Selangor insists woman is Muslim as she knows about Islamic affirmation of faith, but lawyer says she didn’t recite it

Malay Mail

KUALA LUMPUR, Feb 19 — A woman born in Selangor to non-Muslim parents is claiming she was illegally converted to Islam at age four in 1991, as the Selangor law in force then disallows conversion of children to Islam.

But the Selangor state government today insisted to the Federal Court that this 37-year-old woman’s case is not one where she was never a Muslim, and claimed that her knowledge about the “kalimah syahadah” — the two clauses of Islamic affirmation of faith or the declaration of belief required to convert to Islam — meant that she is one.

In this case, the woman — identified only as D to protect her privacy — says that she was never a Muslim as her conversion as a child was invalid, and argues that this means the Shariah courts have no jurisdiction over her and that the civil courts could declare she was not a Muslim. (Shariah courts only have jurisdiction over Muslims).

On the other hand, the Selangor state government and the Selangor Islamic Religious Council (Mais) both insist that she is a Muslim who wants to renounce Islam and that it should be the Shariah courts which can decide her religious status.

Today, Selangor state legal adviser Datuk Salim Soib @ Hamid pointed to the Syariah High Court in Kuala Lumpur’s 2017 ruling, which had viewed the woman as having basic knowledge as a Muslim by saying that she is able to utter the “kalimah syahadah” and to explain its meaning.

Salim, who was representing the Selangor state government, claimed that this showed that the woman had stated that she “boleh ucap” (could utter) the “kalimah syahadah” and understood it during the Shariah court proceedings, further arguing that this fits the definition of a “Muslim” under clause (f) in Section 2 of the Administration of the Religion of Islam (State of Selangor) 2003

Under Section 2, the definition of Muslim includes clause (f), which is where a person is shown to have stated — in circumstances where he was bound by law to state the truth — that he was a Muslim.

“What I want to say is, during the hearing at the Shariah court proceedings, this matter happened, at that time the appellant in this case was already 27 years old, so that evidence can show that she admits she is a Muslim and not a person who has never professed the religion of Islam,” he argued during an online court hearing at the Federal Court.

Salim also referred to Section 107 and Section 108 of the same 2003 Selangor state law to support his argument.

For a person’s conversion to Islam to be valid, Section 107 requires the person to fulfil three conditions: the person must utter the “kalimah syahadah” in reasonably intelligible Arabic, and must be aware of the meaning of the “kalimah syahadah”, and must have made the utterance of their own free will.

Section 108 states that a person is converted to the religion of Islam and becomes a Muslim “as soon as” they finish uttering the “kalimah syahadah” and if the Section 107 requirements are fulfilled.

Asked by Federal Court judge Datuk Mary Lim Thiam Suan to help clarify if conversion to Islam requires someone to merely be capable of uttering the “kalimah syahadah” or if it has to actually be uttered willingly and also when it has to be uttered, Salim again reiterated that the Selangor-born woman was found to “boleh ucap” (be able to utter) the “kalimah syahadah” and understand its meaning.

Asked if the woman did in fact utter the Islamic affirmation of faith, Salim insisted that her conduct during the Shariah court proceedings where she was required to tell the truth showed she did practice Islam.

“That’s why, my submission, even if conversion did not happen as a child, but there was Islamisation at the age of 27, namely at the proceeding at Shariah court where she was required to tell the truth. She could have said she does not understand the ‘kalimah syahadah’, but she said she can recognise and can understand the ‘kalimah syahadah’. This shows that she did practise Islam and she is not a case of ab initio from the start like Rosliza,” he said, seeking to argue that D’s case is unlike the Federal Court case of Rosliza Ibrahim who was ruled to be not a Muslim “ab initio” or from the start.

Salim however confirmed that both Section 107 and Section 108 requires the uttering of the Islamic affirmation of faith instead of merely understanding it.

What the woman’s lawyer argued

Datuk Malik Imtiaz Sarwar, who represents the woman D, brought the Federal Court’s attention back to the key issue of whether the woman’s conversion to Islam as a four-year-old child was valid in the first place, saying that should be the focus instead of trying to bring in circumstantial evidence such as her understanding of the Islamic affirmation of faith to insist that she is a Muslim.

“I’m sure I can point to many non-Muslims who understand what the Quran means and who understand what the ‘kalimah syahadah’ means.

“But one cannot take in isolation things like that and ignore the starting point of her journey which is the conversion itself and say ‘it doesn’t matter whether she is properly converted because I think she acts in a way consistent with a person professing Islam’. That is putting the cart before the horse,” he said.

Imtiaz said there was nothing to show that the Selangor-born woman had declared the “kalimah syahadah”, and also said that his client had made multiple assertions in court documents that she had never professed the religion of Islam.

Imtiaz said his client had never declared the “kalimah syahadah” — required for a conversion to Islam, and said this was clearly reflected in the Selangor state government’s state legal adviser Salim’s difficulty in stating whether there was in fact such a declaration as “there was none”.

