PUTRAJAYA: The Court of Appeal and the High Court were wrong to equate the legal principle in Lina Joy to the case of a woman who never professed the Islamic religion, the Federal Court heard today.
Lawyer Gopal Sri Ram said his client Rosliza Ibrahim, wants a declaration she was never a Muslim as both courts followed the fact pattern of Lina.
“This is not a case of an exit from the (Islamic) religion as she (Rosliza) was never a Muslim before,” Sri Ram said in his submission before a nine-member bench chaired by Chief Justice Tengku Maimun Tuan Mat.
Others were Rohana Yusuf, Azahar Mohamed, Nallini Pathmanathan, Abdul Rahman Sebli, Zabariah Mohd Yusof, Hasnah Mohammed Hashim, Mary Lim Thiam Suan and Rhodzariah Bujang.
He said a failure by the apex court to conclusively determine the dispute meant that the Islamic faith could be imposed on Rosliza against her will to be a Buddhist.
Sri Ram said the two courts below relied on a 1988 constitutional amendment to Article 121 to cede power to the Syariah Court.
He said this also led them to hold that the jurisdiction to determine his client’s matter was with the religious court.
Lina, a Muslim woman sought, but failed, to be allowed to change her religion from Islam to Christianity.
The Federal Court, in a majority ruling in 2007, held that Lina must first obtain a certificate from the Syariah Court to leave the religion before presenting it to the National Registration Department (JPN) for the word “Islam” to be removed from her identity card.
The present bench in deciding to hear the merit of Rosliza’s appeal are guided by two legal questions, whether the civil court had the exclusive jurisdiction to determine if a person is or is not a Muslim under the law.
The other is whether any information contained in the identity card is conclusive proof that one is a Muslim.
The state government and the Selangor Islamic Religious Council (MAIS) are respondents in the suit brought by Rosliza while the federal government is brought in as a friend of the court to assist the judges in the case.
Rosliza, who was born to a Muslim father but raised as a Buddhist by her Buddhist mother, had taken the position that the Islamic laws of Selangor do not apply to her and that the Syariah Court has no jurisdiction over her.
She said it had been presumed that she had been born a Muslim, based on an assumption of a valid marriage between her parents and an assumption that her late mother had converted to Islam.
Rosliza said she had gone to the religious authorities in 10 other states and obtained confirmation that her parents did not have any records of her mother converting to Islam or that a Muslim marriage had taken place.
The High Court in Shah Alam dismissed her suit in April 2017 on grounds that the evidence she produced was insufficient and her remedy was the Syariah Court.
State legal adviser Salim Soib@Hamid submitted that the setting up of Syariah Court in the states were provided under Article 74, and Ninth Schedule, List Two of the constitution.
He said the High Court had made a finding of fact that Rosliza’s father was Muslim and mother a Buddhist.
“So, the appellant is a Muslim,” he added.
Azahar, who is also Chief Judge of Malaya, asked Salim what would be the status of Rosliza assuming the two courts were wrong.
“Then, she is an illegitimate child,” Salim replied.
However, Salim said the Administration of the Religion of Islam (State of Selangor) Enactment 2003 states a person at birth professed the religion when either or both parents is a Muslim.
Tengku Maimun interjected that Salim’s submission went against Islamic law as the child could be a Muslim only if both parents were validly married and were practising the religion.
“How could the appellant be a Muslim as the religious law states that an illegitimate child follows the mother’s faith,” she said.
Abdul Rahim Sinwan, who represented MAIS, said he adopted Salim’s submission.
He also said Rosliza was a Muslim based on evidence before the JPN and in her identity card.
Tengku Maimun then asked Rahim: “How do you reconcile your argument with Regulation 24 (1) of the National Registration Regulations 1990.”
The regulation states that it was for the respondents to prove the contents in Rosliza’s identity card when she was disputing it.
Just like Salim, Rahim also took the position that the burden fell on Rosliza to prove the contents in her identity card was false.
The lawyer told the bench that the marriage of Rosliza’s parents was valid even if there was no registration.
Tengku Maimun then asked if registration was not important in the case of khalwat raids carried out by religious authorities.
“The marriage is valid. They (couple) need to show proof that they had lived together,” he added.
Senior Federal Counsel Suzana Atan said the burden to dispute what Rosliza had filed in her affidavit was with the state government and MAIS.
“Rosliza also takes the mother’s religion if she is born out of wedlock,” she added.
Lawyer Mansoor Saat, who represented the Human Rights Commission of Malaysia, as it was also given the friend of the court status, said he adopted the submission by Sri Ram.
“Every person must be given the right to profess the religion of his or her choice as stated in the constitution.
Lawyer Philip Koh Tong Ngee, who held a watching brief for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, said the Selangor enactment must be consistent with shariah law.
“A child from an unwed couple cannot be a Muslim even if one of the parents practiced the faith,” he said.
The bench has reserved judgment. - FMT
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