Malaysian woman born to Muslim father and Buddhist mother wins appeal in court, declared not a Muslim

KUALA LUMPUR — A Malaysian woman who was born to a Muslim man and a Buddhist woman out of wedlock finally won her five-year legal battle to be declared a non-Muslim, after the majority of a nine-judge panel decided that that the facts showed both she and her mother were never Muslims.

The panel of judges at the Malaysian Federal Court, headed by Chief Justice Tun Tengku Maimun Tuan Mat, unanimously decided that 39-year-old Selangor resident Rosliza Ibrahim had won her appeal.

As part of the decision, Tengku Maimun and six other judges on the panel decided that the court will grant all the court orders sought by Ms Rosliza, after having decided that the evidence showed that she was born illegitimate and that the facts do not show her as being a Muslim.

The three court orders sought by Ms Rosliza include a declaration that she is illegitimate and that the late Buddhist woman Yap Ah Mooi is her mother, as well as a declaration that she is not a person professing the religion of Islam and that all Selangor state laws for Muslims do not apply to her and that Selangor Shariah courts do not have jurisdiction over her.

She had also wanted a court declaration that the putative father of an illegitimate child does not fall under the definition of “parents” in the interpretation of “Muslim” in Section 2(b) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003. Under Section 2(b), a person — who had either a parent or both parents being Muslim at the time of the person’s birth — will be considered to be a Muslim.

The six other judges who agreed with Tengku Maimun were President of the Court of Appeal Tan Sri Rohana Yusuf, and Federal Court judges Nallini Pathmanathan, Abdul Rahman Sebli, Zabariah Mohd Yusof, Mary Lim Thiam Suan and Rhodzariah Bujang.

Two judges on the panel, Chief Judge of Malaya Azahar Mohamed and Justice Hasnah Mohammed Hashim, both allowed the appeal, but differed slightly in not granting two of the court orders sought by Ms Rosliza.

“An order is granted in terms of prayer one, namely a declaration that the appellant is an illegitimate person and that one Yap Ah Mooi, a Buddhist, is her natural mother. However, as I do not have the benefit of the opinion of the Fatwa Committee, it is with deep regret that I am unable to make any order in respect of prayers (ii) and (iii) sought by the appellant,” Justice Azahar said when reading out a summary of his judgement, which was agreed to by Justice Hasnah.

Ms Rosliza had started her legal bid back in 2015 with a lawsuit filed via an originating summons in the Malaysian High Court to have official recognition that she is actually not a Muslim, with the respondents in her lawsuit being the Selangor state government and the Selangor Islamic Religious Council (Mais).

Previously at the High Court, Ms Rosliza had shown proof that the Islamic religious authorities of the Federal Territories and 11 states (Selangor, Johor, Kedah, Kelantan, Melaka, Negri Sembilan, Pahang, Penang, Perak, Perlis and Terengganu) do not have any records of her mother converting to Islam or of her biological parents entering into a Muslim marriage. She also provided the court with her late mother’s Oct 8, 2008 statutory declaration of not being married to Ms Rosliza’s father when she was born.

Both the High Court and the Court of Appeal had, in June 2017 and April 2018 respectively, ruled against Ms Rosliza, which led to her appeal involving two legal questions before the Federal Court.

Two questions of law were posed before the Federal Court, including whether the High Court has exclusive jurisdiction to hear and decide on a matter if it is about “whether a person is or is not a Muslim under the law” rather than “whether a person is no longer a Muslim”, based on the Federal Constitution.

The second question was whether the contents of a written application for an identity card can be considered as proven facts when the truth of the contents had not been proven by affidavit or at trial, in light of Regulation 24(1) of the National Registration Regulations 1990 — which places the burden of proving the truth of the contents of a written application for an identity card on the person alleging the truth of such contents.

The appeal was heard at the Federal Court on Dec 16, 2020, where both the Selangor government and Mais objected to Ms Rosliza’s appeal.

WHAT THE M’SIAN FEDERAL COURT DECIDED

The Federal Court delivered its decision on Friday (Feb 5) to all those involved in the case through video-conferencing via Zoom.

In reading out her judgement in favour of Ms Rosliza that was agreed by six other Federal Court judges, Tengku Maimun went through the facts and evidence presented in Ms Rosliza’s case.

In examining the second question of law, Tengku Maimun listed the three related issues that would arise, including whether Ms Rosliza’s mother Yap and father Ibrahim Hassan were married to each other when she was born.

While the separate written applications of both Mr Ibrahim and Yap in January 1995 and February 1995 for new identity cards had stated their marital status to be married instead of single, Tengku Maimun noted that both Regulation 24(1) and the Evidence Act’s Section 103 would put the burden on the Selangor government and Mais to prove that the “married” status in the applications were true.

