MAJLIS AGAMA ISLAM SELANGOR (MAIS) v Dahlia Dhaima Binti Abdullah (B-01(NCvC)(A)-40-01/2022)

KERAJAAN NEGERI SELANGOR … DEFENDANTS] CORAM YAACOB HAJI MD SAM, JCA RAVINTHRAN PARAMAGURU, JCA MOHD NAZLAN MOHD GHAZALI, JCA GROUNDS OF JUDGMENT (DISSENTING) Introduction [1] The two appeals before this court are against the decision of the High Court that granted a declaration that the respondent is not “a person professing the religion of Islam”. The respondent case was that she was never a Muslim. The appellant in Civil Appeal No. B-01(NCVC)(A)-40- 01/2022 is the Majlis Agama Islam Selangor whereas the appellant in Civil Appeal No. B-01(NCVC)(A)-57-01/2022 is the State Government of Selangor. The appellants were the first and second defendants in the High Court. For the sake of convenience, I shall refer to them as the first and second appellants respectively. [2] The first appellant had counterclaimed that the respondent is a vexatious litigant. The counterclaim was dismissed by the High Court but there is no appeal against this part of the decision. Thus, I shall not address the issues that are relevant to the counterclaim. Background facts [3] I shall first refer to the background facts deposed in the affidavits which were summarized by the learned High Court Judge. [4] The respondent was born on 17.11.1986 to non-Muslim parents. Her given name at birth was Dahlia Dhaima. Her late father was a Hindu of Indian descent whereas her mother was a Buddhist of Chinese descent. The marriage was registered under the Law Reform (Marriage and Divorce) Act 1976. The couple separated in 1991. The respondent’s mother took the respondent who was then under the age of five to live with her in Selayang Baru, Selangor. The marriage was dissolved on 18.12.1992 when decree absolute was granted by the High Court. But before the dissolution of the marriage, the respondent’s mother converted to the Islamic faith on 17.5.1991. She took the name of Farah Hor binti Abdullah. The respondent who was only 4 years and five months old was also purportedly converted to the Islamic faith and given the name of Dahlia Dhaima binti Abdullah. There is no dispute that her father did not give consent to her conversion. He passed away on 22.3.1996. The respondent’s mother was issued a conversion card by the Jabatan Agama Islam Negeri Selangor (JAIS) on the same day whereas the respondent was issued the conversion card only two years later when she turned seven. But the conversion card of the respondent stated that she was converted on 17.5.1991. [5] The respondent’s mother subsequently married a Muslim, namely one Zafri bin Manap on 10.41993. Thereafter, the respondent lived with her mother and step-father until she moved out at the age of 17 to commence her tertiary education at Kolej Tunku Abdul Rahman. Upon completion of her studies in 2010, she moved in with her aunt in Bangsar, Kuala Lumpur. In 2015, she decided to live by herself. The above facts are not in dispute. [6] I shall now turn to the essential facts that underpin the originating summons of the respondent. The respondent’s mother filed an affidavit to support the originating summons. She said that when the respondent was purportedly converted to Islam, she did not inform the respondent’s father or obtain his consent. She also said that the five-year-old respondent did not utter the Affirmation of Faith during the conversion and did not know what was happening. During the time the respondent lived with her until present time, the respondent did not practise the Islamic faith but instead practised Hinduism. [7] The respondent in her affidavit said as follows. She has been practising Hinduism since she was young. She frequented Hindu temples with her paternal relatives. Her mother and step-father permitted her to practise her chosen faith which is Hinduism. She never practised the Islamic faith or celebrated any of its festivals or prayed as a Muslim. [8] The respondent first filed a summons for a declaration that she was no longer a Muslim at the Kuala Lumpur Syariah High Court. But her case in the statement of claim before the Syariah High Court was that she never professed the Islamic faith from the outset. The respondent was the Majlis Agama Islam Wilayah Persekutuan (MAIWP). The summons against MAIWP was dismissed on 20.7.2017. The appeal by the respondent was dismissed on 12.1.2021. It was only after the termination of the Syariah court proceedings that the respondent commenced the instant originating summons in the High Court. Decision of the High Court [9] The High Court considered two crucial issues raised by the appellants. The first issue was whether the civil court possessed jurisdiction to declare that the respondent is not a person professing the religion of Islam. The second issue was whether the appellant had locus standi to file the instant originating summons given that she had filed a summons in the Syariah High Court earlier. [10] The learned High Court Judge considered the argument of the appellants that the respondent’s case in the true sense is that she is no longer a Muslim. It is not her case that she was never a Muslim. In other words it is an apostasy or renunciation case. Therefore, according to counsel for the first appellant, the issue at hand is a matter of faith. It follows that only the Syariah court is seized with jurisdiction to determine the issue. Counsel for the respondent argued otherwise. He argued that as the respondent was ab initio a non-Muslim, the Syariah court had no jurisdiction in the matter. The learned High Court Judge had regard to the recent Federal Court case of