Court of Appeal allows MAIS' appeal to reinstate woman as Muslim in majority decision

Court of Appeal allows MAIS' appeal to reinstate woman as Muslim in majority decision
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KUALA LUMPUR (Jan 13): In a majority decision, the Court of Appeal (COA) on Friday (Jan 13) allowed appeals by the Selangor Islamic Religious Council (Mais) and the state government to reinstate a 37 year-old woman as Muslim.

In delivering the majority two-one decision on Friday, COA judge Datuk Yaacob Md Sam along with judge Datuk Mohd Nazlan Mohd Ghazali ruled that the woman had failed to establish that she was not a person who professed the religion of Islam, and that her suit in the High Court fell outside the jurisdiction of the civil courts.

Judge Datuk P Ravinthran, who delivered the dissenting judgement, affirmed the High Court decision and dismissed the appeals.

"Given all these considerations and the factual matrix of the case, we are inclined to conclude that the respondent has not on the balance of probability proven a case to be one where she was never a person who professed the religion of Islam," said Nazlan in reading out excepts of the majority decision.

Therefore, he said that her case was not an ab initio (never a Muslim in the first place), and ought to be treated as a renunciation case, which would fall within the jurisdiction of the shariah courts.

He added that her status as a Muslim was already "judicially determined" by the Shariah High Court and the Shariah Court of Appeal, and she had no locus standi to relitigate a similar matter in the civil courts.

Furthermore, the judge added that the civil courts had no jurisdictional authority "to appeal, review, set aside and go behind" the decisions of the shariah courts, including matters already determined by the shariah courts.

Successful appeals were against High Court decision ruling woman not Muslim to begin with

Both Mais and the Selangor state government were appealing against the High Court's December 2021 declaratory order that the woman was not a person professing the religion of Islam. MAIS' counterclaim saying that the plaintiff was a "vexatious litigant" was also dismissed then.

The woman sought the order in her originating summons filed in May 2021, where Mais and the state government were named as the defendants.

According to the written judgement released at a later date, judge Datuk Dr Choo Kah Sing, among others, noted that this was not a case of the woman renouncing the Islamic religion, rather that the woman was never Muslim to begin with. Therefore, referring to precedents, he ruled that the civil court had the jurisdiction to hear her case.

The High Court judge also found that the woman's alleged conversion with her mother in May 1991 was unlawful, and she was not "validly converted".

This is because the conversion law applicable at that time was the Administration of Muslim Law Enactment 1952.

Section 147 of the law states that: "No person who has not attained the age of puberty shall be converted to the Muslim religion."

The woman also filed a summons in the Shariah High Court against the Federal Territory Islamic Religious Council in 2013, among others seeking a declaration that she was no longer Muslim. This was dismissed in July 2017.

Subsequently, she appealed against this decision in the Shariah Court of Appeal in August 2017, but this was dismissed in January 2021.

Dissenting judgement: Conversion was anything but lawful

In delivering his dissenting opinion, Ravinthran, among others, noted that the alleged conversion was anything but lawful, in agreement with the High Court decision.

He said that there was no evidence that the woman underwent a conversion ceremony at a later date or even after puberty.

"The purported conversion was anything but lawful," he said, adding that it transgressed the written prevailing law at that time.

He also noted that the woman's late father's consent to the conversion was not obtained.

Furthermore, he said that the matrix of the case cannot detract from her mother's first-hand affidavit in the High Court, who said that the woman was permitted to continue practising her chosen faith.

The panel made no order as to cost.

Full grounds of the majority and dissenting judgements will be made available at a later date.

Alleged conversion at around five years old

According to court documents, the woman was born in November 1986 to a non-Muslim couple.

Her parents separated, and amid divorce proceedings, her mother embraced Islam in 1991, and she was converted at the same time — when she was around four years and five months old.

Following the divorce, which was finalised in 1992, her mother was granted custody.

A conversion card was issued to the woman two years later in 1993.

The woman's father did not know about the conversion, and did not give approval or consent for his daughter's conversion up until his death in 1996.

The woman also averred that she had been practicing the Hindu religion, frequenting temples, and that her mother and stepfather had allowed her to profess and practise her chosen faith.

Mohamed Haniff Khatri Abdulla represented MAIS, while state legal adviser Datuk Salim Soib appeared for the Selangor government. Surendra Ananth appeared for the woman.

When contacted, Surendra said that they will be appealing against the decision. 

Surin Murugiah