

 “From the moment of his conversion, a muallaf becomes subject to same duties and obligations as any other Muslim”

(h)  Furthermore, the Court further held that a convert (muallaf), upon embracing Islam, is personally responsible for fulfilling all religious duties such as performing obligatory prayers, fasting, giving zakat, and other obligations, just like any other Muslim.

2.    Whether the Syariah Court of Selangor has jurisdiction to declare that the Respondent is no longer a Muslim based on the provision of Section 61(3) of the Administration of Islamic Law Enactment (State of Selangor) 2003?

(i)    The Court referred to Section 61(3) (x) Administration of The Religion of Islam (State Of Selangor) No. 1 of 2003 –

a declaration that a person is no longer a Muslim;”

(j)    In the case of Majlis Agama Islam Pulau Pinang v Siti Fatimah Tan Abdullah [2009] 27 2 185 (“Fatimah Tan”) the Court found that several guidelines and principles have been established by the Syariah Court of Appeal in Pulau Pinang. These guidelines and principles set by the Syariah Court of Appeal in Pulau Pinang have become established and should be followed as sound principles.

(k)  The principles in “Fatimah Tan” are as stated below-

i)       “With conviction in the heart, one becomes a Muslim, and thus, their well-being, wealth, and life should be safeguarded, just as the well-being, wealth, and life of any other Muslim.

ii)      For those who embrace Islam and have fulfilled the conditions of the Syahadah and have been accepted by society as Muslims, they cannot be declared as no longer Muslims under this provision.”

(l)    Based on such case, the Court explained that the Respondent has never contested the legitimacy of the Appellant’s conversion to Islam on September 8, 1999, at the Department of Islamic Affairs, Federal Territory of Kuala Lumpur.  On the contrary, the Respondent has openly admitted to the completeness of the Appellant’s embrace of Islam at that time. This contrasts the situation in the Majlis Agama Islam Pulau Pinang v Siti Fatimah Tan Abdullah, (“Fatimah Tan”) where the Respondent’s conversion to Islam was deemed incomplete according to legal and Hukum Syara’, in which, the respondent in the said case contended that-

(i)            There is no belief in the heart regarding the recitation of Syahadah that was uttered;

(ii)           Failing to implement the demands of Syahadah outwardly and inwardly; and

(iii)          The teaching of Islam did not convince the Respondent.

(m) Accordingly, the Court found that, after the completion of the Respondent’s conversion to Islam the Respondent changed her name to a Muslim name, Norhalimah binti Abdullah Ho, and a conversion card was issued for her.  Then, on 8 October 2001, Respondent married Indrasafri bin Aminudin, under Act 303.  Moreover, when the Respondent gave birth to her daughters, the mother’s name as in the daughters’ birth certificate is Norhalimah binti Abdullah Ho and not Ho Yoke Fan.

(n)  Based on the Respondent’s actions and deeds, it clearly showed to the Court that the Respondent consistently wanted herself to be accepted by the society and the law as a Muslim.

Decision

The Syariah Court of Appeal allowed the Appellant’s appeal and striked out the order from the High Court.

 

Key Take Away

1.    Once someone converted to Islam, met the Syahadah requirements, and gained societal acceptance of that person as a Muslim, then such person cannot be reclassified as a non-Muslim.

2.    Section 87 of the Administration of Islamic Law (Federal Territories) Act 1993 (“Act 505”) outlined the obligation of muallaf as follows:

“From the moment of his conversion, a muallaf becomes subject to the same duties and obligations as any other Muslim.”.

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