Rosliza Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 301. In that seminal case, the Federal Court in discussing the jurisdiction of the civil court and the Syariah court drew a distinction between apostasy cases where one claims to have left the religion of Islam and cases when one says that he or she was never a Muslim in the first place. The Federal Court held that in apostasy or renunciation cases, the Syariah Court has jurisdiction whereas in cases where it is claimed that one was never a Muslim ab initio, the civil court would have the right to adjudicate the matter. However, the Federal Court cautioned that “whether it is an ab initio case or a renunciation case will require careful examination of the factual matrix of the case”. [11] The learned High Court Judge noted that in the instant originating summons, the respondent asserted that she was never a Muslim because she did not profess the religion and that her conversion was not valid. In respect of the admissions made in the Syariah court by the respondent that she followed some of the practices of the Islamic religion when growing up, the learned High Court Judge said that only amounted to exposure to the religion of her mother and step-father. His Lordship considered the fact that throughout the Syariah court proceedings, the respondent did not admit to professing the religion of Islam. In the premises, he held that the admission of facts in the Syariah court cannot stop her from exercising her constitutional right in the civil court. [12] The appellants raised the issues of locus standi and res judicata as the respondent had approached the Syariah court for a declaration that she was “no longer a Muslim”. Only after her application before the Syariah court failed, did she file the instant originating summons for a declaration that “she is not a person professing the religion of Islam”. The learned High Court Judge reasoned as follows in respect of the locus standi and res judicata issues. At the time the respondent filed her summons in the Syariah High Court in 2013, the law was “opaque” as to the demarcation of jurisdiction between the Syariah courts and the civil courts in respect of apostasy cases and cases where an applicant claims that he or she was never a Muslim ab initio. The law became clearer after the decision of the Federal Court in the Rosliza Ibrahim case. Therefore, the avenue to approach the civil court was not available before the Rosliza Ibrahim case. In this context, His Lordship noted that in the Syariah court, the respondent stated that she did not choose to practise the religion of Islam at the time of her conversion and did not practise it subsequently either. Therefore, the learned High Court Judge ruled she ought not be prevented from having her right in respect of her religious status determined in the civil court. For this reason also, the learned High Court Judge ruled that the respondent is not a vexatious litigant. [13] In respect of the respondent’s conversion on 17.5.1991, the learned High Court Judge held that it was invalid as she was only four years and five months old at that time. His Lordship came to this conclusion after considering the prevailing law at the time, i.e. section 147 of the Administration of Muslim law Enactment 1952 which read as follows: No person who has not attained the age of puberty shall be converted to the Muslim religion. [14] His Lordship rejected the appellants’ argument that under section 70 of the Administration of Islamic Law Enactment 1989, the respondent was automatically converted to Islam with her mother because the said law came into force on a later date, i.e. on 1.9.1991. For the same reason, His Lordship rejected the argument that the conversion card that was issued two years later was “conclusive proof of the facts stated therein”. The conclusivity clause found in section 74(3) of the latter 1989 Enactment had not come into force on the date of conversion. [15] In respect of the issue canvassed by counsel for the respondent based on the Federal Court case of Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other Appeals [2018] 3 CLJ 145 that the respondent was converted unilaterally by her mother without the consent of her father, the learned High Court Judge declined to consider it because His Lordship had found that the conversion in the instant case was unlawful from the outset. [16] For the above reasons, the learned High Court Judge granted the declaration that the respondent “is not a person professing the religion of Islam”. At the same time, His Lordship dismissed the first appellant’s counterclaim that she was a vexatious litigant. His Lordship did not make any order in respect of costs. Issues in the Appeal [17] In the originating summons, the respondent prayed for a declaration that she is not Muslim. It was her case in the affidavits that her conversion was invalid and that she was not a person professing the religion of Islam from the outset. Her counsel contended that this is not a case where a person who had converted to Islam is seeking a declaration that he or she is not a Muslim due to renunciation of faith. In other words, this is not an apostasy case or to borrow the expression from the judgment in Rosliza Ibrahim case, an “exit case” but rather an “ab initio case”. Therefore, the civil court has jurisdiction to hear her application, especially as it relates to a fundamental liberty, i.e. freedom of religion. [18] On the other hand, both counsel for the first appellant and second appellant are on common ground that the respondent’s originating summons was in the “true