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2021 MarsdenLR 2093
FEDERAL COURT (PUTRAJAYA)
TENGKU MAIMUN TUAN MAT, CJ, ROHANA YUSUF, J, AZAHAR MOHAMED, CJ, NALLINI PATHMANATHAN, ABDUL RAHMAN, J, ZABARIAH MOHD YUSOF, J, HASNAH MOHAMMED HASHIM, J, 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)
The court ruled that an illegitimate child cannot be declared a Muslim by virtue of a parent's status if there is no proof of marriage; thus, jurisdiction lies with civil courts.
Headnote:(A) Administration of the Religion of Islam (State of Selangor) Enactment 2003 - Section 2(b) - Specific Relief Act 1950 - Section 41 - Jurisdiction of civil courts and Syariah courts in matters of religious status - The plaintiff's claim pertains to her declaration as an illegitimate child without a Muslim upbringing, ultimately seeking to assert she is not subject to Muslim law or jurisdiction of Syariah courts. (Paras 1, 3, 4, 6, 16, 26, 28, 60-70)
(B) Burden of proof - The plaintiff bears the burden to prove the non-existence of her parents' marriage to establish her illegitimacy, shifting the evidential burden to the defendants regarding the proof of marriage. (Paras 36-40)
(C) The distinction between ab initio cases and renunciation of faith - The applicable law in determining whether one professes Islam must account for original status rather than mere identification; the declaration sought implies renunciation, which sits within the jurisdiction of the Syariah Courts. (Paras 90-100, 124)
Facts of the case:
The plaintiff commenced proceedings to declare herself an illegitimate child, asserting that her mother was a Buddhist and her father, a Muslim, could not confer Muslim status due to their unmarried status at her birth. The evidential establishment of marriage between her parents was contested. The plaintiff’s identity papers originally listed her religion incorrectly, leading to ambiguity regarding her legal status. (Paras 5-14)
Findings of Court:
The High Court and Court of Appeal previously concluded the plaintiff was a legitimate Muslim child; however, their findings were based on an erroneous assumption regarding her parents' marriage, leading to a misapplication of law concerning legitimacy and religious identity, affirming that without proof of marriage, the plaintiff is not subject to Muslim law. (Paras 90-123)
Issues: Whether an illegitimate child of unmarried parents can be classified under Islamic law as a Muslim, and if the civil courts have jurisdiction to declare a person's religious status. (Paras 72-90)
Ratio Decidendi: The court clarified that the burden of establishing the legitimacy rests on the plaintiff, supported by the need for clear evidence based on the statutory definitions in relevant enactments. Since her parents’ marriage could not be proven, she cannot be deemed a Muslim solely due to her father's status. Therefore, her matter falls within civil jurisdiction, not the Syariah Court. (Paras 24-35, 100-110)
Result: The plaintiff's appeal is allowed, and previous orders of the High Court and Court of Appeal are set aside, granting her declaratory relief as sought.
| Table of Content |
|---|
| 1. jurisdiction over illegitimate child's status (Para 1 , 2 , 3) |
| 2. background facts of the appellant's identity (Para 4 , 5 , 6) |
| 3. legal decisions affirm mother's identity assertions (Para 16 , 17) |
| 4. burden of proof lies with the appellant (Para 20 , 21 , 22) |
| 5. illegitimacy prohibits assumption of father's religious status (Para 63) |
| 6. decision confirms appellant's claim and overturns lower courts (Para 124 , 126) |
[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 22.6.198
