High Court declares Selangor-born woman ‘not a Muslim’, says her unilateral conversion to Islam at age four invalid

(GOOD lengthy READ if you're into Syariah matters)

KUALA LUMPUR: The High Court has declared a 35-year-old woman — born in Selangor to a Hindu father and an initially Buddhist mother — to be not a person professing the religion of Islam, ruling that her unilateral conversion to Islam at the age of four by her Muslim convert mother was invalid from the start.

The Selangor-born woman had said her case is not about apostasy or leaving the faith of Islam, but was instead about her never being a Muslim in the first place.

This woman, identified only as D to protect her privacy, was born in November 1986 to a non-Muslim couple married under civil laws via the Law Reform (Marriage and Divorce) Act 1976. Her late father was of Indian ethnicity, while her mother is of Chinese ethnicity.

D will be turning 36 this year. She has spent the last eight years going to the courts to seek a declaration that she is not a Muslim, in order to have the National Registration Department (NRD) remove the word “Islam” from her identity card.

The facts in this case

Based on court documents sighted by Malay Mail, the mother in an affidavit said D was raised as a Hindu, with D continuing to live with the mother after the latter separated from the Hindu husband in around 1991.

The initially Buddhist mother said she decided to convert to Islam while waiting for the divorce proceedings with her initial husband to be concluded, as she intended to marry a Muslim man after the divorce.

On May 17, 1991 which was when D was months away from turning five, the mother went to the Selangor Islamic Religious Department (Jais) with the child.

The mother said she was told by a Jais officer that D would have to be converted to Islam to ensure that she has continued custody of the child, adding that the officer had also said D would be able to choose her religion once she turned 18.

The mother said she uttered the Kalimah Syahadah twice — or the declaration of belief for Islam — adding that her child D did not utter this and was unaware and did not understand what was happening.

In that same year, the mother received her conversion card that recorded her as having converted to Islam.?

Jais on August 28, 1993 issued to D — who was just months away from turning seven years old — a conversion card, which recorded her as having been converted on May 17, 1991. This conversion card retained D’s original name but replaced her father’s name with the words “binti Abdullah” (commonly given in Malaysia for situations such as converted Muslims).

The mother’s divorce with D’s father was finalised in 1992, and the High Court also granted the mother care and custody of the child. D then continued living with her mother, including after the mother married a Muslim man in 1993.

The mother said she did not inform D’s father about the child’s purported conversion and that he died in 1996, also telling the court in the affidavit that D continued to practise the Hindu religion and did not practise or profess the religion of Islam while staying with the mother.

In her affidavit, D herself said her mother and her stepfather allowed her to continue to practise and profess the Hindu religion, saying she frequently visited her father’s family and prayed in Hindu temples and celebrated Hindu festivals with them, and that she never professed the religion of Islam or adopted Islamic beliefs such as only eating halal food or pray according to the Muslim faith.

D explained that she wanted to remove the label “Islam” on her identity card as she never professed the religion of Islam, and around 2011 (which was when she was already an adult) decided to do so but said her application was rejected by the NRD.

Having read news reports of the Federal Court’s 2007 decision in the case of Lina Joy who was also seeking to remove the word “Islam” from her identity card, D said she then decided to go to the Syariah courts. D said she did not know then that the Shariah courts have no jurisdiction over her.?

[In the Lina Joy case, a Malay woman named Azlina Jailani who had renounced Islam succeeded — on her second attempt — in getting the NRD to change her name on the identity card, but found that the new identity card carried the word “Islam” and her original name on the reverse side.

This came after a change in government regulations in 2000 — without her knowledge — that was made to apply retrospectively to her October 1999 application for a new identity card, with the new rule requiring Muslims to have their religion printed on their identity cards. In her application form, she had stated her religion to be Christianity.

Forced to make a third application in January 2000 to seek the removal of the word “Islam” and her original name from the identity card, the NRD rejected this by saying Lina had to provide a Syariah court order that stated her as having renounced Islam.?

