Mohd Jefrey A/L Mohd Baser(No K/P: 830728-14-6305)25-178-08/2013Mohd Jass A/L Mohd Baser(No K/P: 871029-56-5421)Mohd Naser A/L Mohd Baser(No K/P: 930604-14-6109)25-171-08/2013Mohd Sharif Bin Abdullah(No K/P: 800620-14-5979) … 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. 25-242-11/2013

 

Dalam perkara permohonan kepada Jabatan Pendaftaran Negara untuk penukaran butir-butir yang terkandung di dalam Kad Pengenalan No. 830728-14-6305 kepunyaan Pemohon dengan membatalkan catatan “Islam” yang terkandung di dalamnya dan penukaran nama Pemohon yang tercatit di dalamnya daripada Mohd Jafrey a/l Mohd Baser kepada nama baru Pemohon Saiprasad Pillai;

 

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

 

MOHD JEFREY A/L MOHD BASER

 

(NO K/P: 830728-14-6305) … PEMOHON

 

DAN

 

1. KETUA PENGARAH JABATAN PENDAFTARAN NEGARA

 

2. MENTERI DALAM NEGERI, KERAJAAN

 

PERSEKUTUAN MALAYSIA … RESPONDEN-

 

RESPONDEN

 

1

 

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DI DALAM WILAYAH PERSEKUTUAN, MALAYSIA [BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS] PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO. 25-178-08/2013

 

Dalam perkara permohonan kepada Jabatan Pendaftaran Negara untuk penukaran butir-butir yang terkandung di dalam Kad Pengenalan No. 871029-56-5421 kepunyaan Pemohon dengan membatalkan catatan “Islam” yang terkandung di dalamnya dan penukaran nama Pemohon-Pemohon yang tercatit di dalamnya daripada Mohd Jass a/l Mohd Baser kepada nama baru Pemohon M. Yuthesh Pillai;

 

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

 

1. MOHD JASS A/L MOHD BASER (NO K/P: 871029-56-5421)

 

2. MOHD NASER A/L MOHD BASER

 

(NO K/P: 930604-14-6109) … PEMOHON

 

DAN

 

1. KETUA PENGARAH JABATAN PENDAFTARAN NEGARA

 

2. MENTERI DALAM NEGERI, KERAJAAN

 

PERSEKUTUAN MALAYSIA … RESPONDEN-

 

RESPONDEN

 

2

 

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DI DALAM WILAYAH PERSEKUTUAN, MALAYSIA [BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS] PERMOHONAN BAGI SEMAKAN KEHAKIMAN NO. 25-171-08/2013

 

Dalam perkara permohonan kepada Jabatan Pendaftaran Negara untuk penukaran butir-butir yang terkandung di dalam Kad Pengenalan No. 800620-14-5979 kepunyaan Pemohon dengan membatalkan catatan “Islam” yang terkandung di dalamnya dan penukaran nama Pemohon-Pemohon yang tercatit di dalamnya daripada Mohd Sharif bin Abdullah kepada nama baru Pemohon Mahendra a/l S. Ghanasan;

 

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

 

1. MOHD SHARIF BIN ABDULLAH (NO K/P: 800620-14-5979)

 

PEMOHON

 

DAN

 

1. KETUA PENGARAH JABATAN PENDAFTARAN NEGARA

 

2. MENTERI DALAM NEGERI, KERAJAAN

 

PERSEKUTUAN MALAYSIA … RESPONDEN-

 

RESPONDEN

 

3

 

GROUNDS OF JUDGMENT

 

INTRODUCTION

 

1. Each of the applicants in these three (3) judicial review applications

 

sought for the following orders:

 

1.1. A declaration that the letter issued by the National Registration Department, which rejects application to remove “Islam” is null and void (“null and void”);

 

1.2. A declaration that the interpretation of the “religion” in Article 11 (1) of the Federal Constitution means, a religion that person chooses to profess and practice his own religion and the phrase persons professing the religion of Islam (“person (s) professing the religion of Islam”) in various provisions of the Constitution is interpreted as meaning “a person who recognizes himself as a believer in Islam”;

