Woman succeeds in legal bid to be declared non-Muslim

 

A woman, born to a Muslim father and a non-Muslim mother, has succeeded in obtaining a Federal Court ruling that she was never a Muslim.

This after a nine-person Federal Court bench allowed Rosliza Ibrahim’s appeal.

In a majority 7-2 decision, the bench chaired by Chief Justice Tengku Maimun Tuan Mat ruled that the appellant was never a Muslim since birth.

The top judge ruled that there is no evidence on record to indicate that the woman had ever professed Islam as she was raised as a Buddhist by her non-Muslim mother since birth.

She said the current appeal is distinguishable from the case of "Lina Joy" where the appellant in that earlier case was a person born into Islam but had gone to court to renounce the religion.

On May 30, 2007, the Federal Court dismissed Joy's appeal, ruling that the Islam religious status remains on her identification card and that only the Syariah Court had jurisdiction to hear the issue of a Muslim seeking to leave the faith.

Previously, the Federal Court panel reserved its judgment on the appeal by Rosliza, who was born to a Muslim father but contended to have been raised as a Buddhist by her Buddhist mother.

She was appealing against a 2017 Shah Alam High Court ruling that disallowed her originating summons seeking to be declared a non-Muslim.

On April 25, 2018, the Court of Appeal upheld the High Court ruling. Today's matter was the appeal against the appellate court's decision.

Rosliza, 40, wanted a declaration that she was born as the illegitimate child of a Chinese mother and a Chinese Muslim father and thus was never a Muslim from birth.

The first respondent to today’s appeal was the Selangor state government and the second respondent was the Selangor Islamic Religious Council (Mais).

In reading out the ruling which represented the majority 7-2 decision of the panel, Tengku Maimun said that the High Court had erred in its earlier ruling that Rosliza was a Muslim and hence needed the Syariah Court to decide on the issue.

She said this was because the High Court seemed to have ignored a statutory declaration from Rosliza’s mother, Yap Ah Mooi, that she (Yap) was never married to the plaintiff’s father, Ibrahim Hassan.

Chief Justice Tengku Maimun Tuan Mat

Tengku Maimun said that the High Court had instead placed more reliance on Ibrahim’s written application stating that they (Ibrahim and Yap) were married.

She said that this was contrary to the law under the National Registration Regulations 1990 as one needs more than just solely a national registration identification card or written applications for such a card to prove a marriage.

She noted that unlike what was decided by the High Court, the burden of proof regarding the marriage status of Rosliza’s parents fell not on her but on the defendants who raised the allegation.

Tengku Maimun noted that Rosliza produced not only her own and Yap’s statutory declaration (SD) that Yan and Ibrahim were not married at the time the plaintiff was born, but also religious authorities’ letters stating they were unable to locate any record of a marriage between the plaintiff’s parents.

“The evidence, when strung together, sufficiently casts doubt on the existence of Ibrahim and Yap Ah Mooi’s purported marriage.

“In terms of actual proof, the defendants cannot in their respective records locate any proof of the marriage. Neither is there a single affidavit from Ibrahim or from any other relevant person to contradict the plaintiff’s case,” the top judge said.

Tengku Maimun pointed out that Yap was also never a Muslim as attested by Rosliza’s SD, an affidavit by Yap’s neighbour Chan Yew Fan as well as letters from religious authorities of the Federal Territory of Kuala Lumpur and 11 states.

“As there is no evidence that Yap Ah Mooi was a Muslim (and certainly not a Malay) at the time of the plaintiff’s birth, it cannot be said that the plaintiff is legally a person professing the religion of Islam simply by virtue of the fact that both her parents were Muslims at the time of her birth,” she said.

All three declarations allowed

Tengku Maimun noted that this was strengthened by Section 111 of the Islamic Family Law (State of Selangor) Enactment 2003 which states that a child’s paternity follows the Muslim father only if the child was born to the woman who was married to the man for more than six qamariah months from the date of marriage, among other reasons.

She also noted that the civil courts (including the current Federal Court bench) have jurisdiction to hear Rosliza’s matter as Syariah Courts only have jurisdiction to hear issues involving a born-Muslim who later seeks to renounce the faith.

“For the reasons aforesaid, the plaintiff has made out her claim on a balance of probabilities. The concurrent categorisation by the courts below of the plaintiff’s case as a renunciation case is not correct in fact and in law. This is an ab initio case.

“The plaintiff’s appeal is allowed and the orders of the High Court and Court of Appeal are set aside. An order is granted in terms of the originating summons. There shall be no order to costs,” she said.

The seven members who ruled for the plaintiff were Court of Appeal president Rohana Yusuf and Federal Court judges P Nallini, Abdul Rahman Sebli, Zabariah Mohd Yusof, Mary Lim Thiam Suan and Rhodzariah Bujang.

Tengku Maimun said that the apex court allowed all three declarations sought by Rosliza.

The declarations are that the plaintiff is an illegitimate person and that Yap, a Buddhist, is her natural mother; that the word “parents” in the 2003 Selangor Islamic Enactment Act does not include the putative father of an illegitimate child and that the plaintiff is not a person professing the religion of Islam, among others.

In his minority ruling, Chief Judge of Malaya Azahar Mohamed ruled that the court could only allow one of the three declarations sought by Rosliza, namely the first one on the plaintiff being an illegitimate child and Yap being her natural mother.

Azahar said that before the apex court could decide on the two other declarations, it first needed to hear the opinion of a fatwa committee over the issue of whether or not Rosliza was a Muslim at time of her birth.

The other Federal Court judge with a minority ruling was Hasnah Mohammed Hashim.

In a media statement issued after the decision was delivered, Rosliza’s counsel Aston Paiva said that his client was relieved by today’s decision.

“The appellant hopes that this decision will move the executive (cabinet) to reconsider its law and policy on affixing religion on the identity cards of Malaysians and for the legislature to consider law reform for disputes affecting the legal status of Malaysians like her.

“The appellant will now take steps to rectify all her official records with the government to accurately reflect who she is following the Federal Court’s decision today,” Paiva said.

Former federal court judge Gopal Sri Ram assisted Rosliza’s legal team.

Selangor State Legal Adviser Salim Soib @ Hamid acted for the Selangor state government while counsel Abdul Rahim Sinwan appeared for Mais.

Senior federal counsel Suzana Atan, Shamsul Bolhassan and M Kogilambigai represented the Attorney-General’s Chambers which served the role of amicus curiae (person not a party in a legal matter who assists the court regarding issues in the case).

Lawyer Mansor Saad appeared for the Human Rights Commission (Suhakam), which also performs the role of amicus curiae also known as "friend of the court".

Lawyers Philip Koh and Low Wei Loke held a watching brief for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST). - Mkini