KUCHING: The Federal Court will hear the appeal of four persons who wish to have their conversion out of Islam legally recognised tomorrow.
They are Syarifah Nooraffyzza Wan Hosen – a Malay by ethnicity who left the religion of Islam voluntarily and embraced Christianity and Tiong Choo Ting – a Chinese-Bidayuh of mixed heritage and a Christian who converted to Islam to facilitate his marriage. He was given the Muslim name of Mohd Syafiq Abdullah.
The third person is Salina Jau – a Kayan/Kenyah by ethnicity and a Christian who converted to Islam to facilitate her marriage. She was given the Muslim name of Salina Jau Abdullah.
The fourth person is Jenny Peter – a Melanau by ethnicity and a Christian who converted to Islam to facilitate her marriage. She was given the Muslim name of Nur Muzdhalifah Abdullah.
According to the facts provided by the appellants’ lawyer Baru Bian, all the applications at the High Court are similar; the appellants filed an application for judicial review for a declaration that the appellants are Christians.
Besides seeking for an order of ‘Mandamus’ to compel the Director of Department of Islamic Affairs Sarawak (JAIS)/or Majilis Agama Islam to issue the letter of release from the religion of Islam, the appellants are also seeking an order of ‘Mandamus’ to compel the The Director General of National Registration Malaysia to drop the appellants’ religion Islam in their identity cards and/or records and/or amend the particulars of the appellants’ religion held at the National Registry to that of Christianity.
Their applications were only at the leave stage and objections were raised by the counsels of all the respondents on the ground that the civil High Court has no jurisdiction or power to hear such an application, as the appellants’ application pertain to apostasy issue, which is under the jurisdiction of the Syariah Court, Sarawak.
This argument is based on the interpretation of Article 121(1A) of the Federal Constitution and this argument or submission is supported by three Federal Court Cases and a Supreme Court case namely Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 (Federal Court); Majlis Ugama Islam Pulau Pinang dan Seberang Perai v Shaik Zolkaffily bin Shaik Natar & Ors [2003] 3 MLJ 705 (Supreme Court); Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585; (Federal Court); and Hj Raimi bin Abdullah and anor appeal [2014] 3 MLJ 757, (Federal Court).
“Our argument on the other hand was and is, that the civil High Court has the jurisdiction to hear apostasy cases because the Syariah Court in Sarawak is not clothed with that power to decide on apostasy cases as the Sarawak Syariah Court Ordinance 2001 does not provide for this issue to be dealt with by the Syariah Court.
“Letters from the Syariah Court, Kuching confirmed too that it has no power to deal with apostasy cases. Our argument is supported by one Federal Court case of Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 and the dissenting judgment of the Chief Judge of Sabah and Sarawak in the Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585,” Baru stated.
The case involving Syarifah Nooraffyzza was heard earlier before a High Court judge and the decision refusing leave was given on Jan 5, 2015.
The High Court judge agreed with the argument submitted by the respondents counsels, that is the civil High Court has no jurisdiction to hear apostasy case as decided in the four cases referred to above.
The other three cases involving Mohd Syafiq @ Tiong, Jenny @ Nur Muzdhalifah and Salina Jau were heard together and the decision of the High Court refusing leave was given on Sept 21, 2015.
The High Court judge agreed with the argument submitted by the respondents counsels, that is the civil High Court has no jurisdiction to hear apostasy cases as decided in the four cases referred above. All the Appellants appealed to the Court of Appeal.
The Court of Appeal in Syarifah Nooraffyza case dismissed her appeal and gave judgment on April 19, 2016. The Court of Appeal agreed with the decision of the High Court, which was based on the four cases referred to above.
The Court of Appeal in Mohd Syafiq @ Tiong, Jenny @ Nur Muzdhalifah and Salina Jau, which were heard together, gave their judgment on Aug 17, 2016. The Court of Appeal with a different panel agreed with the decision of the High Court, which was based on the four cases referred above. All the four Appellants appealed to the Federal Court.
The four appeals were heard together for leave to appeal to the Federal Court. Leave was granted on the Feb 9, 2017 with the legal question to be answered by the Federal Court, that is “Whether the Sarawak Syariah Court’s jurisdiction over apostasy matters or conversion out of Islam could be read into the Syariah Court Ordinance 2001 by implication when there is no provision under the Syariah Court Ordinance 2001 concerning conversion into Islam?”
“The Monday hearing before the Federal Court is to hear only this question of jurisdiction. It is not a hearing of the merits of the Appellants’ Application For Judicial Review as stated above.
“If the Federal Court answers the above legal question in the negative on Monday, then the four matters will be reverted back to the High Court to be dealt with on the merits of the application.
“That will be another day. If the Federal Court answers the legal question in the affirmative the appeal would be dismissed and the appellants have to go back to the Syariah Court to make their application to apostate out of Islam,” Baru stated.