The NRD had insisted that their recorded religion should be amended from Hindu to the alleged ‘correct’ status of Muslim, before MyKads could be issued to them. — Malay Mail photo
KUALA LUMPUR (Jan 12): Two Selangor-born sisters have won a court declaration that they are Hindus and succeeded in their lawsuit against the National Registration Department (NRD) which had insisted they are Muslims.
The two sisters, who are due to turn 20 and 21 this year, had spent their entire life without a Malaysian identity card (or MyKad) despite being born to Malaysians.
The NRD had insisted that their recorded religion should be amended from Hindu to the alleged “correct” status of Muslim, before MyKads could be issued to them.
On Jan 8, the High Court in Shah Alam ruled in favour of the two sisters (identified only as N and S for privacy reasons) and granted all four court orders that they had sought.
The four court orders include a declaration that the two sisters’ “religion is, and has always been, Hindu”; and a declaration that they are entitled to be issued identity cards — recognising them as Hindus — by the NRD director-general.
The remaining two orders are an order directing the NRD director-general to issue identity cards to the sisters which reflect their status as Hindus; and an order to declare that all Selangor state Islamic laws do not affect and do not apply to the two sisters.
Here’s a quick summary by Malay Mail of the facts in this case, based on court documents:
How the two sisters ended up living without MyKads
In the court dispute over the two sisters’ religious status, the NRD director-general traced their family history back to their biological grandmother in order to assert that N and S are Muslims.
The Muslim grandmother, SO, did not marry the Hindu grandfather, G, and their daughter, A, was born out of wedlock.
The woman A, then married Hindu man T in a traditional Hindu religious ceremony, but their customary marriage was not registered.
The two girls N and S were both born in a hospital in Klang, Selangor in 2003 and 2004 respectively, and their birth certificates stated that both their parents, A and T, and themselves are of the Hindu religion.
In court documents, the elder sister N said both she and S were raised as Hindus and their MyKid (the Malaysian identity card issued to those aged below 12) did not state them to be Muslims.
N said the two sisters have never professed the religion of Islam and that there are no records by religious or education authorities stating they profess the religion of Islam, and said both their parents are non-Muslims and have never professed the religion of Islam.
N said her application for a MyKad was made in 2016 but said her mother A on her behalf refused to accept the MyKad stating N as a Muslim, since they were never Muslim.
N said her mother in 2021 again applied for MyKads for the two sisters, but claimed the NRD insisted that the MyKads would be issued with their status stated as Muslim and said their mother had refused to accept such MyKads.
The two sisters sat for all major school examinations — including the Form Three Assessment (PT3) and the Malaysian Certificate of Education (SPM) — without MyKads, but the difficulties they would face in pursuing tertiary education and expected further difficulties in their future life without MyKads prompted them to file a lawsuit.
The two sisters filed a lawsuit via an originating summons on Aug 16, 2022, naming the NRD director-general as the sole respondent. At that time, the two sisters were aged 18 and 19.
The Selangor Islamic Religious Council (MAIS) in June 2023 applied to be an intervener or to be part of the lawsuit and succeeded in July 2023 to join the lawsuit.
Both the NRD and MAIS insisted that the family’s circumstances — including that the grandmother SO is a Muslim and A’s birth — meant A was an illegitimate child who should be a Muslim, and that this meant the Muslim mother A could not legally marry the non-Muslim father and their two children would also be Muslims.
The two sisters said they want to remain as Hindus.
What did the mother A and the NRD say?
The mother A said she never met and was never in contact with her biological parents, and was raised by her Christian grandmother and Hindu aunt (both from her father’s side).
The mother A said she had an identity card as a Hindu, but that she then applied for a new identity card in 2001 when the NRD introduced the new MyKad system, and she was issued a MyKad stating her to be a Muslim “despite the fact that I was never a Muslim and never professed the religion of Islam”.
In a court affidavit, A said she is in the midst of applying to amend the official records to state her religious identity as Hindu and reserves her rights to take legal action for that.
In a September 2022 court affidavit, the NRD director-general said NRD made no errors when it issued a new “MyKad” with the word “Islam” for the mother A, insisting that she is a Muslim based on Section 2(1)(b) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003.
Section 2(1)(b) defines a Muslim as being a person — whose parent or whose parents were Muslim — at the time the person was born.
The NRD claimed that the mother had produced her old identity card — which did not carry the word “Islam” — when applying for the two children’s birth certificates, adding that the birth certificates recorded N and S as Hindus based on A’s old identity card and the birth certificate application forms stating them as Hindus.
The NRD said the “Hindu” status in the two sisters’ birth certificates are “wrong” information and should be corrected as they should also be Muslims based on Section 2(1)(b) but said it could not make such corrections as applications for corrections have to be made by either the sisters themselves or their parents.
The NRD said the father T had in 2015 applied for N to be issued a MyKad, but that it did not process the application as there was a query as the application form stated N to be a Hindu while her mother A is a Muslim. NRD said it had not issued MyKads to the two sisters.
Arguing that the mother A and her two daughters are Muslims due to Section 2(1)(b) of the 2003 Selangor state law, the NRD said the three of them should seek court declarations from the Shariah court that they are “no longer Muslims” if they want to profess the Hindu religion.