sense” a renunciation case and therefore only the Syariah court has jurisdiction in respect of the relief sought. In respect of the validity of the conversion, counsel for the first appellant argued that it was valid whereas counsel for the second appellant did not address the issue. However, counsel for the second appellant relied on the Syariah court’s decision that found that the respondent is a Muslim. Counsel for the first appellant also raised the argument that the matter is res judicata and that the respondent has no locus standi to approach the civil court after having failed in the Syariah court. He described the instant originating summons as an “afterthought” by the respondent. [19] Thus, the main issues that fall for determination in this appeal are the same issues canvassed in the High Court, i.e. jurisdiction, the religious status of the respondent, the validity of conversion, locus standi and res judicata. Jurisdiction [20] Both counsel for the first and second appellants argued that the High Court has no jurisdiction to grant relief to the respondent by virtue of Art 121(1A) of the Federal Constitution. Art 121(1A) reads as follows:

The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. [21] The courts referred to Clause (1) are the two civil High Courts, namely the High Court of Malaya and the High Court of Sabah and Sarawak. Counsel for the first appellant argued that although the relief sought is a declaration that the respondent “is not a person professing the religion of Islam”, it is actually a case where the respondent wanted to renounce the religion and therefore it is a matter of faith and not a matter of constitutional right as to her religious status. [22] Both counsel for the appellants cited a plethora of authorities that held that apostasy is a matter within the exclusive jurisdiction of the Syariah court. I find it unnecessary to discuss the said cases as counsel for the respondent has not quarrelled with that proposition. This point was also made in the Rosliza Ibrahim case. But counsel for the first appellant and counsel for the second appellant also cited many authorities to support the proposition that in any matter that is related to religious status, the civil courts should decline jurisdiction because of Art 121(1A). Counsel for the respondent disagreed with this argument. I am of the respectful view that these cases should be read in the light of the later Federal Court judgments in the Rosliza Ibrahim case and in the Indira Gandhi case. For this reason as well, I shall not refer to the previous cases that run counter to the decision in the Rosliza Ibrahim case. [23] In the Rosliza Ibrahim case, the Federal Court drew a distinction between apostasy or renunciation cases and cases where an applicant seeks relief in the civil court on the basis that he or she was never a Muslim in the first place. In ruling that the civil court has jurisdiction in the latter type of cases but not the former, Tengku Maimun CJ said as follows: [99] Reverting to the question: do the civil courts possess jurisdiction to determine the status of persons who claim to ‘never have been Muslim’ as opposed to ‘no longer being a Muslim’? The answer to the question must naturally be in the affirmative as otherwise there would be no legal recourse for persons of the ab initio category. When it concerns a renunciation case, the civil courts have consistently held that it was within the jurisdiction of the Syariah Courts conferred under art 121(1A) of the FC. For the record, learned senior federal counsel appearing for the attorney general as amicus curiae, agreed that it is the civil courts that have jurisdiction over persons of the ‘ab initio category’. [100] The distinction between ab initio and renunciation cases and how the civil courts have always respected the Syariah Courts’ jurisdiction in renunciation cases was most recently addressed by the Court of Appeal in Maqsood. Dr Badariah Sahamid JCA pertinently observed as follows: [101] In this respect the civil courts appear to make a distinction between conversions out of Islam by those who were Muslims by original faith and those who were non-Muslims by original faith. In the former, premised on their original faith, they were subject to the jurisdiction of the Syariah Courts and require a renunciation in the Syariah Court to confirm their non-Muslim status. As for the latter, it is on the premise that they were non-Muslims to begin with and therefore not subject to the jurisdiction of the Syariah Courts, that no such renunciation of Islam was required for any supposed renunciation of their Islamic ‘faith’. [24] Thus, Article 121(1A) of the Federal Constitution that was cited by both counsel for the appellants can oust the jurisdiction of the civil court only if it is clearly established that the subject matter in question falls within the exclusive jurisdiction of the Syariah Court. Tengku Maimun CJ further said as follows on this point: [103] All judicial power vests solely in the civil superior courts as per the basic structure of our FC ingrained in art 121. However, art 121(1A) dispossess the civil courts of jurisdiction ratione materiae once it is established that the subject-matter of the suit is one which falls within the jurisdiction of the Syariah Courts. Having said that, in ab initio cases, the issue before the court is not one of faith. It is a question of one’s identity under the FC. In contrast, renunciation cases concern persons who despite being Muslims, no longer have faith or believe in the religion. [25] It is also instructive to read the following