ZAINA ABIDIN HAMID @ S MANIAM v MAJLIS AGAMA ISLAM SELANGOR [2021] SLRAU 15

 

ZAINA ABIDIN HAMID @ S MANIAM v MAJLIS AGAMA ISLAM SELANGOR [2021] SLRAU 15

Syariah Court of Appeal (Selangor)

Renunciation of Islam

Facts

1.     The Appellant is a Malaysian, aged 72 years old.  The Appellant’s father is an Indian Muslim while his mother is a Malay.  The Appellant has eight (8) brothers and three (3) sisters.

2.     The Appellant lived with his parents and alleged that his parents had been practicing the norms of Hinduism even when the parents are both Muslims.

3.     The Appellant then married one Suselia A/P M Athiam on 5 February 1986 and they were blessed with three (3) children.

4.     During the trial in the Syariah High Court, the Appellant presented two (2) witnesses namely his wife and one of his friend meanwhile the Respondent presented a witness which is the Senior Assistant Registration Officer of the National Registration Department, Putrajaya.

5.     The Syariah High Court held in accordance with Section 61(3)(b)(x) of the Religion of Islam (State of Selangor) Enactment 2003 (“EPAIS”) as follows:

(a)  The Apellant is a Muslim; and

(b)  The Appellant must undergo the process of purification of faith or istitabah at the supervision of the Respondent.

6.     Dissatisfied with the findings of the High Court, the Appellant thus appeal for on the findings.

Issue

1.     Whether the learned Syariah High Court judge had erred in law and in fact upon deciding the Appellant as a Muslim in accordance with Section 2(b) of EPAIS (“First Issue”) ; and

2.     Whether the learned Syariah High Court had erred in law and in fact when having no reasonable consideration about the Appellant’s beliefs and daily life of practicing Hinduism (“Second Issue”).

Ratios

1.     First Issue-

(a)  In dealing with the issue, Section 2 of EPAIS reads 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 has been brought up as a Muslim;

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

(e)   A person who was 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,”

(g)  Upon considering the facts of the case surrounding the Appellant, the Court did not agree with the submission of the Appellant that he is not a perfect Muslim and instead the Court agrees with the Respondent’s submission that such argument of being a perfect Muslim was never raised during the trial.

(h)  In furtherance of that, the Court found that as the Appellant was never converted to Islam according to Section 18 of EPAIS, therefore, the Appellant’s conversion to Islam is through the descent or lineage of one or both parents.

(i)    This is supported by the authority from the scriptures of Mughni al Muhtaj,Al Badaie al Sanaie and Al Fiqah al Islami wa Adillatuhu that the Islamic Scholars have agreed that when a person born from parents who are Muslims or whose parents converted to Islam, the offspring are considered as a Muslim even though the child never uttered two words of shahadah throughout his life.

(j)    The Court is also guided by the case of Dahlia Dhaima Abdullah v Majlis Agama Islam Wilayah Persekutuan [14000-043-0087-2017] and Mohamad Faizal Abu Bakar Pemalu and Meena Abu Bakar Pemalu v Majlis Agama Islam Selangor [10000-043-0123-2017] in which both cases have established that religion for a child follows the religion of his parents who are Muslims.

(k)   In relation to the above, based on the facts that both parents of the Appellant were Muslims when the Appellant was born, therefore, the Court is of the opinion that the learned High Court judge had not erred when deciding that the Appellant is a Muslim based on Section 2 of EPAIS.

2.     Second issue-

(a)  Upon scrutinizing the grounds of judgment, the Court highlighted the findings of the learned High Court judge as follows:

“the Plaintiff’s (Appellant) mother is a Muslim and of Malay descent when she gave birth to the Plaintiff while his father is also a Muslim.  Therefore, the Plaintiff’s conversion to Islam is perfect as he was born with his Muslim mother even when the Plaintiff has never practiced the teachings of Islam”

(b)  To further elaborate, reference shall be made to Section 17(1) of Syariah Court Evidence (State of Selangor) Enactment 2003 EKMSS on the definition of ‘iqrar’ as follows:

“An iqrar is an admission made by a person, in writing or orally or by gesture, stating that he is under an obligation or liability to another person in respect of some right“

(c)  Reference is also made to the Court of Appeal’s case of Ayisha Yuveena Gopalan v Majlis Agama Islam Selangor [2015] 45(1) JH 15 which provide guidelines as to the interpretation of Section 17(1) of EKMSS as follows:

“Iqrar is a confession made by a person in writing or by sign, stating that he has obligation or liability to any other person concerned with a right.

(d)  Accordingly, the Court is of the view that the Appellant had not made any submission within the interpretation of Iqrar under Section 17(1) of EKMSS as the Appellant presented one (1) male witness and one (1) female witness which is not in accordance with Section 86(5) of EKMSS which reads as follows:

“Except as otherwise provided in this section, evidence shall be given by two male witnesses or by one male and two female witnesses.”

(e)  As for that, the Court held that the Appellant has failed to prove that the learned High Court judge had erred when he made no reasonable consideration about the Appellant’s beliefs and daily life in practicing Hinduism.

(f)    The Court further highlighted that the case for declaration of religious status is a serious case in which involved matters of faith and religious beliefs and that such cases need to be fully proven and dealt with carefully.

 

Decision

The Court of Appeal dismissed the appeal and affirmed the decision of the High Court.
Key Take Away

1.     Renunciation of Islam is commonly defined as the abandonment of Islamic faith be it by way of thought, word or through deed. An apostate from Islam is also known as a murtad.

2.     According to the Syariah High Court judge in the case of Siti Fatimah bte Abd Karim v Majlis Agama Islam Melaka [2007] 2 SHLR 136, it is worth highlighted that the principle of renunciation of Islam is that “Islam is not only between a man and Allah but is also the responsibility between the community and country, and to come out of it is ‘treason’”.

 

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