KUALA LUMPUR, May 3 — In a two-one majority Federal Court ruling today, a 37-year-old woman born to a Hindu father and a Buddhist mother failed in her final appeal to overturn a Court of Appeal decision to reinstate her as a Muslim.

The two judges who dismissed the woman's ongoing appeal were President of Court of Appeal Tan Sri Abang Iskandar Abang Hashim who chaired the three-judge panel, and Federal Court judge Datuk Abu Bakar Jais.

The sole dissenting judge was Datuk Mary Lim Thiam Suan.

The woman was appealing against January 13, 2023, two-one majority decision of the appellate court reversing a High Court's previous declaration that the woman is “not a person professing the religion of Islam”.

The woman, identified only as D to protect her privacy, was born to an ethnic Indian father who was Hindu and an ethnic Chinese mother who was originally Buddhist but later converted to Islam.

Her parents had a civil marriage.

On May 10, 2021, D filed an originating summons in the civil High Court in Shah Alam, naming the Selangor Islamic Religious Council (Mais) and the Selangor state government as the two respondents.

In her lawsuit, D sought a court declaration that she is "not a person professing the religion of Islam”.

Among the reasons she gave was that her father’s consent was never obtained for her conversion to Islam as a child and that she had never uttered the kalimah syahadah or the declaration of belief for Islam. Her father passed away in 1996.

The other reasons she listed were that the consent of both her father and mother was required for any conversion to take place and her assertion that she was born a Hindu and had only professed and practised the Hindu religion at all times.

On December 21, 2021, the High Court granted D’s application for a declaration that she is "not a person professing the religion of Islam”. It dismissed Mais’ counterclaim to declare D a vexatious litigant.

The High Court had also found her unilateral conversion to Islam at the age of four — in May 1991 — by her Muslim convert mother to be invalid from the start.

On January 17, 2022, Mais filed an appeal against the High Court’s decision which declared D to be not a person professing the religion of Islam.

The Selangor state government also filed an appeal on January 19, 2022.

Both these appeals were heard in September 2022 and decided in January 2023.

What the Federal Court decided today

Reading excerpts from the majority ruling, Abang Iskandar said they are of the view the Selangor-born woman is factually a Muslim since her childhood, after having lived under the care and custody of her Muslim-convert mother.

“She was raised and brought up on the basis of a Muslim. We see no possible reason why the definition of Muslim in Section 2 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 cannot be applied in defining the meaning of a Muslim.

“For as long as one professes the religion of Islam, one is legally identified as a Muslim irrespective of one’s degree of faith or practice of the Islamic teachings,” he said.

Abang Iskandar said the court is convinced by the approach taken by the respondents in that an invalid conversion at the age of five does not necessarily mean that she factually never was a Muslim.

In the present appeal, Abang Iskandar also pointed out that D had also made her case of ‘no longer a Muslim’ or ‘renunciation’ in the Shariah court, and not on whether her conversion was invalid.

“The existence of prior Shariah court proceedings, the finding of fact made by the trial judge of the Shariah High Court is an important factor that existed in this case which was never present to be considered in Rosliza,” he said, referring to the landmark Federal Court 2021 case of Rosliza Ibrahim.

In Rosliza, the Federal Court had distinguished between exit or renunciation cases, and cases where a person believes they were never a Muslim in the first place, or when the conversion was invalid.

He added that the prior proceedings in the Shariah court in this case was also an important factor to be looked into, before further highlighting contradictions in the woman and her mother’s averments in Shariah and civil proceedings.

Moreover, Abang Iskandar also said the invalidity of a conversion certification did not mean that the Selangor-born woman was never a Muslim in the first place.

“Being raised as a Muslim, the appellant has correctly submitted to the jurisdiction of the Shariah court in determining whether or not she was no longer a Muslim.

“We find the decision of the majority of the Court of Appeal is not plainly wrong,” he said in the majority judgment’s conclusion.

Minority ruling

Dissenting judge Lim said the present appeal fell within the ambit of someone who was never a Muslim to begin with.

Citing Rosliza and the similarities shared between them, Lim said a person can only be assumed to be a Muslim if they utter with understanding the kalimah syahadah.

“She was never a Muslim because of the invalid and illegal conversion,” Lim said.

Lim said the woman’s previous application for renunciation at the Shariah courts should not be taken as submission to the jurisdiction of the Islamic court as it was the only option available by law to her at that point in time.

This, Lim added, should not be held against the Selangor-born woman given the prevailing jurisprudence at the time.

“To hold it against her would amount to deprivation of her only recourse and access for justice,” she said.

The decisions were read out by the Federal Court judges in an online session on the video-conferencing platform Zoom.

The Selangor-born woman was represented by lawyer Malik Imtiaz Sarwar and Surendra Ananth.

The Selangor government was represented today by state legal adviser Datuk Salim Soib @ Hamid, while Mais was represented by lawyers Mohamed Haniff Khatri Abdulla.

For more on D’s case, read here.