Court allows Chinese Malaysian woman unilaterally converted as child to pursue bid to be declared Buddhist and have ‘Islam’ dropped from IC

High Court judge Datuk Seri Mariana Yahya today granted leave for the judicial review, which means that the court will proceed to hear the case on its merits. — Reuters pic
High Court judge Datuk Seri Mariana Yahya today granted leave for the judicial review, which means that the court will proceed to hear the case on its merits. — Reuters pic

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KUALA LUMPUR, March 25 ― A Chinese Malaysian woman today was granted leave to continue having the courts hear her bid to be declared a Buddhist and to have a new identity card issued to her without the label “Islam”.

The woman, who will be 41 this year, is also seeking for her new identity card to restore her original name before her Muslim convert father had unilaterally converted her into Islam as a then 10-year-old child.

The woman had filed her legal challenge late last year through a judicial review application. Her name, as well as her parents’ names, have been withheld for privacy purposes.

High Court judge Datuk Seri Mariana Yahya today granted leave for the judicial review, which means that the court will proceed to hear the case on its merits before deciding on whether or not to grant the orders she is seeking.

Senior federal counsel Ahmad Hanir Hambaly confirmed that leave was granted today, and said the case will come up for case management on April 8. Federal counsel Mohamad Sallehuddin Md Ali also appeared for the Attorney General’s Chambers.

Born in Singapore in 1980 to a Chinese couple both of the Buddhist faith, the woman said that her father in February 1990 converted to Islam and in October 1990 registered her with the Selangor Islamic Religious Department (Jais) as a Muslim when she was aged 10 and that she was then given a new name.

However, the woman said that her mother had never became a Muslim, and that her mother had never given permission to the father to change her religion as a child from Buddhism to Islam. The couple later divorced in 1993. The woman said the Selangor Islamic Religious Council (Mais) did not ask her mother's consent before registering her as a child as a Muslim.

Since turning 18 or becoming an adult in 1998, the woman said she has been practising Buddhism and is also living with her mother.

The woman said she had never professed or practised the Islam faith and that she had never uttered the “shahadah” or the Muslim proclamation of faith when one embraces Islam, while also saying that the National Registration Department does not have records to show that she had became a Muslim after turning 18.

On August 24, 2020, the woman said she had renounced the use of her current name and had made a statutory declaration to seek for a new MyKad to restore her original name and had also sought for the word “Islam” to be dropped from the replacement identity card.

On August 28, 2020, the woman applied at the NRD's Ipoh branch in Perak for the replacement identity card, but an NRD counter officer refused to accept and process the application unless she produced orders from the Shariah High Court.

After receiving no response from the NRD to an October 2020 letter of demand seeking for the new identity card, the woman on November 12, 2020 filed for judicial review against the NRD director-general, the Malaysian government and the Selangor Islamic Religious Council (Mais).

What the application is seeking

In her judicial review application, the woman is seeking for six court orders, including a declaration that she is a Buddhist and two separate mandamus orders to compel the NRD director-general to register the change of her name to her original name and to issue a replacement identity card with her original name in line with the National Registration Regulations 1990.

The six court orders sought also include a mandamus order to direct the NRD director-general to drop the word “Islam” from the replacement identity card in line with the same 1990 regulations, and a mandamus order to direct the Malaysian government to ensure the NRD gives full effect to such orders, and a mandamus order to direct Mais to delete the woman's name from the Registrer of Muallafs or Muslim converts and to cancel the card of conversion to Islam that was issued by Mais in her name in October 1990.

In the judicial review application, the woman had cited the Federal Court's decision in a case involving Hindu mother M. Indira Gandhi's successful bid to quash her Muslim convert ex-husband's unilateral conversion of their three children to Islam without their knowledge and without her consent.

The Federal Court had in that case said the term “parent” in the Federal Constitution's Article 12(4) referred to both parents if they were still alive and capable of giving consent to a child's religion.

Under Article 12(4), it is stated that the religion of a person under the age of 18 shall be decided by his “parent or guardian”.

The woman argued that the Federal Court's decision in Indira Gandhi's case meant that the October 1990 certificate of embracing Islam issued to her by Jais on her father's request but without her mother's consent when she was only aged 10 is invalid.

She also said that she was free to choose any religion without influence from anyone when she turned 18, adding that she chose to practise Buddhism.

Asserting that she was never a Muslim, the woman said the NRD's act of asking her to obtain an order from the Syariah High Court first before applying for a new identity card with her original name and without the word “Islam” is an act of unconstitutionality, illegality, irrationality and tainted with procedural impropriety.

The woman also said the actions by NRD and Mais had caused her to be deprived of her right to religious freedom even though such rights are guaranteed by the Malaysian government. Under Article 11(1) of the Federal Constitution, every person has the right to profess and practise his religion.

In a November 2020 affidavit, her 71-year-old mother confirmed the facts provided, stating that she had never given her consent to the now ex-husband to change their child's religion from Buddhism to Islam, further affirming that Mais had not asked her consent before registering her child as a Muslim.

The mother also confirmed that she has been living with her child since the latter turned 18, and said that her child has only been professing and practising Buddhism since the latter became an adult at the age of 18.

The Attorney General's Chambers (AGC) had previously objected to the woman's application for leave for judicial review, citing three reasons, including that her challenge was allegedly out of time as it should have been filed within three months from her October 1990 conversion to Islam.

The AGC had also objected to the woman's lawsuit by saying that the civil High Court has no jurisdiction to grant her the court orders due to the Federal Constitution's Article 121 (1A), arguing that the matter is allegedly tantamount to a declaration of someone no longer being a Muslim that would fall under the Shariah court's jurisdiction.

The AGC had also objected by saying that the woman had no “arguable case” for review of the NRD's decision to refuse to process her application for a replacement identity card without an order from the Syariah High Court, citing the Federal Court's decision in Lina Joy's case which also involved a bid to have “Islam” removed from the applicant's identity card.

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