Jamilah Jan Vasanthegokelam(No K/P: 591207-10-6388) … PemohonDan1. Ketua Pengarah Jabatan Pendaftaran Negara2. Menteri Dalam Negeri, KerajaanPersekutuan Malaysia … Responden- Responden

  

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DI DALAM WILAYAH PERSEKUTUAN, MALAYSIA [BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS] PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO. 25-92-04/2014

 

Dalam perkara permohonan kepada Jabatan Pendaftaran Negara untuk penukaran butir-butir yang terkandung di dalam Kad Pengenalan No. 591207-10-6388 kepunyaan Pemohon dengan membatalkan catatan “Islam” yang terkandung di dalamnya dan penukaran nama Pemohon yang tercatit di dalamnya daripada Jamilah Jan Vasanthegokelam kepada nama asal Pemohon Vasanthegokelam a/p Subramaniam;

 

Dan

 

Dalam perkara Perlembagaan Persekutuan khususnya Artikel 5, 8 dan 11(1);

 

Dan

 

Dalam perkara Seksyen 25 dan Jadual 1 Akta Kehakiman 1964;

 

Dan

 

Dalam perkara Akta Pendaftaran Negara 1959 dan Peraturan-Peraturan Pendaftaran Negara 1959 secara am dan khususnya Peraturan 5 dan 14;

 

Dan

 

Dalam perkara Seksyen 2, 85, 86, 92 dan 95 Akta Pentadbiran Agama Islam (Wilayah Persekutuan) 1993;

 

Dan

 

Dalam perkara Seksyen 2, 107, 108, 114 dan 117 Enakmen Pentadbiran Agama Islam (Negeri Selangor) 2003;

 

Dan

 

Dalam perkara Aturan 53 Kaedah 3 Kaedah-Kaedah Mahkamah 2012.

 

ANTARA

 

JAMILAH JAN VASANTHEGOKELAM

 

(NO K/P: 591207-10-6388) … PEMOHON

 

DAN

 

1. KETUA PENGARAH JABATAN PENDAFTARAN NEGARA

 

2. MENTERI DALAM NEGERI, KERAJAAN

 

PERSEKUTUAN MALAYSIA … RESPONDEN-

 

RESPONDEN

 

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GROUNDS OF JUDGMENT

 

INTRODUCTION

 

1. This was an application filed by the applicant, a holder of Identification Card (“IC”) No. 591207-10-6388 and a Malaysian citizen for the following reliefs:

 

1.1. A certiorari to quash the letter dated 27th May 2013 issued by the National Registration Department (“NRD”) rejecting her application to remove the word “Islam” from her IC;

 

1.2. A mandamus to compel the Director General of the NRD to issue a new IC registering her name as Vasanthekogelam a/p Subramaniam; and

 

1.3. A mandamus to compel the respondents to expunge any entry of the word “Islam” in the respondents’ record.

 

DOCUMENTS

 

2. For the purpose of the hearing of this application the following documents were filed and referred to by the Court:

 

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2.1. Notice of Application dated 30th April 2014 (“Enclosure 1”);

 

2.2. Statement pursuant to Order 53 3 (2) of the Rules of Court 2012 (“Enclosure 2”);

 

2.3. Affidavit In Support of the Application (“Enclosure 3”);

 

2.4. Notice of Hearing of the Judicial review Application (“Enclosure 9”);

 

2.5. Affidavit In Reply of the Respondent affirmed by Dato’ Sulaiman bin Keling (“Enclosure 12”);

 

2.6. Affidavit In reply by Applicant (“Enclosure14”);

 

2.7. Affidavit In Reply of the Respondent (2) (“Enclosure 15”); and

 

2.8. Affidavit In reply of the Applicant (2) (“Enclosure 16”);

 

THE BACKGROUND

 

3. The brief background leading to the application could be summarized as follows:

 

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From the Applicants Perspective

 

(Facts as disclosed in the applicant’s affidavits)

 

3.1. The applicant was born on 7th February 1959 to a Hindu couple. Her religion was Hindu (see Exhibit “JJ-1” of Enclosure 3).

 

3.2. On 22nd May 1976 she married one Ghanasan a/l M. Subramaniam who was a Hindu and the marriage was solemnized according to Hindu rites and duly registered. The applicant gave birth to a son on 20th June 1980 and named the son Mohandran a/l Ghanasan. Around 1981 the applicant was separated from her husband.

 

3.3. Around 1982 the applicant married a Pakistani of Indian origin by the name of Mohd Baser a/l Kalakan and the marriage was solemnized according to Hindu rites.

 

3.4. The applicant retained her original nama Vasanthegokelam a/p Subramaniam.

 

3.5. Around 1983 her husband has taken her to the NRD and charged her name to Jamilah Jan Vasanthegokelam to avoid any future complication, which the couple might encounter at the time they apply for birth certificate for their second child because her husband’s name sounded like a Muslim name. The applicant believed at the time she applied to change her

 

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name to Jamilah Jan Vasanthegokelam the status of her religion was recorded as Islam.

 

3.6. The applicant and her son Mohd Sharif had gone to PERKIM, JAIS and JAKIM to verify their status but there was no records to show that the applicant had embraced Islam as her new religion. MAIS had confirmed that it did not have any records of the applicant having converted to Islam (see Exhibit “JJ-4” Enclosure 3).

 

3.7. In view of the fact that she was and is a practicing Hindu and had not at any time embraced Islam the applicant applied to amend her name in her IC as well as to delete the word “Islam” from the IC which was rejected by the 1st respondent vide his letter dated 27th May 2013.

 

From the Respondents’ Respective

 

(Fact as disclosed in respondents’ affidavit)

 

4. The NRD records disclosed the following:

 

4.1. On 22nd October 1974, the applicant applied for change of her name from Vasanthegokelam a/p Subramaniam to Jamilah Jan Vasanthegokelam binti Abdullah (see exhibit “SK-2” of Enclosure 12).