passages from the judgment of the Indira Gandhi case in which Zainun Ali FCJ exhorted civil courts not to lightly decline jurisdiction under Article 121(1A) without scrutinizing the nature of the matter before it. I reproduce the relevant passages below: [103] Premised on the above authorities, the Federal Court in Hj Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah and another appeal [2014] 3 MLJ 757 reaffirmed that ‘it is settled law that the question of whether a person is a Muslim or not is a matter falling under the exclusive jurisdiction of the Syariah Court’. [104] In essence, the position taken in Siti Hasnah is that since matters of conversion involves Islamic law and practice, which are areas within the Syariah Court’s expertise, it must follow that the Syariah Courts must have jurisdiction over such matters to the exclusion of civil courts. With respect, this approach is unduly simplistic. It ignores the broader constitutional context in which art 121(1A) is framed. It is worth reiterating that the effect of art 121(1A) is not to oust the jurisdiction of the civil courts as soon as a subject matter relates to the Islamic religion. The powers of judicial review and of constitutional or statutory interpretation are pivotal constituents of the civil courts’ judicial power under art 121(1). Such power is fundamentally inherent in their constitutional role as the bulwark against unlawful legislation and executive action. As part of the basic structure of the constitution, it cannot be abrogated from the civil courts or conferred upon the Syariah Courts, whether by constitutional amendment, Act of Parliament or state legislation. [105] We take a firm stand on this — in that before a civil court declines jurisdiction premised on the strength of art 121(1A), it should first examine or scrutinise the nature of the matter before it. If it involves constitutional issues, it should not decline to hear merely on the basis of no jurisdiction. (emphasis mine) [26] Thus, the critical and determinative question in respect of jurisdiction is whether the instant case is an apostasy or renunciation case in the first place. On the face of the originating summons and the affidavits filed in support of it, there is no element of apostasy or renunciation. The respondent did not apply in the originating summons to renounce the religion of Islam. It is undisputed that the respondent is not a Muslim by original faith as she is the issue of a non-Muslim marriage contracted under the Law Reform (Marriage and Divorce) Act 1976. It is also undisputed that she was under five years old at the time of her purported conversion and that the consent of her non-Muslim father was not obtained. The High Court had therefore correctly assumed jurisdiction to consider the matter on the merits whether to grant declaratory relief in respect of her religious status. I shall now consider issues relating to the finding of the High Court that the respondent is not a person professing the religion of Islam. Validity of conversion [27] As I said earlier, the second appellant has taken no position on this issue. However, the first appellant maintained that the conversion of the respondent was valid. [28] As I pointed out earlier, on the date of conversion on 17.5.1991, the respondent was only four years and five months old. The prevailing law was section 147 of the Administration of Muslim Law Enactment 1952 (the 1952 Enactment) which enacted that no person who has not attained the age of puberty shall be converted to the Muslim religion. Counsel for the appellants cited section 70 of the Administration of Islamic Law Enactment 1989 (the 1989 Enactment) that replaced the 1952 Enactment. It read as follows: If, at the moment of conversion to Islam, a muallaf whether male or female, has any natural child who has not attained the age of majority according to Hukum Syara' (baligh), the child becomes converted to Islam at the same moment. [29] This provision, to all intents and purposes, provides for the automatic conversion of a minor without the consent of a non-converting parent. It came into force only on 1.9.1991 which is after the date of the purported conversion. Thus, it cannot apply to the respondent’s conversion. The 1989 Enactment was subsequently repealed but a similar provision was enacted in the successor law. There is no evidence that the respondent underwent any conversion ceremony on any later date or upon attaining puberty. The only purported conversion was on 17.5.1991 which clearly transgressed the written prevailing law i.e. section 147 of the 1952 Enactment. I note that counsel for the first appellant did not address the point about violation of section 147 and the effect of it in respect on the conversion of the respondent. In my opinion, as the prevailing law categorically stipulated that no person who has not attained the age of majority shall be converted, the decision of the learned High Court Judge that the conversion was invalid cannot be faulted. Furthermore, section 146 of the said 1952 Enactment provided as follows: No person shall be converted to the Muslim religion otherwise than in accordance with the provisions of this enactment or any rules made thereunder. [30] Therefore, in the light of the clear violation of section 147, the purported conversion of the respondent on 17.5.1991 was anything but lawful. [31] Counsel for the first appellant also argued that the conversion card that was issued two years later is conclusive proof that the respondent is a Muslim. This argument is based on section 74(3) of the 1989 Enactment that read as follows.