Lina challenged this via a lawsuit filed in the civil courts, but the High Court in 2001 and the Court of Appeal in 2005 in a majority decision rejected her bids.?

The Federal Court in a majority decision by two judges on May 30, 2007 also rejected Lina’s challenge by saying that the NRD was entitled to impose the requirement of having a Syariah court order of apostasy in order to delete the word “Islam” from an identity card and that the NRD had correctly construed its powers under government regulations when imposing this requirement. The other judge on the panel had disagreed and said Lina should be entitled to have an identity card without the word “Islam”.]

As for D, she had on December 12, 2013 filed a lawsuit in the Shariah High Court in Kuala Lumpur — as she was living there then — to seek a declaration that she is not a Muslim. The Federal Territories Islamic Religious Council (Maiwp), which was named as respondent in D’s lawsuit, then filed a counterclaim for her to be sent for counselling.

The Shariah High Court on April 7, 2014 ordered her to attend “counselling” by the Federal Territories Islamic Religious Department (Jawi) twice a week for a four-month period (as it adopted the procedure in Negri Sembilan laws of having a person intending to renounce Islam to undergo counselling first to reconsider Islam as their religion before the Shariah court decides on their renunciation application, if that person does not “repent” as advised). D said she had maintained at the end of several counselling sessions that she was not a person professing Islam.

The Syariah High Court on July 20, 2017 rejected D’s application to be declared a non-Muslim, with the Syariah judge giving the opinion that she is clearly a Muslim as her identity documents show her religion to be Islam and as her name is a name commonly used by Muslims.

D then filed an appeal on August 1, 2017 to the Syariah Court of Appeal — which dismissed her appeal more than three years later on January 12, 2021. A three-judge panel in this case also concluded D is a Muslim, after having highlighted various points such as D’s identity card containing the word “Islam” and asserting that the records showed that she was allegedly validly converted to Muslim and with her conversion card officially registered (in the year when she was aged seven).

D has spent the last eight years going to the courts to seek a declaration that she is not a Muslim, in order to have the National Registration Department remove the word 'Islam' from her identity card.

The legal struggle continues

Having started her journey at the age of 25 in 2011 to have her identity card reflect her religious identity to be non-Muslim, D had gone through a fruitless seven-year-long process from age 27 to 34 in her bid to obtain a confirmation from the Syariah courts that she is not a Muslim.?

D then turned to the civil courts, saying in court papers that the Shariah courts actually did not have any jurisdiction over her to begin with, as her purported conversion without both parents’ consent was illegal and invalid and as she was never a person professing the religion of Islam. She also explained that she did not know which courts’ jurisdiction applied to her when she filed her initial case in the Syariah courts.

On May 10, 2021, D filed a lawsuit via originating summons in the civil High Court in Shah Alam, naming the Selangor Islamic Religious Council (Mais) and the Selangor state government as the two respondents.

In this lawsuit filed in the civil High Court, D sought for a court declaration that she is “not a person professing the religion of Islam”, listing the reasons as including the consent of her father never being obtained for her conversion to Islam as a child and having never uttered the kalimah syahadah.?

The other reasons she listed were that the consent of both her father and mother were required for any conversion to take place, and her assertion that she was born a Hindu and had only professed and practised the Hindu religion at all times.

What the High Court decided

The High Court in Shah Alam on October 12, 2021 heard D’s lawsuit where she was represented by lawyers Surendra Ananth and Nurul Hidayah Mohd Azmi, while Mais was represented by Majdah Muda and the Selangor state government represented by assistant state legal adviser Nur Irmawatie Daud and Husna Abdul Halim.

On December 21, 2021, the High Court granted D’s application for a declaration that she is not a person professing the religion of Islam, and dismissed Mais’ counterclaim which had sought to declare D a vexatious litigant.

Below is a summary by Malay Mail of the 29-page written judgment dated February 12, 2022 by High Court judge Choo Kah Sing, where he examined key issues such as whether the civil court can decide on D’s religious status and whether her conversion to Islam at age four in May 1991 was even valid in the first place:

1. ‘No longer a Muslim’ vs ‘never was a Muslim’

Mais had argued that it is solely for the Syariah courts to decide whether a person is Muslim or not.?

