UMY 1712 MALAYSIAN LEGAL SYSTEM

TUTORIAL 4

Islamic Law Part II

1. Discuss the cases stated below:

 Ramah v Laton (1927) 6 FMSLR 128
 Lina Joy v Majlis Agama Islam Wilayah Persekutuan & 2 Ors 2005 [CA]
 Saravanan a/l Thangathoray v Subashini a/p Rajasingham [2007] 2 MLJ 705
 Priyathaseny v Pegawai Penguatkuasa Agama [2003] 2 MLJ 302

Ramah V Laton
Fact: the respondent was another widow of Mat Dawi who sued the appellant for a
declaration that all movable n immovable property was 'Harta Syarikat' n she is also
entitled to a one-half share in the property.
Principle: Muslim law is not a foreign law but local law in the law of the land.
Decision: the court held that...the respondent is entitled to a one-half share on the
'Harta Syarikat' according 2 Muhammadan Law. Muslim law is not a foreign law but
local law in the law of the land in the local law is a matter of which the court must
take judicial notice. The court must propound or consider the law...

Lina Joy v Majlis Agama Islam Wilayah Persekutuan

Facts: A Malay woman, known as Azalina binti Jailani, applied to the
National Registration Department (NRD) to change her name, first to Lina Lelani,
then to Lina Joy. Reasons for doing so were she had renounced Islam for Christianity
and she intended to marry a Christian. She made 2 attempts to change her
name at the NRD since 1997. Ultimately, in October 1999, her application
for change of name was approved but her replaced identity card (IC) states that
her religion as Islam. Lina Joy made an application to NRD office to remove the
statement “Islam” and her original name from her replacement IC. NRD refused her
application on the ground that it was incomplete without an order of the Syariah
Court to the effect that she had renounced Islam. Lina Joy then sought
legal remedies. Held: the case of Lina joy had been held in FC, and her appeal was
dismissed.(a) The freedom of religion stated in Art 11 of FC but it does not mean that
the P was given the freedom of choice to profess and practice the religion of her
choice.

Saravanan a/l Thangathoray v Subashini a/p Rajasingham [2007]

Summary: The parties were husband and wife. They were married pursuant to a civil
ceremony of marriage that was registered on 26 July 2001 pursuant to the Law
Reform (Marriage and Divorce) Act 1976 (‘the 1976 Act’). Both were Hindus at the
date of their marriage. There were two children of the marriage, aged three and a
year old. By the latter part of 2005, the marriage was on the rocks. Later, the wife
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received a notice dated 14 July 2006 from the Registrar of the Syariah High Court,
Kuala Lumpur informing her that the husband had commenced proceedings in that
court for the custody of their elder son. The notice went on to say that the case had
been set down for hearing on 14 August 2006. It appeared from the face of the
notice that the husband had converted himself and the elder son to Islam. It was the
wife’s pleaded case that the son’s conversion was carried out without her knowledge
and consent. After she had presented her petition, the wife applied ex parte to the
High Court for injunctions restraining the husband from: (1) converting either child of
the marriage to Islam; and (2) commencing or continuing with any proceedings in
any Syariah Court with regard to the marriage or the children of the marriage. The
High Court granted an ex parte injunction but later dissolved it after an inter partes
hearing. However, the High Court granted an interim injunction in terms of the wife’s
summons pending the hearing of an appeal to this court.

Priyathaseny v Pegawai Penguatkuasa Agama [2003] 2 MLJ 302

Summary: The first plaintiff, though ethnically a Malay and born a Muslim,
renounced the religion of Islam about five years ago, and adopted Hinduism as her
religion. She changed her name to a Hindu name, and married the second plaintiff,
an ethnic Indian and a lifelong Hindu, and they have two infant children, the third
and fourth plaintiffs. After the birth of her elder child and while carrying her second,
the first plaintiff was arrested, charged for deriding the religion of Islam (for the
actions she took to leave Islam) and for cohabitation outside of lawful Muslim
wedlock with the second plaintiff until a child was born (to wit, the third plaintiff).
The first plaintiff pleaded guilty and was convicted and fined. The first plaintiff
sought declarations from the court under the Federal Constitution that her
continued treatment as a Muslim, and the criminal sanctions imposed or threatened
to be imposed against her despite the fact that she no longer professed the religion
of Islam, was unconstitutional. The second plaintiff went through a formal
conversion to Islam that he said was done under a state of duress as he was advised
that his wife would go to jail unless he went through the formal conversion to Islam.
However, the second plaintiff professed Hinduism, and had never practised the rites
and rituals of Islam. The second plaintiff also sought declaratory relief that he too
was not subjected to Islamic law, as he did not profess the religion of Islam. The first
and second plaintiffs had also decided for the third and fourth infant plaintiffs that
their religion was Hinduism. At the outset, the defendants raised a
preliminary objection on the question of this court’s jurisdiction to hear this
matter. Held: This court was not seized with the jurisdiction to determine this
matter. Although there were various declarations sought for by the plaintiffs
including one on the interpretation of the word ‘profess’, the central and
substantive issue was whether the first plaintiff remained a Muslim despite her so-
called renunciation of the Islamic faith and professing now, the Hindu faith and
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practice. Pegged to this was also the issue of whether the second plaintiff, remained
a Muslim despite the allegation that he was coerced into converting. This issue was
the core subject matter of this application despite the various other declarations
sought for. These matters were quite clearly mattering that fall within the
jurisdiction of the Syariah Court. The jurisdiction of this court was ousted from
determining the merits of this application (see p 308F–H).

Soon Singh v Pertubuhan Kebajikan IslamMalaysia (PERKIM) Kedah & Anor [1999] 1
MLJ 489 followed. Nyonya Tahir @ Wong Ah KiuWong died on 19 January 2006, a
Thursday, at the age of 88 at her home in Taman Indah. When her family went to the
local police office to file a notice of death, the officer on duty was reportedly
confused by the fact that the identity card of the deceased identified her as a Malay
and a Muslim, while her family were Chinese and Buddhist. He later informed his
superior, who contacted the Negeri Sembilan Religious Affairs Department. The
Religious Affairs Department had the Tampin Syariah Court issue an injunction to put
her burial on hold when they found out she was Malay; the Negeri Sembilan Islamic
Affairs Council and Negeri Sembilan Islamic Affairs Department then filed an ex parte
application with the Syariah High Court in Seremban the next day regarding her
burial. The head of the Negeri Sembilan Religious Affairs Department came to her
family's house in person to present the order that she be buried in the Muslim
fashion. However, the court, having heard testimony from her children that she lived
and died as a Buddhist, ruled on the following Monday that Wong was a non-Muslim
when she died, and permitted her family to proceed with Buddhist