Dad questions NRD’s ‘power’ over son’s religion

The Kota Kinabalu High Court ruled that under the Federal Constitution, parents determined the religion of an underaged child and the NRD cannot impose any other conditions.

KOTA KINABALU: The High Court here has allowed an application by a father to query a decision by the National Registration Department (NRD) not to issue a MyKad to his son until the Syariah Court has determined if his son is a Muslim.

Justice Chew Soo Ho held that the applicant Phuong Hiung Woei was entitled to state the religion or faith of his son as Buddhist and there was no need for documentary proof to be produced by the father.

“For certain religions or faiths such as Buddhism there is no need for documentation. What determines the faith or religion is the practice and not documents,” the judge added when granting leave to Phuong for a judicial review of the NRD decision.

Chew had pointed out that under the Federal Constitution, the parents determined the religion of the child if the child was below the age of 18 years. And the NRD cannot impose the conditions on the parents as they had done in this case.

Phuong, 45, represented by counsel Marcel Jude Joseph in his application petitioned to the court for:-

• an order of certiorari to quash the decision of the NRD (Respondent) set down in a letter dated Feb 1, 2013.

• an order of mandamus to NRD to issue a birth certificate to his son without designating him as a Muslim.

• and a declaration that the refusal of the NRD to refuse his religion as a Buddhist is unconstitutional, unlawful, null and void.

The NRD was represented by Senior Federal Counsel Mohd Rahazlan Affendi.

Phuong is married to one Zeliha Bt Abd Karim and they have a son Phuong Jian Cheng, and was issued a birth certificate by NRD.

However the NRD subsequently re-issued another birth certificate where his religion was stated as Islam.

Raised as a Buddhist
When Phuong discovered this, he protested to the NRD and applied to cancel the erroneous registration of his son as a Muslim. His son was raised by his parent as a Buddhist.

The department however refused and instead issued a letter on Feb 1 this year instructing Phuong to go to the Syariah Court to obtain the religious status of his son.

In his leave ruling, Chew overruled NRD’s objections that Phuong’s application was frivolous and vexatious.

He ruled that the applicant’s case had merits as Article 12 of the Federal Constitution allowed freedom of religion and the right to determine the faith or religion of a child was his parents, in this case the Buddhist father.

The judge also held that the respondent itself was uncertain of the applicant’s son religion and they could not make this decision without consultation of the parents.

Such unilateral and arbitrary action is subject to judicial review of the courts.

Chew also ruled that:

• the applicant was entitled to state the religion or faith of his son as Buddhist. There was no need for documentary proof to be showed by the father for certain religions or faiths such as Buddhism.

• what determines the faith or religion is the practice and not documents. Under the Federal Constitution the parents determine the religion of the child if the child is below 18. The respondents cannot impose the conditions on the parents as they had done in this case.

He added that the facts of this case were distinguished from that of Lina Joy. In that case it was a known fact that Lina Joy was a Muslim and she tried to change her religion by executing a statutory declaration.

The judge said in this case it was a known fact that the child was not practising as a Muslim but is a Buddhist.