 

1.3. Any provisions that the applicant must obtain permission from the Syariah Court for a letter / confirmation / order according to Islamic Law is not applicable to the applicant and considered null and void;

 

1.4. The applicant had never professed the religion of Islam;

 

4

 

1.5. That any treatment to the applicant as a Muslim and any compulsion to the applicant to act as a Muslim is contrary to law;

 

1.6. The applicant shall in all aspect of personal and public life should be recognized under the new name of the applicant;

 

1.7. That an order of certiorari to quash the letter of the 1st respondent to the applicant;

 

1.8. An order of mandamus against the 1st respondent to cancel Identity Card of the applicant and word “Islam” which appears on the identification card;

 

1.9. Order of mandamus against the 1st respondent to issue new identity cards with the new name of the applicant without word or note “Islam” within thirty (30) days from the date of the Court order given;

 

1.10. Order of mandamus to the respondent within 30 days of the date of this Honourable Court order or in future to be just and expedient by this Honourable Court to cancel the word “Islam” concerning the applicant religion in any record of the respondents;

 

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1.11. In addition, applicant is allowed to apply for general damages against the respondents for breach of statutory duty by the 1st respondent;

 

1.12. Costs; and

 

1.13. Reliefs and/or orders as may be deemed fit and proper by this Honourable Court.

 

CASE NO. 25-242-112013 & CASE NO. 25-178-08/2013 DOCUMENTS

 

2. For ease of convenience, these two (2) cases would be discussed and resolved together. For the purpose of the above applications the following documents were filed by the respective parties and referred to by the Court:

 

2.1. Permohonan untuk Semakan Kehakiman dated 26th November 2013 (hereinafter refer to “Enclosure 1”);

 

2.2. Pernyataan Menurut Aturan 53, Kaedah 3(2) Kaedah-Kaedah Mahkamah 2012 dated 26th November 2013 (hereinafter refer to as “Enclosure 2”);

 

2.3. Afidavit Menentusahkan Pernyataan Menurut Aturan 53 Kaedah 3(2) Kaedah-kaedah Mahkamah 2012 affirmed by

 

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Mohd Jefrey a/l Mohd Baser on 21st November 2013 (hereinafter refer to as “Affidavit in Support 242”);

 

2.4. Afidavit Tambahan affirmed by Nityawathi a/p Subramaniam pada 16th January 2014 (hereinafter refer to as “Additional Affidavit 242”);

 

2.5. Afidavit Pembetulan affirmed by Nityawathi a/ Subramaniam on 6th March 2014 (hereinafter refer to as “Correctional Affidavit 242”);

 

2.6. Notis Pendengaran Permohonan Bagi Semakan Kehakiman bertarikh 4th April 2014 (“Enclosure 8 (242)”);

 

2.7. Afidavit Jawapan Responden-Responden affirmed by Mohd Yazid bin Ramli on 2nd June 2014 (hereinafter refer to as “Respondents Affidavit (1) 242”);

 

2.8. Notis Pendengaran Permohonan bagi Semakan Kehakiman bertarikh 22nd November 2013 (“Enclosure 8 (178)”);

 

2.9. Affidavit Jawapan Responden-responden (1) affirmed by Dato’ Jariah binti Mohd Said on 16th April 2014 (hereinafter refer to as “Respondents Affidavit 178”);

 

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2.10. Afidavit Jawapan Responden-Responden (2) affirmed by Dato’ Jariah binti Mohd Said on 16th April 2014 (hereinafter refer to as “Respondents Affidavit (2) 178”);

 

2.11. Affidavit Balasan Pemohon Pertama affirmed by Mohd Jass A/L Mohd Baser on 7th May 2014 (hereinafter refer to as “Applicant Affidavit in reply (1)”);

 

2.12. Afidavit Balasan Pemohon Kedua affirmed by Mohd Naser A/L Mohd Baser on 7th May 2014 (hereinafter refer to as “Applicant Affidavit in Reply (1) 178”);

