Rosliza Bt Ibrahim v Kerajaan Negeri Selangor & Anor [2019] 1 ShLR 1

ROSLIZA BT IBRAHIM v KERAJAAN NEGERI SELANGOR & ANOR [2019] 1 ShLR 1

Court of Appeal (Putrajaya)

Apostasy

Facts 1.     The Appellant seeked for a declaration that she was not a Muslim based on Section 2 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (the 2003 Enactment).

2.     The Appellant was born on 19 November to Mdm Yap, the mother and En. Ibrahim, the father at the Chinese Maternity Hospital Kuala Lumpur.

3.     Mdm Yap resided at 38B, Jalan Pasar, Pudu, Kuala Lumpur while the father’s application form for new identity card (IC) dated 22 June 1982 carried the same address.

4.     On 13 January 1994, the father then applied for the Appellant’s IC where the Appellant’s religion was declared as Islam. The Appellant’s mother, Mdm Yap’s lineage was declared to be ‘Melayu’.

5.     On 14 January 1995, the father applied for an IC declared that his religion as ‘Islam’ and marital status as ‘Married’.

6.     On 14 February 1995, the mother applied for her IC and declared that her race as ‘Cina’, her religion as ‘Buddha’, and her marital status as ‘Married’.

7.     On 8 October 2008, the mother declared via a statutory declaration (SD) that the Appellant is her daughter.

8.     The mother also affirmed that the father and her are the Appellant’s parents, but both of them were not married and the Appellant was not being raised as Muslim.

9.      In 2015, the Appellant filed an originating summons at High Court seeking few declarations as follows:

(a)  The Appellant is an illegitimate child and Mdm Yap is her natural mother

(b)  The word ‘parents’ in para (b) of the interpretation of ‘Muslim’ in Section 2 of the 2003 Enactment did not includes the putative father of an illegitimate child

(c)  Declaration that the Appellant is not a person professing the religion of Islam

(i)  all laws made by the Legislative Assembly of the State of Selangor under the Ninth Schedule, List II, Item 1 of the Federal Constitution are not applicable to the Appellant

(ii) all Syariah Courts within the State of Selangor do not have jurisdiction over the Appellant

10.  On 22 June 2017, the Judicial Commissioner (JC) dismissed the Appellant’s application with no order as to costs. The Appellant then appealed.

Issue 1.     Whether the Guardianship of Infants Act 1961 (Act 351) is applicable and relevant that the Appellant professed the religion of Islam or not?

2.     Whether the Civil or Syariah Court has the jurisdiction in determining whether the Appellant is a Muslim or not?

Ratios 1.     Guardianship and custody of an infant

(a)  Section 1(3) of the Act 351 provides that-

“Short title and application – guardianship and custody of an infant

1(3) Nothing in this Act shall apply in any State to persons professing the religion of Islam until this Act has been adopted by a law made by the Legislature of that State; and any such law may provide that—

(a)  nothing in this Act which is contrary to the religion of Islam or the custom of the Malays shall apply to any person under the age of eighteen years who professes the religion of Islam and whose father professes or professed at the date of his death that religion or, in the case of an illegitimate child, whose mother so professes or professed that religion; and

(b)   in the case of any other person, this Act, so far as they are contrary to the religion of Islam, shall cease to apply to such person upon his professing the religion of Islam, if at the date of such professing he has completed his age of eighteen years or, if not having completed such age, he professes the religion of Islam with the consent of the person who under this Act is the guardian of the person of the infant.”

2.     Jurisdiction of Syariah High Court in Selangor regarding apostasy matter

(b)  Section 61 (3)(b)(x) of the 2003 Enactment provides that-

“Section 61: Jurisdiction of Syariah High Court.

(3) The Syariah High Court shall—

(b) in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims and the actions or proceedings relate to–

(x) a declaration that a person is no longer a Muslim;”

3.     With regard to the guardianship and custody of an infant based on Section (1)(3) of Act 351, the Appellant contended that the Act applied to her and the mother since she is an illegitimate child born to a Buddhist mother, so it would render her to not professing the religion of Islam. As such, the Act only excluded any illegitimate child whose mother is a Muslim.

4.     However, the Court of Appeal decided that the Act 351 was not applicable for the Appellant since she is no longer an infant.

5.     It is irrelevant to determine whether the Appellant is not professing the religion of Islam because the Appellant in fact is a Muslim based on Section 2 of the 2003 Enactment, in which her father is a Malay and Muslim. The Respondent’s counsel submitted that the Appellant is a Muslim pursuant to Section 2 of the 2003 Enactment.

6.     Therefore, Section 2 of the 2003 Enactment provides that a ‘Muslim’ means ‘a person either or both of whose parents were at the time of the person’s birth, a Muslim’, so it is a settled fact that the Appellant’s father is a Malay and Muslim.

7.     It was further decided that the Appellant is not an illegitimate child born to a Buddhist mother since there is evidence that both the father and mother were married based on their marital status.

8.     Although the Appellant contended that the declaration of marital status ‘Married’ did not prove the existence of a marriage, the Court decided that the contents of the written applications for IC were not proven in which the same should be regarded as irrelevant.

9.     With regards to the declaration that the Appellant is not a person professing the religion of Islam, the Court of Appeal found that the jurisdiction to determine the apostasy matter is within the jurisdiction of the Syariah Court based on Section 61 (3)(b)(x) of the 2003 Enactment.

10.  Thus, the Court decided that the Appellant must seek the declaration of apostasy within the jurisdiction of Syariah Court, not the civil court, which is according to Article 121(1A) of the Federal Constitution.

Decision The Court of Appeal affirmed the decision of the learned Judicial Commissioner, and the Appellant’s appeal was dismissed with costs.
Key Take Away 1.     In Malaysia, generally the matter of apostasy falls within the jurisdiction of the Syariah Court.

2.     There are no constitutional issues regarding the jurisdictional conflict between the civil and Syariah Court, as the Appellant’s status of professing religion of Islam is clear based on the interpretation of Section 2 of Enactment 2003. She was born to a married parents in which the father is in actual fact; a Muslim.

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