Rosliza binti Ibrahim v Kerajaan Negeri Selangor (B-01(A)-264-08/2017)

Page 1 of 10 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: B-01(A)-264-08/2017 ANTARA ROSLIZA BINTI IBRAHIM … PERAYU DAN

1. KERAJAAN NEGERI SELANGOR

2. MAJLIS AGAMA ISLAM SELANGOR … RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya Di Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia Permohonan Untuk Saman Pemula No. 24-1314-11/2015 Dalam perkara status Rosliza binti Ibrahim (No. K/P: 811119-14-5856), dan Akta Penjagaan Budak 1961 Dan Dalam perkara semua undang-undang yang digubal dan Badan Perundangan Negeri Selangor menurut

Jadual Kesembilan Senarai II Item 1 Perlembagaan Persekutuan, khususnya Enakmen Pentadbiran Agama Islam (Negeri Selangor) 2003 dan Enakmen Pentadbiran Undang-Undang Islam 1952 Dan Dalam perkara 5, 8 dan 11 Perlembagaan Persekutuan (dibaca bersama dengan Akta Suruhanjaya Hak Asasi Manusia Malaysia 1999) Page 2 of 10 Dan Dalam perkara seksyen 41 Akta Relif Spesifik 1950, bidang kuasa yang ada Mahkamah Tinggi dan Kaedah-Kaedah Mahkamah 2012, khususnya Aturan 5, 7, 15 k 16, 28 dan 84 Antara Rosliza binti Ibrahim … Plaintif Dan Kerajaan Negeri Selangor … Defendan Dan Majlis Agama Islam Selangor … Pencelah] CORAM: UMI KALTHUM ABDUL MAJID, JCA VERNON ONG LAM KIAT, JCA SURAYA OTHMAN, JCA GROUNDS OF JUDGMENT INTRODUCTION [1] In 2015, the plaintiff filed an Originating Summons at the Shah Alam High Court seeking the following declarations: (i) a Declaration that the plaintiff is an illegitimate person and that one Yap Ah Mooi a Buddhist was her natural mother; Page 3 of 10 (ii) a Declaration that the word “parents” in paragraph (b) of the interpretation of “Muslim” in section 2 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (“2003 Enactment”) does not include the putative father of an illegitimate child; and (iii) a Declaration that the plaintiff is not a person professing the religion of Islam, and that (a) all laws made by the Legislative Assembly of the State of Selangor under the Ninth Schedule, List II, Item 1 of the Federal Constitution are of no effect on, and are not applicable to, the plaintiff; and (b) all Syariah Courts within the State of Selangor do not have jurisdiction over the plaintiff. [2] On 22.6.2017, the learned judicial commissioner (“JC”) dismissed the plaintiff’s application with no order as to costs. This is the plaintiff’s appeal against the said decision. On 25.4.2018 we dismissed the plaintiff’s appeal and affirmed the decision of the learned JC after hearing of submissions. In this judgment the parties shall be referred to as they were in the High Court. SALIENT FACTS [3] The salient facts insofar as they relate to this case and which eventually led to the plaintiff’s Originating Summons may be summarised as follows: (i) According to the plaintiff’s birth certificate the plaintiff was born on 19.11.1981 at the Chinese Maternity Hospital Kuala Page 4 of 10 Lumpur to one Yap Ah Mooi (“Mdm Yap”) and one Ibrahim bin Hassan (En. Ibrahim”); (ii) Mdm Yap’s residential address was recorded as 38B, Jalan Pasar, Pudu Kuala Lumpur; (iii) En. Ibrahim’s application form for a new identity card for himself (“IC”) on 22.6.1982 carried the same address; (iv) On 13.1.1994, En. Ibrahim, as the father of the plaintiff, submitted an application for an IC for the plaintiff where the plaintiff’s religion is declared as “Islam” and residential address as 37, Jalan Bunga Matahari 3, Taman Maju Jaya, Kuala Lumpur. Mdm Yap’s ‘keturunan’ was declared to be “Melayu”; (v) On 14.1.1995, En. Ibrahim submitted his own application for an IC wherein he declared that his residential address as 37, Jalan Bunga Matahari 3, Taman Maju Jaya, Cheras, Kuala Lumpur, his religion as “Islam” and his marital status as “Berkahwin”; (vi) On 14.2.1995, Mdm Yap in her application for her IC declared that her residential address as 37, Jalan Bunga Matahari 3, Taman Maju Jaya, Cheras, Kuala Lumpur, her “keturunan” as “Cina”, religion as “Buddha”, and her marital status as “Berkahwin”; Page 5 of 10 (vii) On 8.10.2008, Mdm Yap affirmed a