The civil courts lack jurisdiction over matters of religious identity that fall under the exclusive jurisdiction of Syariah Courts.

(Leave Application For Judicial Review)

Introduction

[1] The applicant, Khartini binti Mohamad Arbi filed an ex-parte application [Enclosure 1] for leave to commence judicial review pursuant to O 53 r 3 of the Rules of 2012 ( ROC 2012) for the following reliefs:

(a) A declaration that the applicant has never professed the religion of Islam;

(b) An order of mandamus to compel the 1st and/or 2nd and/or 3rd respondents to issue the changes of details of the applicant's religion in all the records and/or particulars held with the 3rd respondent, to reflect that she is not and has never been a person professing the religion of Islam;

(c) Costs be in the cause, and

(d) Any further or other relief deemed fit and proper by this Court .

Cause Papers

[2] The causes papers filed by the applicant in support of her application are as follows:

(a) Statement made pursuant to O 53 r 3(2) of the ROC 2012 dated 19 March 2024 [Enclosure 2];

(b) Affidavit in Support affirmed by the applicant on 18 March 2024 [Enclosure 3];

(c) Affidavit in Support affirmed by Enda'a Anak Unja (applicant's maternal grandmother) on 18 March 2024 [Enclosure 4]; and

(d) Affidavit in Support affirmed by Kamalia Rabiqa binti Abdullah (applicant's biological mother) on 18 March 2024 [Enclosure 5].

[3] On 24 April 2024, the learned Senior Federal Counsel (SFC) appearing for the Attorney General (the AG) indicated that the AG would oppose this application.

Brief Backgrounds Fact

[4] Based on the statements and affidavits filed in support of the application, the brief backgrounds can be summarised as follows:

(a) The applicant is a Malaysian citizen with an address at RH Matthew Lemada, Nanga Paun, Ulu Paku, 95600 Spaoh, Sarawak.

(b) The applicant's parents are Mohamad Arbi bin Roslin who is ethnically a Melanau and Kamalia Rabiqa binti Abdullah @ Chemera @ Dara anak Gida who is ethnically an Iban. Both of them are Muslims The applicant was born on 24 January 1994 at Hospital Lau King Howe, Sibu, Sarawak.

(c) At the time of the applicant's birth, it was averred that the parents placed her under the care, custody and control of the maternal grandmother, Enda'a anak Unja and this was done with the parents' joint intention that she be raised as a Christian.

(d) The applicant stayed with her maternal grandmother in her home at Rumah Matthew Lemada, Nanga Paun, Paku, 95600 Spaoh, Sarawak and she was raised by the maternal grandmother as a Christian in St. Augustine's Church Betong.

(e) It was also averred that the applicant was baptised on 3 January 2016 in St. Augustine's Church Betong under the name Katherine Arbi @ Khartini and also underwent the sacrament of confirmation under the same name on 27 May 2017.

[5] On 8 January 2024, the applicant went to the offices of the 2nd Respondent in Kuching to apply for a correction of the details on her Identity Card to reflect that she was not a Muslim. However, the attending officer verbally refused to accept the application without a Court order.

[6] Being aggrieved by the said decision, the applicant had instructed her solicitors to file an application for leave to commence judicial review.

Issues To Be Determined

[7] At this leave stage, the counsel for the applicant had raised the issue of the AG's right to make representation and to object to their application for leave as there was no affidavit in opposition filed by the Attorney General's Chambers. Thus, the following issues will be determined by this Court , inter alia as follows:

(a) Whether the Attorney General has the locus standi to appear at the leave stage;

(b) If the answer is in the affirmative, whether the AG is required to file any affidavit t