The Selangor state government argued that D’s identity card stating her to be Muslim and using her Muslim name for decades allegedly meant that D’s challenge is about her saying she no longer wanted to be a Muslim and that this should then be for the Syariah courts to decide.

In response to these arguments, the High Court cited the most recent Federal Court decision in February 2021 in the case of Rosliza Ibrahim, who successfully obtained court orders declaring that she was born illegitimate to her late Buddhist mother and her Muslim father and that she is not a person professing the religion of Islam.

The High Court pointed out that the Federal Court had made a clear distinction between cases involving those who say they are “no longer a Muslim” and want to leave Islam which would then fall under the Shariah courts’ jurisdiction, and those who say they “never was a Muslim” or not a Muslim ab initio (from the start) which would then fall under the civil courts’ jurisdiction as it involves the interpretation of the constitutional term “persons professing the religion of Islam” in the Federal Constitution.

Based on the facts in D’s case, the High Court said it was satisfied that her case involved her assertion that she was never a Muslim as she had never professed Islam and her conversion was not valid, while also noting it involved her constitutional right under the Federal Constitution’s Article 11(1) to profess and practise her religion.

As for Mais’ argument that D’s lawsuit in the civil court was res judicata or a matter that had already been decided upon and cannot be reheard, the High Court disagreed, noting that the Federal Court’s decision in Rosliza’s case meant that the Syariah court proceedings have been nullified as the Syariah courts have no jurisdiction to determine D’s assertion that she was never a Muslim.

2. Legal standing

While Mais argued that D had no locus standi or legal standing to file her lawsuit in the civil courts as it argued that the decision of the Syariah court which said she is a Muslim is binding on her, the High Court stressed that she has legal standing as her case involving the issue of “never was a Muslim” would fall under the civil courts’ jurisdiction in line with the Federal Court’s 2021 decision in Rosliza’s case.

The High Court said D had initially filed her case in the Shariah courts in 2013 “out of necessity”, as the law on the courts’ jurisdiction — for situations of “never was a Muslim” and “no longer a Muslim” — had yet to be made clear until the Federal Court’s 2021 decision in Rosliza’s case.

Responding to Mais’ claim that it was an afterthought by D to ask the civil courts for a declaration that she is “not a person professing the religion of Islam” when her initial lawsuit in the Syariah courts sought for a declaration that she was “no longer a Muslim”, the High Court said it was not an afterthought as it noted that D has maintained her stand at both the Syariah court and civil court proceedings that she does not profess the religion of Islam.

With the law currently allowing D to exercise her constitutional right in a civil court which was not available before the Federal Court’s decision, the High Court concluded that she still has legal standing to pursue her lawsuit in the civil courts despite having gone through the futile process of going to the Syariah courts.

“As such, although the plaintiff had gone through the motion in the Syariah High Court to assert her right, but failed, that whole exercise has become a futility in law. The plaintiff could not be precluded from having locus standi before the civil court to call upon the determination of a right enshrined in the Federal Constitution,” the judge said, referring to D as the plaintiff.

3. Was D’s conversion to Islam in 1991 even valid?

In D’s case, what was most crucial was actually what Selangor state law was in force when she was allegedly converted to Islam in May 1991 at the age of slightly over four years old.?

Mais argued that the 1989 Selangor state law known as the Administration of Islamic Law Enactment 1989 was in force then, and cited its Section 70 (which said that the moment when any man or woman converts to Islam, their child who has not attained the age of majority becomes converted to Islam at the same moment) to argue that D was automatically converted when her mother converted to Islam.

In using the 1989 state law to argue that D’s conversion to Islam was valid and done according to Selangor’s laws, Mais had also cited the 1989 law’s Section 74(3) which says that a certificate of conversion to Islam shall be conclusive proof of what is stated in the certificate.

But the High Court highlighted that the 1989 state law only came into force on September 1, 1991, questioning how it could apply to D’s situation where her mother converted several months earlier.

