Federal Court avoids deciding on right to religion of choice

By Debra Chong

February 02, 2012

Raus chaired the five-man panel which decided on the issue.

PUTRAJAYA, Feb 2 — The country’s top court today passed on a chance to answer one of the most fundamental constitutional questions plaguing this multiracial and multireligious nation of 28 million people — the right of a person to profess his faith of choice.

An Indian Malaysian father of three, Zaina Abdin Halim @ S. Maniam, who has been declared a Muslim on his identity card, has been seeking to have the National Registration Department (NRD) strike it off since 2002.

Fahri Azzat , lawyer for the litigant, told The Malaysian Insider today: “If a person’s mother and father are Muslims, that provision under section 2 of the Selangor State Enactment restraints the person from professing a faith of choice.”

Born of an ethnic Indian father and a Malay Muslim mother, the Zaina Abdin has said in court documents that he was raised to be a Hindu and has brought up his three children in the religion their whole lives.

In a sworn statement, he has put his real name down as Balachandran son of S. Maniam, taking the cue from his father’s name before the latter embraced Islam to marry.

The government agency, however, has refused to allow Zaina Abdin, also known as Balachandran, to change his religious status, based on a provision of the Selangor State Enactment concerning Islamic affairs.

Under section 2 of the state Islamic law, children of Muslim parents are automatically deemed to be Muslim as well.

As such, Zaina Abdin aka Balachandran would have to apply to the Syariah Court to renounce he is Muslim and become an apostate. He maintains he is not an apostate.

The upset litigant charges that section 2 is against the basic principles of the Federal Constitution, the country’s highest law, specifically Article 1(1), which states: “Every person has the right to profess and practise his religion and subject to Clause (4), to propagate it.”

Clause 4 states that state law and in the cases of Kuala Lumpur, Putrajaya and Labuan, federal law, may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

But a five-man panel of judges in the Federal Court unanimously decided that it was not the proper platform to determine a person’s religious position and returned the case to the High Court for a hearing.

“We are unanimous that this case is not a suitable case to be referred to us under section 84 of the Courts of Judicature Act.

“The facts [of the case] are in dispute,” said Court of Appeal president Tan Sri Raus Sharif, who chaired the Bench.

The crucial fact of the case rests on whether Zaina Abdin aka Balachandran is Muslim or Hindu, as he claims.

Both the man’s lawyers and government lawyers have been at odds on this one basic fact, agreeing only that by operation of the law Zaina Abdin aka Balachandran is Muslim, which is the latter’s dispute.

The Federal Court directed the case be heard on its merits in the High Court.

K. Shanmuga, aAnother lawyer for Zaina Abdi aka Balachandran, told reporters his client was disappointed by the Federal Court decision after a 10-year wait which would have granted him finality in the matter.

The lawyer added that the three children, who were minors when the case was first filed in 2002, were now adults of marriageable age.

He said the Federal Court decision would also affect the trio, who like their father, had sued the federal government, the Selangor government and the Selangor Islamic Council, to seek the same basic rights.

“Now, we can only go back to the High Court and ask for an early hearing date,” Shanmuga said.