A certificate of Conversion to Islam shall be conclusive proof of the facts stated therein. [32] I find no merit in this argument for this reason. It may well be that on the date of issuance of the conversion card, the 1989 Enactment had come into force. Therefore the fact of conversion that is stated in the conversion card may constitute proof that the respondent underwent a formal conversion two years earlier. However, it cannot logically be conclusive proof of a valid conversion if the conversion was patently unlawful in the first place on the date it was performed because of breach of the prevailing written law which is the 1952 Enactment. [33] But before I conclude the discussion on the validity of the respondent’s conversion under the 1952 Enactment, lest it be said that the civil court has no jurisdiction to interpret provisions of the said law, I shall quote below the following passage from the judgment of Zainun Ali FCJ in the Indira Gandhi case that said otherwise: [95] Clause (1A) also does not remove the jurisdiction of civil courts in the interpretation of legislation. This is the case even in relation to legislation enacted for the administration of Muslim law, as was held in Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1: The new cl 1A of Art 121 of the Constitution effective from 10 June 1988 has taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the Syariah Courts. But that clause does not take away the jurisdiction of the civil court to interpret any written laws of the states enacted for the administration of muslim law … If there are clear provisions in the State Enactment the task of the civil court is made easier when it is asked to make a declaration relating to the status of a person whether such person is or is not a Muslim under the Enactment. (Emphasis added.) Consent of the father [34] In the light of the Indira Gandhi case, the adjudication of the validity of conversion of religion without the consent of the non-converting parent, is not a matter of faith or apostasy but a matter of interpretation of a constitutional provision. Therefore, the civil court is clearly seized with jurisdiction to adjudicate the matter. [35] In the instant case, the respondent’s mother’s affidavit averring she did not obtain the consent of her then husband was not disputed. As I said earlier, this point was not deliberated upon by the learned High Court Judge as His Lordship found that the conversion was unlawful from the outset. I shall consider this issue as counsel for the parties raised it in this appeal. In the Indira Gandhi case, notwithstanding the provision in the Administration of the Religion of Islam (Perak) Enactment 2004 for the conversion of underage children unilaterally by one parent, the Federal Court held that the consent of both parents is required under Article 12(4) of the Federal Constitution. In the instant case, there is no provision in the 1952 Enactment that authorises the conversion of a minor at the material time without the consent of the non-converting parent. It is interesting to note that Rule 4(1) of the Administration of Islamic Law (Conversion of Minors) Rules 1991 which was made under the successor law, i.e. the 1989 Enactment, required the written consent of the father of the minor for the conversion. Thus, even if the 1989 Enactment which came into force later is applicable, the conversion would be invalid as it is undisputed that the consent of the father was never obtained. Anyway, it is axiomatic that even if there was a provision in the State Law that allowed for unilateral or automatic conversion of minors, it cannot override the Supreme Law of the land which is the Federal Constitution which requires the consent of both parents before a minor can be converted. Therefore, on this ground as well, the respondent’s conversion on 17.5.1991 is invalid. I have also considered the argument that unlike in the Indira Gandhi case, in the instant case, the respondent’s father did not challenge the conversion by way of judicial review before he passed away. Notwithstanding that fact, as it is undisputed that the consent of the father was not obtained, as a matter of law, the conversion cannot be lawful as it breached a provision of the Federal Constitution. Moreover, the point was taken up by the respondent in this originating summons. Therefore, the distinction made about the absence of challenge to the conversion when the respondent was still a child is of no consequence. Whether respondent is a person professing the religion of the Islam? [36] It is trite law that an appellate court will be slow in interfering with the findings of fact of the court of first instance without good reason. In the instant case, the learned High Court Judge gave careful consideration to the unrebutted affidavit evidence of the respondent and her mother. I shall repeat below the salient evidence that led the learned High Court Judge to conclude that the respondent is not a person professing the religion of Islam. [37] As I said earlier, the finding of the learned High Court Judge that the conversion of the five-year old minor was unlawful cannot be faulted. Therefore, the respondent was not a person professing the religion of Islam from