Imtiaz also disagreed that his client’s assertion that she had never professed Islam was an “afterthought”, saying that the reality is that she had been maintaining this from the very start and that this was consistent with what she had said at the Shariah court.

In this case, D was born to a Hindu father and a Buddhist mother, but was unilaterally converted to Islam by the Muslim convert mother in 1991. The mother has in court documents said she never informed D’s father of the child’s conversion and that he never consented to it. The father died in 1996.

Noting that D was born to non-Muslims and it would not be correct for her right to profess a religion of her own choice to be constrained by what her mother did, Imtiaz said his client was converted as a child and that her conversion was illegal due to a 1952 Selangor state law in force then.

Imtiaz referred to Section 147 of the Administration of Muslim Law Enactment 1952 which states: “No person who has not attained the age of puberty shall be converted to the Muslim religion.”

Imtiaz also said the Section 2 clause in the 2003 Selangor law which defines the word “Muslim” did not exist at the time of D’s conversion in 1991.

Imtiaz said his client had only gone to the Shariah courts to seek a declaration on her religious status as she was following the approach by the Federal Court in 2007 in the Lina Joy case applicable at that time where even those who were never a Muslim were asked to go to the Shariah courts.

Imtiaz said his client should not be denied the constitutional protection available to cases like hers, following the Federal Court’s latest 2021 decision in the Rosliza case which allowed those never a Muslim to have their religious status decided as a constitutional identity by the civil courts.

Imtiaz was responding to both the submissions by the Selangor state government and Mais.

What Mais argued

Mohamed Haniff Khatri Abdulla, who represented Mais today, disagreed with the approach taken by D that her conversion was invalid and that would be the end of the case.

Haniff argued that all the facts of the case should be looked at before deciding whether D was not a Muslim from the start or if she is a Muslim seeking to renounce Islam, instead of looking at only the validity of her conversion to Islam as a child in 1991 or the validity of the certificate of conversion issued to her.

Haniff argued that D’s act of having previously gone to the Shariah courts meant that she believed she was a Muslim, and also claimed that it cannot be argued that the Shariah courts’ decision would be invalid even if D’s conversion was said to be invalid.

Haniff argued that the Shariah courts’ order should be respected until it is set aside.

“The mere fact that the certificate of conversion may be null and void in itself ipso facto (by that fact itself) does not make a person non-Muslim ab initio (from the start), especially in this case,” he said, arguing that she had went to the Shariah courts when she was already aged 27 and allegedly did not challenge the validity of her conversion there.

Haniff also argued that the Shariah court had already confirmed D to be a Muslim after going through the process of determining whether she was practising Islam or practising a different religion.

Citing the Court of Appeal’s majority ruling in D’s case, Haniff said the Shariah court’s findings in D’s case cannot be “re-ventilated” or “reviewed” by the civil courts, also arguing that the civil courts cannot interfere in the Shariah court’s ruling which found D to be a Muslim and cannot make a different finding on whether she is a Muslim.

Imtiaz had however responded by citing the Federal Court’s 2021 decision in Rosliza’s case, noting that renunciation cases would definitely be under the Shariah court’s jurisdiction, but that cases like D where she said she was never a Muslim is within the civil courts’ jurisdiction as it involves constitutional protection issues which the Shariah courts do not have jurisdiction or power to decide on.

Imtiaz argued that what the Shariah court had determined would be “irrelevant” if it did not have jurisdiction to decide on those issues in the first place.

The Federal Court’s three-judge panel today was chaired by President of Court of Appeal Tan Sri Abang Iskandar Abang Hashim, while Federal Court judge Datuk Abu Bakar Jais also sat on the panel.

The Federal Court today said it would reserve its judgment, and instructed Mais to file an additional submissions regarding a point of law within a weeks’ time and also said the woman can file a submission to reply to that point.

D was also represented by lawyers Surendra Ananth and Wong Ming Yen, while the Selangor state government was also represented today by assistant legal adviser Husna Abdul Halim,

Mais was also represented by lawyers Majdah Muda and Putri Alyra Narisha, and Md Rasyid Ridha attended the online proceedings as a representative for Mais.

D started her journey at the age of 25 in 2011 to have the label “Islam” removed from her identity card to reflect her religious identity to be non-Muslim, but the National Registration Department rejected her application.

After the Shariah High Court and Shariah Court of Appeal rejected her bid to be officially recognised as not a Muslim, D in December 2021 won a declaration at the civil courts when the High Court declared she was not a person professing the religion of Islam.

The Court of Appeal in a 2-1 decision allowed the Mais and the Selangor state government’s appeals to restore her official identity as a Muslim. D’s appeal against the majority decision in the Court of Appeal was the appeal being heard today at the Federal Court.

Read here for more about D’s case.

Read here for what the Court of Appeal’s majority and minority rulings in D’s case said.

Today is the second day of hearing at the Federal Court. Read here for what D previously argued at the Federal Court on the first day.