Noting that Ms Rosliza had in a statutory declaration said her parents were not married when she was born and that Yap had in a 2008 statutory declaration also said both she and Mr Ibrahim were not married when Ms Rosliza was born, the judge noted that letters from the Islamic religious authorities had also said they were unable to find any records of a marriage between Ms Rosliza’s parents.

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

“In terms of actual proof, the defendants cannot in their respective records locate any proof of the marriage. Neither is there a single affidavit from Ibrahim or from any other relevant person to contradict the plaintiff’s (Ms Rosliza’s) case,” the judge said, noting that the more logical conclusion in such a situation is to believe that the alleged marriage was non-existent.

As for the second related question of whether Ms Rosliza’s mother was a Muslim or Malay, Tengku Maimun noted Ms Rosliza’s statutory declaration said her mother was a Buddhist, and an affidavit by a neighbour also said Yap was a Buddhist, as well as Islamic religious authorities of Kuala Lumpur and 11 states admitting to have no records of Yap having converted to Islam, concluding that such evidence collectively showed that there was no proof that Yap was a Muslim at the time of Ms Rosliza’s birth.

The judge noted that Yap had in her 1995 application for an identity card claimed she was a Chinese Buddhist, noting that this meant Yap considered herself a Buddhist in 1995 and in 2008 when she affirmed her statutory declaration.

As for Mr Ibrahim’s claim that Yap was a Malay — which under the Federal Constitution is defined as a person who professes the religion of Islam and habitually speaks the Malay language, the judge noted that this was in doubt as Yap’s statutory declaration was translated into Malay from Cantonese.

Tengku Maimun also noted that Yap had in her 1995 application for her own identity card said she was Chinese, and that both Ms Rosliza’s birth certificate and Yap’s death certificate lists Yap as Chinese, and that Ms Rosliza had in her statutory declaration said her mother is Chinese.

“The High Court appeared to believe Ibrahim’s written application for the plaintiff’s identity card where he stated Yap Ah Mooi is Malay. Given the consistency of the record of Yap Ah Mooi’s descent as Chinese, this single entry by Ibrahim is an anomaly,” Tengku Maimun said, adding that Ms Rosliza’s evidence is more consistent and that the facts and circumstances on a balance of probabilities suggest that Yap was neither a Muslim nor a Malay.

With no evidence that Yap was a Muslim when Ms Rosliza was born, the judge said this meant that Ms Rosliza cannot be said to be legally a Muslim by claiming that both her parents were Muslims when she was born.

While the High Court and Court of Appeal had decided against Ms Rosliza by ruling that Ms Rosliza’s parents were validly married and that she inherits her Muslim father’s religious identity as she is a legitimate child, Tengku Maimun however said that Mr Ibrahim could not ascribe his paternity to Rosliza via Section 111 of the Islamic Family Law (State of Selangor) Enactment 2003 as she was born illegitimate. This would mean Ms Rosliza would not inherit her father’s Muslim identity.

Citing the Federal Court’s decision in the case of M. Indira Gandhi where the Hindu mother successfully challenged her Muslim convert ex-husband’s unilateral conversion of their children to Islam, Tengku Maimun said that this meant Mr Ibrahim similarly could not under secular law have the right to unilaterally decide the religion for his then infant daughter as he did in his 1994 written application for Ms Rosliza’s identity card. Ms Rosliza’s identity card currently bears the word “Islam”.

“There is no evidence that Yap Ah Mooi jointly consented to recognise the plaintiff as a Muslim,” the judge said, noting that the evidence instead showed that Ms Rosliza’s birth certificate states “Maklumat Tidak Diperolehi” or information not obtained for the column for the child’s religion.

In the 1994 written application for Ms Rosliza’s identity card which was submitted by Mr Ibrahim, Mr Ibrahim said Ms Rosliza’s religion is “Islam” and said Yap is a Malay.

With this, Tengku Maimun said the answer for the second question of law is negative, which means that the contents of a written application for an identity card cannot be considered as proven facts when the truth of the contents had not been proven by affidavit or at trial.

In answering the first question of law, Tengku Maimun said the High Court has exclusive jurisdiction to hear and decide on a matter if it is about “whether a person is or is not a Muslim under the law” rather than “whether a person is no longer a Muslim”, based on the Federal Constitution.

Tengku Maimun also said the facts showed that Ms Rosliza’s case was not a case about a Muslim wanting to renounce Islam or be recognised as no longer a Muslim, but was a case about a person who was not a Muslim in the first place.

Among the facts listed by the judge were that there was “no proof” that Ms Rosliza was ever a Muslim, and that Ms Rosliza’s statutory declaration states that she was never a Muslim and was raised a Buddhist by her mother, and Yap’s statutory declaration stating she had never raised Ms Rosliza as a Muslim, and their neighbour’s affidavit that she had always known Ms Rosliza to be a Buddhist.

“Further, we have the independent evidence in the religious authorities’ letters where they found no record of conversion of either the plaintiff or her mother to Islam,” the judge said. MALAY MAIL