Majlis Agama Islam Selangor v Dahlia Dhaima bt Abdullah and another appeal [2023] MLJU 127

Majlis Agama Islam Selangor v Dahlia Dhaima bt Abdullah and another appeal [2023] MLJU 127

Court of Appeal (Putrajaya)

The Conflict of Jurisdiction between Civil Court and Shariah Court in Apostasy Cases

Facts

1.    The two appeals before this court are against the decision of the High Court that granted a declaration that the Respondent is not “a person professing the religion of Islam”.

2.    The Respondent was born on 17.11.1986 to non-Muslim parents. Her given name at birth was Dahlia Dhaima. Her late father was a Hindu of Indian descent whereas her mother was a Buddhist of Chinese descent.

3.    The marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 but the couple separated in 1991. The Respondent’s mother took the Respondent who was then under the age of five to live with her in Selayang Baru, Selangor. The marriage was dissolved on 18.12.1992 when decree absolute was granted by the High Court.

4.    But before the dissolution of the marriage, the Respondent’s mother converted to the Islamic faith on 17.5.1991 and took the name of Farah Hor binti Abdullah.

5.    The Respondent who was only 4 years and five months old was also purportedly converted to the Islamic faith and given the name of Dahlia Dhaima binti Abdullah.

6.    There is no dispute that her father did not give consent to her conversion. Eventually, he passed away on 22.3.1996.

7.    The Respondent’s mother was issued a conversion card by the Jabatan Agama Islam Negeri Selangor (JAIS) on the same day whereas the Respondent was issued the conversion card only two years later when she turned seven.

8.    Nevertheless, the conversion card of the Respondent stated that she was converted on 17.5.1991.

9.    The Respondent’s mother subsequently married a Muslim, namely one Zafri bin Manap on 10.4.1993. Thereafter, the Respondent lived with her mother and stepfather until she moved out at the age of 17 to commence her tertiary education at Kolej Tunku Abdul Rahman.

10.  Upon completion of her studies in 2010, she moved in with her aunt in Bangsar, Kuala Lumpur and she decided to live by herself in 2015.

11.  In originating summons of the Respondent, the Respondent’s mother said that when the Respondent was purportedly converted to Islam, she did not inform the Respondent’s father or obtain his consent.

12.  She also added that the five-year-old Respondent did not utter the Affirmation of Faith during the conversion and did not know what was happening and during the time the Respondent lived with her until present time, the Respondent did not practise the Islamic faith but instead practised Hinduism.

13.  The Respondent further emphasized that she has been practising Hinduism since she was young and frequented Hindu temples with her paternal relatives.

14.  Her mother and stepfather permitted her to practise her chosen faith which is Hinduism. In short, she never practised the Islamic faith or celebrated any of its festivals or prayed as a Muslim.

15.  The Respondent first filed a summons for a declaration that she was no longer a Muslim at the Kuala Lumpur Syariah High Court. But her case in the statement of claim before the Syariah High Court was that she never professed the Islamic faith from the outset.  The summons against MAIWP was then dismissed.  The appeal by the Respondent was also dismissed.

16.  The Respondent was the Majlis Agama Islam Wilayah Persekutuan (MAIWP) who commenced the instant originating summons in the High Court based on two grounds which took place after the termination of the Syariah Court proceeding.

Issue 1.    Whether the civil court possessed jurisdiction to declare that the Respondent is not a person professing the religion of Islam.

2.    Whether the Respondent had locus standi to file the instant originating summons given that she had filed a summons in the Syariah High Court earlier.

Ratios

1.    Whether the civil court possessed jurisdiction to declare that the Respondent is not a person professing the religion of Islam.

(a)   Art 121(1A) reads as follows:

“The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”.

(b)   The courts referred to Clause (1) are the two civil High Courts, namely the High Court of Malaya and the High Court of Sabah and Sarawak.

(c)   Counsel for the Appellant argued that although the relief sought is a declaration that the Respondent “is not a person professing the religion of Islam”, it is actually a case where the Respondent wanted to renounce the religion and therefore it is a matter of faith and not a matter of constitutional right as to her religious status.

(d)   In Rosliza Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 301, the Federal Court drew a distinction between apostasy or renunciation cases and cases where an applicant seeks relief in the civil court on the basis that he or she was never a Muslim in the first place.  In ruling that the civil court has jurisdiction in the latter type of cases but not the former, Tengku Maimun CJ said as follows:

“When it concerns a renunciation case, the civil courts have consistently held that it was within the jurisdiction of the Syariah Courts conferred under art 121(1A) of the FC. For the record, learned senior federal counsel appearing for the attorney general as amicus curiae, agreed that it is the civil courts that have jurisdiction over persons of the ‘ab initio category’”.