 

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4.2. On 20th January 1983 the NRD had issue a new IC to the applicant under the name of Jamilah Jan Vasanthegokelam binti Abdullah (see Exhibit “SK-3” of Enclosure 12).

 

4.3. On 21st December 1995 the applicant applied to change her IC under the new name of Jamilah Jan Vasanthegokelam binti Abdullah and she had selected “binti” in Column 4. She had also named her husband Mohd Baser Abdullah as family in Column 5 (see Exhibit “SK-4” Enclosure 12).

 

4.4. On 9th November 1996 the NRD issued a new IC number KP 591207-10-6338 to Jamilah Jan Abdullah (see Exhibit “SK-5 of Enclosure 12).

 

4.5. On 30th May 2003 the applicant applied for a MyKad via i-JPN system and was issued with the said card with her name recorded as Jamilah Jan Vasanthegokelam binti Abdullah. This new IC bore the entry “Islam” (see Exhibit “SK-5” of Enclosure 12). The applicant is the holder of this card till this date.

 

4.6. On 6th March 2013 the applicant applied to the NRD to change the name in the IC from the one appearing in her MyKad to Vasanthegokelam binti Abdullah as well as to remove the entry of Islam from the said MyKad (see Exhibit “SK-8” of Enclosure 12).

 

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4.7. The applicant’s application was rejected by the NRD’s Panel Pindaan and the effect of the applicant’s application would have the effect of changing her religion from Islam to Hinduism. The Panel Pindaan could not accede to the applicant’s request unless the application is supported by a declaration from the Syariah Court to state that the applicant is no longer a Muslim (see Exhibit “SK-8” Enclosure 12).

 

4.8. Further despite the averment of the applicant in her affidavits starting that her husband was an Indian and a citizen of Pakistan the NRD’s records showed otherwise. Her husband one Mohd Baser a/l Kalakan was in fact a Malaysian citizen professing the religion of Islam.

 

POINTS OF SUBMISSIONS BY THE RESPECTIVE PARTIES

 

5. In the course of the hearing of this application both the learned Counsel for the applicant and the learned Senior Federal Counsel (“SFC”) acting for the respondents raised the following arguments:

 

For the Applicant

 

5.1. The application to the NRD to amend her IC was premised on the ground that she has never embraced Islam nor was born a Muslim. As such, the respondents were not justified in inserting “Islam” as her religion in the IC.

 

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5.2. The applicant was born a Hindu and had maintained that she had never embraced the religion of Islam. She had never recited and/or uttered the “Syahadah”. Therefore she did not fall under the categories of persons defined in Section 2 of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505).

 

5.3. As she has been born a Hindu there must be some evidence to prove that she had converted to Islam pursuant section 85 of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505). There must also be a certificate of conversion issued to her and this shall be conclusive proof of her conversion (see section 90 of Act 505).

 

5.4. Based on the affidavits filed by the respondents, the respondents had failed to show that the applicant had converted to Islam.

 

5.5. By examining all the documents placed before this Court the respondent had failed to demonstrate conclusively that the applicant is a Muslim. Therefore, there was no justification for the respondent to insert the word “Islam” in the applicant’s IC. The respondent would require documentary proof before inserting the said particulars in the applicant’s IC.

 

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5.6. Under section 92 of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) the proper person who could verify if the applicant had converted to Islam is the Registrar of Muallafs. Section 89 (4) of Act 505 empowers the Registrar of Muallafs to make inquiries pertaining to the fact of conversion. This power does not lie with the respondents.

 

5.7. The 1st respondent had not verified this fact from the Registrar of Muallafs and had acted without jurisdiction and/or ultra vires the National Registration Regulations 1990. If the power is given to the NRD in a limited sense such Department could not give themselves the powers they do not have.

 

5.8. The applicant had attempted to verify her own status by making inquiries at PERKIM, JAIS, JAIM and MAIS. All inquiries showed that the above relevant bodies have no records of the applicant’s conversion.

 

5.9. The birth certificates of the applicant’s three (3) sons which she bore with one Mohd Baser a/l Kalakan had recorded Mohd Baser’s religion as “Maklumat Tidak Diperolehi” (see Exhibit “MJ-1” in Mohd Jefrey a/l Mohd Baser affirmed on 21st November 2013 in Application No. 25-242-11/2013; Exhibit “MJ-1” in Affidavit of Mohd Jass a/l Mohd Baser affirmed on 22nd August 2013 in Application

 

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No. 25-178-11/2013; Exhibit “MN-1” of Mohd Naser a/l Mohd Baser affirmed on 22nd August 2013 in Application No. 25-178-08/2013).

 

5.10. Article 121 (A) of the Federal Constitution does not take away the power of the High Court to interpret the provisions of the State Enactment even if it relates to the Administration of Islamic Law.

 

For the Respondents

 

5.11. It is evidenced from (Exhibit “SK-2” of Enclosure 12) the applicant herself had sought for change of name from her original Hindu name to Jamilah Jan Vasanthegokelam binti Abdullah. She had taken the name of “Abdullah” as her last name and inserted the “binti” which is common in Islam.

 

5.12. She herself had presented this fact to the NRD which was vouched by her guardian Pakiri a/l Narayanasamy. The NRD had recorded the particulars offered by the applicant herself.

 

5.13. At the time the applicant applied, to renew her IC in 1995 she had opted for a “binti” which is common in Islam.

 

5.14. Even the applicant’s current IC, which the applicant is holding till this very day has a Muslim name for the past thirteen (13) years. The NRD records disclosed that the

 

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applicant had been using a Muslim name for the past thirty (30) years.

 

5.15. Even the applicant’s statutory declaration dated 18th February 2013 presented to NRD in support of her application for amendment to the IC had clearly stated that she had converted to Islam but had never professed or practised the faith of Islam and that she had renounced from Islam (see Exhibit “SK-7” of Enclosure 12 at paragraph 8 and 11 of the SD dated 18th February 2013).

 

5.16. As the application for change of name or correction of particulars could only be made by the applicant herself, she herself had represented to NRD that she had converted to Islam.

