KUALA LUMPUR, Feb 15 — A lawyer representing a Malaysian Chinese woman, who was unilaterally converted to be a Muslim as a child and wants the court to restore her as a Buddhist, has insisted her case was not of “renunciation” of Islam.
In the judicial review fixed for full hearing today, lawyer Shamsher Singh Thind told the High Court that her conversion to Islam by her father when she was 10 years’ old was “void from the beginning”.
Shamsher said his client, now 42, held on to the Federal Court’s decision in a case involving Hindu mother M Indira Gandhi’s successful bid to quash her Muslim convert ex-husband’s unilateral conversion of their three children to Islam without their knowledge and without her consent.
The Federal Court decided in that case said the term “parent” in the Federal Constitution’s Article 12(4) referred to both parents if they were still alive and capable of giving consent to a child’s religion.
Article 12(4) states that a minor’s religion shall be decided by his “parent or guardian” in matters involving Article 12(3), namely religious instruction or religious worship. Article 12(3) holds that "no person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own".
“She has never recited the Shahadah (the proclamation of faith to convert to Islam) until today. Therefore, she cannot be considered a Muslim.
“The requirement under Section 117 of the Administration of the Religion of Islam (Selangor) enactment is not fulfilled,” Shamsher said, in referring to the state enactment where it is clearly stated that both the mother and the father must agree to their children’s conversion.
Senior federal counsel Ahmad Hanir Hambaly, who is representing the National Registration Department (NRD), told the court that the government agency had only acted based on evidence produced at the material time in rejecting the woman’s bid to obtain a new personal identification card without the word “Islam”.
He argued that the agency’s action consequently could not be construed as unconstitutional or unlawful based on the circumstances at that time.
“The NRD had asked her for the Shariah Court order, but the evidence submitted to the department was merely her statutory declaration in rejecting the word ‘Islam’ as well as her conversion certificate.
“We are not the authority or expert to determine the status of her religion,” he said, adding that the NRD is willing to give the woman a new MyKad if she can show evidential proof of her renouncing the religion.
Lawyer Datuk Kamaruzzaman Muhammad Arif, who was appearing for Selangor Islamic Religious Council (Mais), affirmed that any individual wishing to remove “Islam” from their identification card must obtain a Shariah Court order and present it to the NRD.
“Legally she is a Muslim. This is a renunciation case. She was given an adult MyKad with the word ‘Islam’ on it when she turned 18 years’ old.
“There was no challenge before and after she became an adult to question the conversion until she was 42 years old,” he said.
After hearing submissions from parties, High Court judge Datuk Noorin Badaruddin then fixed March 22 to deliver her decision on the woman’s legal challenge.
Born in Singapore in 1980 to a Chinese couple both of the Buddhist faith, the woman said that her father in February 1990 converted to Islam and in October 1990 registered her with the Selangor Islamic Religious Department (Jais) as a Muslim when she was aged 10 and that she was then given a new name.
However, the woman said that her mother had never become a Muslim, and that her mother had never given permission to the father to change her religion as a child from Buddhism to Islam. The couple later divorced in 1993. The woman said the Selangor Islamic Religious Council (Mais) did not ask her mother’s consent before registering her as a child as a Muslim.
Since turning 18 or becoming an adult in 1998, the woman said she has been practising Buddhism and is also living with her mother.
The woman said she had never professed or practised the Islam faith and that she had never uttered the “shahadah” or the Muslim proclamation of faith when one embraces Islam, while also saying that the NRD does not have records to show that she had became a Muslim after turning 18.
On August 24, 2020, the woman said she had renounced the use of her current name and had made a statutory declaration to seek for a new MyKad to restore her original name and had also sought for the word “Islam” to be dropped from the replacement identity card.
On August 28, 2020, the woman applied at the NRD’s Ipoh branch in Perak for the replacement identity card, but an NRD counter officer refused to accept and process the application unless she produced orders from the Shariah High Court.
After receiving no response from the NRD to an October 2020 letter of demand seeking for the new identity card, the woman on November 12, 2020 filed for judicial review against the NRD director-general, the Malaysian government and the Mais.
The Attorney General’s Chambers (AGC) had previously objected to the woman’s application for leave for judicial review, citing three reasons, including that her challenge was allegedly out of time as it should have been filed within three months from her October 1990 conversion to Islam.
The AGC had also objected to the woman’s lawsuit by saying that the civil High Court has no jurisdiction to grant her the court orders due to the Federal Constitution’s Article 121 (1A), arguing that the matter is allegedly tantamount to a declaration of someone no longer being a Muslim that would fall under the Shariah court’s jurisdiction.
The AGC had also objected by saying that the woman had no “arguable case” for review of the NRD’s decision to refuse to process her application for a replacement identity card without an order from the Syariah High Court, citing the Federal Court’s decision in Lina Joy’s case which also involved a bid to have “Islam” removed from the applicant’s identity card.
She successfully obtained leave to have the courts hear her bid in March last year.
