The Court of Appeal has ordered for a rehearing on the case of Rosliza Ibrahim, who is seeking a court declaration that she is not subject to Islamic law.

In a unanimous decision today, the court ruled that the case is to be remitted back to the High Court in Shah Alam to be heard by a different judge.

Appellate court judge Abang Iskandar Abang Hashim, who chaired the three-member panel, said the mere fact that the case may not succeed, should not be grounds for the High Court to dismiss the case.

The other members of the panel were appellate court judges Zamani Rahim and Zaleha Yusof.

Rosliza, 35, claims to be an illegitimate child of a Muslim father and a Buddhist mother, and that she was raised as a Buddhist by her mother, while her biological father did not take any interest in her welfare.

Speaking to reporters later outside the courtroom, Rosliza’s counsel Aston Paiva explained that when the case was heard before the Shah Alam High Court judge Akhtar Tahir in March, the appellant had had presented acknowledgements from Kuala Lumpur and Selangor Islamic religious authorities stating that they had no record of Rosliza’s late mother having converted to Islam, or having a Muslim marriage, with other supporting documents.

However, the Selangor state government’s legal representatives countered that a Muslim marriage may have still taken place outside of Kuala Lumpur and Selangor, without even laying out the arguments in an affidavit.

Aston said the High Court judge allowed these arguments, which he said amounted to speculation that was never put to the Rosliza for a response.

“That was our biggest argument earlier (today). It is unfair for the High Court judge to speculate all of this without asking her: Do you have evidence from other religious authorities, or do you have evidence that the marriage was contracted outside of Malaysia?

“No evidence. The state government of Selangor never even filed an affidavit. They just came to court and started raising all kinds of assertions like earlier (in court today),” he told reporters.

While lauding the decision, he said he would now write to all Islamic religious authorities in Malaysia to check for records on Rosliza’s mother, as well as to conduct checks with the Immigration Department.

Decision welcomed

In an immediate response, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) welcomed the Court of Appeal's decision.

“Here is a Buddhist woman born out of wedlock, and she wants to live her life out as a citizen obeying the law. The Court of Appeal has given recognition to it, thanks to the learned counsel Aston Paiva, who made very valid points.

“Throughout, evidence was tendered clearly that there is no evidence of marriage between the biological father - who is a Muslim - and the mother, who lived and raised this woman Rozilah as a Buddhist.

“So, the fact that the Court of Appeal has sent this back to the High Court, recognises that the civil courts have the jurisdiction,” said lawyer Philip Koh, who was holding a watching brief on the MCCBCHST’s behalf.

Also present to watch brief were representatives from the Human Rights Commission (Suhakam) and several women’s groups, including Sisters in Islam and the Women’s Aid Organisation.

Besides Aston, Rosliza was also represented by the lawyer Quratul Ain.

Selangor assistant state legal advisor Nik Haizie Azlin Nabidin appeared for the state government, together with legal officer Muhammad Haziq Hashim.