 

5.17. The facts outlined by the respondent showed that the applicant is a Muslim prior to her declaration that she had renounced her religion. The applicant could not invoke the provision of Article 11(1) of the FC without resolving the issue of the validity of the applicant’s renunciation of Islam in accordance with Hukum Syarak to be declared by the Syariah Court. The applicant’s status could only be determined by the Syariah Court.

 

5.18. The applicant had sought this Court to declare that she is not a Muslim, which is a subject matter within the preview of the

 

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Syariah Court, which this Court has no jurisdiction to interfere.

 

DECISIONS OF THE COURT

 

6. Having perused the cause papers and the written submission filed herein and having heard oral submissions by both learned Counsel for the applicant and the learned SFC for the respondents the following are my decisions:

 

6.1. From the factual matrix of the case, which I have outlined above it was the applicant herself who had applied to the NRD for change of name or correction of particulars in her IC. She herself had represented to NRD as a person professing the religion of Islam. She had also admitted that she had converted to the religion of Islam.

 

6.2. By way of her own statutory declaration dated 18th February 2013 which was filed in support of the application to change her name due to change of religion she had deposed that she converted to Islam but has never professed or practised the faith of Islam. She had also deposed that she had renounced from Islam.

 

6.3. In her Judicial Review application filed in this Court the applicant, amongst other, sought for:

 

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6.3.1. A certiorari to quash the decision of the respondent dated 27th May 2015 of NRD not to remove the word “Islam” from the IC;

 

6.3.2. A mandamus to compel the DGIR of the NRD to issue a new IC under Vasanthekogelam a/p Subramaniam; and

 

6.3.3. A mandamus to compel the respondent to expunge any entry of the word “Islam” in the respondent’s records.

 

6.4. In essence, the reliefs, which the applicant sought from this Court was for that Court to determine the status of the applicant as a Muslim. The applicant had contended that pursuant to Article 11(1) of the Federal Constitution she has the right to profess the religion of her choice, that is Hinduism.

 

THE LAW

 

7. In resolving the issues at hand, the following is the law, which the Court referred to. I could not do any better than to adopt the summary of the law submitted by the learned SFC of Counsel for the respondents (which I had carefully perused, understood and considered) as follows:

 

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7.1. The National Registration Regulations 1990 [P.U.(A) 472/1990]

 

7.1.1. Pursuant to 14(1) of the 1990 Regulations, a person registered under the 1990 Regulations, (by virtue of reg. 28(1) of the 1990 Regulations, the applicants are deemed to be registered under the 1990 Regulations), who changes his name ‘shall forthwith report the fact to the nearest registration office and apply for a replacement identity card with the correct particulars’. The provisions of the subregulation (1) are as follows:

 

“(1) A person registered under these Regulations who –

 

(a) changes his name;

 

(b) acquires the citizenship of Malaysia or is deprived of his citizenship of Malaysia; or

 

(c) has in his possession an identity card containing any particular, other than his address, which is to his knowledge incorrect.

 

shall forthwith report the fact to the nearest registration office and apply for a replacement identity card with the correct particulars.” (emphasis added)

 

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7.1.2. Regulation 14 (2), provides as follows:

 

“(2) Any _person registered under these Regulations who applies to change his name under sub regulation

 

(1) shall submit to the registration officer a statutory declaration which

 

(a) certifies the fact that he has absolutely renounced and abandoned the use of his former name and in lieu thereof has assumed a new name; and

 

(b) contains the reasons of such change of name, other than a conversion of religion.”

 

(emphasis added)

 

7.1.3. The 1990 Regulations were amended vide the National Registration (Amendment) Regulations 2000 (“2000 Amendment Regulations”) (PU(A) 70/2000) whereby most of the amendments were brought into force retrospectively to 1st October 1999. The 2000 Amendment Regulations amended regulations 4(c) to include a new sub-para (iva) of para (cc), namely, “his religion (only for Muslims)”. Previously no one had to provide particulars of his religion. Now a Muslim would have to state his religion in the ICs.

 

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7.1.4. At the time the 2000 Amendment Regulations came into force vide regulation 4(c), regulation 4(c)(ix) and (x) provide that:

 

“4. Any person who is required to register under regulation 3(1) or 3(2) or to re-register under regulation 18 or 28 or who applies for a replacement identity card under regulation 13 or 14, shall-

 

(c) give the following particulars to the registration officer as aforesaid, namely:

 

(ix) such other particulars as the registration officer may generally or in any particular case consider necessary for the purpose of identification; and

 

(x) produce such other documentary evidence as the registration officer may consider necessary to support the accuracy of any particulars submitted.”

 

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7.1.5. Reg. 5 further provides for the issuance of identity card to a person containing the particulars as provided in the First Schedule. The First Schedule was replaced by a new one, vide the 2000 Amendment Regulations, which included “Religion (only for Muslims)” as one of the particulars that an identity card shall contain. Prior to the 2000 Amendment Regulations there was no requirement for an identity card to contain the religion of the holder.

 

7.1.6. The 1990 Regulations were amended again vide the National Registration (Amendment) Regulations 2001 P.U. (A) 232/2001 whereby most of the amendments were brought into force on 1st November 2001. The principal Regulations were amended by substituting for regulation 4 the following regulation:

 

“Particulars of registration.

 

4. Any person who-

 

(a) is required to register under regulation 3;

 

(b) is required to re-register under regulation 18 or 28; or

 

(c) applies for a replacement identity card under regulation 13 or 14,

 

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shall-

 

(aa) forward two copies of his photograph to the registration officer or permit the registration officer to take his photograph, as the case may be;

 

(bb) submit to all such steps as may be reasonably necessary-

 

(i) for the taking of his photograph; and

 

(ii) for the taking and recording of his fingerprints impressions,

 

in accordance with any instructions given by the registration officer; and

 

(cc) give the following particulars to the registration officer:

 

(i) his full name as appearing in his Certificate of Birth or such other document, and if he is known by different names, each of such names in full;

 

(ii) his previous identity card number, if any;

 

(iii) the full address of his place of residence within Malaysia;

 

(iv) his race;

 

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(v) his religion;

 

(vi) his place of birth;

 

(vii) his date of birth and sex;

 

(viii) his physical abnormalities, if any;

 

(ix) his citizenship status, whether a citizen of Malaysia or a citizen of any other country;

 

(x) particulars of his driving licence, if any;

 

(xi) particulars of his passport, if any;

 

(xii) any other particulars as the registration officer may generally or in any particular case consider necessary for the purpose of identification; and

 

(xiii) any other documentary evidence as the registration officer may consider necessary to support the accuracy of any particulars submitted. “.

