[ad_1]
File photo of Putrajaya Palace of Justice – Photo by Bernama
PUTRAJAYA (December 16): A Malay woman who was born to a Muslim and a Buddhist woman was never Muslim to begin with, as the parents were not married and she was an illegitimate daughter, and the declaration of her religious status How Non-Muslims should be made by civil courts rather than Sharia courts, the Federal Court heard today.
In this case, Rosliza Ibrahim, 39, has an identity card declaring her religion as Islam, and has been waiting in a five-year legal battle for civil courts to declare that she was never Muslim and is not Muslim. . , and that all the Selangor state laws for Muslims do not apply to her and that the Selangor Sharia courts have no jurisdiction over her.
In High Court, Rosliza had shown evidence that the Federal Territories and 11 states (Selangor, Johor, Kedah, Kelantan, Melaka, Negri Sembilan, Pahang, Penang, Perak, Perlis and Terengganu) have no records of her mother’s conversion Islam or her biological parents contracting Muslim marriage, as well as delivered to the court the legal declaration of her late mother on October 8, 2008 that she was not married to Rosliza’s father when she was born.
Both the Superior Court and the Court of Appeals had previously ruled in June 2017 and April 2018 respectively against Rosliza, leading to the hearing of her appeal today involving two legal issues before the Federal Court.
Civil Courts vs. Islamic Courts
One of the key questions of law today in the Federal Court was whether the High Court has exclusive jurisdiction, or is the only court with powers, to hear and decide on a matter whether it is “whether or not a person is a Muslim. according to the law ”instead of“ if a person is no longer Muslim ”according to the Federal Constitution.
Rosliza’s lawyer, Datuk Seri Gopal Sri Ram, argued today that both the High Court and the Court of Appeal had wrongly categorized her case as a Muslim seeking to stop being Muslim and that this had led them to decide that she could not do that. Civil courts make a statement about your religious status.
But Sri Ram said that the Rosliza case was different from the Lina Joy case, where a Malay who was initially Muslim had renounced the faith of Islam and where the Federal Court had ruled in 2007 by a majority of -1 that such matters are for the Sharia courts to decide.
In Lina Joy’s case, she went to court after the National Registry Department (NRD) allowed her to change her name, but she refused to remove the word “Islam” and her original name from her identity document, as the NRD insisted that Lina file a warrant. from the Sharia court regarding his renunciation of Islam, even though he had filled out the CI application form with his declared religion as Christianity and a prior legal declaration that he had renounced the faith of Islam.
Sri Ram argued that the misclassification of his client’s case by the lower courts resulted in them ruling that the civil courts cannot decide on Rosliza’s religious status and that she must go to the Sharia courts.
“Our claim is that this is not a case of leaving the religion, rather it is a case in which the applicant claims that she never belonged to the religion of Islam.
“This classification led to a fundamental error on the part of the lower courts in refusing to assume jurisdiction and instead asserting that the Shariah court had jurisdiction over the facts,” he said.
Sri Ram said that the majority decision of the Federal Court in Lina Joy was incorrect, as it treated the judicial powers of the civil courts as if they had been ceded in their entirety or completely handed over to the Sharia court, and that it was incorrect to interpret that the Federal Constitution had implicitly granted the jurisdiction of the sharia courts in matters in that case, since such jurisdiction must be expressly mentioned in the law.
But even if it is a case related to the act of leaving Islam, Sri Ram said that the High Court in the civil courts still has jurisdiction to hear and decide on the matter.
According to court documents from Rosliza’s lawyers, it was stated that both she and her mother never converted to Islam and that there was no valid marriage between her parents, and that she was educated as a Buddhist from birth, and that the application form for her identity card cannot be considered proof of her actual religion, as it was allegedly riddled with conflicting details and inconsistent handwriting.
Was Rosliza Muslim in the first place or not?
During today’s hearing, Federal Court judges repeatedly drew the attention of attorneys for the Selangor government and the Selangor Islamic Religious Council (Mais) to the specific legal issues that were being examined on appeal, and asked for clarification. .
Selangor state legal advisor Datuk Salim Soib @ Hamid, who ran for the Selangor state government, insisted that Rosliza was Muslim when she was born.
To justify his arguments, Salim cited Section 2 of the Promulgation of the Administration of the Religion of Islam (Selangor State) 2003, where one of the definitions of “Muslim” was stated as a person whose parents, one or both parents, they were Muslim at the time of the person’s birth.
Malaya’s chief judge Tan Sri Azahar Mohamed then asked what Rosliza’s religious status would be when she was born illegitimate, as there is no valid marriage between the Muslim father and the Buddhist mother.
