Woman granted leave by Federal Court to appeal against decision to reinstate her as Muslim

KUALA LUMPUR, May 22 — A Selangor-born woman has obtained leave from the Federal Court to proceed with her appeals to challenge a Court of Appeal’s decision to reverse a High Court’s previous declaration that she is “not a person professing the religion of Islam”.

A three-member bench led by Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli granted the woman leave to pursue her appeal after hearing submissions from parties.

The other two members of the panel were Federal Court judges Datuk Zabariah Mohd Yusof and Datuk Mary Lim Thiam Suan.

Lawyer Datuk Malik Imtiaz Sarwar, who appeared for the 37-year-old woman in this case, wants the Federal Court to deliberate and decide on four questions of law.

In her application, the woman wants the Federal Court to determine if an order by the Syariah Court can be challenged collaterally in the Civil High Court if said order is invalid; and whether Article 121 (1A) of the Federal Constitution is applicable.

Another question is whether section 74(3) of the Administration of Islamic Law Enactment 1989 (Selangor) ousts the jurisdiction of the High Court to determine the validity of a minor’s conversion into Islam.

Malik also informed the court that the respondents in the case had no objections to his client’s application for leave, except for having two additional questions to be posed in addition to the aforementioned four questions of law.

The two other questions were posed by lawyer Mohamed Haniff Khatri Abdulla who appeared for the Selangor Islamic Religious Council (Mais); and the Selangor state government who was represented by state legal advisor Datuk Salim Soib @ Hamid respectively.

Mais, who is one of the respondents in this case, wants the apex court to determine whether two landmark Federal Court cases — Indira Gandhi and Rosliza Ibrahim — to be read to have only prospective overruling.

The doctrine of prospective overruling dictates that a decision made in a particular case would have operation only in the future and will not carry any retrospective effect on any past decisions.

The Selangor state government, meanwhile, wants the court to determine whether the civil courts have the power to reverse a finding of facts made by the Shariah Court in the determination of matters of Islamic law and doctrine.

Following today’s decision to grant leave to the woman, the Federal Court will now hear the merits of appeals at another date to be fixed later.

On January 13, the appellate court in a majority decision allowed appeals by the Selangor Islamic Religious Council (Mais) and the state government to reinstate her status as a Muslim.

In a two-one majority ruling, COA judges Datuk Yaacob Md Sam and Datuk Mohd Nazlan Mohd Ghazali ruled that the woman had failed to establish that she was not a person who professed the religion of Islam and that her suit in the High Court fell outside the jurisdiction of the civil courts.

In her originating summons, the woman, who was born a Hindu to a Hindu father and a Buddhist mother in 1986, sought a declaration that she was not a person professing the religion of Islam.

She said her mother converted to Islam in 1991 and had also unilaterally converted her, who was turning five years old then, at the Selangor Islamic Religious Department’s (JAIS) office. The woman claimed that despite her conversion to Islam, her mother and stepfather allowed her to continue to practise the Hindu faith. She claimed that she never professed the religion of Islam.

On December 12, 2013, the woman filed a summons at the Kuala Lumpur Syariah High Court for a declaration that she was no longer a Muslim and on July 20, 2017, the Syariah High Court dismissed her summons and the Syariah Court of Appeal dismissed her appeal on August 1, 2017.

The woman then filed a suit in the Shah Alam Civil High Court which granted her a declaration that she is not a Muslim.

For more on this case, read here.