 

Direction of National Registration Department Bil. 9/2007

 

7.2. For purposes of expediency the NRD had issued Direction of the National Registration Department Bil. 9/2007 specifically to cater for cases involving conversion out of Islam and

 

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name change from Islamic name to reflect a non-Islamic identity.

 

7.3. Rule 5.4 provides for:

 

“Pertukaran Agama Daripada Islam keyada Bukan Islam atau nama Islam kepada nama yang menssambarkan identiti bukan Islam”

 

7.4. Rules 5.4.1. provides:

 

“Bagi permohonan penukaran agama daripada Islam kepada bukan Islam Pemohon hendaklah mengemukakan surat pengesahan keluar dar agama Islam yang dikeluarkan oleh Majlis atau Jabatan Agama Islam negeri atau perintah Mahkamah Syariah. ”

 

8. Upon perusal of the cause papers the written submission filed herein and upon hearing the oral submission by the respective learned Counsel for the applicants and the learned SFC the followings are the Court’s answers to the issues posed for this Court’s determination:

 

Issue 1

 

Whether the NRD was right in imposing a requirement that the applicant who submits an application for the deletion of the word “Islam” in the IC must show evidence by way of a certificate or a declaration or an order from the Syariah Court

 

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that she has apostatized or renounced from Islam before the deletion could be effected

 

8.1. Based on the law, set out in the preceding paragraphs, it is a requirement for the applicant to obtain and produce either the order from the Syariah High Court or an approval from the relevant religious department before the 1st respondent could consider whether the applicant’s application to omit the word “Islam” and also to amend the applicant’s name could be considered. The law and/or the NRD has provided the mechanism to assist any potential applicant to apply for the name change and/or omission of any record in the IC especially the particulars of his / her religion. He / she must first produce a certificate or a declaration or an order from the Syariah Court or other relevant Islamic authority that he has apostatized and/or renounced from Islam.

 

8.2. Pursuant to section 6 of the National Registration Act 1959, the 1990 Regulations were made to regulate the manner and conduct pertaining to registration of all persons in Malaysia who are required to register under the Act and the exercise of powers of the registration officers appointed under the Act.

 

8.3. The application by the applicant relate to the deletion of the word “Islam” from her identity card. As such, this falls under

 

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regulation 14(1)(c), namely to correct the particulars in her IC pertaining to her religion.

 

8.4. Regulation 4 provides that if the applicant applies for replacement card with the intention to correct the particulars pertaining to religion, under reg. 14, then she must provide to the registration officer, the particulars as the registration officer may consider necessary for the purpose of identification (sub-para – xii). She too must produce such documentary evidence, as the registration officer may consider necessary to support the accuracy of the particulars submitted by her (sub-para – xiii).

 

8.5. From the reading of the paragraph (cc)(xii) and (xiii) of Reg 4 it would appear that, the registration officer could call for additional information as well as documentary proof from the applicant at the time she applied to correct her particulars pertaining to the word “Islam” in her IC under Reg 14(1)(c). As the law stands, there was nothing illegal for the NRD to insist the applicant to produce certificate and/or order from the Syariah Court or any other relevant Islamic authority to prove the fact alleged by her that she no longer professes the religion of Islam. This is to satisfy the NRD that the person making the application is no longer a Muslim and that he had converted out of Islam.

 

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8.6. The new requirement provided that the identity card of a Muslim must state his religion as required under reg. 5(2) read together the First Schedule. Hence, when the applicant applied for the change of KPT to Mykad and were approved, pursuant to reg. 5(2) read together with the First Schedule, the word “Islam” appeared on her IC, as the record in the NRD disclosed that the applicant is a Muslim.

 

8.7. From the facts that I had outlined in paragraphs 5.11 to 5.18 herein it would appear that the applicant had taken a Muslim name in 1974. She had adopted “Abdullah” as her last name and inserted “binti” to her name, which is common in Islam. She had been holding the current IC, which bears a Muslim name for the past thirteen (13) years. The respondents’ records showed that the applicant had been using a Muslim name for the past thirty (30) years. She had also admitted in her Statutory Declaration dated 18th February 2013 that she had converted to Islam and had since renounced her religion.

 

8.8. In view of the above, factual matrix and pursuant to reg. 4, para (cc)(xii) and (xiii), the NRD has the statutory powers to require the applicant to provide additional information as well as documentary evidence pertaining to her status as a Muslim. The NRD had also issued out a direction pertaining to this matter vide Bil. 9/2007 to assist the NRD in their day to day duties including to resolve issues pertaining to

 

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conversion out of Islam and name change as a result of conversion out of Islam. The NRD is empowered to do this by virtue of the implied power given by the law.

 

8.9. The NRD has an implied power to take the proper measures, such as to require the applicant to submit an order from the Syariah Court, which is provided under the regulations discussed above. It is an implied power, which is reasonably necessary and appropriate for the NRD to exercise in order to carry out the purposes of the power expressly granted to them by the relevant statute.

 

8.10. This principle could be gauged from section 40 of the Interpretation Act which states as follows:

 

“(1) Where a written law confers a power on any person to do or enforce the doing of any act or thing, all such powers shall be understood to be also given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.

