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Case Update: Federal Court declares a woman born to a Muslim father and Buddhist mother as non-Muslim

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CONSTITUTIONAL LAW
Civil law – Syariah law – Whether an illegitimate child whose mother is not a person professing the religion of Islam, is not subject to ‘Muslim law’ – Hence not subject to the jurisdiction of Syariah Courts – Islamic Family Law (State of Selangor) Enactment 2003 (IFLE 2003), Administration of the Religion of Islam (State of Selangor Enactment) 2003 (ARIE 2003)

Rosliza Ibrahim v Kerajaan Negeri Selangor & Anor
[2021] 1 LNS 30, Federal Court
- see the grounds of judgment here

Facts This is a dispute between Rosliza binti Ibrahim (the appellant), who was raised as a Buddhist by her Buddhist mother (as averred to by the mother with no averment to the contrary by the father), and Kerajaan Negeri Selangor and Majlis Agama Islam Negeri Selangor, (the respondents), pertains to whether an illegitimate child whose mother is not a person professing the religion of Islam, is not subject to ‘Muslim law’ (and hence not subject to the jurisdiction of Syariah Courts). The appellant’s birth certificate states that she was born at the Chinese Maternity Hospital Kuala Lumpur to one Yap Ah Mooi and one Ibrahim bin Hassan (Ibrahim). Ibrahim submitted an application for an identity card on behalf of the appellant. In that application, Ibrahim stated the appellant’s religion to be ‘Islam’ and Yap Ah Mooi’s descent (keturunan) as Malay (Melayu). From these facts, the main assertions by the appellant are as follows; 1) she claims that despite what Ibrahim’s documents may have shown, Ibrahim and Yap Ah Mooi were not married at the time of the appellant’s birth and that she is accordingly an illegitimate child. Thus, she argues that the religious status of her putative father cannot be regarded in the determination of her own religion. As such, the appellant asserts that because she does not adopt the religion of her father and that she was never raised as a Muslim, she is not a person ‘professing the religion of Islam’ as per Item 1, List II, Ninth Schedule[1] of the Federal Constitution. The respondents categorically rejected each and every one of these assertions. The High Court and Court of Appeal ruled that the appellant’s entire case turned on the marital status of Ibrahim and Yap Ah Mooi. It accepted the factual finding of the existence of their marriage and held that the plaintiff is a legitimate child of the marriage, thus a Muslim. Hence, this appeal.
                                                                                                                                           
Issue The main issue in this case is whether the appellant was a Muslim at birth.

Held In allowing the appeal, the Federal Court held that the appellant is illegitimate, that her mother was never a Muslim, and that under section 111[1] of the IFLE 2003, the religion of her putative father cannot be ascribed to the appellant. Accordingly, the appellant cannot be a Muslim by virtue of section 2(b)[2] of the ARIE 2003.

ZUL RAFIQUE & partners
{26 February 2021}
 
[1] “Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.”
[2] “Where a child is born to a woman who is married to a man more than six qamariah months from the date of the marriage or within four qamariah years after dissolution of the marriage either by the death of the man or by divorce, and the woman not having remarried, the nasab or paternity of the child is established in the man, but the man may, by way of li’an or imprecation, disavow or disclaim the child before the Court.”.
[3] “Muslim” means - ….(b) a person either or both of whose parents were at the time of the person’s birth, a Muslim;”

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