 

2.13. Afidavit Balasan Responden-Responden (1) affirmed by Mohd Yazid bin Ramli on 2nd June 2014 (hereinafter refer to as “Respondents Affidavit (2)”);

 

2.14. Afidavit Balasan Responden-Responden (2) affirmed by Mohd Yazid bin Ramli on 2nd June 2014 (hereinafter refer to as “Respondents Affidavit (2) 178”);

 

2.15. Afidavit Balasan Pemohon Pertama (2) affirmed by Mohd Jass A/L Mohd Baser on 16th June 2014 (hereinafter refer to as “Applicant Affidavit (2)”);

 

2.16. Afidavit Balasan Pemohon Kedua (2) affirmed by Mohd Naser A/L Mohd Baser on 16th June 2014 (hereinafter refer to as “Applicant Affidavit (2) 178”).

 

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THE BACKGROUND

 

3. The brief background leading to these judicial review applications

 

could be stated as follows:

 

3.1. The applicants who are brothers had applied to the 1st respondent to amend the applicants’ names and to omit or remove the word “Islam” from their identification cards (“ICs”).

 

3.2. The applicants alleged that their mother is an Indian whose religion is Hinduism and their father was an Indian with Pakistan nationality (refer paragraph 17 of Affidavit In Support 242, Affidavit In Support (1) 178 and Affidavit In Support (2) 178).

 

3.3. The applicants also averred in their respective affidavits that they had been given Muslim names based on the practice in Pakistan where irrespective of their races or religions the Pakistanis would adopt and/or be given Muslim names (refer paragraph 18 of Affidavit In Support 242, Affidavit In Support (1) 178 and Affidavit In Support (2) 178).

 

3.4. Despite what was averred to by the applicants in their affidavit that their father was an Indian and a citizen of Pakistan, the facts disclosed by the respondents showed otherwise. The applicants’ father (Mohd Baser A/L Kalakan) was in fact a citizen of Malaysia who was born in Ipoh, Perak at the Chinese

 

9

 

Maternity Hospital and was born a Muslim (refer paragraph 7 of Respondents Affidavit (1) 242, Respondents Affidavit (1) 178 and Respondents Affidavit (2) 178).

 

3.5. The applicants’ father died a Muslim on 9th September 2002 (refer Exhibit “MYR-5” Respondents Affidavit (1) 242, and Exhibit “JMS-5” Respondents Affidavit (1) 178 and Respondents Affidavit (2) 178).

 

3.6. Based on the NRD’s records the mother of the applicants was born from a Hindu couple. (Refer Exhibit “MYR-6” Respondents Affidavit (1) 242, and Exhibit “JMS-6” Respondents Affidavit (1) 178 and Respondents Affidavit (2) 178).

 

3.7. In 1974 the applicants’ mother applied for her name to be changed from Vasanthekogelam a/p Subramaniam to Jamilah Jan Vasanthekogelam binti Abdullah (refer paragraph 8 of Respondents Affidavit (1) 242, Respondents Affidavit (1) 178 and Respondents Affidavit (2) 178).

 

3.8. The applicants’ mother alleged that she married the applicants’ father in 1982.

 

3.9. In 1983 the applicants’ mother was given an identity card with the name of Jamilah Jan Vasanthekogelam binti Abdullah (refer paragraph 8 of Respondents Affidavit (1) 242,

 

10

 

Respondents Affidavit (1) 178 and Respondents Affidavit (2) 178).

 

3.10. The applicants also averred that at all material times they had never been raised as Muslims or had practised the Islam religion.

 

3.11. The applicants had never obtained any consent letters from the Islamic Department or orders from the Syariah High Court to confirm that the applicants are no longer Muslims before the applications were submitted to the 1st respondent for the purpose of the name change and the omission of the word “Islam” from their ICs.

 

THE ISSUES

 

4. The issues for this Court’s determination were as follows:

 

4.1. 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 declaration or an order from the Syariah Court that he has apostatized or renounced from Islam before the deletion could be effected.

