SITI NUR AIN BINTI SULAIMAN v Majlis Ugama Islam dan Adat Resam Melayu Pahang (C-01(NCvC)(A)-118-03/2023)

KERAJAAN NEGERI PAHANG RESPONDENTS [In the High Court of Malaya in Kuantan, Pahang Civil Suit No: CA-24NCvC-128-07/2022 Between Siti Nur Ain binti Sulaiman (NRIC No.:930127-06-5938) ... Plaintiff

Majlis Ugama Islam dan Adat Resam Melayu Pahang

Kerajaan Malaysia 1 ... Defendants] CORAM: CHE MOHD. RUZIMA BIN GHAZALI, JCA WONG KIAN KHEONG, JCA AZHAHARI KAMAL BIN RAMLI, JCA

My learned brothers, Che Mohd. Ruzima bin Ghazali and Azhahari Kamal bin Ramli JJCA, had delivered a majority decision which dismissed this appeal with no order as to costs.

I have had the misfortune to dissent in this appeal. This judgment provides my reasons for doing so.

The appellant (Appellant) was born out of wedlock on 27.11.1993 to Puan Sofiah and Encik Sulaiman bin Akim (Encik Sulaiman).

At the time of the Appellant's birth-

the Appellant's mother, Puan Sofiah, an aborigine (orang asli) -

practised the customs and spiritual beliefs of the Jakun tribe (Jakun's Customs/Spiritual Beliefs); and

was not a Muslim; and

Encik Sulaiman, the Appellant's father, was a Muslim.

The Appellant is called Anne.

No birth certificate was issued to the Appellant.

Puan Sofiah and the Appellant resided in a village named Kampung Rantau Panjang (Village). The Village is inhabited by the Jakun tribe which practises Jakun's Customs/Spiritual Beliefs.

Since the Appellant's birth, the Appellant has never practised Islam but only Jakun's Customs/Spiritual Beliefs.

Before the Appellant was born, Encik Sulaiman already had a wife and other children. Encik Sulaiman represented to the Appellant's mother that he would divorce his wife and marry the Appellant's mother. Consequently, around 14.11.1995, for the purpose to marry Encik Sulaiman, the Appellant's mother converted to Islam.

Encik Sulaiman did not divorce his wife. Nor did Sulaiman marry the Appellant's mother.

At the time of the conversion of the Appellant's mother, the Appellant was about 2 years old. The Appellant did not accompany her mother when her mother converted to Islam. Notwithstanding the conversion of the Appellant's mother to Islam, the Appellant had practised and still practises Jakun's Customs/Spiritual Beliefs.

When the Appellant was about 13 years old, her mother had to apply for an identity card (IC) for the Appellant with the National Registration Department (NRD).

During the Appellant's application for an IC, an officer of NRD stated the Appellant's religion as Islam because her mother was a Muslim. The Appellant's mother was reluctant to do so but eventually complied because the Appellant needed an IC to register as a student in a government school.

Around 2008, when the Appellant was 15 years old, she went to the office of "Pejabat Agama Islam" (PAI) in Kuala Rompin with her mother. The Appellant informed PAI's officer there that she did not want the word "Islam" on her IC. The Appellant and her mother were informed by PAI's officer that because the Appellant's mother had converted to Islam, the Appellant was automatically considered a Muslim. However, PAI's officer told them that the Appellant could choose her religion after she turned 18 years old.

On 28.01.2012, the Appellant married Mr. Tan Boon Tong (Appellant's husband), an Orang Asli, according to Jakun's Customs/Spiritual Beliefs. The Appellant's husband also practises Jakun's Customs/Spiritual Beliefs. They could not register their marriage (Marriage) because the Appellant's IC stated that the Appellant was a Muslim.

After the Marriage, the Appellant and Appellant's husband continue to practise Jakun's Customs/Spiritual Beliefs.

On 9.02.2013, the Appellant gave birth to their first child, Tan Boon Lian (Appellant's 1 $ ^{st} $ Child). The birth certificate of the Appellant's 1 $ ^{st} $ Child [Birth Certificate (Appellant's 1 $ ^{st} $ Child)] stated "Tiada Agama" (No Religion) for the Appellant, Appellant's husband and Appellant's 1 $ ^{st} $ Child.

The Appellant's husband inquired about the status of the Appellant's religion with the NRD's office in Kuala Rompin. NRD asked the Appellant to obtain a letter from "Jabatan Kemajuan Orang Asli" (JKOA) in Kuala Rompin to confirm that the Appellant was not a Muslim.

The Appellant and Appellant's husband met with Encik Khamis from JKOA at Kuala Rompin. JKOA issued a letter titled "certificate of confirmation of no religion" (JKOA's Letter). Encik Khamis also advised the Appellant to make a Statutory Declaration (SD) before a Commissioner for Oaths in Kuala Rompin, to affirm that the Appellant was not a Muslim. The Appellant had affirmed an SD which confirmed that she was not a Muslim.

The Appellant and Appellant's husband returned to NRD with JKOA's Letter and the Appellant's SD. However, the NRD officer informed the Appellant and Appellant's husband that NRD could not accept JKOA's Letter.

NRD informed JKOA to retract JKOA's Letter. Encik Khamis then asked the Appellant and Appellant's husband to return JKOA's Letter to JKOA but this was refused by the Appellant and Appellant's husband.

NRD asked the Appellant and Appellant's husband to return the Birth Certificate (Appellant's $ 1^{\mathrm{st}} $ Child) so that the religious status of the Appellant's $ 1^{\mathrm{st}} $ Child could be recorded as a Muslim. The Appellant and Appellant's husband refused to do so.

NRD did not return the Appellant's SD.

On 06.11.2014, the Appellant gave birth to their second child, Tan Shu Wen (Appellant's 2 $ ^{nd} $ Child). The birth certificate of the Appellant's 2 $ ^{nd} $ Child [Birth Certificate (Appellant's 2 $ ^{nd} $ Child)] stated "Tiada Agama" for the Appellant, Appellant's husband and Appellant's 2 $ ^{nd} $ Child.

Around 2018, the Appellant went to the NRD office at Muadzam Shah, to seek clarification about her non-Muslim status. She informed the NRD officer there that she was born before her mother converted to Islam and that she had never practiced Islam. The NRD officer asked her to obtain a letter from PAI's office at Muadzam Shah to confirm that she was not a Muslim.

The Appellant went to JKOA's office at Muadzam Shah where she met Encik Hadi. Encik Hadi informed the Appellant that her case would be referred to JKOA's office in Kuantan.

The Appellant then went to PAI's office at Muadzam Shah. She was told by a PAI officer that there was no record of her conversion to Islam. PAI only has a record of the conversion of the Appellant's mother to Islam. She was then asked to go to the first respondent's （ $ 1^{\mathrm{st}} $ Respondent) office.

When the Appellant went to the $ 1^{\mathrm{st}} $ Respondent's office, she was informed that the $ 1^{\mathrm{st}} $ Respondent would issue a letter to NRD. The $ 1^{\mathrm{st}} $ Respondent issued a letter dated 16.7.2018 $ [1^{\mathrm{st}} $ Respondent's Letter (16.7.2018)] which stated that the Appellant had converted to become a Muslim by the Appellant's mother on 14.11.1995 and was registered as a Muslim in the $ 1^{\mathrm{st}} $ Respondent's register of "Muallaf" (Pahang's Muallaf Register).

