Apostasy cases under Syariah Court

Federal Court dismisses appeals by four wanting to leave Islam, rules it has no jurisdiction to hear their cases

Roman Catholic Archbishop Simon Poh (wearing white robe) being shielded by security personnel from the crowd.

KUCHING: The civil court has no jurisdiction to hear cases of conversion out of Islam because only the Syariah Court can do so, the Federal Court ruled here yesterday.

The apex court also said there are provisions in the Majlis Islam Sarawak Ordinance pertaining to powers of the Sarawak Syariah Court to deal with apostasy matter.

Court of Appeal president Tan Sri Zulkefli Ahmad Makinuddin, who led the 5-man panel of judges at the hearing, said the court unanimously reached the decision to dismiss an appeal by four Sarawakians for the civil court to hear their apostasy cases, and decided that it has no merit to it.

He said the court dismissed the appeal with no order as to cost and the panel unanimously affirmed the earlier decision of the High Court and the Court of Appeal.

He said even though there are no provisions to apostasy, there are provisions on matters of conversion to Islam which imply that the Sarawak Syariah Court has jurisdiction over apostasy.

He said Section 68 and 69 in the Majlis Islam Sarawak Ordinance could be deployed by the Sarawak Syariah Court to hear the matter pertaining to apostasy in Islam.

Other judges in the 5-man panel were Chief Judge of Malaya Justice Tan Sri Ahmad Maarop and Justices Tan Sri Hasan Lah, Tan Sri Jeffrey Tan and Tan Sri Ramly Ali.

On Monday, the court heard submissions from lawyers on whether the Sarawak Syariah Court possessed such powers when it is not expressly stated in the Syariah Court Ordinance 2001, as the question was raised by the four Sarawakians seeking a court order to nullify their status as Muslims, and compel the National Registration Department to recognise them as Christians.

The appellants are Syarifah Nooraffyzza Wan Hosen – a Malay by ethnicity who left the religion of Islam voluntarily and embraced Christianity and Tiong Choo Ting of Chinese-Bidayuh parentage and a Christian who converted to Islam to facilitate his marriage. He was given the Muslim name of Mohd Syafiq Abdullah but decided to return to Christianity after his wife passed away.

Members of the public gather outside the courthouse.

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 and decided to return to Christianity after she divorced.

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 and also decided to return to Christianity after her divorce.

The four jointly sought the Federal Court’s interpretation of the Sarawak Syariah Court Ordinance 2001, and named Sarawak State Islamic Department director, Sarawak Islamic Council, National Registration Department director-general and state government as respondents.

When met outside the court after the proceeding on the appeal cases, state Deputy Attorney-General Safari Ali said: “Although there is no expressed provision, the law is clear within the jurisdiction of the Syariah Court. Section (s) 68, 69 and 70 of Islamic Council Ordinance state there is provision for conversion in Islam and therefore (it can be implied that) there is provision for conversion out.”

“The lower courts were clear in following what had been decided earlier and that was why the Federal Court said there is settled law on matters related to conversion out of Islam. They are empowered under the ordinance. That was the unanimous decision of the five judges,” he added.

Safari was assisted by state legal officers Hisamudin Roslan and Shamsul Bolhassan.

The four appeals were heard together for leave to appeal to the Federal Court. Leave was granted on 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.’

Yesterday’s case before the Federal Court was to hear only the question of jurisdiction and therefore it is not a hearing of the merits of the Appellants’ Application for Judicial Review as stated earlier.

Since the Federal Court answered the above legal question in the affirmative, the four appeals would be dismissed and the appellants have to go back to the Syariah Court to make their application to apostate out of Islam.

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 a mandamus order to compel the Department of Islamic Affairs Sarawak (Jais) director or the State Islamic Council (Mais) to issue the letter of release from the religion of Islam, the appellants are also seeking an mandamus order to compel the National Registration director-general to drop the word ‘Islam’ in their identity cards and/or records and/or amend the particulars of their 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).

Baru, on the other hand, argued 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 versus Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 and the dissenting judgment of the Chief Judge of Sabah and Sarawak in the Lina Joy lawan Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585,” he added.

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 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 the civil High Court has no jurisdiction to hear apostasy cases as decided in the four cases referred above. All appellants appealed to the Court of Appeal.

The Court of Appeal in Syarifah Nooraffyza’s 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 cases, 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.

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