Sushree Mohanty
A Malaysian woman born out of wedlock to a Muslim man and a Buddhist lady, finally won her six-year-long fight in court to be pronounced a non-Muslim, after the majority of the adjudicators concluded that the both she and her mother were never Muslims.
A nine-judge bench at the Federal Court headed by Chief Justice Tun Tengku Maimun Tuan Mat concluded that 39-year-old Rosliza Ibrahim had won the appeal.
Rosliza is a resident of Selangor, a state on the west coast of Peninsular Malaysia.
As a part of the component decision, Tengku Maimun and six other judges on the bench concluded that the court will allow all the court orders sought by Rosliza, in the wake of having concluded that the evidence submitted before the courts clearly indicated that she was born illegitimate and that the facts do not show her to be a Muslim.
“We have the independent evidence in the religious authorities’ letters where they found no record of the conversion of either the plaintiff or her mother to Islam,” the panel stated.
Rosliza, in her three court orders, sought for a declaration that she was an illegitimate child and the late Buddhist woman Yap Ah Mooi was her mother.
Additionally, she filed for orders declaring her a non-Muslim therefore the Selangor State Laws for Muslims should not be applied to her and also that the Selangor Shariah courts don not have purview over her.
She had additionally filed a court declaration stating that the putative father of an illegitimate child does not fall under the meaning of “parents” in the understanding of “Muslim” in Section 2(b) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003
The said section states that an individual who had either a parent or both parents being Muslim at the time of the birth of the child will be viewed as a Muslim.
The other judges who expressed their consensus with Tengku Maimun are President of Court of Appeal 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.
The remaining two judges, namely, Chief Judge of Malaya Tan Sri Azahar Mohamed and Datuk Seri Hasnah Mohammed Hashim, also present on the panel, allowed the appeal but expressed their difference in opinion concerning two of the orders sought by Rosliza.
“An order is granted in terms of prayer one, namely a declaration that an appellant is an illegitimate person and that one Yap Ah Mooi, a Buddhist is her natural mother. However, as I do not have the benefit of the opinion of the Fatwa Committee, it is with deep regret that I am unable to make any order in respect of prayers (ii) and (iii) sought by the appellant,” stated Azhar which was also agreed by Hasnah.
The panel thoroughly examined the facts and evidence provided before giving the decision in favour of Rosliza.
While looking into the question whether Rosliza’s parents were married before she was conceived, the panel opined that though the submissions filed by Ibrahim and Yap in January 1995 and February 1995 for new identity cards had indicated them to be married, it would, however, would not put the weight on the Selangor government and Mais to demonstrate that the “marital” status in the applications was valid as per Regulation 24(1) and Section 103 of the Evidence Act.
“In terms of actual proof, the defendants cannot in their respective records locate any proof of the marriage. Neither is there a single affidavit from Ibrahim or from any other relevant person to contradict the plaintiff’s (Rosliza) case,” the bench said alleging the marriage between the petitioner’s parents to be non-existent.
With no proof that Yap was a Muslim when Rosliza was conceived, the judges said this implied that Rosliza can not be supposed to be legitimately a Muslim by claiming that both her parents were Muslims when she was conceived.
Relying on the Federal Court’s decision in the case of M. Indira Gandhi where the Hindu mother successfully challenged that her Muslim ex’s husband who was a converted Muslim could not justify that her children were Muslims as well, Tengku Maimun said that this implied Ibrahim too did not have the privilege to decide the religion of Rosliza through an application filed back in 1994.
“There is no evidence that Yap Ah Mooi jointly consented to recognise the plaintiff as a Muslim,” the judge said.
Tengku Maimun likewise said that the facts in Rosliza’s case were not about a Muslim wanting to revoke Islam or be recognised as one, but it was a case about an individual who was not a Muslim in the first place.
Among the facts recorded by the judges, it was concluded that there was “no evidence” which could render Rosliza as a Muslim, since her statutory declaration, along with her mother’s declaration in consensus with neighbour’s testimony states that she was never raised as a “Muslim”.
“Further, we have the independent evidence in the religious authorities’ Letters where they found no record of the conversion of either the plaintiff or her mother to Islam,” the court said.
Rosliza had started her legal battle back in 2015 with a claim recorded through an originating summons in the High Court to have an official acknowledgement that she is not a Muslim, with the respondents in her claim being the Selangor state government and the Selangor Islamic Religious Council (Mais).
Both the High Court and the Court of Appeal ruled against her in June 2017 and April 2018, prompting her to file an appeal under the Federal Court.The Federal Court passed the decision in her favour, putting an end to her six-year-old battle with declaring her as a “Non-Muslim”