18th October, 2013
KOTA KINABALU: The High Court has granted an application for leave for judicial review of a local businessman against the director of the State National Registration Department (NRD) in regard to the department’s insistence to register his only son as Muslim.
Judge Chew Soo Ho made the decision when the application was up for decision yesterday.
In his judgment, the court among others overruled the objections of the respondent that the application of the applicant are frivolous and vexatious and made prematurely.
The court ruled that the applicant case has merits as Article 12 of the Federal Constitution allowed freedom of religion and the right to determine the faith or religion of a child was his parents, in this case the Buddhist father.
Chew said, the respondent itself was uncertain of the applicant son’s religion and they could not make this decision without consultation of the parents; such unilateral and arbitrary action is subject to judicial review of the courts.
Further he said, the applicant is entitled to state the religion or faith of his son as Buddhist and there is no need for documentary proof to be shown by the father as for certain religions or faiths such as Buddhism there is no need for documentation because “what determines the faith or religion is the practice and not documents.”
Apart from that, the court also pointed out that under the Federal Constitution, the parents determine the religion of the child if the child is below 18-year-old, thus the respondents cannot impose the conditions on the parents as they had done in this case.
The court also said that the facts of this case are distinguished from Lina Joy’s case.
He said, in that case it was a known fact that Lina Joy was a Muslim and she tried to change her religion by executing a statutory declaration. However in this case it was a known fact that the child was not practicing as a Muslim but as a Buddhist.
“Therefore there are merits in this application and the objections of the respondent are overruled,” Judge Chew said.
On April, this year Phuong Hiung Woei, 43, filed an ex-parte application for leave for judicial review naming the Director of National Registration Department as a sole respondent through his counsel, Marcel Jude.
In his application, Phuong sought an order of mandamus to the NRD to issue a birth certificate to his son without designating the latter as Muslim.
He is also seeking an order of certiorari to quash the decision of the NRD set down in his letter dated Feb 1.
Apart from that, Phuong also sought a declaration that the refusal of the NRD to register his son as Buddhist is unconstitutional, unlawful, null and void.
In his affidavit in support, Phuong of Taman Ridgeview, Kepayan Ridge has married Zeliha Bt Abdul Karim and have one child by the name of Phuong Jian Cheng aged nine.
The applicant claimed that his son was issued a birth certificate and subsequently, the respondent re-issued another birth certificate which the columns area was stated that the religion of his son is Islam.
When the applicant discovered this, he wrote to the NRD to protest and cancel the erroneous registration of his son as a muslim but the respondent refused and instead issued a letter dated Feb 1, whereby it instructed the applicant to go to the Syariah Court to obtain the religious status of his son.
According to Phuong, this is impossible because he has always raise his son as Buddhist and not in the Islamic faith.
Phuong further said that the decision of the department is unconstitutional.