As part of documents which the NRD provided to the court, the grandmother SO in a February 2010 statutory declaration confirmed A’s birth out of wedlock and that the grandfather G had never converted to Islam and said G had snatched the child at just two to three months old and she did not have any contact with A until the latter approached her in 2009. (A herself said the first time she met with SO was in 2009.)
The grandmother SO said her child A was raised by A’s Hindu aunt, and SO said she has no objection to A being a Hindu as she was raised a Hindu. SO said Shariah laws do not apply to A as she was born out of wedlock and her father is not a Muslim.
The grandchild N herself said in another court affidavit that she and her sister and her mother A never knew the religion of the grandmother SO, as they never met her.
In a statutory declaration also provided by the NRD to the court, the grandfather G said he was born and raised a Hindu and asked for A’s religion in official records to be changed to “Hindu”.
Among other things, N argued that Section 2(1)(b) of the 2003 Selangor law does not apply to the three of them — A and the two sisters —- as they were born illegitimate, and that there was no proof that the three of them are Muslims.
N said the two sisters’ religion in the birth certificates was correctly recorded as Hindu and no amendment is required for the birth certificates, also arguing that the stated “Islam” status in A’s new MyKad is not conclusive and should not be a ground to decide the two sisters’ religious status.
“It is unreasonable and unfair to us that the defendant refuses and withholds the issuance of the correct MyKads to us based on the purported religion issue,” she had argued.
N said she and her younger sister had throughout their life actively participated in Hindu festivals, Hindu religious ceremonies and Hindu religious courses at a Hindu temple in Klang, producing such photographs to the court.
N also produced a November 2022 letter from the Hindu temple which stated that A and her two daughters had followed and professed the Hindu faith, with the temple also saying that the family has been worshippers at the temple since 2005 and also produced photographs of their visits to the temple.
What the High Court decided
In his 18-page written judgment dated January 11 and sighted by Malay Mail, High Court judicial commissioner Choong Yeow Choy said there were two key issues, which is whether the civil court has the jurisdiction to determine the two sisters’ religion and whether they were born into the Muslim faith.
The judge said that there are two types of cases, namely cases involving renunciation of the Muslim faith which would be the Shariah courts’ exclusive jurisdiction to decide, and cases involving a situation where a person’s religious status is in dispute (whether they are a Muslim or not) which would then be the civil courts’ exclusive jurisdiction to decide on.
(In other words, these two categories would be cases where one wants to renounce Islam or to be recognised as “no longer a Muslim”, and cases where one says they were “never a Muslim”.)
Among other things, the judge said this is based on the landmark decision in 2021 which was decided unanimously by a nine-judge panel at the Federal Court in Rosliza Ibrahim’s case. Rosliza was born out of wedlock or illegitimately to a Muslim father and Buddhist mother who were not married and was raised a Buddhist.
To recap, the two sisters say they were never Muslims, while the NRD said they are Muslims and would need to go to the Shariah courts to be declared no longer Muslims, while MAIS said the two sisters’ case fall within the category of renouncing Islam instead of never being Muslims.
The judge said the two sisters’ case involves the question of law which requires a determination of whether they are Muslims or not, and said this question is for the civil court to decide. (In other words, the judge said the civil court has the jurisdiction to decide on N and S’s case.)
Citing Section 111 of the Islamic Family Law (State of Selangor) Enactment 2003 (which effectively prevents an illegitimate child from having the paternity ascribed to the father), MAIS argued that since the two sisters are illegitimate, their line of lineage is with the mother A and that therefore the two sisters are legally Muslim. N and S had argued it is misleading to assume that an illegitimate child’s religion should automatically follow the mother’s lineage, as Section 2(1)(b) only applies to parents of legitimate children.
Among other things, the High Court cited the Federal Court’s decision in Rosliza’s case, where the highest court in Malaysia had said that the word “parents” in Section 2(1)(b) of the 2003 Selangor law refers only to parents of legitimate children.
The High Court also cited the Federal Court’s decision in Rosliza’s case, where it said Rosliza is an illegitimate child with no proof of marriage between her parents at the time she was born, and that she cannot be deemed a Muslim simply via Section 2(1)(b) where either or both her parents are Muslims.
The High Court said that since the two sisters N and S are illegitimate children, they cannot be considered in law as having been born as Muslims in line with Section 2(1)(b).
As for the issue of the two sisters’ religion, the High Court adopted the approach set out by the Federal Court in Rosliza’s case, namely a “careful scrutiny of the factual evidence and circumstances of the case”.
“Based on the evidence before this court, it is of the considered view that the plaintiffs have made out their claim on a balance of probabilities,” the judge said briefly.
The judge then proceeded to say the two sisters are entitled to all the court orders they had sought (which includes the order that they are and always had been Hindus), and also ordered both the NRD director-general and MAIS to each pay RM10,000 as costs to the two sisters.
The two sisters were represented by lawyers Datuk Gurdial Singh Nijar, Abraham Au and Lim Sze Han.
The NRD director-general was represented by the Attorney General’s Chambers’ (AGC) federal counsel Mohammad Sallehuddin Md Ali, while MAIS was represented by lawyers Kamaruzaman Muhammad Arif Muhammad Izzat Dzulkafli. — Malay Mail