 

(2) Without prejudice to the generality of subsection (1) –

 

(a) power to make subsidiary legislation to control or regulate any matter includes power to provide for the same by licensing and power to prohibit acts whereby the control or regulation might be evaded;

 

(b) power to grant a licence, permit, authority, approval or exemption includes power to impose conditions subject

 

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to which the licence, permit, authority, approval or exemption is granted: and

 

(c) where a power is conferred on any person to direct, order or require any act or thing to be done, there shall be deemed to be imposed on any person to whom a direction, order or requisition is given in pursuance of the power a duty to comply therewith.”

 

8.11. Section 40 (1) of the Interpretation Acts 1948 and 1967 (“Act 388”) clearly gives the power to the NRD officers duly appointed by virtue of the National Registration Act 1959, the authority to enforce certain conditions which they consider reasonably necessary in performing their duties and functions under the National Registration Act 1959 and the regulations made there under.

 

8.12. The requirement for “a certificate or a declaration or an order from the Syariah Court that the applicant has apostatized and/or renounced from Islam” before the NRD could delete the word “Islam” from the applicant’s IC is not an unreasonable decision “which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. The 1st Respondent is only a public authority having the jurisdiction over, inter alia registration of a person within Malaysia [see s. 5 of Act 78]. It is not a public body with the responsibility to determine one’s

 

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religion. For Muslims, the said task is legally entrusted to the other public bodies, such as the Syariah Courts or other Islamic religious authorities (refer paragraph 16 of Respondents Affidavit (2) 242, and paragraph 17 Respondents Affidavit (2) and Respondents Affidavit (2) 178).

 

8.13. The above proposition could be found in the majority decision of the Court of Appeal in the case of Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Ors [2005] 4 CLJ 585 where Justice Abdul Aziz, at page 694, paras B-F said:

 

“The NRD would be right in taking the stand that it is not for it to decide. It may be that according to Islamic law no Muslim may be treated as having apostatized, no matter what he may have done or failed to do, unless and until he has been declared an apostate by some proper authority. If the NRD were to accept that a person has apostatized merely on his declaration, and on that basis officially stamp him a non-Muslim by deleting the word ‘Islam ’ from his identity card, it runs the risk of mistakenly stamping a person a non-Muslim who according to Islamic law has not apostatized. It will also be making it easy for persons who are born and bred as Muslims but who are indifferent to the religion to get classified as non-Muslims simply to avoid being punished for committing the offences that I have mentioned. It will consequently be inviting the censure of the Muslim community. It is for these reasons that I believe that the NRD adopts the policy that a mere statutory declaration is insufficient for it to remove the word

 

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„Islam’ from the identity card of a Muslim. It is because renunciation of Islam is a matter of Islamic law on which the NRD is not an authority that it adopts the policy of requiring the determination of some Islamic religious authority before it can act to remove the word „Islam’ from a Muslim’s identity card. The policy of the NRD is stated in para 14 of the Director General’s affidavit dated 27 January 2005. In view of the considerations that I have set out I am of the view that the policy is a perfectly reasonable one.”

 

8.14. The Apex Courts in Malaysia had consistently held that the question of whether a person is a Muslim or whether he had renounced the faith of Islam had to be resolved under the Syariah law. Matters such as apostasy and renunciation of Islam is under the jurisdiction of the Syariah Court and it is for the Syariah Court to determine. Hence, it is only prudent for the NRD to impose such a requirement as the NRD is not the proper authority, which could ascertain the validity of the applicant’s purported renunciation from Islam. The records showed the applicant is a Muslim and she now claimed that she no longer professes the religion of Islam. Therefore as illustrated in the above quoted case the proper authority to determine the issue of apostasy and renunciation from Islam is the Syariah Court.

 

8.15. Based in the aforesaid the requirement imposed by the NRD for a “certificates or declarations or orders from the Syariah Court that the applicants had apostatized and/or renounced

 

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from Islam was a reasonable request” and the NRD is entitled to impose such a requirement on the applicant before it took further steps, to delete the word “Islam” from her IC.

 

Issue 2

 

Whether this Honourable Court have jurisdiction to decide on the applicant’s application who alleged that she is not a Muslim and whether 1st Respondent could amend the name and remove or omit the word “Islam” in the applicant’s Identity Card (IC)

 

8.16. In the case at hand, the record showed that the applicant is an Indian Muslim (see paragraph 5.11 to 5.18 herein). Subsequently she made a statutory declaration to declare that she is a Hindu (refer Exhibit “MJ-4” and “MN-4”). The affidavits deposed emphasized the facts that the applicant and her family are practising the Hindu religion and that they have never considered themselves as Muslims.

 

8.17. The central issue for determination is whether the applicant remains a Muslim notwithstanding her contentions that she had been practicing Hinduism and had never considered herself to be a Muslim.

 

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8.18. This very issue was discussed in the case of MTKL R2-249-11/2012 Noraini Soon Binti Mohamed Ivan Soon v Ketua Pengarah Pendaftaran Negara where the Court held:

 

[7] Walaupun pemohon mendakwa bahawa sijil kelahirannya seperti yang ditunjuk di dalam eksibit NS-1 Kandungan 3 tidak menyatakan bahawa ibu bapanya beragama Islam, namun daripada eksibit NS8, di Kandungan 3, Pemohon sendiri ada melampirkan Surat akuan Pembahagian Harta Pusaka (Faraid Islam) yang dikeluarkan oleh Mahkamah Syariah Wilayah Persekutuan, yang menunjukkan bahawa bapa pemohon yang meninggal dunia ketika pemohon berusia 7 bulan, adalah sebenarnya seorang Islam dan mempuyai isteri, beberapa anak dan adik-beradik lain yang diiktiraf mengikut hukum syarak.

 

[8] Jadi berdasarkan fakta tersebut iaitu tentang agama bapa pemohon, dan berdasarkan seksyen 2 Akta 505 itu sudah memadai pada pandangan saya untuk menjadikan pemohon nampaknya tergolong di dalam definasi orang yang beragama Islam. Ini menjadikan penentuan isu sama ada pemohon sah atau tidak beragama Islam adalah terletak pada Mahkamah Syariah.

