The fiasco of Rosliza Ibrahim - is Federal Court wrong?

 

MP SPEAKS | Having read the entire judgement of the Federal Court in the Rosliza Ibrahim case, I am of the view that the judgement has not been infected by any legal error. Yes, it may be dubbed as a non-populist judgement. Apparently, the Federal Court, to its credit, opted not to play to the gallery.

After all, that is the sacrosanct duty of any court of law - deciding every case before it purely based on the evidence presented by all the relevant litigants. Attempting to be populist should not become the business of any court of law. The court is tasked to deliver justice according to the law, not to deliver any popular judgement by ignoring it. 

That is precisely what the Federal Court did in Rosliza's case when its nine judges unanimously granted the appeal by Rosliza.

One may ask what is the most significant element of the said judgement? I would say this - the way the Federal Court explained the difference between Rosliza's case and the Lina Joy case.

Yes, both are the decisions of our apex court. But they are clearly poles apart.

Our Federal Court in the Rosliza case drew a very fine line of demarcation between the following two circumstances. In one scenario, such as in the case of Lina, the applicant was a Muslim at the outset before she applied to relinquish her religion of Islam by converting to Christianity.

Hence, by virtue of Article 121 (1A) of the Federal Constitution, her purported renunciation should be determined by the Syariah courts. In other words, in such a circumstance, only the Syariah courts and not the civil courts have an exclusive jurisdiction to decide her faith.

In essence, that was basically the idea of Parliament amending Article 121 of the Federal Constitution in 1988 by inserting a new sub-article (1A) attempting to bar any civil court from usurping the jurisdiction of the Syariah court in any matter involving Syariah subject matters as per the Ninth Schedule of our apex law.

However, in Rosliza's case, the court sought to distinguish the factual matrix of the case with that of Lina. Here - in Rosliza's case - according to the Federal Court, to begin with, she had not been a Muslim ab initio - from the beginning.

Having carefully examined the findings of facts made by the High Court judge which was duly affirmed by the Court of Appeal, the Federal Court held that both judgements of the court below, with due respect, were perverse. 

The learned chief justice also held that the said judgements were erroneous in that they made a wrong finding of facts.

Both the High Court and the Court of Appeal took the view that there was a subsisting marriage between Rosliza's biological parents - Yap Ah Mooi and Ibrahim Hasan - at the time when she was born. 

The erroneous acceptance of this highly disputed fact was duly criticised by the learned chief justice in her powerful written judgement rendering both judgements of the court below perverse and liable to be set aside.

I tend to agree with the Federal Court in that, unlike the defendants - the Selangor government and the Majlis Agama Islam Selangor - the plaintiff (Rosliza) duly adduced cogent evidence to convince the court that her biological parents were never married when she was born thus there was an undisputed fact that she was an illegitimate child. 

Rosliza even produced letters issued by all the religious departments in Peninsular Malaysia confirming that there was no record certifying any marriage took place between her biological parents. To add salt to injury, the court held that the defendants, being mighty defendants, were not even able to produce any statutory declaration (SD) duly affirmed by Ibrahim rebutting the non-existence of any marriage between him and Yap.

The evidence also depicted the following fact, namely that Rosliza was duly brought up by her late non-Muslim mother. This latter evidence was also corroborated by the SD duly signed by her neighbour.

Rosliza's case was a civil case. In evaluating the evidence presented by parties to the suit, the court has to apply the following standard of proof namely the balance of probabilities and not the one beyond a reasonable doubt.

By resorting to such a trite standard of proof, the court was inclined to hold that Rosliza's evidence was more cogent, stronger and admissible. Hence her legal victory.

---

HANIPA MAIDIN is Sepang MP. - Mkini

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.