Azhahari Kamal Ramli JCA (Majority):

Introduction

[1] This is an appeal by the plaintiff in the court below against the decision of the High court at Kuantan in dismissing her Originating Summons for a declaration that she is not a person professing Islam. It revolves around the issue of the appellant's religious status. In her Originating Summons (the OS) dated 14 July 2022, the plaintiff sought the following orders or reliefs:

1. a declaration that the Plaintiff is not a person professing the religion of Islam;

2. a declaration that the word "parents" in para (b) in the definition of "Muslim" in s 2, Administration of Islamic Law Enactment 1991 Pahang (Enactment No 3 of 1991) (referred to as "the Enactment") only refers to the parents of a legitimate child;

3. a declaration that the plaintiff has the right to practice and profess her own spiritual and cultural belief as an aboriginal person from the Jakun tribe without any interference from the defendants; and/or

4. costs to be borne by the defendants; and/or

5. any further and/or other order this Honourable court deems fit and/or otherwise appropriate.

[2] After hearing submissions from the plaintiff and the defendants, the learned High court Judge (HCJ) dismissed the OS on 22 February 2023. Dissatisfied with the said decision, the plaintiff now appeals before us seeking to reverse the decision of the learned HCJ.

[3] Both my learned brother, Che Mohd Ruzima Ghazali JCA, and myself, decided in favour of the appellant, whilst my learned brother, Wong Kian Kheong JCA, dissented. We now give our reasons for deciding so. In this judgment, the parties will be referred to as they were in the court below, while the words "Islam" and "Muslim" will be used interchangeably, depending on the context.

Background Facts

[4] The background facts of this appeal can be gleaned from the affidavits filed in the High court as well as the written submissions of learned counsel herein. We would adopt the same with some modifications.

[5] The plaintiff was born out of wedlock on 27 November 1993 to one Sofiah binti Denting and Sulaiman bin Akim. The plaintiff's mother is an indigenous person of the Jakun tribe. At the time of the plaintiff's birth, her mother was not a Muslim but practiced the customs and spiritual beliefs of the Jakun tribe. However, at that material time, the plaintiff's biological father was a Muslim. Both Sulaiman and Sofiah were never married. The plaintiff was not issued a birth certificate.

[6] The plaintiff's mother embraced Islam on 14 November 1995. The plaintiff did not accompany her mother when the latter embraced Islam. The plaintiff was then 2 years old. The plaintiff contended that her mother embraced Islam for the purpose of marrying Sulaiman. However, this never materialized. Be that as it may, the plaintiff's mother took the Muslim name of Sofiah binti Denting and remains a Muslim. The plaintiff's mother had been issued a Certificate of Conversion to Islam by the 1st Defendant. The plaintiff's name appeared in the Daftar Rekod Muallaf Negeri Pahang, a record kept by the 1st Defendant. In this regard, the plaintiff's mother claimed that at that material time, she did not decide nor consent to the plaintiff's conversion to Islam.

[7] It is the plaintiff's case that she had never practiced Islam but instead, practiced the customs and spiritual beliefs of the Jakun.

[8] When the plaintiff was about 13 years old, her mother had to apply for her identity card at the National Registration Department (NRD). During the application, the NRD officer stated that the plaintiff's religion was Islam because her mother was a Muslim. Around the year 2008, the plaintiff went to the Islamic Religious Office in Kuala Rompin with her mother, where she had informed the officer there that she did not want the word "Islam" on her identity card. She was, at that time, 15 years old. There, they were informed that since her mother had embraced Islam, the plaintiff was automatically considered a