 

[11] Justeru, berdasarkan di atas, saya berpendapat status pemohon samada masih seorang Islam atau tidak perlulah ditentukan terlebih dahulu oleh Mahkamah Syariah, sebelum responden boleh mengambil tindakan untuk menukar namanya atau memadamkan perkataan “Islam” di dalam kad pengenalannya.

 

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8.19. Based on the particulars submitted by the applicant to the NRD, the applicant is a Muslim. The applicant failed to show in the said Affidavit in Support, the order or the consent from the Syariah High Court had been obtained to show that the applicant has converted out of Islam and is now a person who professes the religion of Hindu.

 

8.20. In Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor[1992] 1 MLJ 1. The Court held as follows:

 

It is apparent from the observation made by the learned judicial commissioner that the determination of the question whether a person was a Muslim or had renounced the faith of Islam before death, transgressed into the realm of syariah law which needs serious considerations and proper interpretation of such law. Without proper authority to support his contention, it is not sufficient to say whether there is or there is not a condition precedent for a person to become a Muslim; or that if the deceased were proved to have had said his prayers at a Sikh temple he was definitely an apostate.

 

The present question, in my view, cannot be determined by a simple application of facts as has been found by the learned judicial commissioner on the basis of veracity and relevancy of evidence according to civil law. [*10] Such a serious issue would, to my mind, need consideration by eminent jurists who are properly qualified in the field of Islamic jurisprudence.

 

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8.21.

 

8.22.

 

On this view it is imperative that the determination of the question in issue requires substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the syariah court.

 

The Muslims in Malaysia are governed by Islamic law which administration is being entrusted by the Federal Constitution to the Syariah Court. In order to convert to Islam one has to follow the practice determined by the Islamic law and likewise to convert out of Islam too must be done in accordance with the practice governed by Islamic law.

 

This principle had been reiterated in the case of Mohamed Habibullah Bin Mahmood v. Faridah Bte Dato Talib [1992] 2 MLJ 793 where the Supreme Court held as follows:

 

“Taking an objective view of the Constitution, it is obvious from the very beginning that the makers of the Constitution clearly intended that the Muslims of this country shall be governed by Islamic family law as evident from the Ninth Schedule to the Constitution. Item 1 of the State List provides:

 

Muslim Law and personal and family law of persons professing the Muslim religion … the constitution, organisation and procedure of Muslim courts … the determination of matters of Muslim Law and doctrine and Malay custom.

 

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8.23.

 

8.24.

 

Indeed, Muslims in this country are governed by Islamic personal and family laws which have been in existence since the coming of Islam to this country in the 15th century. Such laws have been administered not only by the Syariah Courts but also by the civil courts. What art 121(1A) had done is to grant exclusive jurisdiction to the Syariah Courts in the administration of such Islamic laws. In other words, art 121(1A) is a provision to prevent conflicting jurisdictions between the civil courts and the Syariah Courts.”

 

Gunn Chit Tuan SJC in the same case, at page 822, said that:

 

“With respect to the submission of Mr Balwant Singh Sidhu regarding whether the plaintiff could be considered an apostate, reference ought to be made to the dictum of Mohamed Yusoff SCJ (as he then was) in the recent decision of this court in Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ1, when it was pointed out that in determining whether a Muslim has renounced Islam, the only forum qualified to answer the question is the syariah court.”

 

Matters pertaining to the conversion of Islam are provided in sections 85 to 95 of Act 505. Likewise, by necessary implication matters arising out of Islam would have to be brought before the Syariah Court, constituted under section 40 of Act 505.

 

The same principle was reiterated in the case of Soon Singh A/L Bikar Singh v. Pertubuhan Kebajikan Islam

 

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Malaysia (Perkim) Kedah & Anor [1999] 1 MLJ 489 where the Federal Court held:

 

in our opinion, the jurisdiction of the syariah courts to deal with the conversion out of Islam, although not expressly provided in the State Enactments, can be read into them by implication derived from the provisions concerning conversion into Islam. It is a general rule of construction that if the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication and the court may drew inferences or supply the obvious omissions. … It is quite clear to us that the legislative purpose of State Enactments and the Act is to provide a law concerning the enforcement and administration of Islamic law, the constitution and organization of the syariah courts and related matters. Therefore, when jurisdiction is expressly conferred on the syariah courts to adjudicate on matters relating to conversion to Islam, in our opinion, it is logical that matters concerning conversion out of Islam (apostasy) could be read as necessarily implied in and falling within the jurisdiction of the syariah courts. One reason we can think of is that the determination of a Muslim convert’s conversion out of Islam involves inquiring into the validity of his purported renunciation of Islam under Islamic law in accordance with hukum syarak (Dalip Kaur). As in the case of conversion to Islam, certain requirements must be complied with under hukum syarak for a conversion out of Islam to be valid, which only the syariah courts are the experts and appropriate to adjudicate. In short, it does seem inevitable that since matters on conversion to Islam come under the jurisdiction of the

 

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8.25.

 

syariah courts, by implication conversion out of Islam should also fall under the jurisdiction of the same courts.

 

In the case of Abdul Shaik Bin Md Ibrahim & Anor v. Hussein Bin Ibrahim & Ors [1999] 5 MLJ 618. Abdul Hamid Mohamed J followed the principle laid down in Soon Singh a/l Bikar Singh v. Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 and at page 626 of His Lordship states:

 

“It appears to me that the Federal Court has now adopted the „subject matter’ approach rather than the „remedy prayed for’ approach. This is to be found in the passage which I have reproduced earlier which perhaps I may be excused for reproducing part of it again:

 

… whilst we agree with the approach adopted by Abdul Hamid J following Habibullah, that when there is a challenge to jurisdiction the correct approach is to look at the State Enactments to see whether or not the syariah courts have been expressly conferredjurisdiction on a given matter ..(Emphasis added).

 

It is also important to note that in Soon Singh’s case itself the remedy sought was for declaration. Yet, the Federal Court considered the question of jurisdiction purely on the ‘subject matter’ approach.