Salim again insisted that Rosliza was born Muslim because of Section 2, as she allegedly assumed her father’s religion and argued that only the Sharia courts have powers to decide on her religious status.
However, the Chief Justice Tun Tengku Maimun Tuan Mat stressed that the general principle under Islam is that a Muslim father and a non-Muslim mother could not have been married because one of them is not Muslim, and that In such case, the child according to Islamic principles, born illegitimate and unable to adopt the religion of the Muslim father, but would follow the religion of the mother.
Salim went on to argue that if the marriage is disputed, the case should be referred to the Sharia court to determine the validity of the marriage.
However, Azahar noted that Rosliza’s mother had provided a legal statement to the courts that she is not Muslim and that she never married Rosliza’s father, and that there was also evidence from 11 state Islamic religious councils in Malaysia showing that there is no record of any marriage between Rosliza’s mother and father.
As Salim said again that the Sharia court should determine the validity of the marriage, Tengku Maimun pointed out that Rosliza would naturally not be under the jurisdiction of the Sharia court, as she would be following her non-Muslim mother’s religion because of at his illegitimate birth to the non-Muslim. -Muslim mother and Muslim father.
Salim then sought to rely on the application for Rosliza’s identity card filled out by his father, where his father was declared Muslim and declared himself married to his mother, stating that the veracity of the content of the identity card documents would depend on the applicant provides the correct information for the application.
Tengku Maimun, however, stressed that this cannot be the case, as it would mean that even false information provided by a person applying for an identity card would be considered conclusive, and then pointed out that Regulation 24 (1) of the Registration Regulation National 1990 establishes that the person who affirms that the content of the IC is true has the burden of proving the truth of the content.
Tengku Maimun said that Regulation 24 (1) meant that the Selangor state government bears the burden of proving that Rosliza’s IC content is true, but Salim disagreed.
Did the Muslim father and non-Muslim mother ever get married?
In another lengthy exchange with the judges, Mais Abdul Rahim Sinwan’s lawyer insisted that Rosliza’s parents were married and that Rosliza was born Muslim, citing the information that was completed on the IC application form.
Abdul Rahim also insisted that there could be a valid marriage even without proof of marriage through a marriage certificate, stating that Islam allows a valid marriage even without it being registered if both parties agree that they are married and that they could prove such unregistered marriage. calling witnesses in Sharia court.
Tengku Maimun questioned the effect of such a line of argument, asking, “Taking this analogy, my question would be when there is a raid, and you say that there is a khalwat (close proximity) offense and you cannot produce a marriage certificate, but the marriage could very well be valid under Islamic law? “
“Yes, it is,” replied Abdul Rahim, confirming his argument that an undocumented marriage has the possibility of being valid in Islam.
When asked by Tengku Maimun, Abdul Rahim agreed, however, that a non-Muslim cannot marry a Muslim on the basis of the general principles of Islamic law, and that the child born to that couple would be illegitimate and that the child would follow the mother’s rules. religion instead of the father’s religion.
Abdul Rahim, however, argued that Rosliza was not an illegitimate daughter, insisting again that she is Muslim due to her father being Muslim.
Lead federal attorney Suzana Atan, who represented the attorney general as amicus curiae, said that an illegitimate child would follow the mother’s religion and agreed that Rosliza would never be Muslim to begin with if she is illegitimate.
Suzana agreed that the burden of proving the content of the Rosliza IC would fall on the government of the state of Selangor and Mais under Regulation 24 (1) as they claim that the content of the IC is true, before citing the IC application form. completed by Rosliza’s father. as proof of the veracity of the contents of the IC.
Attorney Philip Koh, who conducted an observation report for the Malaysian Buddhism, Christianity, Hinduism, Sikhism and Taoism Advisory Council (MCCBCHST), highlighted Section 2 (2) of the Selangor enactment of 2003 to say that they are required definitions of terms in that law. so as not to conflict with hukum Syarak or Islamic law.
Koh suggested that Section 2 regarding the definition of Muslim, where one or both of the person’s parents is Muslim at the time of the person’s birth, should be read consistently with hukum Syarak or Islamic law where an illegitimate child would follow. the mother’s religion.
Attorney Mansoor Saat appeared today for the Malaysian Human Rights Commission (Suhakam) as an amicus curiae.
After hearing the arguments, the Federal Court said it would deliver its decision at a later date.
The other judges on today’s nine-member panel were President of the Court of Appeal Tan Sri Rohana Yusuf, and Federal Court Judges Datuk Nallini Pathmanathan, Datuk Abdul Rahman Sebli, Datuk Zabariah Mohd Yusof, Datuk Seri Hasnah Mohammed Hashim, Datuk Mary Lim Thiam Suan and Datuk Rhodzariah Bujang. – Malay Post
[ad_2]
