Low Hop Bing JCA (delivering judgment of the court)

APPEAL

This appeal is lodged by the appellants (‘the plaintiffs’) against the decision of the Shah Alam High Court in striking out the plaintiffs’ originating summons (‘the OS’).

For brevity and convenience, a reference hereinafter to an order and a rule, and to an article, is a reference respectively to that order and rule in the Rules of the High Court 1980, and the article in the Federal Constitution.

PRAYERS FOR DECLARATION

Pursuant to O 18 r 19, O 15 r 16 and O 92 r 4, the OS seeks the following declarations:

(a)An interpretation that the words ‘his religion’ in art 11(1) means the religion which a person chooses to profess and practise as his religion (para 1 of the OS) and the phrase ‘person(s) professing the religion of Islam’ in various provisions of the Federal Constitution are to be interpreted to mean ‘a person who acknowledges himself to be a believer of the religion of Islam’ (para 2);

(b)The definition of a person as a ‘Muslim’ in s 2 of the Administration of Islamic Law (Selangor) Enactment 1989 is null and void (para 3);

(c)Any requirement that the plaintiffs should obtain permission from the Syariah Court before Islamic law ceases to apply to them be considered null and void (para 4);

(d)The plaintiffs are no longer muslims (para 5);

(e)The first plaintiff has the right to determine the religion of his children (who are the other plaintiffs herein) (para 6);

(f)Any arrest and/or detention of the plaintiffs by the second defendant pursuant to state Islamic law (para 7) and the issuance of threat or issuance of any document that requires the plaintiffs to do or omit to do any act is contrary to law (para 8);

(g)Any treatment of the plaintiffs as Muslims (para 9) and any compulsion on the plaintiffs to undergo acts which relate to Islam are contrary to law (para 10);

(h)regs 5 and 14, National Registration Regulations 1990

(i)The plaintiffs shall in all respects of public and private life be recognised by their new names (para 12) and as being Hindus (para 13);

(j)The first defendant shall cause the educational institutions, in which the second to fourth plaintiffs were enrolled, not to compel or require them to undergo any instruction in Islam (para 14); and

(k)The plaintiffs are not to be considered as Malays within the meaning of art 160 (para 15).

FACTUAL BACKGROUND

The first plaintiff is a Malaysian of Indian origin, born of parents who are also Malaysians of Indian origin but are shown in their identity documents as Muslims. The first plaintiff says that throughout his formative years, his parents followed a Hindu way of life and brought him up as a Hindu.

The first plaintiff by a deed poll dated 16 March 1973 (Gazette GN No 1686 of 1973 dated 24 May 1973) adopted a new Hindu name.

The first plaintiff is the natural and lawful father of the second to fourth plaintiffs who, at the time the OS was filed, were all under the age of majority. The marriage of the first plaintiff to his Hindu wife, ie the mother of the second to fourth plaintiffs, was registered under the Law Reform (Marriage and Divorce) Act 1976.

ABUSE OF PROCESS

The first to third defendants viz the Government of Malaysia through learned senior federal counsel Hajah Azizah Hj Nawawi, the Government of Selangor Darul Ehsan through learned legal adviser Datin Paduka Zauyah Be bt Loth Khan (assisted by Mr Md Azhari bin Abu Hanit); and the Majlis Agama Islam Selangor through learned counsel Ms Siti Rahimah Kalil collectively contended that the plaintiffs’ filing of the OS constitutes an abuse of the process of the court under O 18 r 19(1)(d).

It was argued by learned counsel Mr Edmund Bon Tai Soon for the fourth defendant; and Mr Fahri Azzat (Mr K Shanmuga with him) for the plaintiffs that the OS is not an abuse of process as the plaintiffs are asking the High Court to declare certain statutes unconstitutional.

The collective contention presented for the first to third defendants was sustained by the High Court, as a r