 

11

 

4.2. Whether this Honourable Court have jurisdiction to decide on the applicants’ applications who alleged that they are not Muslims and to direct the 1st Respondent to amend the name and remove or omit the word “Islam” in the applicants’ ICs.

 

THE LAW

 

5. 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 Senior Federal Counsel (“SFC”) for the respondents (which I had carefully perused, understood and considered) as follows:

 

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

 

5.1.1. 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:

 

12

 

“(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)

 

5.1.2. 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)

 

13

 

5.1.3. 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.

 

5.1.4. 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

 

14

 

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.”

 

5.1.5. 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.

 

5.1.6. 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:

 

15

 

“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,

 

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;

 

16

 

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

 

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

 

(iv) his race;

 

(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

 

5.1.7. For purposes of expediency the NRD had issued Direction of the National Registration Department Bil. 9/2007 specifically to cater for cases involving

 

17

 

conversion out of Islam and name change from Islamic name to reflect a non-Islamic identity.

 

5.1.8. Rule 5.4 provides for:

 

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

 

5.1.9. 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. ”

 

DECISIONS OF THE COURT

 

6. Upon perusal of the cause papers the written submission filed herein and upon hearing the oral submissions by the respective learned Counsel for the applicants and the SFC the following 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

 

18

 

word “Islam” in the IC must show evidence by way of a certificate or declaration or an order from the Syariah Court that he has apostatized or renounced from Islam before the deletion could be effected

 

6.1. Based on the law, set out in the preceding paragraphs, it is a requirement for the applicants 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 applicants’ applications to omit the word “Islam” and also to amend the applicants names could be considered by the 1st respondent. The law and/or 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 religion. He 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.

 

6.2. 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.

 

19

 

6.3. The applications by the applicants relate to the deletion of the word “Islam” from their identity cards. As such, this falls under regulation 14(1)(c), namely to correct the particulars in their ICs pertaining to their religion.

 

6.4. Regulation 4 provides that if the applicants apply for replacement cards with the intention to correct the particulars pertaining to religion, under reg. 14, then they must provide to the registration officer, the particulars as the registration officer may consider necessary for the purpose of identification (sub-para – xii). They too must produce such documentary evidence, as the registration officer may consider necessary to support the accuracy of the particulars submitted by them (sub-para – xiii).

 

6.5. 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 applicants at the time they applied to correct their particulars pertaining to the word “Islam” in their ICs under Reg. 14(1)(c). As the law stand, there was nothing illegal for the NRD to insist the applicants to produce certificates and/or orders from the Syariah Court or any other relevant Islamic authority to prove the fact alleged by them that they no longer profess 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.

 

20

 

6.6. 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 applicants 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 their ICs, as the record in the NRD disclosed that the applicants are Muslims.

 

6.7. According to the NRD records the applicants were born to

 

Muslim parents (refer paragraph 11 and 18 of Respondents Affidavit (1) 242, Respondents Affidavit (1) 178 and Respondents Affidavit (2) 178). The documentary evidence in the NRD records of the applicants at that time they applied for ICs at the age of 12 years old showed that they were Indian Muslims and Islam is their religion (refer paragraph 13 of Respondents Affidavit (1) 242, Respondents Affidavit (1) 178 and Respondents

 

Affidavit (2) 178). The religion of the applicants were determined based on the form submitted by the applicants’ parents themselves at the time the parents applied for ICs at the age of 12 years old (refer paragraph 20 of Respondents Affidavit (1) 242, Respondents Affidavit (1) 178 and Respondents Affidavit (2) 178).

 

6.8. In view of the above, factual matrix and pursuant to reg. 4, para (cc)(xii) and (xiii), the NRD has the statutory powers to

 

21

 

require the applicants to provide additional information as well as documentary evidence pertaining to their status as Muslims. 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 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.

 

6.9. The NRD has an implied power to take the proper measures, such as to require the applicants to submit orders 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.

 

6.10. 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

 

22

 

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 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.”