The Appellant gave birth to their third child on 26.05.2018, Tan Boon Liang (Appellant's $ 3^{rd} $ Child). The Appellant and Appellant's husband did not apply for a birth certificate for the Appellant's $ 3^{rd} $ Child for fear that the Appellant's $ 3^{rd} $ Child would be forcibly considered a Muslim.

The Appellant was informed that Encik Sulaiman had passed away in 2018. C. Proceedings in the High Court

The Appellant filed an Originating Summons (OS) in the High Court. In this OS, the Appellant prayed for, among others the following declarations:

the Appellant is not a person who professes the religion of Islam

the word "parents" in paragraph (b) of the definition of the term "Muslim" in s 2(1) of Pahang's Administration of Islamic Law Enactment 1991 (AILE) only refers to parents of a legitimate child; and

the Appellant has a right to practise and profess Jakun's Customs/Spiritual Beliefs without any interference from the $ 1^{\mathrm{st}} $ Respondent and second respondent （ $ 2^{\mathrm{nd}} $ Respondent) (referred collectively in this judgment as the "Respondents").

The OS was dismissed by the High Court with costs of RM1,000.00 to be paid by the Appellant to each of the two Respondents (High Court's Decision). The following grounds for the High Court's Decision were given in the learned High Court Judge's Grounds of Judgment (GOJ):

the Appellant is a person who professes the religion of Islam due to the following reasons-

according to s 86 of Pahang's Islamic Family Law Enactment 2005 (IFLE), the Appellant's mother had custody of the Appellant (who was an illegitimate child at the material time) - paragraph 18 GOJ. When the Appellant's mother converted to Islam, by virtue of s 103 AILE, the religious status of the Appellant (as a child) would follow the religion of the Appellant's mother (who had custody of the Appellant) - paragraphs 24 and 25 GOJ;

a Pahang State Fatwa (gazetted on 12.9.2013) stated that the religious status of a child below 18 years old shall follow the religion of either the mother or father who has converted to Islam [Pahang State Fatwa (12.9.2013)] - paragraphs 19 and 20 GOJ; and

paragraphs 21 and 22 GOJ explained that the High Court could apply the Pahang State Fatwa (12.9.2013) according to two Federal Court decisions, namely-

the judgment of Azahar Mohamed CJ (Malaya) in Rosliza bt Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 181, at [131], [156] and [162]; and

(ii) the 4-3 majority judgment delivered by Rohana Yusuf PCA in Jabatan Pendaftaran Negara & Ors v A Child & Ors (Majlis Agama Islam Negeri Johor, Intervener) [2020] 2 MLJ 277, at [73] and [75];

Pahang's Muallaf Register proved that the Appellant was a Muslim when the Appellant's mother converted to Islam - paragraphs 16 and 27 to 31 GOJ;

in paragraph 32 GOJ, the learned High Court Judge decided that the consent of the Appellant's father for the Appellant to be converted to Islam, was not relevant because the Appellant was under the custody of her mother (who is a Muslim);

the High Court distinguished this case from the Federal Court case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 - paragraphs 33 to 36 GOJ. Hence, Article 12(4) of the Federal Constitution (FC) had no application in this case;

the learned High Court Judge distinguished Rosliza from this case - paragraphs 41 to 43 GOJ;

according to the High Court in paragraph 44 GOJ, the Appellant had not adduced any evidence that she was brought up in accordance with Jakun's Customs/Spiritual Beliefs; and

as the Appellant was a Muslim and had been brought up by her mother as a Muslim, if she was to renounce Islam, such a matter fell within the exclusive jurisdiction of the Syariah court - paragraphs 45, 47 and 50 GOJ. This decision was supported by-

the Federal Court's judgment in Rosliza - paragraph 46 GOJ; and

the Administration of Islamic Law (Amendment) Enactment (No. 2) 2020 [Amendment Enactment (A82)] which introduced ss 111E and 111H AILE - paragraphs 48 and 49 GOJ.

The Appellant had appealed to the Court of Appeal against the High Court's Decision (This Appeal).

The following questions will be discussed in This Appeal:

does the civil court have exclusive jurisdiction under Article 121(1) FC to decide on whether a person (X) is a Muslim from the beginning (ab initio) or otherwise? The resolution of this issue entails a discussion of -

Article 121(1) and (1A) FC;

the two judgments in the Federal Court case of Rosliza; and

the three judgments (two majority and one dissenting judgment) in Dahlia Dhaima bt Abdullah v Majlis Agama Islam Selangor & another appeal [2025] 1 MLJ 334;

in deciding the question in the above sub-paragraph (1) -

what is the effect of Pahang State Fatwa (12.9.2013)?; and

had the Appellant discharged the legal and evidential burden to prove on a balance of probabilities that she is not a Muslim ab initio?; and

if the Appellant can discharge the legal and evidential burden to prove on a balance of probabilities that she is not a Muslim from the beginning-

in view of Article 12(4) FC, can only one of the Appellant's parents, namely, her mother, lawfully convert the Appellant to Islam? In this regard, due to the supremacy of the FC in Article 4(1) FC, does Article 12(4) FC prevail over state enactments, such as AILE, Amendment Enactment (A82) and IFLE?; and

can the Appellant practise Jakun's Customs/Spiritual Beliefs without any interference from the Respondents? E. Does the civil court have exclusive jurisdiction to decide the question of whether a person is a Muslim ab initio?

Reproduced below are Articles 121(1) and (1A) FC: "Article 121 Judicial power of the Federation

There shall be two High Courts of co-ordinate jurisdiction and status, namely-

one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

(Repealed), and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.

The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts." (emphasis added).

The following two judgments in the Federal Court case of Rosliza decided that only the civil courts (not the Syariah courts) have exclusive jurisdiction under Article 121(1) FC to decide on the question of whether a person is a Muslim from the beginning (ab initio) or otherwise (Constitutional Law Question) -

Tengku Maimum CJ decided as follows, at [3], [72], [84], [85], [89] to [104], [106], [108], [109], [125] and [126] - [3] The appellant failed in the courts below in her bid to seek recourse from the civil court. On 20 January 2020, this court granted the appellant leave to appeal on the following two questions of law:

where the subject matter of a cause or matter requires a determination of 'whether a person is or is not a Muslim under the law' rather than 'whether a person is no longer a Muslim' whether the High Court has the exclusive jurisdiction to hear and determine the said subject matter on a proper interpretation of art 121 and Item 1 of the State List [FC]? and