Statutory Declaration (“SD”) declaring that the plaintiff is her daughter, that she and En. Ibrahim are the plaintiff’s parents, that she and En. Ibrahim were not married, and lastly that the plaintiff was not brought up as a Muslim; (viii) Mdm Yap passed away on 7.2.2009. FINDINGS OF THE HIGH COURT [4] According to the learned JC, the question of whether the plaintiff is a Muslim is dependent on whether En. Ibrahim and Mdm Yap were married. After considering the affidavit evidence and in particular the declarations made by En. Ibrahim (see paragraph 3(v) above) and Mdm Yap (see paragraph 3(vi) above) of their marital status, the learned JC found that En. Ibrahim and Mdm Yap were married and that the plaintiff is a child of the marriage. Further, the learned JC opined that the question of the validity of their marriage fell within the jurisdiction of the Syariah Court (paragraph 1 of List II – State List, Ninth Schedule to the Federal Constitution; In the estate of Tunku Abdul Rahman Putra Ibni Almarhum Sultan Abdul Hamid [1998] 4 MLJ 623). [5] The learned JC discounted the affidavit of Chan Sew Fan which asserted that from 1985 to 1990 Mdm Yap who professed Buddhism had raised the plaintiff as a Buddhist in Taman Maluri, Kuala Lumpur. That assertion went against the undisputed fact that (i) En. Ibrahim is a Muslim, (ii) the plaintiff’s religion was declared as Islam in the application for the plaintiff’s IC in 1994, (iii) the fact that En. Ibrahim and Mdm Yap stayed together at the Jalan Pasar, Pudu address since 1981 until 1985, (iv) En. Page 6 of 10 Ibrahim and Mdm Yap lived together around 1994-1995 at the Taman Maju Jaya, Cheras address as they each had declared their marital status as “Berkahwin” in their respective IC application forms. As such, the learned JC found that the plaintiff is a Muslim at birth. [6] Consequently, the learned JC applied section 61(3)(b)(x) of the 2003 Enactment in ruling that the Syariah Court had the jurisdiction to decide on the question of whether the plaintiff was no longer a Muslim. SUBMISSION OF PARTIES [7] The plaintiff’s case was mounted on the premise that the plaintiff is an illegitimate child born to a Buddhist mother. Section 1(3) of the Guardianship of Infants Act 1961 (“GIA 1961”) only excludes the application of the GIA 1961 to any illegitimate child, whose mother is a Muslim. Since Mdm Yap was not a Muslim, the GIA 1961 applies to both the plaintiff and her mother. En. Ibrahim’s declarations in his IC application form has no evidentiary value. [8] Learned counsel for the plaintiff also argued that the fact of their declarations of their marital status “Berkahwin” did not prove the existence of a valid Muslim marriage. The truth of the contents of the written applications for ICs were not proven by the defendant and intervener, the said contents did not have any evidentiary value and should be disregarded for being irrelevant. As such, Mdm Yap’s version as per her SD should have been accepted by the learned JC. [9] Learned counsel for the defendant and the intervener respectively argued in support of the learned JC’s decision. The GIA 1961 did not apply Page 7 of 10 because the plaintiff is no longer an infant. The plaintiff’s status is based on her IC and documents which show that she is a born Muslim and not a revert or a convert. If the plaintiff contends that she is not a Muslim, then she should have gone to the Syariah Court to seek a declaration under section 61(3)(b)(x) of the 2003 Enactment. The records show that the plaintiff is a Malay and a Muslim. Learned counsel for the intervener also argued that the plaintiff is in law and in fact a Muslim pursuant to section 2 of the 2003 Enactment. Therefore, it was submitted that the decision of Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Yang Lain [2007] 3 CLJ 557 (FC) is binding and the civil court has no jurisdiction to hear the matter. DECISION [10] The GIA 1961 relates essentially to the question of guardianship and custody of an infant. In our considered view the question of the applicability of the GIA 1961 is