K. SILADASS

A GLIMMER OF HOPE?

by

K.Siladass

         

Mohd Sharif bin Abdullah applied to the National Registration Department (NRD) to change his religious status on his identity card which described him as a Muslim. Mohd Sharif’s earlier action in the High Court to remove the word was dismissed, so also his appeal to the Court of Appeal. Now, the Federal Court has dismissed Mohd Sharif’s application for leave to appeal to itself. The exact judgment of the Federal Court was not available at the time of writing this note. However, the brief report in the MalayMail Online gives a good narration of what had happened.

          Mohd Sharif was a Hindu by birth, thus the description “Hindu-born”. Mohd Sharif claimed that, when an identity card was issued to him the NRD had relied on an application that had been filed by his mother. There is no indication, in the brief story, as to the religious status of Hindu-born Mohd Sharif’s parents.

          In refusing leave, the Federal Court unanimously decided that based on the facts, Mohd Sharif should seek a declaration that he is not a Muslim. Apparently there had been an administrative error, for there was no conclusive evidence that Mohd Sharif had ever converted to Islam. There was also the observation by the Chief Justice of Malaysia Tun Arifin Zakaria that there was no certificate that Mohd Sharif had converted to Islam: therefore, without that certificate of conversion Mohd Sharif cannot be a Muslim. Mere “registration as Muslim does not make you a Muslim” so observed the learned Chief Justice. The NRD had issued the contentious identity card when Mohd Sharif was 12 years old on an application made by his mother. So, it was not a case of conversion or a challenge to the improper conversion; but, a case of mistaken description of Mohd Sharif’s religious status on his identity card.

  

In the light of these circumstances the Federal Court indicated that Mohd Sharif should seek a declaration.

The next question is which court has the jurisdiction to make a declaration that Mohd Sharif is not a Muslim. Firstly, a declaratory relief could only be granted by the High Court as it is the only court which is empowered to grant such reliefs. This can be gleaned from the Courts of Judicature Act 1964, sections 23, 24 and 25. The Shariah Court’s jurisdiction does not cover declaratory reliefs. Besides, its jurisdiction only extends to Muslims but not non-Muslims. This too is clear from the learned Chief Justice observation.

The position of “Mohd Sharif” is that he is not a Muslim; but by an administrative error his religious status had been described as Islam. This is not case where “Mohd Sharif” is leaving Islam but exercising his constitutional right to correct a mistake on his identity card. Therefore, Shariah court is not the correct forum to correct this error.

It may have been proper that the Federal Court could have exercised its inherent powers and rectified the administrative error. However, in democracy, rule of law is important and has to be strictly observed. The decision which carried the advice to seek a declaration is correct and consistent with the rule of law and the Constitutional provisions.