in light of reg 24(1) of the National Registration Regulations 1990 and where the truth of the contents of any written application for registration of an identity card or the contents of an identity card is not proven by affidavit or at trial, whether the said contents can be considered facts proved for a declaration of status under s 41 of the Specific Relief Act 1950? Question 1 [72] Is this court, in the first place, allowed to make a finding that the plaintiff or Yap Ah Mooi, or both 'were never Muslims' as opposed to the finding that they are 'no longer Muslims'. It will be explained later that there is a fundamental difference between the two questions. [84] Taken in this context, there is a notable difference between 'profess' on the one side and 'profess and practice' on the other. The former is a constitutional term and is justiciable before the civil courts. The latter phrase is a question of faith and dogma and therefore falls within the jurisdiction of the Syariah Courts by virtue of art 121(1A) of the FC. [85] The dispute before us relates to the question of one's constitutional identity. It therefore necessitates constitutional interpretation of something which only the superior courts of this country have the right to address. It is only when one's faith is the main subject-matter of the dispute does such dispute fall within the jurisdiction of the Syariah Courts. In this regard, there is a significant distinction between 'one who no longer professes the religion of Islam' on the one side, and 'one who never professes the religion of Islam', on the other. This will be further elaborated later. [89] The High Court and the Court of Appeal are therefore correct in principle. If the plaintiff is a Muslim seeking to renounce her faith in Islam, then the matter being 'an offence against the precepts' of Islam, is within the jurisdiction of the Syariah Court due to art 121(1A) [FC]. The Court of Appeal further confirmed this by following this court's decision in Lina Joy. However, the conclusion of the courts below that the plaintiff is a Muslim was based solely on the erroneous finding of fact that the plaintiff's parents were married during her birth and thus resulting in the erroneous application of s 2(b) of the ARIE 2003. Premised on the earlier findings that the plaintiff is an illegitimate child, the conclusion formed on the said s 2(b) is unsustainable. [90] At this juncture, a very fundamental distinction identified earlier, emerges. There is a critical distinction between 'no longer a Muslim' on the one side, and 'never was a Muslim', on the other. The former refers to renunciation cases which as explained, fall within the jurisdiction of the Syariah Courts. The latter, which may be loosely described as ab initio cases, cannot, on a coherent application of the law, fall within the jurisdiction of the Syariah Courts. To understand this, it would perhaps be useful to distinguish Lina Joy. Lina Joy involved a case where a self-admitted Malay Muslim woman filed a suit to remove the word Islam from her identity card. She wanted this because she purported to convert to Christianity to marry her betrothed who was of that religion. Originally, the case concerned both constitutional and administrative law questions. The constitutional aspect of the case concerned the appellant's (Azlina's) right to determine her own religion. The appeal however only dealt with the administrative law aspect as to whether the NRD was correct in law to require Azlina, to furnish an order from the Syariah Court before the word 'Islam' could be removed from her identity card. The discussion on the administrative law aspect is not relevant to the instant case and accordingly does not warrant comment. But the ratio of Lina Joy, appears to be that because Azlina was always a Muslim, it was necessary that any attempt by her to change her religion required the approval of the Syariah Court. In this context, Lina Joy is entirely distinguishable from the present case on the basis that the present case is an ab initio case and not a renunciation case. [92] The same result as Lina Joy would be achieved if someone who was originally a non-Muslim sometime in his or her life converted to Islam but later chose to renounce Islam. An example of this is the case of Majlis Agama Pulau Pinang lwn Siti Fatimah Tan Abdullah [2009] 1 CLJ (Sya) 162. In that case, a lady had converted to Islam from Buddhism to marry her Malay Muslim husband. The couple subsequently divorced and the woman applied to re-convert to Buddhism. The case again, is a renunciation case where someone claims to no longer be a Muslim. [93] Ab initio cases are unique and peculiar where the person claims never to have been a Muslim in the first place but for some reason or another he or she is designated as a person who 'professes the religion of Islam'. Logically, any legal presumption as to their Muslim status cannot apply because they were never identified as Muslim to begin with. Here, Lina Joy and like cases may be distinguished by referring to the decision of Yew Jen Kie J (as she then was) in Azmi. [94] According to the applicant in Azmi, he was raised in a Bidayuh Christian community. However, when he was younger the religion of Islam was chosen for him by his parents upon their conversion although his upbringing never matched that description. He claimed that when he attained the age of majority, he chose Christianity as his religion. Accordingly, he applied to the Sarawak branch of the NRD to remove Islam from his identity card and to change his name from 'Azmi bin Mohamed Azam Shah @ Rooney' to 'Roneey anak Rebit'. Most of the parties to the case agreed by consent to grant a letter of no objection on his 'renunciation' but the chief syariah judge claimed that he had no jurisdiction to grant the order of 'renunciation'. Based on this refusal, the applicant argued that in the first place, the Syariah Court had no jurisdiction to grant him the order because he was not in the first place a Muslim. This is what Yew Jen Kie J held: [27] It is to be noted that the applicant in the present case is a Bidayuh by race and had been raised and brought up in a Christian Bidayuh community since birth. The choice of Islam religion was decided for him by his parents following their own conversion to Islamic faith as he was ten years old. He has never practised the Islamic faith and has embraced Christianity. He is not challenging the validity of his minor conversion. In exercise of the constitutional religion freedom, he is seeking a declaration that he is a Christian. [96] Most pertinently, Her Ladyship continued to observe as follows: [41] Given that the Syariah Court shall have jurisdiction only over persons professing the religion of Islam, it is therefore helpful at this juncture to ascertain the meaning of 'professing' or 'profess'. [42] In Words and Phrases Judicially Defined (1990 ed), p 447, under the word 'profess', it is stated: Now what is the meaning to be attached to the word 'profess'? According to the Shorter Oxford English Dictionary 'profess' means 'to affirm, or declare one's faith in or allegiance to (a religion, principle, God or Saints etc)' Re Mohamed Said Nabi, deceased [1965] 1 MLJ 121 at 122 per Chua J. [43] Longman Dictionary of Contemporary English defined 'profess' as 'a statement of your belief, opinion, or feeling'. [44] From the definition aforesaid, it conveys the meaning that to profess a religion is making a public statement about the religion you believe in. Thus, a person professing the religion of Islam is a person who has made a public declaration, affirmed his faith in or his allegiance to Islam. It is a fact that the Islam religion was chosen and decided for the applicant (a minor) by his mother when she converted to be a Muslim; his conversion was not by reason that he professed the religion of Islam. To put it in another way, the conversion of the applicant to Muslim faith was not on his own volition by affirming, declaring his faith in or allegiance to Islam religion but by virtue of his mother's conversion when he was a minor aged ten years old and his mother has determined his religion. In my view, since the applicant, who is a Bidayuh by birth, had not in the first place professed his faith in Islam but his conversion followed that of his mother as he was a minor at the material time, logic dictates that he cannot be considered as a person professing that particular faith. That the applicant has not lived like a person professing Islam is seen in his averment that he was raised and brought up in the Bidayuh Christian community. [97] The decision of Yew Jen Kie J in Azmi was appealed against but the appeal was subsequently withdrawn, the Director General of the National Registration Department v Azmi bin Muhammad Azam @ Rooney (Court of Appeal, Civil Appeal No Q-01- 159-05 of 2016). The NRD adhered to the decision of the High Court. The applicant's name was changed and the word 'Islam' was removed from his identity card. [98] What can be distilled from Lina Joy and like cases on the one side, and Azmi and like cases on the other, is that it is a matter of proof that the person affirmatively professed the religion of Islam at the material time. Absent such proof, the case may be classified as an ab initio case. [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: 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'. [101] In applying the above principle to the facts of that case, Her Ladyship opined as follows: To clarify, if a person was born and raised as an Ahmadiyya, then his original religion is the Ahmadiyya religion. Because the Two Fatwas declare that his faith is not Islam, then in the State of Selangor, an Ahmadiyya is a non-Muslim just as a Christian or a Hindu is a non-Muslim. If however, a person is born and raised as a Muslim (whether he chooses to practise his beliefs or not), he is in law a person 'professing the religion of Islam'. Should he change his religion from Islam to Ahmadiyya, just as if he were to attempt to renounce Islam for any other faith, he cannot in law do so unless by order of the Syariah Court as prescribed by the relevant state law. Thus, any renunciation of the Islamic faith is within the jurisdiction of the Syariah Courts (see for example: Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 and Lina Joy. In Soon Singh, the Federal Court held that the jurisdiction of the Syariah Court to deal with conversion out of Islam, although not expressly provided for in some State Enactments, can be read into those Enactments by implication. [102] Based on the discussion of Lina Joy and Azmi, I agree with the articulation of the Court of Appeal in Maqsood, on the difference between ab initio cases and renunciation cases and which of the two courts, the civil courts or Syariah Courts have jurisdiction. For the reasons stated earlier in respect of question two, I am also minded to think that the Court of Appeal's observations in respect of the legal status of identity cards vis a vis reg 24 of the NRR 1990 is correct. Incidentally, at the time of writing this judgment, the applications for leave to appeal against the decision of the Court of Appeal were dismissed by this court on 21 December 2020 (see Maqsood Ahmad & Ors v Ketua Pegawai Penguatkuasa Agama & Ors (Federal Court Civil Application No 08(f)-266-09 of 2020(B) and Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors Federal Court Civil Application No 08(f)-272-09 of 2020). [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. [104] The phrase 'professing the religion of Islam' is a provision of the FC. Ascertaining the meaning of any provision of the FC is a judicial power classified broadly under the umbrella of judicial review and accordingly, it is a power vested strictly and only in the civil superior courts. ... [106] To put into perspective the point that although a matter may have religious connotations to it, if it requires constitutional interpretation, only the civil courts have the power to ascertain it, reference is made to the judgment of this court in Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617('Abdul Kahar'). [108] The case is no different here. At the risk of repetition, if a matter concerns an ab initio case, that is, the question whether a person is in the first place a 'person professing the religion of Islam' it necessarily concerns a question regarding one's identity under the FC which in turn necessitates constitutional interpretation. This is because the phrase 'persons professing the religion of Islam' is a constitutional term. Accordingly, the civil courts are empowered, indeed, duty-bound to adjudicate the matter. It is only in renunciation cases where one already professes or proclaims to profess the religion of Islam (irrespective of whether they actually practise the faith) with the subsequent decision to change what they profess, that the matter is removed to the jurisdiction of the Syariah Court. The distinction drawn from the cases of Lina Joy and Azmi illustrates the difference. Whether it is an ab initio case or a renunciation case will require a careful examination of the factual matrix of the case. [109] On the foregoing analysis, question one is answered in the affirmative. [125] 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 as opposed to an ab initio case, is not correct in fact and in law. [126] The plaintiff's appeal is accordingly allowed and the orders of the High Court and Court of Appeal are hereby set aside. An order is granted in terms of the OS, to wit, the declaratory relief reproduced in para 5 of this judgment. There shall be no order as to costs." (emphasis added). The above judgment of Tengku Maimun CJ was concurred by Rohana Yusuf PCA, Nallini Pathmanathan FCJ, Abdul Rahman Sebli FCJ (as he then was), Zabariah Mohd Yusof FCJ, Mary Lim Thiam Suan FCJ and Rhodzariah Bujang FCJ, at [127]; and