(e)   Thus, the critical and determinative question in respect of jurisdiction is whether the instant case is an apostasy or renunciation case in the first place.

(f)     According to the Court, on the face of the originating summons and the affidavits filed in support of it, there is no element of apostasy or renunciation as the Respondent did not apply to renounce the religion of Islam in the originating summons.

(g)   It is undisputed that the Respondent is not a Muslim by original faith as she is the issue of a non-Muslim marriage contracted under the Law Reform (Marriage and Divorce) Act 1976 (Act 164).

(h)   Furthermore, it is also undisputed that she was under five years old at the time of her purported conversion and that the consent of her non-Muslim father was not obtained.

(i)     Therefore, the Court concurred that the High Court had correctly assumed jurisdiction to consider the matter on the merits whether to grant declaratory relief in respect of her religious status.

(j)     Moving on to the issue of the validity of the Respondent’s conversion, the Court emphasized that the prevailing law was Section 147 of the Administration of Muslim Law Enactment 1952 which enacted that no person who has not attained the age of puberty shall be converted to the Muslim religion.

(k)    Thus, the Court was of the view that as the prevailing law categorically stipulated that no person who has not attained the age of majority shall be converted, the decision of the learned High Court Judge that the conversion was invalid cannot be challenged.

2.    Whether the Respondent had locus standi to file the instant originating summons given that she had filed a summons in the Syariah High Court earlier.

(a)   It was argued by the Appellant that the originating summons was an afterthought and the Respondent was bound by the decisions of the Syariah High Court and Syariah Court of Appeal that dismissed her summons.

(b)   The Court agreed with the decision of the learned High Court Judge who ruled that the Respondent did not lack locus standi and that the doctrine of res judicata does not apply.

(c)   The learned High Court Judge found that prior to the decision of the Federal Court in the Rosliza Ibrahim case, the law was not clear in respect of the demarcation of jurisdiction between apostasy cases and cases where the applicant asserts that he or she was never a Muslim to start with.

(d)   The civil courts declined to adjudicate on the basis that the matters were within the jurisdiction of the Syariah court without scrutinizing the subject matter.

(e)   Therefore, given the existing judicial attitude at that time and the predicament that the Respondent was in, the learned High Court Judge described her action in seeking relief from the Syariah court as something done “out of necessity”.

(f)     Thus, the Court agreed with the learned High Court Judge that in view of the Rosliza Ibrahim case which has opened a new judicial pathway for applicants in the same situation as the respondent, she should not now be prevented from pursuing her right to determine her religious status in the civil court which is a matter of constitutional and legal identity.

(g)   Moreover, the Court also agreed with the fact that the Respondent sought relief from the Syariah court does not ipso facto deprive the civil court of jurisdiction.

(h)   It is trite law that jurisdiction cannot be conferred by consent or agreement if there is no jurisdiction in the first place. Zainun Ali FCJ in the Indira Gandhi case said as follows:

“It is not open for the Syariah Courts to enlarge their own jurisdiction by agreements: ‘it is a fundamental principle that no consent or acquiescence can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction’”.

(i)     Therefore, it should not matter that the Respondent, for lack any legal avenue, approached the Syariah court first.

(j)     This is because, jurisdiction cannot be vested in the Syariah court if the court has no jurisdiction in the subject matter to start with, especially in a matter that involves a fundamental liberty under the Federal Constitution.

Decision

1.    The Court of Appeal affirmed the decision of the High Court and dismissed the appeals.

Key Take Away

1.    Pursuant to the case of Rosliza Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 301, the Federal Court held that in apostasy or renunciation cases, the Syariah Court has jurisdiction whereas in cases where it is claimed that one was never a Muslim ab initio, the civil court would have the right to adjudicate the matter.

2.    However, it must be noted that it will require careful examination of the factual matrix of the case to decide whether it is an ab initio case or a renunciation case.

3.    In light of that, the distinction between conversions out of Islam by those who were Muslims by original faith and those who were non-Muslims by original faith can be referred in the case of Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors and Another Appeal [2021] 1 MLJ 120.

4.    According to the case, they were subject to the jurisdiction of the Syariah Courts and require a renunciation in the Syariah Court to confirm their non-Muslim status as the case was premised on their original faith.

5.    As for the latter, it is on the premise that they were non-Muslims and therefore not subject to the jurisdiction of the Syariah Courts in which therefore no such renunciation of Islam was required for any supposed renunciation of their Islamic ‘faith’.

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