 

In the circumstances, I think I am no longer bound by Isa Abdul Rahman’s case. Therefore, in this case the fact the remedy prayed for in two of the prayers is, ie declaration does

 

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not remove the case from the jurisdiction of the syariah court. In other words, in the present case I do not hold that the syariah court has no jurisdiction over this matter merely because the plaintiffs have prayed for the remedy of declaration ”

 

(Also see Kamariah Bte Ali Dan Lain-Lain v. Kerajaan Negeri Kelantan, Malaysia Dan Satu Lagi [2002] 3 MLJ 657

 

8.26. The proper forum to decide whether the applicant had renounced her religion of Islam or not had been settled by our Apex Courts where similar issues were posed for the Courts’ determination. In Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Anor [2004] 6 CLJ 242 the applicant Lina Joy has not applied to the Syariah Court to convert out of Islam. However, she applied to the NRD to change her name and to remove the word “Islam” from her IC His Lordship Faiza Tamby Chik J said:

 

“It is clear that cls. (4) and (5) above preserve and protect the harmony and preserve the affairs and interest of Muslims and non-Muslims in this country whereby the rights of the various races and religions are also protected. When a Muslim wishes to renounce / leave the religion of Islam, his other rights and obligations as a Muslim will also jeopardised and this is an affair of Muslim falling under the First’s Defendant’s jurisdiction as provided bt art. 11(3)(a) of the Federal Constitution read with s. 7(1) of the Act. Article 11(3)(a)

 

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clearly states that every religious group has the right to manage its own religious affairs whereas the Act was created to provide for the Federal Territories a law concerning the enforcement and administration of the Islamic Law, the constitution and the organization of the Syariah Court, and related matters as stated in the preamble of the Act. Even though the first part 1 art. 11(1) of the Federal Constitution provides that every person has the right to profess and practice his religion, this does not mean that the plaintiff can hide behind this provision without first settling the issue of renunciation of her religion (Islam) with the religious authority which has the right to manage its own religious affairs under art. 11(3)(a) of the Federal Constitution. If the plaintiff is allowed to do so, this will create chaos and confusion with the administrative authority which manages the affairs of Islam and the Muslim community and consequently the non-Muslim community as a whole. I am of the opinion that this would threaten public order and this cannot have been the intention of the Legislature when drafting the Federal Constitution and the Act.”

 

His Lordship Faiza Tamby Chik J has also considered, Articles 11(1), 3(1), 12(2), 74, 121(1A) and 160 of the Federal Constitution in His lordship’s judgment and resolved as follows:

 

“Applying the principle of harmonious construction is to read art. 11(1) together with art. 3(1), 12(2), 74, 121(1A) and 160 so as to give effect to the intention the framers of our constitution. When read together art. 11(1) must be

 

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necessarily be qualified by provisions on Islamic Law on apostasy enacted pursuant to art. 74 list II in respect of the plaintiffs intention to convert out of the Islamic religion. Her purported renunciation of Islam can only be determined by the Syariah Courts and not the Civil Courts pursuant to art. 121(1A).”

 

And at page 272, the His Lordship further said:

 

“Article 11(1) of the Constitution grants every person the freedom to profess and practice his religion. However in respect of an act conversion out of Islam, the same must be subject to the relevant syariah laws to be determined by the Syariah Courts. Freedom of religion under art. 11(1) must be read with art. 3(1) which places Islam in a special position as the main and dominant religion of the Federation, with the Federation duty bound to protect, defend and promote Islam. The special position of Islam in art. 3(1) is further reinforced by art. 74(2) which enables the Federal and the State Government to enact syariah laws to be implemented by a separate judicial system, namely the syariah courts under art. 121(1A). Grants for Islamic development is also from the federation (art. 12(2)). Therefore the Constitution allows syariah laws on matters relating conversion out of Islam to be determined by the Syariah Court. To conclude, art. 11(1) gives a person the freedom to profess a religion of his choice, but on the issue of conversion out of Islam of a Muslim, only the Syariah Court is competent to determine the matter.”

 

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8.27. On appeal to the Court of Appeal (reported in Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Ors [2005] 4 CLJ 666) it was held (the majority decision) that:

 

“Renunciation of Islam is generally regarded by the Muslim community as a very grave matter. This is reflected in the very things reported in the newspapers that constituted one of the reasons that the appellant said it was necessary that her right to renounce Islam, and her position as no longer a Muslim, be recognized. The Muslim community regards it as a grave matter not only for the person concerned, in the terms of the afterlife, but also for Muslim generally, as they regard it to be their responsibility to save another Muslim from the damnation of apostasy. The incidence of apostasy is therefore a highly sensitive matter among Muslims. Apart from the spiritual aspect, Muslims in this country, where Islam is the official religion, are subject to special laws that no other community is subjected to. In particular there are statutory offences that are committable by Muslims as Muslims that are not committable by others. Against that background must be mentioned the fact that whether a person as renounced Islam is a question of Islamic law that is not within the jurisdiction of the NRD and that the NRD is not equipped or qualified to decide. What the Islamic law on the matter is has not been ventilated in this appeal. One might be tempted to think that the fact that a person affirms in a statutory declaration that he is no longer a Muslim or the fact that he has been participating in a Christian form of worship, or the fact that he has been baptized is sufficient, according to Islamic law, to warrant others to treat him as having apostatized and as being no

 

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longer a Muslim. But is that so in Islamic law ? The NRD would be right in taking the stand that it is not for it to decide. It may be that according to Islamic law no Muslim may be treated as having apostatized, no matter what he may have done or failed to do, unless and until he has been declared an apostate by some proper authority. If the NRD were to accept that a person has apostatized merely on his declaration, and on that basis officially stamp him a non-Muslim by deleting the word “Islam” from his identity card, it runs the risk mistakenly stamping a person a non-Muslim who according to Islamic law has not apostatized. It will also be making it easy for persons who are born and bred as Muslims but who are indifferent to the religion to get classified as non-Muslim simply to avoid being punished for committing the offences that I have mentioned. It will consequently be inviting the censure of the Muslim community. It is for these reasons that I believe that the NRD adopts the policy that a mere statutory declaration is insufficient for it to remove the word “Islam” from the identity card of a Muslim. It is because renunciation of Islam is a matter of Islamic law on which the NRD is not an authority that it adopts the policy of requiring the determination of some Islamic religious authority before it can act to remove the word “Islam” from a Muslim’s identity card. The policy is stated in para. 14 of the Director General’s affidavit dated 27 January 2005. In view of the considerations that I have set out I am of the view that the policy is perfectly reasonable one.”

