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2024 MarsdenLR 1715
HIGH COURT MALAYA PENANG
NISHANTHI JAYA – Appellant
Versus
KETUA PENGARAH PENDAFTARAN NEGARA – Respondent
[Originating Summons No: PA-24NCvC-1477-11-2023]
Civil courts lack jurisdiction to grant relief if a person is identified as a Muslim by virtue of their parent's religion at birth, as established under the Administration of the Religion of Islam (State of Penang) Enactment 2004.
Headnote:(A) Administration of the Religion of Islam (State of Penang) Enactment 2004 – Section 2(1) – Jurisdiction of civil courts to determine religious status – Plaintiff claims never to have been a Muslim, seeking declarations to that effect – Court finds Plaintiff is a Muslim by virtue of her mother's religion at the time of her birth – Jurisdiction lies with Syariah courts if Plaintiff is indeed a Muslim. (Paras 1, 4, 7, 12, 14)
(B) Federal Court case of Rosliza Ibrahim v. Kerajaan Negeri Selangor & Anor, [2021] 2 MLJ 181 – Civil courts have jurisdiction to determine if a person has never been a Muslim, but not if they are no longer a Muslim – Court emphasizes identification as a Muslim regardless of practice or belief. (Paras 6, 15)
Facts of the case: Plaintiff seeks declarations regarding her religious status, asserting she has always practiced Hinduism, while Defendant maintains she is a Muslim based on her mother's religion at the time of her birth. (Paras 1, 4, 5)
Findings of Court: Plaintiff is legally identified as a Muslim due to her mother's status at the time of her birth, and thus the court lacks jurisdiction to grant the relief sought. (Paras 7, 34)
Issues: Whether the Plaintiff has ever been a Muslim and the jurisdiction of the civil court in such matters. (Paras 4, 5)
Ratio Decidendi: The court ruled that the Plaintiff's identification as a Muslim is established by her mother's religion at the time of her birth, affirming that civil courts cannot grant relief if the Plaintiff is indeed a Muslim. (Paras 12, 34)
Result: Originating Summons dismissed.
JUDGMENT
Introduction
[1] The Plaintiff ("P") filed this Originating Summons on 28 November 2023 to seek for the following declarations. To wit, (a) that P has never professed the religion of Islam; and (b) that P has always professed and practised the religion of Hinduism.
[2] The Defendant ("D") is the Director General of the National Registration Department.
[3] On 25 March 2024, I dismissed the Originating Summons. Here are the grounds of my decision.
The Plaintiff's Case
[4] At the outset, P concedes that if she is indeed a Muslim, then I would not have jurisdiction to hear and grant the reliefs sought for by her in this Originating Summons. In such case, she has to go to the Syariah High Court.
[5] However, P's contention is that she is not a Muslim ab initio. That is to say, she was never a Muslim to begin with. As such, I have the jurisdiction to hear and grant such reliefs.
[6] P relies on the Federal Court case of Rosliza Ibrahim v. Kerajaan Negeri Selangor & Anor, . In that case, the apex Court decided that the civil courts have the jurisdiction to determine the status of a person who claims to 'never have been a Muslim'. As opposed to 'no longer being a Muslim', which only the Syariah courts have the jurisdiction.
Decision
[7] It is my finding that P is indeed a Muslim. Hence, by P's own admission, I do not have jurisdiction to hear and grant the reliefs sought for by her.
[8] Here are my reasons.
The Plaintiff Is A Muslim
[9] When P was born on 27 December 1997, her biological mother, ie Habibah Bee a/p Mohamed Noordin ("biological mother"), was a Muslim. This is proven by the records of the National Registration Department.
[10] During the application for Kad Pengenalan Bermutu Tinggi on 7 November 1990, P's biological mother had stated Islam as her religion. This was stated at column 8 'Agama' in the Borang Permohonan Kad Pengenalan.
[11] Thus, P is a Muslim, since her biological mother was a Muslim.
[12] This is by virtue of s 2(1) of the Administration of the Religion of Islam (State of Penang) Enactment 2004 , which reads:
"In this Enactment, unless the context otherwise requires:
...
"Muslim" means:
(b) a person either or both of whose parents were at the time of the person's birth, a Muslim;"
[13] Pursuant to the above provision, if either of her parents was a Muslim at the time of her birth, P is considered a Muslim. Such is indeed the case here. At the time of P's birth, her biological mother was a Muslim. P's biological mother passed away on 14 October 2020.
[14] Based on the facts of the instant case and the definition of "Muslim" under s 2(1) of the Administration of the Religion of Islam (State of Penang) Enactment 2004 , I find that P is a Muslim. As such, this is not an ab initio case.
[15] The following passage from the Federal Court case of Rosliza Ibrahim (supra, at p 93) is instructive.
"[83] Article 11(1) of the FC guarantees the right to profess and practice one's religion. The conjunction 'and' in art 11(1) suggests that it governs more than mere professing. It extends to how one identifies oneself or how one may be identified with a specific religion and the right to also determine one's own level of devotion to his or her belief. However, Item 1 of the State List singularly uses the word 'professing'. Contrasting art 11(1) with Item 1 of the State List, it is plain that the latter was deliberately more narrowly worded to exclude the requirement of "practice". Thus, so long as one is a Muslim by identification whether he practises or not, or whether he continues to believe in the faith or not, he is no less legally identified as a "person professing the religion of Islam"."
[16] Here, P is identified as a Muslim. On 28 December 2009, P applied for an identity card for the first time at the age of twelve. At that material time, Puspha a/p Suppiah ie, P's adoptive mother, indicated Islam at column 15 'Agama' in the Borang Permohonan Kad Pengenalan as P's religion.
[17] P asserts that she does not profe