Azahar Mohamed CJ (Malaya) agreed with the answers provided by Tengku Maimun CJ to the two questions of law raised in Rosliza but differed with regard to the relief to be granted in favour of the appellant, at [127]. Azahar Mohamed CJ (Malaya) decided as follows, at [143] and [147] [143] In my opinion, both the courts below erred in failing to appreciate that the appellant is not claiming that she is 'no longer a Muslim'. One crucial point needs to be made here. The present case is not a case of renunciation. It is not an 'exit case'. We are concern here with the question of whether the appellant was a Muslim at birth, which is a question of law. The courts below made an erroneous finding that the present case fell outside the civil courts' jurisdiction. [147] For all the above reasons, on the first question of law posed, I conclude that where the subject matter of a cause or matter requires a determination of 'whether a person is or is not a Muslim under the law' rather than 'whether a person is no longer a Muslim', the High Court has the exclusive jurisdiction to hear and determine the said subject matter. In consequence, my answer to the question is in the affirmative." (emphasis added). Hasnah Mohamed Hashim FCJ (as she then was) agreed with the above judgment of Azahar Mohamed CJ (Malaya).

In a 2-1 majority decision in Dahlia Dhaima, all three judgments in Dahlia Dhaima accepted Rosliza (with regard to the Constitutional Law Question) as follows:

according to Abang Iskandar PCA, at [2] to [4], [42], [46], [53] and [57] - [2] This case deals essentially with the application of the law enunciated in Rosliza bt Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 181; [2021] 3 CLJ 301 ('Rosliza'), a landmark decision of this court which demarcates between the categories of one who 'never was a Muslim' on the one side and one who 'no longer a Muslim' on the other. In the former ab initio category, the civil court was held to possess jurisdiction to determine one's religious status. In the latter category which is termed as a renunciation case, the jurisdiction remains with the Syariah Court. [3] According to Rosliza, a determination of whether it is an ab initio case or a renunciation case requires a careful examination of the factual matrix of the case; the circumstances presented before the court; and the declaration that is being sought for. The question is, to what extent the facts and circumstances of a particular case are to be examined and considered in a claim of 'never was a Muslim' in the context of the present appeal, by applying Rosliza? [4] According to Dahlia, the point of entry into Islam, ie her conversion is the determining point of evaluating her claim of 'never was a Muslim'. Crucially she said that the validity of her conversion determines whether she never was a Muslim or not. The respondents on the other hand argued that an approach of focusing only on the conversion point is incorrect because according to Rosliza, the entire factual matrix of the case must be examined, and that must necessarily include an examination of subsequent events post her conversion, irrespective of the validity or invalidity of conversion. I will delve more into these differing approaches later in this judgment. [42] I have considered both parties' contentions, and by applying Rosliza, the facts and circumstances of the case must be carefully scrutinised and examined when dealing with a claim of 'never was a Muslim'. ... [46] Thus, notwithstanding the legal status of Dahlia's conversion, I am in agreement with the respondents on the correct approach to apply when determining whether a case falls within the 'never was a Muslim' case-category. In doing so, it is incumbent upon us to examine the entire factual matrix and circumstances of the case as was decided by this court in Rosliza. [53] Thus, the net effect is that, based on the reason that Dahlia was once a Muslim, and by applying Rosliza, the Syariah Court was seised with jurisdiction to deal with the 'no longer a Muslim' case-category. And hence, until and unless the decision of the Syariah Court is set aside, its findings and order are valid and enforceable. They are not null by reason of want of jurisdiction. [57] Lest it be misunderstood, I need to emphasise that the present appeals do not concern any question of constitutional or statutory interpretation as was present in Indira Gandhi and Rosliza. Rather, these appeals are an illustration of the application of Rosliza, whose approach requires an assessment of the facts and circumstances that are presented before us in our determination of whether Dahlia falls under the category of 'never was a Muslim' as opposed to 'no longer a Muslim'." (emphasis added);