a misnomer. We say this because the plaintiff is no longer an infant. We also do not see how in the particular circumstances of this case in what manner the question of guardianship of infants under the GIA 1961 is relevant to the question of whether the plaintiff is not a person professing the religion of Islam (see prayer (iii) in paragraph [1] above). Therefore, in our considered view the plaintiff’s application is misconceived in law and in fact. [11] In this connection, we had also taken note of the fact that in 2009 the plaintiff had filed an action for judicial review (Guaman R4-25-216- 2009) citing the Ketua Pengarah Pendaftaran Negara and Kerajaan Malaysia. In the 2009 action, the plaintiff sought inter alia for an order to change her name from Rosliza bt Ibrahim to Sek Lai Peng and for the Page 8 of 10 word ‘Islam” to be expunged from her IC. The plaintiff’s application was dismissed by the High Court and her appeal to the Court of Appeal was dismissed. [12] We had carefully considered the evidence on the appeal record and the grounds of the learned JC’s written judgment. We were not persuaded that the findings of the learned JC that En. Ibrahim and Mdm Yap were married, that the plaintiff is a child of the marriage and that the plaintiff is a Muslim, is plainly wrong. We also agreed with the submission of learned counsel for the intervener that the plaintiff is in law and in fact a Muslim pursuant to section 2 of the 2003 Enactment which provides that a “Muslim” means “a person either or both of whose parents were at the time of the person’s birth, a Muslim”; this is especially clear in the light of the undisputed fact that the plaintiff’s father En. Ibrahim is a Malay and a Muslim. [13] At any rate, we also observed that prayer (ii) of the plaintiff’s originating summons is for a declaration that the plaintiff is not a person professing the religion of Islam. Given the findings that the plaintiff is a Muslim, the effect of the declaration sought is to enable the plaintiff to renounce Islam as her religion; which in effect amounts to a declaration that the plaintiff is no longer a Muslim. The jurisdiction to determine this issue is vested in the Syariah Court pursuant to section 61(3)(b)(x) of the 2003 Enactment. It is therefore plain that the plaintiff’s avenue for the declaration sought is within the jurisdiction of the Syariah Court and not the civil court (Art. 121(1A) of the Federal Constitution). [14] For the foregoing reasons we did not think that there was any constitutional issue involved in this case. Whilst we empathise with the Page 9 of 10 plaintiff’s plight, this Court is nevertheless bound by the Federal Court’s decision in Lina Joy (supra). The civil court is not seized with jurisdiction to adjudicate on the matter. It falls within the province of the Syariah Court. Accordingly, the plaintiff’s appeal was dismissed with no order as to costs. sgd (Vernon Ong) Judge Court Of Appeal Malaysia Dated : 18th January 2019 Counsel: For the Appellant: Aston Paiva (Michael Cheah Ern Tien bersamanya) Messrs. Amerbon Watching Brief: 1. Raja Noor Syuhada bt. Raja Khairuddin (Tetuan Tan Law Practice)(mewakili semua di bawah No. 1) - Women’s Aid Organisation - All Women’s Aid Action Society Malaysia - Persatuan Kesedaran Komuniti Selangor (Empower) - Sisters In Islam (SIS) - Association of Women Lawyers (AWL) - Perak Women for Women (PWW) - Women’s Centre for Change Penang (WCC) - Persatuan Sahabat Wanita Selangor Sabah Women’s Action – Resource Group (SAWO) Tenaganita Page 10 of 10 2. Philip T.N. Koh (Tetuan Mah Kamariyah & Philip Koh) - Majlis Perundangan Malaysia Agama Buddha, Kristian, Hindu, Sikh dan Tao. 3. Mansur bin Saad (Suhakam) For the 1st Respondent: Nik Suhaimi bin Nik Sulaiman (Mohd Syahrizal Syah bin Zakaria dan Muhammad Haziq bin Hashim bersamanya) Pejabat Penasihat Undang-Undang Negeri Selangor For the 2nd Respondent: Zainul Rijal bin Abu Bakar (Abdul Rahim bin Sinwan, Muhammad Zaki bin Sukery , Muhammad Akmal bin Abu Bakar dan Muhamad Hisham bin Marzuki bersamanya). Tetuan Zainul Rijal Talha & Amir