the outset as found by the learned High Court Judge. The respondent’s mother deposed in her affidavit that the respondent continued to practise Hinduism while she lived with her and her Muslim husband. She did not profess the religion of Islam. The respondent’s mother said that she agreed for her daughter to be converted for a reason. After she separated from her Hindu husband, she decided to convert to Islam as she wanted to marry a Muslim. An officer from the Jabatan Agama Islam Negeri Selangor (JAIS) advised her that the respondent should also be converted to Islam to buttress her custody application in the pending divorce proceedings. The respondent in her affidavit said that she had been frequenting Hindu temples and celebrating Hindu festivals with her paternal relatives since young. She also averred that both her mother and her Muslim step-father permitted her to profess and practice her chosen faith. There is no affidavit from her step-father to contradict her averment. The learned High Court Judge accepted the affidavit evidence of both the respondent and her mother. In my view, this finding of fact by the learned High Court Judge does not warrant appellate interference. The respondent’s mother’s evidence was not contradicted by anyone and her evidence would constitute the best evidence in respect of matters pertaining to the respondent’s upbringing from the age of five until she left the family home to pursue tertiary evidence at the age of 17. Admissions of fact in the Syariah court [38] The learned High Court Judge also gave due consideration to the submission of counsel for the first appellant that some admissions were made by the respondent during the Syariah court proceedings. She admitted that during the time she lived with her mother and step-father, she did follow some Islamic practices such as praying, fasting and attending religious ceremonies. She is also able to utter the Affirmation of Faith. She was required to attend eight sessions of Syariah counselling at the Jabatan Agama Islam Wilayah Perseketuan during the Syariah court proceedings. However, the learned High Court Judge dismissed the contention of the counsel for the first appellant that the said admissions meant that the respondent is person professing the religion of Islam in the following passage of his judgment: [33] On the present facts, the plaintiff merely narrated her experiences, associations and exposures to the religion of Islam when she was young. She was being truthful during the Syariah proceedings. However, throughout the Syariah proceedings, she did not admit she professed the religion of Islam. The plaintiff did not retract her statements or admissions in the Syariah proceedings in this is Originating Summons. What the plaintiff was saying in this Originating Summons was that she did not profess the Islam religion ab initio. Therefore, those admission of facts in the Syariah Court proceedings could not stop her from exercising her constitutional right in the civil court. [39] I am wholly in agreement with the reasoning of the learned High Court Judge. It is crucial to note that the respondent never resiled from her basic contention in the Syariah court proceedings or in the originating summons that she was not a person professing the religion of Islam. The admissions of fact in the Syariah court proceedings relate to incidents of a childhood spent with a Muslim step-father and Muslim convert mother as found by the learned High Court Judge. It follows that she was exposed to Islamic practices at an early age. However, her narration of her childhood exposure to the religion of Islam cannot detract from the first hand affidavit evidence of her mother who said that the respondent did not practise the religion of Islam and was permitted to continue in her original faith. Locus standi and res judicata [40] Counsel for the first appellant argued in the High Court that the respondent lacked locus standi to seek relief through the instant originating summons because she had earlier filed a summons in the Syariah High Court in Kuala Lumpur for a declaration that she was no longer a Muslim ( Syariah case No. 043). It was argued that the originating summons was an afterthought and that the respondent was bound by the decisions of the Syariah High Court and Syariah Court of Appeal that dismissed her summons. For this reason, the matter is res judicata and the respondent was estopped from relitigating the matter in the civil court. [41] I see no merit in the above argument for the following reasons. I am in agreement with the decision of the learned High Court Judge who ruled that the respondent did not lack locus standi and that the doctrine of res judicata does not apply. The learned High Court Judge noted that prior to the decision of the Federal Court in the Rosliza Ibrahim case, the law was not clear in respect of the demarcation of jurisdiction between apostasy cases and cases where the applicant asserts that he or she was never a Muslim to start with. I find this observation of the learned High Court Judge to be entirely correct. In a host of cases (some of which were cited by counsel for the first respondent) that preceded the Rosliza Ibrahim case, the courts did not make