Abu Bakar Jais FCJ (as he then was) decided in the majority decision as follows, at [222] - [222] In conclusion, I would say that this is clearly an apostacy or renunciation case where the Syariah Courts have jurisdiction to determine as required by Rosliza. It would indeed be inappropriate, unjust to the system of judicial administration and power of the Syariah Courts and wholly unjustified for the same to be supplanted of its jurisdiction and for the jurisdiction instead to be conferred on the civil courts, considering the facts and law that should be applicable in this case." (emphasis added); and

Mary Lim Thiam Suan FCJ dissented but applied Rosliza as follows, at [268] and [272] to [274] - [268] The next decision that requires careful understanding is Rosliza. .. [272] 'Ab initio' cases are explained by the Federal Court as 'unique and peculiar where the person claims never to have been a Muslim in the first place but for some reason or another he or she is designated as a person who 'professes the religion of Islam'. Logically, any legal presumption as to their Muslim status cannot apply because they were never identified as Muslims to begin with'. It is a matter of proof that a person affirmatively professed the religion of Islam at the material time. 'Absent of such proof, the case may be classified as an ab initio case'. Such cases are determined by the civil courts for otherwise there will be no legal recourse for persons of this category - see para [99]. See also Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors and another appeal [2021] 1 MLJ 120; [2020] 10 CLJ 748; [2021] 1 MLRA 286. [273] The Federal Court in Rosliza then examined the factual matrix to determine whether the plaintiff is, on the evidence, a Muslim to begin with. If the plaintiff was a Muslim of original faith, then the matter will befall on the Syariah Courts as the civil courts will have no jurisdiction to grant the reliefs sought as they would relate to renunciation, to some extent. Having examined the factual matrix, the Federal Court concluded that the plaintiff was not a Muslim and accordingly, granted the declaration sought, namely that she is not a person professing the religion of Islam. [274] These two landmark decisions thus have determined that the civil courts of which this court forms the apex court have always had jurisdiction over all persons, regardless their religion. ..." (emphasis added).

Premised on -

the two judgments delivered by Rosliza; and

the three judgments (two majority and one dissenting judgment) in Dahlia Dhaima - only the civil courts (not the Syariah courts) have exclusive jurisdiction under Article 121(1) FC to decide on the Constitutional Law Question. Consequently, previous cases, including those decided by our apex courts in the Supreme Court and Federal Court, should be read with caution and cannot be applied if such judgments are inconsistent with Rosliza and Dahlia Dhaima.

With respect, the learned High Court Judge had committed an error of law in this case when-

the High Court did not apply Rosliza. It is to be noted that the Federal Court's judgment in Dahlia Dhaima was delivered after the preparation of the learned High Court Judge's GOJ; and

the learned High Court Judge did not decide that only the civil courts (not the Syariah courts), can determine the Constitutional Law Question. F. What is the effect of Pahang State Fatwa (12.9.2013)?

Firstly, the Pahang State Fatwa (12.9.2013) cannot apply retrospectively to decide on the Constitutional Law Question, namely, whether the Appellant was a Muslim from the date of her birth on 27.11.1993.

Secondly, Tengku Maimun CJ had decided in Rosliza, at [35] and [37], as follows: [35] Firstly, this court will have to ascertain on whom the burden of proof lies in respect of the plaintiff's claim that she is an illegitimate child. Secondly, this court must thereafter re-evaluate the evidence on record to ascertain whether the plaintiff's claim is made out. [37] Applying ss 101 and 102 of the Evidence Act 1950 and s 41 of the Specific Relief Act 1950 squarely to this case, as it is the plaintiff who seeks to establish that she is illegitimate, she fails if she cannot prove evidence to that effect." (emphasis added). Based on the above judgment of Tengku Maimun CJ in Rosliza, the Appellant had the legal and evidential burden (Legal/Evidential Burden) under ss 101(1), (2) and 102 of the Evidence Act 1950 (EA) to prove on a balance of probabilities that she is an illegitimate child. It is clear that the Appellant had the Legal/Evidential Burden to adduce proof on a balance of probabilities that she was not a Muslim ab initio. Reproduced below are ss 101(1), (2) and 102 EA: "Burden of proof 101(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. On whom burden of proof lies 102 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." (emphasis added).

Premised on Rosliza, the Constitutional Law Question can only be decided on whether the Appellant had discharged the Legal/Evidential Burden to prove on a balance of probabilities that she was not a Muslim from the beginning. In other words, the Pahang State Fatwa (12.9.2013) cannot be relied on to decide the Constitutional Law Question in this case.

Thirdly, the learned High Court Judge in this case relied on the judgment of Azahar Mohamed CJ (Malaya) in Rosliza, to justify the High Court's application of the Pahang State Fatwa (12.9.2013). In Rosliza, at [131], Azahar Mohamed CJ (Malaya) decided as follows: [131] I have had the benefit of reading the learned Chief Justice's judgment in draft. Having considered the reasons given by the learned Chief Justice, I agree that question one is answered in the affirmative and question two is answered in the negative. However, I respectfully consider that before granting the relevant remedies the appellant sought, we should first request for the opinion of the Fatwa Committee of the State of Selangor pursuant to s 53 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 ('the 2003 Enactment') pertaining to the question on Hukum Syarak ('Islamic law'), namely whether or not the appellant was a Muslim at the time of birth. Before turning to the discussion on this matter, I would also like to express my own views and add the following reasons why question one should be answered in the affirmative." (emphasis added). It is to be noted that the above view in Rosliza regarding the opinion of the State Fatwa Committee by Azahar Mohamed CJ (Malaya), was concurred only by Hasnah Mohamed Hashim FCJ (as she then was) in that case. The above dictum by Azahar Mohamed CJ (Malaya) was not shared by the other seven members of the Federal Court in Rosliza. Hence, such a dictum was purely obiter and the ratio decidendi of the Federal Court's judgment in Rosliza is expounded in the judgment of Tengku Maimun CJ (which did not rely on the State Fatwa Committee's view).

Fourthly, in this case, the learned High Court Judge had applied the Pahang State Fatwa (12.9.2013) based on the 4-3 majority judgment of Federal Court in Jabatan Pendaftaran Negara & Ors v A Child & Ors (Majlis Agama Islam Negeri Johor, Intervener) (Jabatan Pendaftaran Negara's Case). The following two questions of law were decided in Jabatan Pendaftaran Negara's Case, at [1]: [1] This appeal raises the issue of whether the Director General of National Registration ('DGNR') possess the authority, under the Births and Deaths Registration Act 1957 ('the BDRA') to ascribe 'bin Abdullah' instead of the biological father to the name of an illegitimate Muslim child in registering the birth of that child. Related to this issue is whether the DGNR in doing so was correct in giving consideration to the personal law of a Muslim person." (emphasis added). It is clear that Jabatan Pendaftaran Negara's Case did not concern the Constitutional Law Question. Consequently, the High Court had erred in law by relying on Jabatan Pendaftaran Negara's Case to apply the Pahang State Fatwa (12.9.2013) in this case.

