KUALA LUMPUR, Jan 13 — In a two-one majority ruling today, the Court of Appeal reversed a High Court's previous declaration that a 37-year-old Selangor-born woman is “not a person professing the religion of Islam”.
The two judges who allowed the bid by the Selangor Islamic Religious Council (Mais) and the Selangor state government to restore the woman’s religious identity as a Muslim was Datuk Yaacob Md Sam, who chaired the three-judge panel, and Datuk Mohd Nazlan Mohd Ghazali.
The sole dissenting judge was Datuk Ravinthran Paramaguru who said the High Court was correct to declare the woman as not a person professing the religion of Islam”.
The woman, identified only as D to protect her privacy, was born to an ethnic Indian father who was Hindu and an ethnic Chinese mother who was originally Buddhist but later converted to Islam.
Her parents had a civil marriage.
On May 10, 2021, D filed an originating summons in the civil High Court in Shah Alam, naming Mais and the Selangor state government as the two respondents.
In her lawsuit, D sought a court declaration that she is “not a person professing the religion of Islam”.
Among the reasons she gave was that her father’s consent was never obtained for her conversion to Islam as a child and that she had never uttered the kalimah syahadah or the declaration of belief for Islam. Her father passed away in 1996.
The other reasons she listed were that the consent of both her father and mother were required for any conversion to take place, and her assertion that she was born a Hindu and had only professed and practised the Hindu religion at all times.
On December 21, 2021, the High Court granted D’s application for a declaration that she is “not a person professing the religion of Islam”, and dismissed Mais’ counterclaim to declare D a vexatious litigant.
The High Court had also found her unilateral conversion to Islam at the age of four – in May 1991 – by her Muslim convert mother to be invalid from the start.
On January 17 last year Mais filed an appeal against the High Court’s decision which declared D to be not a person professing the religion of Islam.
The Selangor state government also filed an appeal on January 19, 2022.
Both these appeals were heard in September last year and decided today.
What the Court of Appeal decided today
Reading out excerpts from the majority ruling, Nazlan said he and Yaacob were of the view that the civil courts did not have jurisdiction to decide on D's lawsuit.
Nazlan said D's case falls within the Shariah courts' jurisdiction, and that her situation was a renunciation case (where a person seeks to renounce Islam or wants to leave the religion) instead of an ab initio case (where a person was never a Muslim to begin with).
Nazlan said this was because the Shariah courts had previously decided that D is still a Muslim.
“As determination of her religious status had already been made by the Shariah High Court and the Shariah Court of Appeal, this originating summons must be construed as a renunciation case and considering civil courts have no authority to appeal, review or set aside decision by Shariah courts – this includes relitigating at civil courts – any reopening at civil courts of decision made by Shariah courts of an individual's religious status is not countenanced by Article 121 (1A),” he said.
Nazlan said he and Yaacob also found that D had not succeeded in showing she was a person not professing the religion of Islam.
Among other things, Nazlan had also said that D's conversion to Islam as a child is valid, as the Selangor Islamic Religious Department (Jais) had issued a conversion card to her in 1993 and as a Selangor state law provided that a certificate of conversion is to be taken as “conclusive proof” of the facts stated there.
He was referring to the Administration of Islamic Law Enactment 1989, which came into force on September 1, 1991, specifically Section 74(3).
Ruling that D's case falls outside the jurisdiction of the civil courts, Nazlan allowed the appeals by the Mais and the Selangor government and set aside the High Court's decision which had been in favour of D, and made no order as to costs.
Minority ruling
Dissenting judge Ravinthran cited another similar case – Rosliza Ibrahim – in which the Federal Court distinguished between exit or renunciation cases, and cases where a person believes he was never a Muslim in the first place, or when the conversion was invalid.
He pointed out that the apex court had urged civil courts to examine the subject matter before declining jurisdiction.
Ravinthran found no element of apostasy or renunciation in this case as he noted that D did not apply in the lawsuit to renounce the religion of Islam.
