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2021 MarsdenLR 3197
FEDERAL COURT (PUTRAJAYA)
TENGKU MAIMUN TUAN MAT, CJ, ROHANA YUSUF, J, AZAHAR MOHAMED, CJ, NALLINI PATHMANATHAN, J, ABDUL RAHMAN, J, ZABARIAH MOHD YUSOF, J, HASNAH MOHAMMED HASHIM, CJ, MARY LIM THIAM SUAN, J, RHODZARIAH BUJANG, J
Rosliza bt Ibrahim – Plaintiff
Versus
Kerajaan Negeri Selangor & Anor – Defendant
CIVIL APPEAL NO 01(f)-2-01 OF 2020(B)
Gopal Sri Ram (Aston Paiva, Yasmeen Soh Sha-Nisse with him) (Vazeer Akbar Majid & Co) for the appellant/plaintiff.
Salim bin Soib (Nur Irmawati bt Daud and Muhammad Haziq Hashim) (State Legal Adviser, Selangor State Legal Adviser’s Office) for the first respondent/defendant.
Abdul Rahim bin Sinwan (Zainul Rijal Abu Bakar and Azman bin Marsaleh) (Chambers of Zainul Rijal) for the second respondent/defendant.
Suzana bt Atan (Shamsul bin Bolhassan) (Senior Federal Counsel, Attorney General’s Chambers) for the amicus curiae (Attorney General’s Chambers).
Mansoor Saat (Mansoor Saat & Co) for the amicus curiae (SUHAKAM).
Philip Koh Tong Ngee (Mah-Kamariyah & Philip Koh) watching brief for Malaysian Consultative Council of Buddhism, Christianity, Sikhism and Taoism (MCCBCHST).
An illegitimate child cannot be deemed a Muslim based solely on the father's status according to the applicable laws governing Muslim identity; jurisdictional boundaries between civil courts and Syariah courts are reaffirmed.
Headnote:(A) Administration of the Religion of Islam (State of Selangor Enactment) 2003 - Section 2(b) - Federal Constitution - Article 121(1) and (1A) - Question of Muslim status of an illegitimate child - The court ruled that an illegitimate child cannot be considered a Muslim by virtue of the father's status alone when the mother is not a Muslim. The plaintiff was unsuccessful in demonstrating her father's married status to assert legitimacy. Consequently, the judgment of the High Court and Court of Appeal was overturned, recognizing her legitimate status and her claim to not be a Muslim. (Paras 2, 4, 20, 90, 126)
(B) Jurisdiction of Courts - It was held that the civil courts retain the authority to determine cases of individuals claiming never to have been a Muslim, distinguishing them from renunciation cases which fall under Syariah Court jurisdiction. The plaintiff's appeal was allowed, resulting in a judicial declaration that she is not, and never was, a professing Muslim. (Paras 77, 80, 90, 126)
Facts of the case:
The plaintiff, born illegitimate, claimed not to profess Islam, as her biological parents were unmarried at her birth, with evidence supporting her mother's Buddhist faith. Decisions of lower courts were contested for mischaracterizing her case.
Findings of Court:
The civil courts found her claim proved on a balance of probabilities, clearing the path for her declarations to be granted.
Issues: Whether the plaintiff could be recognized as a Muslim based on her father's status and the jurisdiction of civil versus Syariah courts.
Ratio Decidendi: It was concluded that legitimacy or illegitimacy of a child, when the parents are not married, has implications for religious identity, thus determining rightful jurisdiction.
Result: Plaintiff's appeal allowed; the court's findings from lower courts set aside.
[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 15.9.2020, 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 bin Mohammad Azam v Director of Jabatan Agama Islam Sarawak & Ors (‘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 20.1.2020, 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 Article 121 and Item 1 of the State List of the Federal Constitution (‘FC’)?; and
2. In light of regulation 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 section 41Specific 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 section 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 19.11.1981 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 22.6.1982 recorded the same residential address.
[8]On 13.1.1994, 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 Ah Mooi’s descent (keturunan) as Malay (Melayu).
[9]A year later, on 14.1.1995, Ibrahim submitte