Lastly, Article 4(1) FC provides for the supremacy of the FC - please refer to the judgment of Suffian LP (sitting alone) in the Federal Court case of Ah Thian v Government of Malaysia [1976] 2 MLJ 112, at 113. Article 4(1) FC states as follows - "Supreme law of the Federation 4(1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void." (emphasis added). In view of the supremacy of the FC, the Pahang State Fatwa (12.9.2013) cannot oust the civil court's exclusive jurisdiction to decide on the Constitutional Law Question under Article 121(1) FC. G. Whether the Appellant had proven on a balance of probabilities that she was not a Muslim from the beginning

In this case, the Appellant's IC stated that she was a Muslim. The effect of such a statement in the Appellant's IC, had been decided by Tengku Maimun CJ in Rosliza, at [30], as follows: [30] It follows that I agree and adopt the following observations of Dr Badariah JCA in Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors and another appeal [2021] 1 MLJ 120 ('Maqsood'): [136] ... we are of the view a MyKad is not conclusive evidence of religious identity. Just because a MyKad states 'Islam' does not ipso facto mean that the given person is to be taken as a person 'professing the religion of Islam'. Firstly, our reading of Lina Joy suggests that the Federal Court, strictly considering administrative law, held that the NRD was not incorrect to require an order from the Syariah Courts before removing the word 'Islam' from the applicant's MyKad. The Federal Court did not venture to say that a MyKad was in fact conclusive of her status as a person 'professing the religion of Islam'. We are fortified in our view by comparing the decision in Lina Joy to the decision in Azmi. But for the sake of caution, we hasten to add that if a person's MyKad clearly does not state that he or she is a Muslim, given the unique circumstances adjudicated in Lina Joy, there would be no reason to investigate such a person for a Syariah offence because it is clear that he or she is not a Muslim. However, if his/her MyKad says he/she is 'Islam', then that is where the ambiguity lies, because the religious identity as stated in the MyKad is not conclusive proof of what is stated if that fact is disputed. Thus, any person alleging a fact in the MyKad to be true still bears the burden of proving its truth." (emphasis added). It is clear from the above judgment that the Respondents cannot rely on the statement in the Appellant's IC that the Appellant was a Muslim. Furthermore, the evidence from the Appellant's mother [as stated in sub-paragraph 47(1)(d) below] had rebutted the fact that the Appellant's mother had converted the Appellant to Islam at the time of the issuance of the Appellant's IC.

I am constrained to decide that the learned High Court Judge had committed a plain error of fact in not deciding that the Appellant had proven on a balance of probabilities that she was not a Muslim ab initio. I rely on the following evidence:

in support of this OS, the Appellant's mother affirmed two affidavits on 14.7.2022 and 12.10.2022 [2 Affidavits (Appellant's mother)]. According to the 2 Affidavits (Appellant's mother), among others-

since the Appellant was born on 27.11.1993-

the Appellant has professed and practised Jakun's Customs/Spiritual Beliefs; and

(ii) the Appellant has not converted to Islam;

to marry Encik Sulaiman, the Appellant's mother converted to Islam around 14.11.1995 (when the Appellant was a minor). When the Appellant's mother converted to Islam, she did not convert the Appellant to Islam. In fact, when the Appellant was a child, the Appellant's mother did not give her consent for the Appellant's conversion to Islam;

when the Appellant was a minor, Encik Sulaiman did not convert her to Islam;

the Appellant's IC stated that the Appellant was a Muslim because-

when the Appellant was 13 years old, the Appellant's mother went to NRD's office where she was informed by an officer in the NRD (NRD Officer) that since the Appellant's mother was a Muslim, the IC should state that the Appellant was a Muslim; and

(ii) the Appellant's mother did not know the legal position and followed the above "advice" of the NRD Officer because the Appellant's IC was needed for the Appellant to be registered in a government school. Hence, the Appellant's mother gave a Muslim name, "Siti Nur Ain", to the Appellant and this name was stated in the Appellant's IC; and

the Appellant's mother did not consent or cause the entry to be made in Pahang's Muallaf Register (which stated that the Appellant was a Muslim);

the Respondents had not adduced any evidence to disprove the truth of the above contents of the 2 Affidavits (Appellant's mother);

the Appellant had affirmed two affidavits on 14.7.2022 and 12.10.2022 (Appellant's 2 Affidavits) to support this OS. No evidence had been adduced by the Respondents to prove that the contents of the Appellant's 2 Affidavits were not true;

since the Appellant's birth, she has professed and practised Jakun's Customs/Spiritual Beliefs. In fact, the Appellant resides in the Village which is inhabited by the Jakun tribe which practises Jakun's Customs/Spiritual Beliefs;

the Appellant has not converted to Islam at any time;

the Marriage was not solemnised in accordance with Islam. The Appellant's husband is an Orang Asli who professes and practises Jakun's Customs/Spiritual Beliefs;

since the Marriage, both the Appellant and Appellant's husband have professed and practised Jakun's Customs/Spiritual Beliefs;

the Birth Certificate (Appellant's $ 1^{\mathrm{st}} $ Child) and Birth Certificate (Appellant's $ 2^{\mathrm{nd}} $ Child) stated "Tiada Agama" (No Religion) for the Appellant, Appellant's husband, Appellant's $ 1^{\mathrm{st}} $ Child and Appellant's $ 2^{\mathrm{nd}} $ Child;

the Appellant's three children were brought up in accordance with Jakun's Customs/Spiritual Beliefs;

no evidence had been adduced by the Respondent to prove that the Appellant had converted to Islam;

JKOA's Letter which confirmed that the Appellant was not a Muslim.Notably,the Appellant and Appellant's husband refused to return JKOA's Letter to JKOA;

upon the advice of Encik Khamis from JKOA, the Appellant affirmed a SD pursuant to the Statutory Declarations Act 1960 (which stated that the Appellant was not a Muslim);

the Appellant and Appellant's husband refused to accede to the request by NRD to return the Birth Certificate (Appellant's $ 1^{st} $ Child) so that the religious status of the Appellant's $ 1^{st} $ Child could be recorded as a Muslim;

the Appellant and Appellant's husband did not apply for a birth certificate for the Appellant's $ 3^{rd} $ Child for fear that the Appellant's $ 3^{rd} $ Child would be forcibly considered a Muslim; and

the conduct of the Appellant, Appellant's mother and Appellant's husband in going to PAI, NRD, JKOA and the $ 1^{\mathrm{st}} $ Respondent's office (to confirm the fact that the Appellant was not a Muslim ab initio).

In view of the preponderance of evidence as stated in the above paragraph 47, I am not able to attach any weight to Pahang's Muallaf Register and the $ 1^{\mathrm{st}} $ Respondent's Letter (16.7.2018). H. What is the effect of AILE, Amendment Enactment (A82) and IFLE vis-à-vis Article 12(4) FC?

Article 12(4) FC provides as follows: "Rights in respect of education 12(1) ...

No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.

For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian." (emphasis added).

