MALAYSIA LAW JOURNAL : KES PENGESAHAN AGAMA SI MATI 1

[1991] 3 MLJ 174
Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan & Anor
Case Details:

Malaysia HIGH COURT (KUALA LUMPUR) — CIVIL SUIT NO R1-22-4-91

Judges EUSOFF CHIN J

Date 26 JUNE 1991

Citation [1991] 3 MLJ 174

Catchwords:

Islamic Law — Conversion to Islam — Requirements and evidence of — Whether deceased properly converted to Islam — Whether if properly converted he had renounced the religion of Islam before he died — Administration of Muslim Law Rules 1953, r 10 — Administration of Muslim Law Enactment 1952, ss 2, 4, 11, 146 & 148

Words and Phrases — ‘Forthwith’ — Administration of Muslim Law Enactment 1952 (Selangor), s 148

Words and Phrases — ‘Murtad’

Bahasa Malaysia Summary:

Di dalam kes ini, plaintif telah memohon mendapatkan deklarasi bahawa simati, bekas suaminya, adalah seorang penganut agama Buddha seumur hidup dan pada masa ia meninggal pada 2 Mei 1991. Majlis Ugama Islam Wilayah Persekutuan (‘MUI’) telah mendakwa bahawa simati adalah seorang Islam pada masa ia meninggal. Salinan borang permohonan memeluk agama Islam yang diperakui sah yang dibuat oleh simati pada 24 Disember 1973 telah dikemukakan.

Upacara penukaran kepada agama Islam itu telah dikatakan dijalankan oleh Haji Adam KC Chao tetapi tidak ada ketediberi mengenai tarikh upacara itu atau di mana ia dilakukan dan tidak ada keterangan menunjukkan Haji Adam KC Chao itu adalah seorang ‘pegawai’ seperti yang disebut di dalam borang permohonan itu. Sungguhpun upacara itu dikatakan diadakan pada 24 Disember 1973, laporan upacara itu telah diterima hanya dua bulan kemudian oleh MUI iaitu pada 2 Februari 1974. Plaintif telah memberi keterangan menunjukkan simati telah terus tinggal bersamanya sebagai penganut agama Buddha sehingga ia meninggal. Persoalan-persoalan utama yang timbul dalam kes ini ialah:

(1) sama ada simati, seorang penganut agama Buddha, telah ditukar kepada agama Islam dengan sempurna dalam tahun 1973;
(2) sama ada simati pada masa ia meninggal telah menganuti agama Islam atau tidak; dan
(3) jika ia telah ditukar kepada agama Islam dengan sempurna, sama ada ia telah menolak Islam dan menjadi murtad sebelum ia meninggal.

Diputuskan:
Diputuskan,membenarkan permohonan plaintif:

(1) Keterangan di dalam kes ini tidak mencukupi untuk menunjukkan bahawa penukaran simati kepada agama Islam telah dibuat mengikut peruntukan Enakmen Pentadbiran Undang-Undang Islam 1952 (‘Enakmen itu’) dan kaedah-kaedah yang dibuat di bawahnya. Penukaran simati kepada agama Islam itu telah tidak dilaporkan dengan segera kepada MUI dan tidak ada bukti menunjukkan orang yang mengendali upcara penukaran itu adalah seorang ‘pegawai masjid’. Telah terdapat kegagalan mematuhi peruntukan s 148 Enakmen itu dan k 10 Kaedah-Kaedah Pentadbiran Undang-Undang Islam 1953.

(2) Tidak ada keterangan diberi untuk menunjukkan bahawa penukaran simati kepada agama Islam telah dibuat menurut kehendak-kehendak undang-undang Islam. Adalah tidak mencukupi bagi pihak MUI mengemukakan daftar mualaf atau perakuan Mufti untuk membuktikan bahawa penukaran telah dilakukan, oleh kerana tidak terdapat apa-apa peruntukan di dalam undang-undang bertulis yang memdaftar mualaf itu diterima sebagai bukti muktamad mengenai fakta-fakta yang disebut di dalamnya.

