Monday, May 16, 2022

Woman fails in bid to challenge childhood conversion to Islam

The High Court rules that civil courts cannot determine such cases as they are within the jurisdiction of the shariah courts.

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A 42-year-old woman yesterday failed in her attempt to challenge what she said was her unilateral conversion to Islam during childhood by her father.

This followed a decision by High Court judge Noorin Badaruddin in dismissing the insurance agent’s judicial review application against the National Registration Department (JPN) director-general, the Malaysian government and the Selangor Islamic Religious Council (Mais), as the first to third respondents.

Noorin in her judgment ruled that in matters relating to Islam, the Federal Constitution has bestowed upon the shariah courts the jurisdiction to determine these cases. 

“The civil courts cannot make inroads into the exclusive jurisdiction of the shariah courts to determine matters relating to the religion of Islam. 

“It is highly inappropriate for this court as a civil court to determine the validity of the conversion of any person, whether that person is a Muslim or not, as it falls within the jurisdiction of the shariah courts pursuant to Article 121 of the Federal Constitution,” she said during the online proceedings. 

Noorin said in relation to the applicant’s request against the third respondent (Mais), the court found that it could not order a mandamus directing Mais to cancel or remove the applicant’s name from the Muslim convert register as the applicant had never applied and/or requested the relevant party to do so prior to the filing of the judicial review.

“The relevant party is the mualaff registrar whose statutory duties are prescribed under the Administration of the Religion of Islam (State of Selangor) Enactment 2003. This court agrees and finds that the statutory duties are not imposed upon Mais.

“As much as the applicant has the right to profess and practise the religion of her choice, she is also for that matter not deprived of legal remedy which is available for her to seek her release from Islam.

“The proper channel is the shariah court where under Section 61 (3)(b)(x) of the enactment, the Shariah High Court is accorded the jurisdiction to declare that a person is no longer a Muslim. 

“Thereafter, she can proceed with the request for her name to be removed from the register and make an application to JPN to change her name and remove the word Islam in her identity card,” the judge said.

Noorin, who cited the Indira Ghandi’s case, said there was ample evidence to show that the mother of the children therein took the necessary steps to challenge her children’s conversion by her husband when the children were still minors. 

“Her action taken before the civil court is justifiable by the fact that she was not a Muslim and does not come within the purview of the shariah courts. In the instant matter, we have before this court the applicant who avers that since she reached 18 years old, she was no longer a Muslim. 

“The applicant’s mother never challenged her conversion to Islam by her father at the time the applicant was a minor. Her (mother’s) affidavit in support of the applicant’s averment that she never gave her consent to the conversion only came around the time this judicial review application was filed by the applicant.

“The argument that her conversion was void ab initio is obscure and it becomes more detrimental that the applicant herself never challenged her conversion by using the proper and correct legal recourse seeking for declaration that her conversion was void and illegal when she attained the age of 18. 

“The challenge was mounted recently, when she was almost 40 years old. It is not this court which can declare that the applicant is a Buddhist when the documentary evidence shows that she was converted to Islam at the age of 10. 

“The fact remains that the mother never challenged the applicant’s conversion at the material time. It is the finding of this court that this is not an ‘ab initio’ case or, in other words, this is not a case where the applicant was never a Muslim.

“This court finds that there is no illegality, irrationality or procedural impropriety or unconstitutionality on the part of the JPN director-general’s action of refusing to accept and process the applicant’s application for a replacement identity card with a new name and without the word Islam, unless she provided any order from the Shariah High Court.

“The action by the JPN director-general is in accordance with the law. The applicant’s application is dismissed with no order as to costs,” the judge said.

The woman had on Nov 12, 2020, filed for a judicial review on her conversion to Islam, claiming that she never converted to Islam as an adult and had been practising Buddhism.

She was represented during proceedings yesterday by lawyer Shamsher Singh Thind while senior federal counsel Ahmad Hanir Hambaly @ Arwi acted on behalf of the JPN director-general and the government and lawyer Kamaruzaman Arif, for Mais.

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