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FEDERAL COURT PUTRAJAYA
ROSLIZA IBRAHIM – Appellant
Versus
KERAJAAN NEGERI SELANGOR & ANOR – Respondent
[Civil Appeal No: 01(f)-2-01-2020(B)]
Key Points: - The court dismissed the appeal, recognizing the plaintiff's illegitimacy and ruling she was not a Muslim as her parents were not married at her birth, asserting civil jurisdiction over the case. (!) - The appellant alleged illegitimacy and sought declarations on her religious status, contending her father’s Muslim identity did not apply to her due to lack of marriage at birth. (!) - The court found that despite the father's religion, the statutory definitions of a "Muslim" and legitimacy were not satisfied, thus the civil court held jurisdiction. (!) - A distinction was made between "ab initio" cases (asserting never being Muslim) and renunciation cases (handled by Syariah courts), concluding civil courts correctly exercised jurisdiction based on evidence of the mother’s beliefs. (!) - The plaintiff was born out of wedlock to a Buddhist mother and a Muslim father. (!) - The court found the plaintiff to be illegitimate and not a Muslim based on the evidence presented. (!) - Conflicting applications for identity cards were insufficient to establish legitimacy or religious identification. (!) - The key issues were whether the plaintiff was illegitimate due to her parents' marital status and whether she could be deemed a Muslim under civil law versus Islamic law based on her father's religion. (!) - The court ruled that the definitions of "Muslim" under relevant enactments imply parental legitimacy, emphasizing the burden of proof in establishing one's status as a Muslim in an "ab initio" case. (!) - The court found no proof of marriage between the plaintiff's parents at the time of her birth, establishing her illegitimacy. (!) - The plaintiff was not considered a Muslim by virtue of her father's religion due to her illegitimacy and her mother's non-Muslim status. (!) - The civil court has jurisdiction to determine whether a person is or is not a Muslim ("ab initio" cases), while the Syariah court has jurisdiction over cases of renunciation ("no longer a Muslim"). (!) - Identity card particulars are not conclusive proof of facts when disputed, and the burden of proof lies on the party asserting the truth of those contents. (!) - The plaintiff's appeal was allowed, recognizing her illegitimacy but withholding declarations regarding her religious status pending expert opinion. (!)
Introduction
[1] The dispute between Rosliza binti Ibrahim ('the appellant/plaintiff'), who was raised as a Buddhist by her Buddhist mother (as averred to by the mother with no averment to the contrary by the father), and Kerajaan Negeri Selangor and Majlis Agama Islam Negeri Selangor, ('the respondents/defendants'), as aptly stated by the 2nd respondent in its written submission dated 15 September 2020, pertains to whether an illegitimate child whose mother is not a person professing the religion of Islam, is not subject to 'Muslim law' (and hence not subject to the jurisdiction of Syariah Courts).
[2] The issue herein is similar to Azmi Mohamad Azam v. Director Of Jabatan Agama Islam Sarawak & Ors, 2016 MarsdenLR 1616 ('Azmi'). Azmi will be referred to in detail in the later part of this judgment. Suffice to state at this juncture that Azmi's case was ultimately resolved by consent, where the National Registration Department ('NRD') removed the word 'Islam' from his National Registration Identity Card ('identity card').
[3] The appellant/plaintiff failed in the courts below in her bid to seek recourse from the civil court. On 20 January 2020, this court granted the appellant/ plaintiff leave to appeal on the following two questions of law:
"1. Where the subject matter of a cause or matter requires a determination of "whether a person is or is not a Muslim" under the law rather than "whether a person is no longer a Muslim" whether the High court has the exclusive jurisdiction to hear and determine the said subject matter on a proper interpretation of art 121 and Item 1 of the State List of the Federal Constitution ('FC')?; and
2. In light of reg 24(1) of the National Registration Regulations 1990 and where the truth of the contents of any written application for registration of an identity card or the contents of an identity card is not proven by affidavit or at trial, whether the said contents can be considered facts proved for a declaration of status under s 41 of the Specific Relief Act 1950 ?".
Background Facts
[4] The narration of the backgrounds facts herein is adopted from the judgments of the High court and the court of Appeal. For convenience, in this judgment, parties will be referred to as they were in the High court.
[5] The plaintiff filed an Originating Summons ('OS') in the High court at Shah Alam seeking the following declarations:
(i) That the plaintiff is an illegitimate person and that one Yap Ah Mooi, a Buddhist, is her natural mother;
(ii) That the word 'parents' in paragraph (b) of the interpretation of 'Muslim' in s 2 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 ('ARIE 2003') does not include the putative father of an illegitimate child; and
(iii) That the plaintiff is not a person professing the religion of Islam, and that:
(a) All laws made by the Legislative Assembly of the State of Selangor under the Ninth Schedule, List II, Item 1 of the Federal Constitution ('FC') are of no effect on, and are inapplicable to, the plaintiff; and
(b) All Syariah Courts within the State of Selangor do not have jurisdiction over the plaintiff.
[6] The facts upon which the OS and the reliefs sought are as follows.
[7] The plaintiff's birth certificate states that she was born at the Chinese Maternity Hospital Kuala Lumpur on 19 November 1981 to one Yap Ah Mooi and one Ibrahim bin Hassan ('Ibrahim'). Yap Ah Mooi's residential address was recorded as 38B, Jalan Pasar, Pudu, Kuala Lumpur. There was no column for Ibrahim's address in the birth certificate. Nevertheless, Ibrahim's application for an identity card on 22 June 1982 recorded the same residential address.
[8] On 13 January 1994, Ibrahim submitted an application for an identity card on behalf of the plaintiff. In that application, Ibrahim stated the plaintiff's religion to be 'Islam'. The residential address recorded was 37, Jalan Bunga Matahari 3, Taman Maju Jaya, Kuala Lumpur. Ibrahim also recorded Yap
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