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PUTRAJAYA: The Federal Court today remitted to the High Court a case of a storekeeper and his three children who are embroiled in a battle over their religion status to determine the dispute of facts over their religion.
Court of Appeal President Tan Sri Md Raus Sharif, leading a five-man panel, ordered the case to be remitted to the Shah Alam High Court for full hearing on the merit of the originating summons.
Justice Md Raus, who presiding over the case with Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinuddin and Federal Court judges Datuk Hashim Yusof, Datuk Suriyadi Halim Omar and Datuk Hasan Lah, made the ruling after the panel declined to answer five constitutional questions that were referred to the apex court for determination.
In a unanimous decision, Justice Md Raus said it was not suitable for the court to determine the questions under Section 84 of the Courts of Judicature Act 1964 as the facts are disputed.
"The case is remitted to the High Court for the court to hear the merit of the originating summons," he said.
On Nov 21 last year, the Court of Appeal dismissed the Government of Malaysia's appeal against the High Court decision to allow Zaina Abidin Hamid alias S. Maniam and his three children to refer legal questions to the Federal Court.
At the outset, before hearing the five constitutional questions, Justice Md Raus said the facts in the affidavit of Zaina Abidin are disputed and the court is of the view that they should go before the High Court judge to swear and establish whether they are Muslims or not.
"The fact of whether they are Muslims or not must be decided first. I am caught on the situation. If the High Court finds them Muslims or otherwise, that is end of the matter," said Justice Md Raus.
Zaina Abidin's lawyer Fahri Azzat said this was a peculiar case as they have confessed that they are no longer Muslims.
Zaina Abidin, 60, and his two sons and daughter, at that time when they were under the age of 18, filed an originating summons at the Shah Alam High Court seeking declaratory relief that they were never Muslims since they have never practised and professed Islam.
In his affidavit, Zaina Abidin said his father converted to Islam for the purpose of marriage but he (the father) continued to live as a Hindu and, as such, he said, he too continued to practice Hindu rituals and customs.
Zaina Abidin claimed that in a deed poll made in early March 1973, he changed his name to S. Maniam and it was published in a government gazette and in 1980, he (Zaina Abidin) registered a non-Muslim marriage and all his three children carried Hindu names.
However, his identity card and other official records carried the Muslim name.
The Government of Malaysia, Selangor State Government and Selangor Islamic Religious Council contended that Zaina Abidin and his family were still bound under the Islamic law because they have not obtained an order from the Syariah Court for permission to leave the religion.
On Sept 27 last year, the Shah Alam High Court allowed Zaina Abidin's application for referral of five legal questions to the Federal Court for its (the Federal Court's) determination.
Among the questions was whether the parents of a child under the age of 18 years have the right to determine the religion of the child pursuant to Article 11 and Article 12 (4) of the Federal Constitution. - Bernama