He also said it was undisputed that D is not a Muslim as she was born from a non-Muslim marriage and she was only five years old at the time of her purported conversion and the consent from her father was not obtained.
“Therefore the High Court correctly assumed jurisdiction to consider the matter on merits, whether to grant the declaratory relief in respect of her religious status,” he said.
He also agreed with the High Court that D's conversion as a child was invalid, since the existing and applicable Selangor state law – when D was allegedly converted in May 1991 – disallowed the conversion of any person who has not reached the age of puberty to Islam.
The judge was referring to the Administration of Muslim Law Enactment 1952 (which was in force from October 1952 to August 31, 1991) and its Section 147 which carried the heading “no conversion of children” and states “No person who has not attained the age of puberty shall be converted to the Muslim religion”.
Although the Administration of Islamic Law Enactment 1989's Section 70 states that the moment any man or woman converts to Islam, the child who has yet to become an adult who be converted to Islam at the same moment, Ravinthran pointed out that this law only came into force in September 1991 which was after the purported conversion of D in May 1991.
Ravinthran noted that there was no evidence that D had undergone conversion to Islam at a later date or after she reached puberty.
He said the law that should apply to D's case is the 1952 enactment where no person who has not reached puberty cannot be converted to Islam.
He viewed the conversion of D to Islam in May 1991 as unlawful as it was in clear violation of Section 147 of the 1952 enactment, and said the conversion card issued in 1993 to D “cannot logically be conclusive proof of conversion” as the conversion was unlawful in the first place.
As for the arguments raised where D's father did not challenge her conversion before he died in 1996, Ravinthran highlighted that it was undisputed that the father's consent was never obtained for her conversion, and went on to cite the Federal Court's 2018 decision in M. Indira Gandhi's case which ruled there is a constitutional requirement for both parents' consent to be obtained for the conversion of their children's religion.
Ravinthran also agreed with the High Court that D was given exposure to Islam during her childhood.
He accepted the Muslim convert mother's undisputed affidavit that both she and her subsequent Muslim husband (D's stepfather) had allowed D to continue practising her original faith since young.
Citing the Federal Court decision in Rosliza, Ravinthran said D cannot be prevented from having her religious status determined in the civil court as it is a matter of constitutional identity.
While Ravinthran was of the view that both the appeals by Mais and Selangor should be dismissed, his view was the dissenting judgment. This means that the majority ruling will apply and the High Court decision in D's favour has been overturned.
The decisions were read out by the Court of Appeal judges in an online session on the video-conferencing platform Zoom, with Yaacob saying the full grounds of judgment for both the majority and dissenting rulings are expected to be made available to lawyers in this case by next Monday.
The Selangor state government was represented today by state legal adviser Datuk Salim Soib @ Hamid and federal counsel Husna Abdul Halim, while Mais was represented by lawyers Majdah Muda and Mohamed Haniff Khatri Abdulla.
When contacted, D's lawyer Surendra Ananth told Malay Mail that his client will be pursuing an appeal at the Federal Court and will be filing an application for leave to appeal.
More about this case
In this lawsuit, D's mother had in an affidavit previously told the courts that she had went to Jais with her child in May 1991. She had decided to convert to Islam while waiting for her divorce with her Hindu husband to be concluded, as she intended to marry a Muslim man after the divorce.
In the affidavit, D's mother said she had been told in 1991 by a Jais officer that D would have to be converted to Islam to ensure her continued custody of the child, with the officer saying D would be able to choose her religion once she turned 18. The mother said she uttered the kalimah syahadah twice, but D did not utter this and was unaware and did not understand what was happening.
D started her journey at the age of 25 in 2011 to have the label “Islam” removed from her identity card to reflect her religious identity to be non-Muslim, but the National Registration Department rejected her application.
She then went through a seven-year process from age 27 to 34 in her bid to obtain a confirmation from the Shariah courts that she is not a Muslim, but the Shariah courts ruled against her.
She then filed this lawsuit in the civil courts, winning in the High Court in December 2021. The High Court order which she won was set aside today.
For more on D's case, read here.