(3) Kelakuan simati semasa hidupnya jelas menunjukkan bahawa ia tidak mengikuti kelakuan yang boleh diharapkan secara munasabah dari seorang yang menganuti dan menagama Islam. Di dalam keadaan seperti itu walaupun dianggapkan simati telah ditukar kepada agama Islam dengan sempurna, adalah perlu bagi MUI mengemukakan keterangan yang membuktikan bahawa sungguhpun kelakuan simati itu menunjukkan bahawa ia bukan seorang Islam dan ia telah murtad, ia telah bertaubat sebelum ia mati. Tidak terdapat keterangan sedemikian di dalam kes ini.

(4) Deklarasi patut diberi bahawa simati ialah seorang penganut agama Buddha semasa ia hidup dan pada masa ia meninggal.]

Judgement
Eusoff Chin J:

Section #1

The main issues to be determined by this court are:

(i) whether the deceased, who was a Buddhist, was properly converted to Islam in 1973;
(ii) whether the deceased, Lee Siew Kee, at the time of his death, was or was not professing the Muslim religion;

(iii) if he had been properly converted to Islam, whether he had renounced the religion of Islam before he died.

The Majlis Ugama Islam Wilayah Persekutuan, Kuala Lumpur (the first defendant) (hereinafter referred to as ‘the Majlis’) alleged that the deceased was a Muslim at the time of his death. The Majlis produced a certified copy of an application form entitled ‘Borang permohonan memeluk agama Islam’ submitted by the deceased, dated 24 December 1973. The deceased was then 37 years old.

At the lower portion of this form appears the following:

Untuk digunakan oheh pegawai yang mengislamkan

(1) Syarat-syarat memeluk ugama Islam, nasihat berkenaan dengan Islam serta doa diberi oleh: Hj Muhammad Adam KC Chao
(2) Diislamkan oleh: Hj Muhammad Adam KC Chao
(3) Saksi-saksi: (1) Hj Ibrahim Yap K/P No: 2652269 tt
(2) Hj Hashim Chin K/P No: 2983398 tt
(4) Nama Islam: Redza Lee
(5) Tarikh diislamkan: ...

TT
.......................................................

Pangkat pegawai yang mengislamkan

Encik Karpal Singh for the plaintiff submitted that there was no date showing when this Islamization took place, or where this ceremony was performed. It is noted that ‘Pangkat pegawai yangmengislamkan’ at the last line in the form is also not stated. Encik Karpal Singh submitted that s 146 of the Administration of Muslim Law Enactment 1952 (‘the Enactment’) applicable at the time of conversion states:

No person shall be converted to the Muslim religion otherwise than in accordance with the provisions of this Enactment or any rules made thereunder.

Section #2

Section 148 of the Enactment states:

Any Muslim who converts any person to the Muslim relishall forthwith report such conversion to the Majlis with all necessary particulars.

The only rule relating to conversion to Islam is r 10 of the Administration of Muslim Law Rules 1953 (Selangor) and it states:

All ‘pegawai mesjid’ shall keep a record of the particulars of all conversions to Islam in their respective ‘kariah’ and shall forward such particulars to the Majlis for registration as soon as the formalities of such conversions are completed.’

‘Pegawai mesjid’ has been defined under s 2 of the Enactment to mean: ‘the nazir, imam, khatib, and bilal of a mosque, if any, for the time being’ and ‘kariah’ and ‘kariah mesjid’ mean ‘the area prescribed by the Majlis in accordance with s 114 of this Enactment within which a mosque is situated’. It would, therefore, appear that when the form is used for the purpose of conversion, the ‘pangkat pegawai yang mengislamkan’ refers to a ‘pegawai mesjid’ or an official of the Majlis.
From the application form submitted by the deceased, I find that the conversion ceremony has to be done by a ‘pegawai’ — see the portion of the form quoted above.

But the affidavits of Dato’ Mohd Aini b Taib and Haji Arifin b Haron for the Majlis do not disclose whether Hj Muhammad Adam KC Chao was in fact a ‘pegawai’ at the time he was alleged to have converted the deceased to Islam. Since r 10 refers to ‘pegawai mesjid’, there must be evidence to show that the person who solemnized the conversion must be either a pegawai mesjid or a pegawai Majlis authorized to perform that function. It is true that it appears from s 147 of the Enactment that any Muslim may solemnize the conversion of any person to Islam, but where a prescribed form is used for that purpose, as is here shown, it is necessary that the evidence must be produced to the court stating that the person solemnizing the conversion is a ‘pegawai’.

