INDIRA GANDHI MUTHO v. PENGARAH JABATAN AGAMA ISLAM PERAK & ORS AND OTHER APPEALS [2018] 3 CLJ 145
FEDERAL COURT, PUTRAJAYA
ZULKEFLI AHMAD MAKINUDIN PCA; RICHARD MALANJUM CJ (SABAH AND SARAWAK); ZAINUN ALI FCJ; ABU SAMAH NORDIN FCJ; RAMLY ALI FCJ
[CIVIL APPEALS NO: 01(f)-17-06-2016 (A), 01(f)-18-06-2016 (A) & 01(f)-19-06-2016 (A)]
29 JANUARY 2018

ADMINISTRATIVE LAW: Judicial review - Legality of decisions of public authorities - Reviewing approach - Conversion to Islam - Conversion of non-Muslim children to Islam - Legality and constitutionality of administrative action taken by Registrar of Muallafs in exercise of statutory powers - Whether High Court had exclusive jurisdiction to exercise supervisory powers - Whether Syariah courts conferred with power to review administrative decisions of authorities - Whether judicial power could be removed from civil courts - Whether jurisdiction of Syariah court must be expressly conferred by state legislation - Whether relief sought in nature of inherent powers of civil court - Whether Syariah court has no jurisdiction over non-Muslims and non-Muslims had no locus before Syariah court - Whether effect of art. 121(1A) of Federal Constitution to oust jurisdiction of civil courts when subject matter relates to Islamic religion - Whether High Court seised with jurisdiction, to exclusion of Syariah court, to hear matter - Courts of Judicature Act 1964, ss. 23, 24 & 25 - Rules of Court 2012, O. 53

CONSTITUTIONAL LAW: Courts - Civil and Syariah courts - Whether distinct in nature and status - Civil court - Whether established under the Federal Constitution and vested with inherent judicial powers - Syariah court - Whether creatures of state legislation - Whether akin to inferior tribunal - Interpretation of art.121(1A) of Federal Constitution - Whether not to be interpreted in isolation - Whether granting exclusive jurisdiction to Syariah court in all matters of Islamic law

JURISDICTION: Syariah court - Conversion to Islam - Conversion of non-Muslim children to Islam - Certificate of conversion - Issues on conversion - Validity - Whether within jurisdiction of Syariah court - Whether within realm of constitutional and administrative law - Whether should jurisdictionally be triable before civil court - Administration of Religion of Islam (Perak) Enactment 2004, s. 50(3)(b) - Proper interpretation - Whether conferring jurisdiction to Syariah Court to determine validity of a person's conversion to Islam - Federal Constitution, arts. 8(2), 12(4)

ISLAMIC LAW: Conversion to Islam - Conversion of non-Muslim children to Islam - Certificate of conversion - Certificate issued by Registrar of Muallafs - Whether valid - Whether ss. 96 & 106 of Administration of the Religion of Islam (Perak) Enactment 2004 has effect of excluding High Court's power to review issuance of certificate of conversion by Registrar of Muallafs - Requirements in ss. 96 & 106 - Whether cumulative - Language of s. 101(2) - Whether purporting to oust judicial review - Whether precluded High Court from reviewing Registrar of Muallafs' decision

ISLAMIC LAW: Registrar of Muallafs - Statutory power - Conversion to Islam - Issuance of certificate of conversion - Exercise of powers thereof - Legal limits to exercise of legal powers thereof - Validity of Certificate of Conversion - Whether ss. 96 & 106 of Administration of the Religion of Islam (Perak) Enactment 2004 has effect of excluding High Court's power to review issuance of certificate of conversion by Registrar of Muallafs - Requirements in ss. 96 & 106 - Whether cumulative - Language of s. 101(2) - Whether purporting to oust judicial review - Whether precluded High Court from reviewing Registrar of Muallafs' decision

FAMILY LAW: Children - Conversion - Conversion of non-Muslim children to Islam - Whether consent of both parents must be sought - Whether both parents ought to have equal rights in upbringing of children - Whether conversion of one spouse to Islam altered antecedent legal position - Consideration of welfare of child - Equality of parental right - Whether certificate of conversion issued without consent of one parent contravened art. 12(4) of Federal Constitution and Guardianship of Infants Act 1961, ss. 5 & 11

A CHILD & ORS v. JABATAN PENDAFTARAN NEGARA & ORS [2017] CLJ JT (6)
COURT OF APPEAL, PUTRAJAYA
TENGKU MAIMUN TUAN MAT JCA, ABDUL RAHMAN SEBLI JCA, ZALEHA YUSOF JCA
[CIVIL APPEAL NO: W-01(A)-365-09-2016]
25 JULY 2017

ADMINISTRATIVE LAW: Exercise of administrative powers - Judicial review - Application for - Whether Director General of National Registration has power under Births and Deaths Registration Act 1957 ('BDRA') to ascribe patronymic surname 'bin Abdullah' to illegitimate Muslim child - Entry of illegitimate child's surname in register pursuant to s. 13 of BDRA - Father applied to use his name as child's surname - Whether requirements under s. 13A(2) of BDRA fulfilled - Whether entry of surname 'Abdullah' in child's birth certificate a clear error of fact and substance within meaning of s. 27(3) of BDRA - Whether a requirement of law that birth certificate of illegitimate child must be endorsed with s. 13 information - Whether Director General's decision to make impugned entries in child's birth certificate unauthorised by law - Whether Director General acted outside scope of power and in excess of his jurisdiction

ADMINISTRATIVE LAW: Remedies - Judicial review - Application for - Whether Director General of National Registration has power under Births and Deaths Registration Act 1957 ('BRDA') to ascribe patronymic surname 'bin Abdullah' to illegitimate Muslim child - Muslim child born less than six months from date of parents' marriage - Whether fatwa stating that illegitimate child cannot be surnamed to the father could be used as a source of legal authority for the purpose of determining an illegitimate child's surname under s. 13A(2) of BDRA - Whether fatwa or religious edict issued by religious body has force of law - Whether there was basis to invoke religious element in decision making process - Whether Director General acted outside scope of power and in excess of his jurisdiction

CHILDREN: Illegitimate child - Ascription - Muslim child born less than six months from date of parents' marriage - Entry of illegitimate child's surname in register pursuant to s. 13 of Births and Deaths Registration Act 1957 ('BDRA') - Father applied to use his name as child's surname - Whether requirements under s. 13A(2) of BDRA fulfilled - Director General of National Registration rejected father's application and ascribed patronymic surname 'bin Abdullah' to child - Whether Director General has power to do so - Whether entry of surname 'Abdullah' in child's birth certificate a clear error of fact and substance within meaning of s. 27(3) of BDRA - Whether a requirement of law that birth certificate of illegitimate child must be endorsed with s. 13 information - Whether fatwa stating that illegitimate child cannot be surnamed to the father could be used as a source of legal authority for the purpose of determining an illegitimate child's surname under s. 13A(2) of BDRA - Whether there was basis to invoke religious element in decision making process - Whether father has statutory right to have his name ascribed as child's surname in birth certificate - Whether Director General acted outside scope of power and in excess of his jurisdiction