Our Federal Court had decided in the following two cases that the singular term "parent" in Article 12(4) FC means both parents:

in Indira Gandhi, at [149] to [153], [163], [164] and [172], Zainun Ali FCJ had delivered the following judgment- [149] The pertinent provision in the Eleventh Schedule, read together with art 160(1), provides that in interpreting the [FC]: Construction of singular or plural - words in the singular include the plural, and words in the plural include to singular. [150] Applying the guide to interpretation to art 12(4), the position is fairly clear: the singular word 'parent' includes the plural 'parents'. The religion of the minor child is to be decided by his 'parent' or 'parents' as the case may be. [151] However, the formulation in art 12(4) is differently worded in the national language translation of the Federal Constitution, which reads as follows:

Bagi maksud Fasal (3) agama seseorang yang di bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya. (Emphasis added.) [152] The phrase 'ibu atau bapa' or 'his father or mother' denotes a parent in the singular, and appears to preclude an interpretation requiring the religion to be determined by both father and mother. In light of the apparent inconsistency between the Bahasa Malaysia and English version of art 12(4), it was contended that the former is authoritative and prevails over the latter pursuant to art 160B of the Constitution. Article 160B states: 160B Authoritative text Where this Constitution has been translated into the national language, the Yang di-Pertuan Agong may prescribe such national language text to be authoritative, and thereafter if there is any conflict or disagreeing between such national language text and the English language text of this Constitution, the national language text shall prevail over the English language text. (Emphasis added.) [153] The High Court held that since the requisite prescription of the national language version under art 160B above has not been effected, the authoritative or official text is the English version. The learned JC observed that the senior federal counsel had not submitted otherwise. In the present appeals, despite the learned state legal adviser's reliance on art 160B, no evidence of the necessary prescription was adduced by either of the respondents. In the circumstances, we will proceed on the basis that the English version to be authoritative. What can be discerned from the above is that, the law has come a long way from the days when one parent's claim could be considered superior to the other. Where the child's religion or religious upbringing is in issue, the paramount consideration for the court is to safeguard the welfare of the child, having regard to all the circumstances of the case. In so doing the court does not pass judgment on the tenets of either parent's belief. Conversion to another religion is a momentous decision affecting the life of a child, imposing on him a new and different set of personal laws. Where a decision of such significance as the conversion of a child is made, it is undoubtedly in the best interests of the child that the consent of both parents must be sought. The contrary approach of allowing the child to be converted on the consent of only one parent would give rise to practical conundrums. The learned JC has described one such milieu (at para [35]): If by 'parent' is meant either parent then we would have a situation where one day the converted parent converts the child to his religion and the next day the other parent realising this would convert the child back to her religion. The same can then be repeated ad nauseam. [164] Such a scenario would undoubtedly be detrimental to the welfare of the child. Since a literal construction of art 12(4) would give rise to consequences which the legislative could not possibly have intended, the Article should not be construed literally (Sukma Darmawan at p 247). A purposive reading of art 12(4) that promotes the welfare of the child and is consistent with good sense would require the consent of both parents (if both are living) for the conversion of a minor child. [172] It is noted that in translating art 12(4) [FC], it would appear that the real essence of the English version is eluded. It is literally a case of being lost in translation. The reason 'parent' is used in art 12(4) is to provide for a situation where indeed there is only one parent of the child - eg a single parent situation. But where both parents exist, then the Eleventh Schedule shall be relied upon." (emphasis added); and

the above judgment in Indira Gandhi had been affirmed by Tengku Maimun CJ in Rosliza, at [67] to [69], as follows- [67] The facts of the case for purposes of the present discussion are shortly these. The father of non-Muslim children purported to convert his minor children to the religion of Islam without the knowledge of their mother. The question before this court was whether consent of only one parent is sufficient to effect the conversion. The provision in question in that case was s 106 of the Administration of the Religion of Islam (Perak) Enactment 2004 which provides: For the purpose of this Part, a person who is not a Muslim may convert to the religion of Islam if he is of mind and:

has attained the age of eighteen years; or

if he has not attained the age of eighteen years, his parent or guardian consents in writing to his conversion. [68] In the interpretation of the above provision, this court was mindful of art 12(4) of the FC where it construed the singular word 'parent' to mean both parents. Accordingly, it was held that a single parent had no right in law to convert his minor children to another religion without the benefit of consent of the other parent. Zainun Ali FCJ observed as follows [in Indira Gandhi]: [69] It is therefore clear that where even if Ibrahim had the secular paternal right to decide the plaintiff's religion, the right is not his to exercise alone. There is no evidence that Yap Ah Mooi jointly consented to recognise the plaintiff as a Muslim. Indeed, the evidence points in the opposite direction in that in the plaintiff's birth certificate, the column for her religion reads: 'Maklumat Tidak Diperolehi' (Information Not Obtained)." (emphasis added).

It is clear from Indira Gandhi and Rosliza (please refer to the above paragraph 50) that by virtue of Article 12(4) FC, only both parents of a child can convert their child.

According to Article 4(1) FC, any "law passed after Merdeka Day which is inconsistent with [the FC] shall, to the extent of the inconsistency, be void". The term "law" is defined in Article 160(2) FC as including "written law". According to Article 160(2) FC, "written law" includes the FC and the Constitution of any State (State Constitution).

I will refer to the definition of "written law" in s 3 of the Interpretation Acts 1948 and 1967 as follows: "written law" means -

the [FC] and the [State Constitutions] and subsidiary legislation made thereunder;

Acts of Parliament and subsidiary legislation made thereunder;

Ordinances and Enactments (including any federal or State law styling itself an Ordinance or Enactment) and subsidiary legislation made thereunder; and

any other legislative enactments or legislative instruments (including Acts of Parliament of the United Kingdom of Great Britain and Northern Ireland and Orders in Council and other subsidiary legislation made thereunder) which are in force in Malaysia or any part thereof; (emphasis added).

By virtue of Article 4(1) FC, if -

any State Enactment; and

any subsidiary legislation made pursuant to State Enactment (State Subsidiary Legislation) - is inconsistent with any provision in the FC, the State Enactment and State Subsidiary Legislation, "shall' be void to the extent of the inconsistency with the provision in the FC. Consequently, if-

paragraphs (b) and (d) of the definition of a "Muslim" in s 2(1) read with s 103 AILE;

Amendment Enactment (A82) (which introduced ss 111E and 111H AILE); and

s 86 IFLE allows one parent to convert unilaterally his or her child to Islam, such provisions are void to the extent of their inconsistency with Article 12(4) FC (as interpreted by our apex court in Indira Gandhi and Rosliza - please refer to the above paragraph 50).

I reproduce below paragraphs (b) and (d) of the definition of the term "orang Islam" (Muslim) in s 2(1) AILE (in Malay): "orang Islam" ertinya -

seseorang yang sama ada kedua-dua ibu bapa atau salah seorang daripadanya pada masa kelahiran orang itu adalah seorang Islam;

seseorang yang telah memeluk agama Islam menurut seksyen 101 atau menurut kuasa seksyen 102 dan 103; ...” (emphasis added).

Paragraph (b) of the definition of the term "orang Islam" (Muslim) in s 2(1) AILE is similar to the definition of "Muslim" in s 2(b) of the Administration of the Religion of Islam (State of Selangor Enactment) 2003 [ARIE (Selangor)]. In Rosliza, at [48], [49], [59] to [66] and [70], Tengku Maimun CJ had delivered the following judgment regarding the definition of "Muslim" in s 2(b) ARIE (Selangor): "Whether Yap Ah Mooi is a Muslim or a Malay [48] The next question is whether Yap Ah Mooi is a Muslim. The issue whether this court has jurisdiction to make that assessment is addressed in greater detail when I deal with question one. In relation to question two, the issue of Yap Ah Mooi's religion is only relevant to the assessment whether the plaintiff is also rendered a Muslim by virtue of the ARIE 2003 [Administration of the Religion of Islam (State of Selangor Enactment) 2003]. [49] Section 2(b) of the ARIE 2003 defines 'Muslim' as follows: 'Muslim' means:

