KUALA LUMPUR: Although she has a Muslim name, Rosliza Ibrahim has never professed the religion of Islam nor led a life as one, as she was raised a Buddhist by her Buddhist mother, the Federal Court ruled.
The 39-year old woman who was born to a Muslim man and a Buddhist woman finally won a six-year legal battle to be recognised as a non-Muslim after the highest court allowed her bid.
A nine-member panel chaired by Chief Justice Tengku Maimun Tuan Mat unanimously held that Rosliza was not a Muslim to begin with as there were no proof or record of her mother converting to Islam or of her biological parents entering a Muslim marriage.
In allowing Rosliza's appeal, Tengku Maimun said there was no evidence to show that the woman had ever professed Islam as her religion, as she was raised as a Buddhist by her mother since she was born.
The present case, the judge said is distinguishable to that of Christian convert Lina Joy's case, in which Joy was a person born into Islam but had sought to renounce the religion in court.
"In this context, Lina Joy is entirely distinguishable from the present case as the present case is an ab initio (from the beginning) case and not a renunciation case.
"The plaintiff (Rosliza) has made out her claim on a balance of probabilities. The concurrent categorisation by the courts below of the case as a renunciation case is incorrect in fact and in law.
"The appeal is allowed and the orders of the High Court and Court of Appeal are set aside," she said adding that there was no order as to costs.
Rosliza had appealed against the decisions of the Shah Alam High Court and the Court of Appeal refusing her legal bid for a declaration that she is a Buddhist and not a Muslim.
In her bid, Rosliza had sought three court orders; firstly, that she is an illegitimate and that her natural mother was the late Buddhist woman Yap Ah Mooi, secondly, the word 'parent' under Section 2 of the Administration of the Religion of Islam (State of Selangor Enactment) (ARIE) 2003 does not include the putative father of an illegitimate child and lastly, that she is not a person professing the religion of Islam and that all Selangor state laws for Muslims do not apply to her and that Selangor Syariah courts do not have jurisdiction over her.
After having decided that the evidences showed that Rosliza was born out of wedlock and there were no evidences showing that she was in fact a Muslim, Tengku Maimun and six other judges allowed all of the orders sought by the woman.
The majority who agreed with Tengku Maimun are Court of Appeal president Tan Sri Rohana Yusuf, and Federal Court judges Datuk Nallini Pathmanathan, Datuk Abdul Rahman Sebli, Datuk Zabariah Mohd Yusof, Datuk Mary Lim Thiam Suan and Datuk Rhodzariah Bujang.
However, chief Judge of Malaya Tan Sri Azahar Mohamed and Federal Court judge Datuk Seri Hasnah Mohammed Hashim were departed on the second and third order sought on whether Islamic religious law could be enforced on Rosliza.
The two judges were of the view that the opinion of the Fatwa Committee should first be obtained in understanding Islamic law on this matter.
Tengku Maimum in her judgement said Rosliza in proving that her parents had not contracted a Muslim marriage presented evidences such as her statutory declaration (SD) attesting that her parents were not married when she was born and an SD affirmed by her late mother stating that she and Ibrahim were not married at the time of Rosliza's birth.
The top judge said as a corroborative evidence, Rosliza also adduced the religious authorities' letters stating that they were unable to locate any record of a marriage between Rosliza's parents.
She noted the absence of evidence of the marriage from Ibrahim, the religious authorities or other relevant parties, meant that the more logical conclusion is to believe in its non-existence.
"The evidence, when strung together, sufficiently casts doubt on the existence of Ibrahim and Yap's purported marriage.
"Accordingly, the plaintiff ought to have succeeded in her claim in the courts below that her parents being unmarried at the time of her birth renders her an illegitimate child," she said.
On whether Yap was a Muslim, Tengku Maimun said looking by the evidence collectively, there was no proof that Yap professed the religion of Islam when the appellant was born and this was supported by contemporaneous documentary evidence.
She said Yap had in an application for a new identity card claimed she was a Chinese Buddhist and there was consistency in the assertion on balance of probabilities, that Yap was actually a Buddhist at the time Rosliza was born.
"We also have letters from the Religious Authorities in the Federal Territories of Kuala Lumpur, Selangor, Johor, Kedah, Kelantan, Melaka, Negeri Sembilan, Pahang, Pulau Pinang, Perak, Perlis and Terengganu admitting having no knowledge and record of Yap's conversion to Islam," the judge said.
As there was no evidence that Yap was a Muslim when Rosliza was born, the judge said the appellant cannot be said to be legally a person professing the religion of Islam simply by virtue that 'either' or 'both' of her parents are Muslim at the time of her birth.
The court also held that Ibrahim could not ascribe his paternity to Rosliza as provided under Section 111 of the Islamic Family Law (State of Selangor) Enactment 2003 as she was born illegitimate. This meant that the appellant would not inherit her Muslim father's faith.
The decision was delivered via Zoom.
Rosliza's lawyers in a statement said she was relieved by the decision of the Federal Court.
With the decision, Rosliza will be taking steps to rectify all her official records with the government to accurately reflect who she is now.
"The Appellant hopes that this decision will move the Executive to reconsider its law and policy on affixing religion on the identity cards of Malaysians, and the Legislature to consider law reform on disputes affecting the legal status of Malaysians like her," her lawyers said.
She was represented by Datuk Seri Gopal Sri Ram, Aston Paiva, Yasmeen Soh, Karluis Quek, Quratulain Atiqah and Michael Cheah Ern Tien.
Selangor state legal adviser Datuk Salim Soib appeared for the state government while Selangor Islamic Religious Council (Mais) was represented by counsel Abdul Rahim Sinwan, Datuk Zainul Rijal Abu Bakar and Azman Marsaleh.
Meanwhile, senior federal counsels Suzana Atan, Shamsul Bolhassan and K. Kogilambigai acted for the government.
Her ordeal began when her application to change her name was rejected by the National Registration Department (NRD) because she did not have a letter of approval from the Syariah Court.
She then took the matter to court.
In her originating summons she filed at the Shah Alam High Court in 2015, Rosliza had sought a declaration that she was not a Muslim and therefore the state Islamic laws did not apply to her and the Selangor Syariah Courts did not have jurisdiction over her.
She claimed that she was born out of wedlock to a Muslim father and her late Buddhist mother and was raised a Buddhist by her mother who had never converted to Islam.
Her legal action was struck out on June 22, 2017, after the court found that there was no proof that her parents did not contract a Muslim marriage.
On April 25, 2018, the Court of Appeal dismissed her appeal against the decision.
She was then granted leave by the Federal Court on Jan 20, last year, for the top court to determine two legal questions on her religious status.