any distinction between apostasy cases and cases where it is pleaded that either the conversion was unlawful or that the applicant was never a Muslim ab initio. The civil courts declined to adjudicate on the basis that the matters were within the jurisdiction of the Syariah court without scrutinizing the subject matter. Therefore, given the existing judicial attitude at that time and the predicament that the respondent was in, the learned High Court Judge described her action in seeking relief from the Syariah court as something done “out of necessity”. That is why she sought a declaration in the Syariah court that she is a person who “is no longer a Muslim”. But, as I pointed out earlier and as noted by High Court, the respondent consistently maintained her narrative that she never practised the religion of Islam. Thus, I would agree with the learned High Court Judge that in view of the Rosliza Ibrahim case which has opened a new judicial pathway for applicants in the same situation as the respondent, she should not now be prevented from pursuing her right to determine her religious status in the civil court which is a matter of constitutional and legal identity. In the premises, with respect, I find it difficult to agree with learned counsel for the first appellant’s characterization of the originating summons as a mere “afterthought” by the respondent. [42] I would also agree that the fact that the respondent sought relief from the Syariah court does not ipso facto deprive the civil court of jurisdiction. It is trite law that jurisdiction cannot be conferred by consent or agreement if there was no jurisdiction in the first place. Zainun Ali FCJ in the Indira Gandhi case said as follows: [74] It is not open for the Syariah Courts to enlarge their own jurisdiction by agreements: ‘it is a fundamental principle that no consent or acquiescence can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction’ (Federal Hotel Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers [1983] 1 MLJ 175). [43] Therefore, it should not matter that the respondent, for lack any legal avenue, approached the Syariah court first. Jurisdiction cannot be vested in the Syariah court if the court has no jurisdiction in the subject matter to start with, especially in a matter that involves a fundamental liberty under the Federal Constitution. The learned High Court Judge found that the respondent was not a person professing the religion of Islam and that her conversion was unlawful. Therefore, the subject matter plainly falls within the jurisdiction of the civil court as it is an ab initio case. It follows that the decision of the Syariah court is not binding on her. To reiterate, it is trite law that neither consent nor estoppel nor waiver can confer jurisdiction upon a court that lacks jurisdiction and thus the doctrine of res judicata cannot apply to any decision made by such a court (see Chee Pok Choy v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346). Doctrine of prospective ruling [44] In respect of the change in the law brought about by the Rosliza Ibrahim case, counsel for the first respondent argued that the doctrine of prospective ruling should apply. Therefore, the avenue that was opened by the Rosliza Ibrahim case cannot be availed by the respondent who had failed in her attempt to obtain relief in the Syariah court earlier. The said doctrine limits the general principle of retroactivity that applies to a court ruling. The purpose of the doctrine is to mitigate the potential harshness that may arise from a change in the law following a ground breaking decision of an apex court. This American judicial doctrine was discussed at length for the first time in the House of Lords in Re Spectrum Plus Ltd [2005] UKHL 41 which was cited by counsel for the first appellant. The doctrine is now part of the corpus of our law following its adoption in local cases. However, I fail to see its application here. Counsel for the respondent correctly pointed out that whilst Zainun Ali FCJ pronounced in the Indira Ghandi case that the doctrine will apply to that case, the Federal Court in the Rosliza Ibrahim case did not make any similar pronouncement. In the premises, the principles of law in respect of the jurisdiction of the court in cases such this that was enunciated in the Rosliza Ibrahim case must be taken as declaratory of the law without being unduly constricted by the doctrine of prospective ruling. Conclusion [45] For the foregoing reasons, I am of the view that the learned High Court Judge had correctly granted the relief sought in the originating summons. I shall therefore affirm the decision of the High Court and dismiss the appeals. No order as to costs. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Dated: 13th January 2023 Parties Appearing: For Civil Appeal No. B-01(NCVC)(A)-40-01/2022 For The Appellant: Majdah Muda Haniff Khatri (Messrs Muda) For The Respondent: Datuk Malik Imtiaz Sarwar Surendra Ananth (Messrs Surendra Ananth) For Civil Appeal No. B-01(NCVC)(A)-57-01/2022 For The Appellant: Dato’ Salim bin Soib Husna binti Abdul Halim (Pejabat Penasihat Undang-Undang Negeri Selangor) For The Respondent: Datuk Malik Imtiaz Sarwar Surendra Ananth (Messrs Surendra Ananth)