a person either or both of whose parents were at the time of the person's birth, a Muslim. (Emphasis added.) [59] Given all the evidence on record, and without making a definitive finding as to Ibrahim's actual or real identity, the totality of the plaintiff's evidence is certainly more consistent and more worthy of credit. On a balance of probabilities, the facts and circumstances seem to suggest that Yap Ah Mooi was neither a Muslim nor a Malay. [60] 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. [61] Having established that, it is to be noted that the way the High Court and Court of Appeal approached the issue was by essentially relying on the word 'either' in s 2(b) of the ARIE 2003. They found that because there was a valid marriage between Ibrahim and Yap Ah Mooi, the plaintiff is a legitimate child and she accordingly inherits her father's religious identity. The High Court for example, used the word 'dinasabkan' (see para 9, High Court judgment). [62] The question which arises here is whether the plaintiff is a Muslim by virtue of the fact that 'either' one of her parents, more specifically, her father, is a Muslim. Further, does the plaintiff's status as an illegitimate child affect the ascription of her father's religion to the plaintiff? [63] Section 111 of the Islamic Family Law (State of Selangor) Enactment 2003 ('the IFLE 2003') provides as follows: Where a child is born to a woman who is married to a man more than six qamariah months from the date of the marriage or within four qamariah years after dissolution of the marriage either by the death of the man or by divorce, and the woman not having remarried, the nasab or paternity of the child is established in the man, but the man may, by way of li'an or imprecation, disavow or disclaim the child before the Court. [64] Under s 111 [IFLE 2003], which relates to the ascription of paternity, a child may only be ascribed the paternity of the father if he or she is born to a woman who is married to the man for a period of more than six qamariah months. And the father may only disavow or disclaim paternity under the provisions of that section. It follows that a child born less than six qamariah months or born to a woman not married to the man who fathered the child is illegitimate and the nasab or paternity of the child could not be established in the father. A simple application of the section to the facts of the instant case results in the conclusion that the plaintiff is an illegitimate child and while her status as a Muslim is disputed, it remains undisputed that Ibrahim is a Muslim. And as a Muslim, the said s 111 applies to Ibrahim to remove him, in law, of any ascription of paternity to the plaintiff. [65] The necessary implication upon a holistic construction of the IFLE 2003 against s 2 of the ARIE 2003 therefore suggests that 'parents', in s 2 of the ARIE 2003, refers only to the parents of legitimate children. Reason being, if s 111 of the IFLE 2003 not only renders a child illegitimate but also bars the ascription of paternity to the said child, then it stands to reason that the putative father cannot, in law, be considered the child's father. This is the first reason why the plaintiff cannot be considered a Muslim simply by virtue of s 2(b) of the ARIE 2003. [66] For completeness, the other question warranting an answer is this. Even if under Islamic law or the IFLE 2003 Ibrahim cannot ascribe paternity to the plaintiff, could he nonetheless, under secular law, have the right to decide his then infant daughter's religion as he did for her in 1994 in her written application for an identity card? The short answer is no. The authority for this is the judgment of this court in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 ('Indira Gandhi'). [70] In conclusion, the following issues in respect of question two are clear. Firstly, the plaintiff is an illegitimate child. There is no proof of marriage of her parents at the time she was born. The plaintiff cannot be deemed a Muslim simply by virtue of s 2(b) of the ARIE 2003 on the premise that 'either' or 'both' of her parents are Muslim. For the reasons aforementioned, although Ibrahim had stated certain particulars in his application for an identity card on behalf of the plaintiff or even in his own application for a new identity card, those particulars are not proof. Even if they are, they appear to materially conflict with the evidence on record." (emphasis added). Premised on the above judgment in Rosliza, the Respondents cannot rely on the definition of the term "orang Islam" (Muslim) in s 2(1)(b) AILE, to resist This Appeal.

Sections 103 and 106(3) AILE state as follows (in Malay): "s 103 Status anak-anak muallaf Jika pada saat dia memeluk agama Islam, seseorang muallaf sama ada lelaki atau perempuan, ada mempunyai anak yang belum mencapai umur lapan belas tahun, dan anak itu telah diperintahkan oleh mahkamah, selain daripada Mahkamah Syariah, supaya diletakkan di bawah penjagaan muallaf itu, dan muallaf itu menetapkan supaya anak itu memeluk agama Islam, maka anak tersebut adalah memeluk agama Islam pada masa penjagaan diberi. s 106 Pendaftaran pemelukan agama Islam

Jika Pendaftar Muallaf berpuas hati bahawa seseorang muallaf telah diberi penjagaan di bawah seksyen 103 terhadap anak yang pada saat pemelukan muallaf itu ke agama Islam adalah berumur kurang daripada lapan belas tahun, Pendaftar Muallaf hendaklah atas permohonan muallaf tersebut mencatatkan juga pemelukan ke agama Islam anak itu dalam Daftar Muallaf." (emphasis added). Section 103 AILE only applies if the civil court (not Syariah court) grants a custody order of a child in favour of a "muallaf" (Muslim convert). In this case, the civil court had not granted to the Appellant's mother a custody order with regard to the Appellant (as a child). Accordingly, there cannot be any room to invoke ss 103 and 106(3) AILE in this case.

I have not overlooked s 86 IFLE which provides as follows (in Malay): "s 86 Penjagaan anak-anak tak sahtaraf Penjagaan kanak-kanak tak sahtaraf adalah semata-mata pada ibu dan saudara mara ibu." (emphasis added). With respect, s 86 IFLE does not concern the religion of an illegitimate child. Alternatively, if-

s 86 IFLE allows the mother who has converted to Islam, to have the custody of the child; and

the mother has the right to convert unilaterally the child - such an interpretation of s 86 IFLE is inconsistent with Article 12(4) FC (as interpreted by our apex court in Indira Gandhi and Rosliza). In such an event, s 86 IFLE shall be void to the extent of its inconsistency with Article 12(4) FC please refer to the above paragraph 54.

It is to be noted that the Amendment Enactment (A82) was only gazetted on 11.2.2021. Hence, the Amendment Enactment (A82) cannot apply retrospectively in this case. I.Can the Appellant practise freely Jakun's Customs/Spiritual Beliefs?

Article 11(1) FC states as follows: "Article 11 Freedom of religion

Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it." (emphasis added).

As the Appellant had discharged the Legal/Evidential Burden to prove on a balance of probabilities that she is not a Muslim from the beginning (please refer to the above paragraph 47), by virtue of Article 11(1) FC, she has the freedom to practise Jakun's Customs/Spiritual Beliefs without any interference from the Respondents.

In view of the above evidence and reasons, I am constrained to allow This Appeal and grant an order in terms of prayers 1 to 3 OS. Due to the public importance of This Appeal, there will be no order as to costs. DATE: 29 SEPTEMBER 2025 WONG KIAN KHEONG Judge Court of Appeal Counsel for the Appellant:Mr. Surendra Ananth, Mr. New Sin Yew & Puan Nur Izni Syazwani binti Ahmad (Messrs AmerBon)Counsel for the 1st Respondent:Dato' Haji Mohd. Najid Bin Husain, Puan Nornajihah binti Ahmad Nadjemudin & Puan Nadrah binti Jamil (Messrs Mohd Najid & Partners)Counsel for the 2nd Respondent:YB Dato' Saiful Edris bin Zainuddin, Puan Rozanna binti Abdul Hadi, Puan Dorah binti Abdul Rashid & Puan Fatin Nur Syahirah binti Abdul Rashid (Pahang State Legal Advisor's Office)