It is also the requirement of s 148 of the Enactment that a Muslim who converts a person to Islam shall forthwith report such conversion to the Majlis, with all the necessary particulars. ‘Forthwith’ has been held by the Supreme Court to mean ‘without any delay or loss of time’ — see Nam Bee Rubber Estate Sdn Bhd v Syarikat Tanaman Perak Bhd [1986] 1 MLJ 29 (folld) at p 34. Although the conversion is alleged to have taken place on 24 December 1973, contrary to the provision of s 148 of the Enactment, the report was received nearly two months later by the Majlis on 2 February 1974. There has been a failure to comply with s 148 of the Enactment.

Under Islamic law, the following requirements must be complied with for a valid conversion of a person to Islam:

(a) the person must utter in reasonably intelligible Arabic the two clauses of the affirmation of faith (kalimah syahadah);

(b) at the time of uttering the two clauses of the affirmation of faith the person must be aware that they mean ‘I bear witness that there is no God but Allah and I bear witness that the Prophet Muhammad is the Messenger of Allah’; and

(c) the utterance must be made at the person’s own free will.

These three requirements have been made into statutory law by s 68(1) of the Administration of Islamic Law Enactment 1989 (Selangor) (which has not yet come into force though passed by the Selangor State Assembly and assented to by the DYMM Sultan of Selangor). I agree that when it comes into force, this new law does not apply to Wilayah Persekutuan unless Parliament passes an Act to adopt and apply it to Wilayah Per, or passes similar law. It is referred to here to stress the fact that the State Legislature of Selangor, in its wisdom, had seen it fit (most probably to dispel any doubt or avoid further argument) to incorporate into s 68(1) the requirements of a valid conversion.

For the Majlis to successfully oppose this application, the Majlis must produce evidence to show that the conversion of the deceased to Islam had been done in accordance with the requirements of Islamic law. The Majlis must prove the fact that the process or rite of conversion had been properly performed. In other words, there must be evidence before me to show that the requirements as stated in (a), (b) and (c) above had been complied with by the deceased.

This evidence can be produced by either Hj Muhammad Adam KC Chao, who converted the deceased, or one of the two persons who witnessed the conversion, or by any person who was present at the time the deceased was purported to have been converted to Islam. Such evidence has not been placed before me, and in the absence of such evidence, it is difficult for me to rule (as I am not satisfied) that the conversion to Islam of the deceased had been done or completed in accordance with Islamic law.

I also note that the new Administration of Islamic Law Enactment 1989 (Selangor) contains a provision in s 73 to the effect that the Registrar of Mualaf must not register the conversion of a convert in his register of mualaf unless he is satisfied that the process and rite of conversion had been fulfilled. He is also required to determine the date of conversion.

The production of the register of converts or the Mufti’s certificate by the Majlis is not sufficient proof of any conversion having occurred, unless there is provision in any written law to allow me to accept the register as conclusive proof of the facts stated therein. The existing Administration of Muslim Law Enactment applicable to Wilayah Persekutuan, Kuala Lumpur, does not contain such provision, although I note that such a provision has been inserted as s 74 of the new Administration of Islamic Law Enactment 1989 (Selangor).

On the grounds stated, I make a finding that there is no proper evidence before me to prove that the deceased had been properly converted to Islam on 24 December 1973.

Section #4

The conduct of the deceased after his alleged conversion is relevant, and need to be considered by this court.

I agree with Encik Karpal Singh that the person who really and best knew the deceased well during his lifetime is his widow, the plaintiff. According to the affidavits affirmed by the plaintiff, she married the deceased in 1970 and lived with him till his death on 2 May 1991, as a Buddhist. She was not aware of his purported conversion to Islam in 1973. She said that he was never circumcised. According to the plaintiff, the deceased attended and performed Buddhist religious activities and festivals.

He was a committee member (or towkay) of ‘Nam Hai Goddess of Mercy Temple’, and had he not died, he would have been on that committee until 26 October 1991. He ate non-halal food including pork cooked by his wife. Although it is alleged that he had taken the Muslim name of Redza Lee, he never made any change of his name in his identity card, passport, bank accounts, pension cheques (he retired from Government service on option), and other documents.

After his purported conversion to Islam, he had two children, and their birth certificates contained only the Chinese name of the deceased as the father. When he submitted particulars of his children on entering them into schools, he had put their religion as ‘Buddhist’. All the related documents were produced to the court by the plaintiff. When his mother died in July 1981, the deceased performed religious rites and rituals assowith the funeral and burial which only a Buddhist could participate in. Photographs of the deceased performing these rituals have been produced to the court.