 

6.11. 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.

 

6.12. The requirement for “a certificate or a declaration or an order from the Syariah Court that the applicants has apostatized and/or renounced from Islam” before the NRD could delete the word “Islam” from the applicants’ ICs 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

 

23

 

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 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).

 

6.13. 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

 

24

 

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 ‘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.”

 

6.14. 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 are 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 applicants’ purported renunciation from Islam. The records showed the applicants were born to Muslim parents and they now claimed that they no longer profess 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.

 

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6.15. 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 from Islam was a reasonable request” and the NRD is entitled to impose such a requirement on the applicants before it took further steps, to delete the word “Islam” from their ICs.

 

Issue 2

 

Whether this Honourable Court have jurisdiction to decide on the applicants’ applications who alleged that they are not Muslims and whether 1st Respondent could amend the name and remove or omit the word “Islam” in the applicants’ Identity Cards (ICs)

 

6.16. In the case at hand, the birth certificates of the applicants showed that they were born Muslims as their father was an Indian Muslim and the mother an Indian Muslim (refer Exhibit “MYR-7” and “JMS-7”). Subsequently they made statutory declarations to declare that they are Hindus (refer Exhibit “MJ-4” and “MN-4”). The affidavits deposed emphasized the facts that the applicants and his family had practiced the Hindu religion and that they have never considered themselves as Muslims.

 

26

 

6.17. The central issue for determination is whether the applicants remain Muslims notwithstanding their contentions that they have been practicing Hinduism and had never considered themselves to be Muslims.

 

6.18. 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

 

27

 

ditentukan terlebih dahulu oleh Mahkamah Syariah, sebelum responden boleh mengambil tindakan untuk menukar namanya atau memadamkan perkataan “Islam” di dalam kad pengenalannya.

 

6.19. Based on the particulars submitted by the applicants to the NRD, the applicants were Muslim and born to Muslim parents. The applicants failed to show in the said Affidavit in Support, the orders or the consent from the Syariah High Court had been obtained to show that the applicants have converted out of Islam and are now persons who profess the religion of Hindu.

 

6.20. 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

 

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6.21.

 

6.22.

 

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.

 

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:

 

29

 

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.

 

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.”

 

6.23. 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

 

30

 

brought before the Syariah Court, constituted under section 40 of Act 505.

 

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

 

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

 

6.25. 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 conferred jurisdiction 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

 

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considered the question ofjurisdiction 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 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

 

6.26. The proper forum to decide whether the applicants had renounced their religion of Islam or not had been settled by our Apex Court where similar issues were posed for the Court’s 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

 

33

 

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 FirstS 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) 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.”

 

6.27. 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:

 

34

 

“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 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).”

 

6.28. 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,

 

35

 

but on the issue of conversion out of Islam of a Muslim, only the Syariah Court is competent to determine the matter.”

 

6.29. 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

 

36

 

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 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.”

 

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6.30. Aggrieved by the above decision Lina Joy filed for leave to appeal against the decision of the Court of Appeal. The 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 tidak permohonan memadamkan perkataan ‘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, sseorang 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)

 

6.31. Based on the aforesaid it is observed that the Courts had consistently held that matters pertaining to whether a person

 

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is a Muslim or otherwise must be determined by the Syariah Court and not the Civil Court. Therefore, before the applicants could move the respondents to effect the name change and/or to omit the word “Islam” in the IC there must be “certificates or declarations or a consent letters from the Islamic Department or orders from the Syariah Court or that the said person has apostatized”. This evidence must be produced by the applicants in support of their applications to amend the name change and deletion of the word “Islam” in their ICs.

