The two college students have filed four legal questions to persuade the court to grant them leave for the court to affirm a High Court ruling last year which held they are Hindus, a decision which was overturned by the Court of Appeal last month.
Under the Courts of Judicature Act 1964, leave will be granted only if there are novel constitutional or legal questions of public importance raised for the first time.
One question under the motion filed this evening is whether a Selangor state law, the Administration of the Religion of Islam (Selangor) Enactment 2003, is applicable to determine the religion of an illegitimate child born to parents where one of them is a Muslim.
They also asked if the word “parents” in the enactment referred only to parents within a lawful marriage, based on a holistic interpretation of the enactment.
They cited a Federal Court decision in 2021 declaring that a woman was free to practise Buddhism since she was an illegitimate child.
The applicants asked whether a child can be deemed to be born as a Muslim and presumed to be professing Islam based on a harmonious reading of the Selangor enactments and the Federal Constitution.
The fourth question is whether any federal or state law can be applied to legally declare a person a Muslim, solely by reason of ancestral bloodline.
Last month, the Court of Appeal unanimously ruled that the girls, aged 21 and 22, followed the Islamic religion of their mother since they were born out of wedlock.
A three-member bench chaired by Justice Nazlan Ghazali said the word “parents” in the interpretation of “Muslims” under the Selangor enactment applied to both a Muslim mother or father.
Under the state provision, a child is deemed a Muslim if either or both parents were a Muslim at the time of their birth.
Nazlan said the sisters thereby followed the religion of their mother.
Allowing the appeal by the Selangor Islamic religious council and the national registration department, Nazlan said the civil court had no jurisdiction to determine the religious status of the sisters, who have a Muslim maternal grandmother.
Nazlan said the Federal Constitution stipulates that the civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the shariah courts.
Last year, the Shah Alam High Court declared the sisters as being of the Hindu faith and ordered the registration department to issue the sisters identity cards that reflect their actual religious status.
Their birth certificates stated their faith as Hinduism, following their father’s religion. They also claimed to have been raised as Hindus.
However, the registration department insisted on issuing them with MyKads stating they were Muslims. The department contended the sisters were Muslims by operation of law even though they had never known or met their Muslim maternal grandmother.
The Selangor religious department took the position that the civil court had no jurisdiction to determine the religious status of the sisters, arguing that it was a case of renunciation that could only be decided in the shariah court.
The government and the religious department also contended that the plaintiffs were born Muslims according to the lineage of their biological mother.
The facts in the case are that the sisters’ mother was born out of wedlock from a relationship between Safiah Othman, a Muslim woman who was the sisters’ grandmother, and a Hindu man.
The mother of the sisters, anonymised as AG, was deemed an illegitimate child. AG later married TK in a Hindu religious ceremony, but their marriage was not registered.
The sisters’ motion at the Federal Court was filed this evening by the legal firm Yeoh Mazlina & Partners.