For the Majlis, two office colleagues of the deceased affirmed affidavits to say that they were informed by the deceased that he had converted to Islam in 1973. According to them, the deceased used to mix a lot with other Malay and Muslim staff at his office. The day after the deceased died, one of the deponents of the affidavits, Zainal bin Samad, had gone to the PERKIM office and together with a PERKIM officer went to the funeral parlour to claim the deceased’s body, but was unsuccessful.

The learned Professor Dr Haron Din and his learned colleagues in their book Manusia dan Islam at p 306 stated that a Muslim may renounce his religion by oral declaration or by his conduct amounting to such renunciation.

In Razack v Aga Mahamad Jaffer Bindaneem [1894] LR 21 Ind App 56 (folld) the Privy Council held that in determining whether the marriage of an alleged female convert with a Muslim is valid, the question of conversion must be decided not by an enquiry into the mind of the convert, but by an enquiry into the conformity of her acts to the conduct that may reasonably be expected from a person of her alleged religion.

Section #5

My finding is that the activities of the deceased during his lifetime clearly show that they did not conform to the conduct that may reasonably be expected from a person who professes and practises the Muslim religion. The fact that the deceased had mixed a lot with his Malay and Muslim friends in his office is not sufficient to prove he was a Muslim, because in this country, people of various races and religions do mix freely and closely among themselves.

When delivering this oral judgment in open court, I had indicated to the parties that in the event of an appeal to the Supreme Court, I reserved the right to elaborate or add to this judgment which (since an appeal has been filed to the Supreme Court) I now do. It concerns the issue of ‘murtad’ and ‘taubat’.

‘Murtad’ means a Muslim who renounces his reli(Islam) either by clearly declaring that he is no longer a Muslim or by his conduct which clearly shows that he is not a Muslim. In their book Manusia dan Islam, the authors learned in the religion of Islam, at p 306, quoting a passage from the Quran (Al-Baqarah 218) and another from ‘Riwayat Kebanyakan Ahli Sunah’, stated that in Islam the punishment for a Muslim convicted of an offence of ‘murtad’ is death. However, if he is proven to have been a ‘murtad’ because of his lack of understanding of the true ways of Islam, and having received proper instructions, he repents (or ‘taubat’), he is deemed to have returned to the religion of Islam and would not suffer the death penalty.

It is, therefore, necessary for the first defendant to produce evidence to this court to the effect that (assuming that the deceased had been properly converted to Islam) even if the activities of the deceased would tend to show that he was not a Muslim, he had ‘taubat’ before he died. There is no such evidence before this court.

Therefore on the issues stated at the beginning of this judgment, my findings are, on the evidence:

(i) the deceased had not been properly converted to Islam in 1973;
(ii) the deceased was not a Muslim when he died;
(iii) since he was not a Muslim, the question of his having renounced his religion (Islam) does not arise.

Section #6

For the reasons given, I allow the application of the plaintiff as prayed in paras (1) and (3) of her application, which are:

(i) a declaration that Lee Siew Kee, deceased, was a Buddhist during his lifetime and at the time of his death on 2 May 1991;

(2) an injunction restraining the first defendant from taking or claiming possession of the remains of the deceased or in anyway whatsoever interfering with the delivery to the plaintiff or her possession of the said remains.

As to the prayer contained in para 2 of her application, the second defendant, who is the Director of the General Hospital, Kuala Lumpur, is an agent of the government, and clearly no injunction can be made against him as it is prohibited by s 29(1)(a) of the Government Proceedings Ordinance 1956. In lieu of the injunction prayed for, I make the order declaring that the deceased was a Buddhist at the time of his death on 2 May 1991, and that his widow, the plaintiff, is entitled to the remains of the deceased.

As regards the claim for damages, Encik Karpal Singh in the course of his submission informed me that although the plaintiff and her family are suffering a traumatic experience, she is only interested in getting the remains of the deceased for burial. I therefore make no order on the prayer for damages.

I order costs to be paid by the defendants to the plaintiff.

Plaintiff’s application allowed.

Penghuni Gua : Semuga semua pembaca dan pelajar mendapat menafaat dari paparan kes ini dan mendapat pengajaran darinya. Tq