 

8.28. Aggrieved by the above decision Lina Joy filed for leave to appeal against the decision of the Court of Appeal. The

 

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Federal Court held in Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Ors [2007] 4 MLJ 585:

 

“1. Rujukan kepada sesuatu pihak yang berkuasa atas perkara undang-undang Islam adalah diperuntukkan oleh undang-undang dan justeru demikian ianya tidaklah bersalahan dengan undang-undang seperti mana yang dihujahkan oleh perayu. Rujukan bukanlah bermakna bahawa Mahkamah Syariah diminta untuk memutuskan sama ada meluluskan ataupun tidakpermohonan memadamkanperkataan ‘Islam’ itu. Mahkamah Syariah cuma diminta mengesahkan bahawa perayu adalah beragama Islam atau tidak berdasarkan undang-undang Islam. [at held no(2), paragraph, p588]

 

2. Cara seseorang keluar dari sesuatu agama adalah semestinya mengikut kaedah atau undang-undang atau amalan (practice) yang ditentukan atau ditetapkan oleh agama itu sendiri. Perayu tidak dihalang daripada berkahwin. Kebebasan beragama di bawah perkara 11 Pelembagaan Persekutuan memerlukan perayu mematuhi amalan atau undang-undang Islam khususnya mengenai keluar dari agama itu…dengan lain perkataan, seseorang tidak boleh sesuka hatinya keluar dan masuk agama. Apabila ia menganuti sesuatu agama, akal budi (common sense) sendiri memerlukan dia mematuhi amalan-amalan dan undang-undang agama itu…” [at held no(6), p589] (emphasis added)

 

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8.29. As discussed above the issue pertaining to the dispute which arose touching the jurisdiction of the Syariah Court and the Civil Court had been resolved by the Courts in Azizah Bte Shaik Ismail & Anor v. Fatimah Bte Shaik Ismail & Anor [2004] 2 MLJ 529 (FC); Majlis Ugama Islam Pulau Pinang Dan Seberang Perai v. Shaik Zolkaffily Bin Shaik Natar & Ors [2003] 3 MLJ 705 (FC). In these cases, the Courts had ruled that the Court in handling the case before it touching the jurisdiction of the Syariah Court and the Civil Court should adopt the “subject matter approach” and not the “remedy-prayed approach”.

 

8.30. The law is so settled, in that, for matters concerning the act of renunciation of Islam (apostasy) are purely religious matters that must be decided in accordance with Hukum Syarak.

 

8.31. The above high authorities, which discussed Article 121(1A) of the Federal Constitution precluded the Civil Court to hear and determine matters which fall under the preview of Syariah Court.

 

9. CONCLUSION

 

9.1. Under regulation 4(cc)(xii) and (xiii) and Direction Bil. 9/2007 the 1st Respondent could require the production of a

 

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certificate or a declaration or an order from the Syariah Court that the applicant had apostatized. Such a request is valid and reasonable, as the NRD would not be in any position to ascertain the status of the religion of the applicant without the above document. Further, the NRD is also guided by the relevant cases cited above which have consistently held that issues pertaining to renunciation from Islam and/or apostasy must be resolved by the Syariah Courts or Islamic Department.

 

9.2. Therefore, it is a trite law that the Syariah Court is the proper forum to hear and decide the subject-matter involving a Muslim by virtue of Article 121(1A) of the Federal Constitution. This Court has no jurisdiction to hear and to decide the subject-matter involving Muslim even though the applicant had declared herself to have converted out of Islam.

 

9.3. In the light of the above reasonings the applicant had failed to demonstrate to this Court that the said decision was tainted with illegality, procedural impropriety and/or irrationality and/or the decision was not supported by sufficient evidence and/or that the respondent had not taken into consideration relevant matters or had taken into consideration irrelevant matters, for this Court interfere with the said decision.

 

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9.4. Based on the aforesaid reasons this application was dismissed with costs of RM2,000.00 to be paid by the applicant to the respondents.

 

9.5. I acknowledge that in the course of preparing these grounds of judgment I have considered the research done by the learned SFC especially with regards to the applicable law and case laws for which I had carefully considered, familiar with and fully endorsed herein.

 

t.t.

 

(ASMABI BINTI MOHAMAD)

 

JUDGE

 

HIGH COURT SPECIAL AND APPELLATE POWERS

 

KUALA LUMPUR

 

Date of Grounds Date of Decision Date of Notice of Appeal

 

25th May 2015 10th February 2015

 

9th March 2015

 

th

 

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Parties:

 

1. Messrs Azri, Lee Swee Seng & Co. Advocate & Solicitor For and on behalf the Applicant Unit 210, Level 2, Block A Pusat Dagangan Phileo Damansara 2 Jalan 16/11, Off Jalan Damansara 46350 Petaling Jaya SELANGOR DARUL EHSAN

 

[Ref: ALSS/RL/NIT/6.0/3584/12/nit]

 

Mr. Lim Fang Say (Ms. Nithiyawathi a/p Subramaniam with him)

 

2. Peguam Kanan Persekutuan,

 

Jabatan Peguam Negara, Malaysia

 

Bahagian Guaman

 

(Civil Division) Aras 3, Blok C3,

 

Pusat Pentadbiran kerajaan Persekutuan 62512 PUTRAJAYA

 

[Ref: PN/WKL/HQ/SDI/01/08/2014] … Ms. Hayati binti Ahmad

 

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