Today, the Federal Court hears a special Constitutional Reference from the Shah Alam High Court which will have very far reaching consequences for a small minority of Malaysians living a double life. These Malaysians are forced into having an official “Muslim” identity, when they in fact profess and practice a different religion.
An Indian Malaysian, Zaina Abdin @ Balachandran, who says he has spent the whole of his life – more than 60 years now – as a Hindu, is being unconstitutionally treated as a “Muslim” by the authorities.
Bala’s father, also of Indian ethnicity, went through a formal conversion process in order to marry his Indian Muslim mother in the 1950s. But Bala’s father and mother lived as Hindus and continued to profess and practice Hinduism as their religion.
In the early 1970s, Bala officially changed his name by a Deed Poll published in the Government Gazette. He went through a marriage registered under the Law Reform (Marriage and Divorce) Act 1976 to his Hindu wife, and was blessed with 3 children.
But Bala and his three children are all all still being treated as Muslim even though all profess and practice Hinduism.
The Constitution never uses the word “Muslim”. It uses the phrase “person professing the religion of Islam” whenever it refers to the people we call “Muslims”.
Bala professes Hinduism – he has never in his life professed Islam as his religion.
The problem is because in 1989, they changed the law to include a definition of a “Muslim” in the Selangor Administration of Islamic Law enactment which had additional definitions other than “person professing the religion of Islam”. Similar definitions founds its way into the State Islamic Law of all States.
The current 2003 legislation in Selangor includes as a definition of “Muslim” a person who is born to a Muslim parent and a person who by general reputation is considered a Muslim.
It is because of this that Bala and his three children are now caught in this crisis of identity.
Syariah Court and Islamic law
The Government of Malaysia, and the Government of Selangor, both say that Bala must go to the Syariah court first to get permission to “leave” Islam. They say the other definitions of “profess” are all mere extensions and elaborations of the phrase “person professing the religion of Islam”.
But Bala says that he is a Hindu. He does not want Islamic theological law applied on him when he is a Hindu. He says it does not matter to him that Islamic law classifies him as a Muslim – what is important to him is that the Constitution does not allow Islamic law to be applied if a person does not “profess” Islam, and the Constitution says he can profess and practice his religion in peace and harmony.
Earlier, the High Court had struck out the entire case saying it was an abuse of process as Bala and his children had to go to the Syariah court. The Court of Appeal unanimously allowed Bala’s appeal, and reinstated the case saying the issues were of constitutional importance.
Questions for the Federal Court to Determine
Yang Arif Nurchaya Arshad J referred 5 questions to the Federal Court in a Special Case Stated under section 84 of the Courts of Judicature Act 1964. Essentially, those 5 questions are:
- Are the definitions of a “Muslim” in the relevant enactment, other than the definition “a person professing the religion of Islam” inconsistent with the Federal Constitution
- Under our constitution, does a parent of a child under 18 have the absolute right to determine the religion of the child
- Is it unconstitutional for Islamic law be applied to a person who professes himself to be a Hindu but is considered a Muslim under Islamic law
- Is the need to get permission from the Syariah authorities before a person can stop being considered a “Muslim” unconstitutional
- Is the rule that a person cannot register a change of name on his IC if the reason for the change is a change of religion unconstitutiona
The High Court Judge also gave her Grounds for referring these questions, since the Government of Malaysia appealed against her decision to refer this matter straight to the Federal Court. Interestingly, the learned Judge said this:
I am satisfied that right to ‘profess’ his religion entitled a person with full liberty to declare his religion as he chooses, and that unfettered personal freedom is a fundamental right guaranteed by our constitution
(The appeal by the Government was dismissed because they had not named the other defendants in the High Court as Respondents in their appeal.)
Federal Court proceedings
The case is scheduled to be heard at the Federal Court on Thursday, February 2, 2012 before a panel of 5 Judges of the Court of Appeal.
LoyarBurokkers Fahri Azzat, K Shanmuga and Aston Paiva will appear for Bala. LoyarBurokker Edmund Bon will appear for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (who is the 4th Respondent).
The Government of Malaysia will be represented by the Attorney General’s Chambers, whilst the Government of Selangor will be represented by the Selangor State Legal Adviser. The Selangor Islamic Affairs Council (MAIS) is represented by a firm of private lawyers.
UPDATED: The Federal Court dismissed the Reference stating that there were still facts in dispute making the case unsuitable for determination under section 84. The matter was remitted to the High Court for a full hearing. Read about the decision on Malaysiakini here and here, the Malaysian Insider and Free Malaysia Today.
The written submissions of the lawyers are quite voluminous. What was filed in Court beforehand and made available to LoyarBurok are the following. All the submissions will be eventually uploaded here.
UPDATED: The following submissions have now become available.
- Zaina Consti Ref – Federal Govt Submissions
- Zaina Consti Ref – MAIS Submissions
- Zaina Consti Ref – MCCBCHST Submissions
- Zaina Consti Ref – Suhakam Amicus Submissions
FURTHER UPDATE (January 2013) Justice Hadhariah binti Syed Ismail has on 11th January 2013 dismissed Balachandran’s case.
- NST Online report: High Court dismisses application of father, children to prevent Islam forced on them
- The High Court Judgment dated 11 January 2013
ANOTHER UPDATE (June 2014). The appeal against the High Court’s decision came up for hearing on 18th June 2014, but was adjourned as 2 of the 3 judges on the panel had to recuse themselves.
- Star Online Report – Two judges recuse themselves from case of family attempting to be acknowledged as Hindu
- The Malaysian Insider – 2 judges recuse themselves from case of family wanting to be known as Hindu
For more on these issues, read the following:-