 

25-242-11/2013

 

7. For the purpose of the above case involving the half brother of the

 

two earlier applicants the following documents were referred to:

 

7.1. Permohonan untuk Semakan Kehakiman dated 6th August 2013 (hereinafter refer to as “Application”);

 

7.2. Pernyataan Menurut Aturan 53, Kaedah 3(2) Kaedah-Kaedah Mahkamah 2012 dated 6th August 2013 (hereinafter hereinafter refer to as “Statement”);

 

7.3. Afidavit Menentusahkan Pernyataan Menurut Aturan 53 Kaedah 3(2) Kaedah-kaedah Mahkamah 2012 affirmed by Mohd Shariff Bin Abdullah on 5th August 2013 (hereinafter refer to as “Affidavit In Support”);

 

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7.4. Notis Pendengaran Permohonan Bagi Semakan Kehakiman bertarikh 21st November 2013.

 

7.5. Afidavit Jawapan Responden-responden affirmed by Mohd Yazid Bin Ramli on 24th April 2014 (hereinafter refer to as “Respondents Affidavit (1)”);

 

7.6. Afidavit Balasan Pemohon affirmed by Mohd Shariff Bin Abdullah on 7th May 2014 (hereinafter refer to as “Applicant Affidavit in Reply”); and

 

7.7. Afidavit Balasan Responden-Responden affirmed by Mohd Yazid Bin Ramli on 2nd June 2014 (hereinafter refer to as “Respondents Affidavit (2)”); and

 

7.8. Afidavit Balasan Pemohon (2) affirmed by Mohd Shariff Bin Abdullah on 16th June 2014 (hereinafter refer to as “Applicant Affidavit 2”).

 

THE BACKGROUND

 

8. The background leading to the application by the applicant could be stated as follows:

 

40

 

8.1. The applicant applied to the 1st respondent to amend the applicant’s name and to omit the word religion of “Islam” from his IC.

 

8.2. The applicant was born a Hindu to Hindu parents (refer Exhibits “MS-2”).

 

8.3. The applicant’s mother applied for her name to be changed from Vasanthekogelam a/p Subramaniam to Jamilah Jan Vasanthekogelam binti Abdullah in 1974 (refer para 8 and Ekshibit “MYR-8”of Respondents Affidavit (1)).

 

8.4. The applicant’s mother alleged that she married the applicants stepfather (Mohd Baser a/l Kalakan) who was a Muslim, in 1982.

 

8.5. The applicant’s mother applied to change the applicant’s name from Mahendran A/L Ganesan to Mohd Shariff bin Abdullah (refer para 10 and Ekshibit “MYR-10” of Respondents Affidavit (1)).

 

8.6. The applicant also averred in his affidavit that he was given a Muslim name based on the practice in Pakistan where the Pakistanis were given Muslim names irrespective of their religion or race. This was done at the time his mother married his stepfather. As discussed above this fact is untrue

 

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as the stepfather of the applicant was a Malaysian Citizen and born a Muslim and not as claimed by the applicant.

 

8.7. The applicants also averred that at all material times he had never been raised as a Muslim or practise the religion of Islam.

 

8.8. Like his half brothers, the applicant herein had never obtained any consent letter from the Islamic Department or order from the Syariah High Court to confirm that the applicant is no longer a Muslim at the time of his application for the name change and the omission of the word “Islam” in his IC was made.

 

9. For fear of duplicity, I will not repeat the above submission herein. My decisions in respect of the above two (2) earlier cases would apply to this case as the application in similar in nature and in terms of substance, facts and law. Therefore, my findings in respect of the above two earlier cases would also be applicable to this case, which I fully adopt herein.

 

10. CONCLUSION

 

10.1. Under regulation 4(cc)(xii) and (xiii) and Direction Bil. 9/2007 the 1st Respondent could require the production of certificates or declarations or orders from the Syariah Court

 

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that the applicants 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 applicants without the above documents. 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.

 

10.2. 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 Muslims even though the applicants had declared themselves to have converted out of Islam.

 

10.3. In the light of the above reasoning the applicants 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 to interfere with the said decision.

 

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10.4. Based on the aforesaid reasons each of the applications before me was dismissed with costs of RM2,000.00 to be paid by each of the applicant to the respondents.

 

10.5. 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 laws 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 1st April 2015 10th April 2015

 

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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/SDH/11/59/2013] … Ms. Hayati binti Ahmad

 

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