“The plaintiff’s mother’s conversion was on May 17, 1991, which was before the Enactment 1989 came into force. Therefore, how could the Enactment 1989, particularly Section 70, apply to the plaintiff?” the judge asked.?

As for the 2003 Selangor state law (Administration of the Religion of Islam (State of Selangor) Enactment 2003) which came into force on September 1, 2003 and replaced and repealed the 1989 law, the High Court said this too was not relevant.

Instead, the High Court looked at the old Selangor state law known as the Administration of Muslim Law Enactment 1952 (which was in force from October 1952 to August 31, 1991), and specifically at its Section 146 and Section 147.

Section 147 carried the heading “no conversion of children”, and states “No person who has not attained the age of puberty shall be converted to the Muslim religion”. This law was in force when D was allegedly converted.

“Hence, the plaintiff’s purported conversion to Islam by the JAIS on May 17, 1991 was against the state law of conversion at that material time”.

The High Court also went on to say that the conversion card issued in 1993 to D could not be valid and could not be taken as conclusive proof that she had converted to Islam.

“This is because the plaintiff’s conversion to Islam was against the law at that time and unlawful in the first place, a fortiori the issuance of a conversion card to the plaintiff based on an unlawful conversion on 17 May 1991 would be invalid and unlawful as well,” the judge said.?

“Hence this court finds the plaintiff was not validly converted to Islam, and therefore, she could not be a person professing the religion of Islam despite being erroneously identified as a convert-Muslim for so many years,” the judge concluded.

What about the fact that D was unilaterally converted by her mother without the father’s consent?

The High Court had considered the Federal Court’s January 2018 unanimous decision in Hindu mother M. Indira Gandhi’s case (which ruled that the consent of both parents are needed for a child born in a civil marriage to be converted to Islam), but said the unilateral conversion of D to Islam is not a relevant issue in this case, as it was illegal to convert her as a child under the law then.

“This is because from the onset the conversion that took place on May 17, 1991 was an unlawful one under the applicable state law at that material time,” the judge said.

4. Why Mais’ counterclaim was rejected

Mais claimed that D was a vexatious litigant or someone who sues repeatedly, but the High Court rejected this as it said the civil court would not shut its door to a person who has a legitimate claim based on their constitutional right.

Noting that D’s right to freedom of religion was in question and that her case was within the civil court’s jurisdiction as it involved the issue of never being a Muslim, the judge also said it had been demonstrated that the Shariah court had acted out of bounds in exercising its jurisdiction over D.

The judge concluded that D could not be a vexatious litigant, saying “this is not a case of repeated litigations relying on the same cause of action”.

Too long, didn’t read?

In short, the High Court decided that the civil courts was the right place for D to go to as it has the powers to decide on cases involving those who were never a Muslim, and decided that D had the legal standing to file this lawsuit and was not someone who filed repeated lawsuits without merit.

And while her mother had sought to convert her to Islam as a child without asking the father’s consent, the High Court’s decided that D’s May 1991 conversion to Islam was invalid as it goes against a Selangor state law at that time (which said children cannot be converted to Islam).

What’s next?

On January 17, 2022, Mais filed an appeal against the High Court’s decision which declared D to be not a person professing the religion of Islam, while the Selangor state government also filed an appeal later that same month.

The Court of Appeal is scheduled to hear the two appeals by Mais and the Selangor government on September 13.

D’s lawyer Surendra confirmed his client has tried to ask for a new identity card after the High Court declared her to be not a Muslim, but said this has been turned down by the NRD.

“In the meantime, the Plaintiff has asked the NRD to reissue her IC without Islam and the word ‘Binti’ following the court decision. The DG of NRD responded saying that they will not do so as there is a pending appeal,” he told Malay Mail, referring to the director-general of the NRD by the initials.

Mais on March 17 also filed a stay application at the High Court in Shah Alam, and this application is scheduled to be heard on May 30.

In the stay application, Mais is seeking to have the High Court’s December 2021 decision stayed — or temporarily suspended from taking effect — until the Court of Appeal decides on the appeal. Ends.