SHEHZAD MALIK BIN MUHAMMAD SARWAR MALIK v 1. ) MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN 2. ) Kerajaan Malaysia

Case Significance

Illustrates that a claim raising a genuinely arguable and fact-sensitive question about religious status, engaging the ab initio versus renunciation distinction from Rosliza's case, is not a plain and obvious case for striking out and should proceed to be determined on full argument.

This High Court decision at Kuala Lumpur concerns applications by two defendants to strike out an originating summons raising a question about the plaintiff's religious status. The plaintiff, who had been born to Muslim parents but was allegedly raised as a Sikh, sought declaratory relief bound up with whether his case was one in which he had never been a Muslim (an ab initio case) or one of renunciation. The first defendant, an Islamic religious council, and the second defendant, the Government, each applied to strike out the originating summons under Order 18 rule 19 of the Rules of Court 2012 as disclosing no reasonable cause of action or as scandalous, frivolous, vexatious or an abuse of process. The Court declined to strike out the claim. Bearing in mind the Federal Court's guidance in Rosliza's case that whether a matter is an ab initio case or a renunciation case requires a careful examination of the factual matrix, the Court held that it was not prepared, on the limited affidavit evidence before it for the purposes of the striking-out applications and given the unusual circumstances presented, to determine at that stage whether this was truly an ab initio case or otherwise. Such a determination required mature consideration of the originating summons with the benefit of full arguments, which meant the claim was not so plainly unsustainable as to justify being struck out summarily. The Court also addressed arguments about which parties had properly been named. Having dismissed both defendants' strike-out applications, the Court left the substantive originating summons to be determined on its merits, and the defendants filed notices of appeal. The decision illustrates the caution with which the striking-out jurisdiction is exercised in cases raising difficult questions of religious status and the boundary between the civil and Syariah jurisdictions: where the answer turns on a factual inquiry that has not yet been undertaken, the just course is to let the claim proceed to a full hearing rather than to foreclose it at the threshold.