Jenny bt Peter @ Nur Muzdhalifah Abdullah v Director of Jabatan Agama Islam Sarawak & Ors and other appeals [2017] 1 SHLR 20

Jenny bt Peter @ Nur Muzdhalifah Abdullah v Director of Jabatan Agama Islam Sarawak & Ors and other appeals [2017] 1 SHLR 20

Court of Appeal (Putrajaya)

The Conflict of Jurisdiction on Apostasy Cases in Sarawak

Facts

1.    Jenny, Mohd Syafiq, and Salina (‘the Appellants’) each signed a statutory declaration indicating their intention to renounce Islam and notified the First Respondent of their intent.

2.    Jenny was raised as a Christian by her parents, who were both Christians.  She converted to Islam and married a Muslim named Nazri bin Abdul Rahman on July 1, 2002.

3.    However, they divorced on July 26, 2006, and Jenny has since returned to practising Christianity even then, marrying a Christian man.

4.    Mohd Syafiq was born with Chinese and Bidayuh ancestors. On January 24, 1996, he converted to Islam in order to marry Siti Aishah bt Bahadar.  Mohd Shafiq has been a Christian since the death of his wife, Siti Aishah, on September 8, 2007.

5.    Similarly, Salina was not born a Muslim.  She converted to Islam on November 9, 1992, before marrying a Muslim named Shazali bin Saleh on November 26, 1992. They divorced on October 14, 2010. Salina decided to return to Christianity after her divorce.

6.    In response to their application to renounce Islam, JAIS requested the Appellants to attend counselling session as part of the adherence procedure to renounce Islam.

7.    All of the Appellants attended the required sessions and, having completed them, remained steadfast in their decision to renounce Islam. They requested the letter of release from Islam from JAIS but received no response.

8.    Following that, the Appellants being the First to Fourth Respondents, filed an application for leave to file judicial review against the Director of JAIS, Majlis Agama Islam Sarawak, the Director-General of National Registration Malaysia, and the State Government of Sarawak.

Issue 1.    Whether the question of apostasy in Sarawak rests in the Syariah Court or the Civil Court.
Ratios

1.   Whether the question of apostasy in Sarawak rests in the Syariah Court or the Civil Court.

(a)   The Court found no appealable error by the learned JC in dismissing the application on the grounds that the High Court lacked jurisdiction to hear apostasy cases.

(b)   This is reflected in the case of Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 where the key issue before the Supreme Court was whether the deceased had effectively renounced the Islamic faith during his lifetime and it was held that the only forum qualified to answer the question was the Syariah Court.

(c)   The learned counsel then referred the Court to the decision of the Federal Court in Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 where the Federal Court highlighted that Item 1 of the State List stated as follows:

 “The constitution, organization and procedure of Syariah courts continues to provide which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam.”

(d)   Citing Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101, the learned counsel for the Appellants contended that because the Sarawak Syariah Courts Ordinance 2001 contains no provision relating to conversion in or out of Islam, the Sarawak Syariah Court has no jurisdiction to deal with apostasy.

(e)   This is because, despite the Federal Court’s numerous pronouncements that the issue of apostasy is for the Syariah Court to decide, the Appellants had written confirmation from the Syariah Court that the Syariah Court had no jurisdiction to declare that the Appellants were no longer Muslims.

(f)     In contrast, the Court then applied the principle in Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 which was affirmed in Lina Joy stating that by necessary implication, JAIS/the Syariah Court would therefore have the jurisdiction to deal with conversion out of Islam.

(g)   Therefore, even if the Syariah Court was correct in stating that they have no jurisdiction because there are no provisions concerning apostasy, it did not give the Civil High Court jurisdiction over the matter by applying to the principle in Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101.

(h)   To conclude, the Court decided that Article 11 of the Federal Constitution and the additional powers of the High Court stipulated in Schedule 1 of the CJA must be read in the context of Article 121(1A) of the Federal Constitution, where it is now settled by the long line of authorities that whether a person was a Muslim or not, is a matter under the exclusive jurisdiction of the Syariah Court.

Decision 1.    The Court of Appeal dismissed the appeals with no order as to costs.
Key Take Away

1.    Although there are no provisions concerning apostasy, there are provisions concerning conversion to Islam that by necessary implication.

2.    This is reflected in Sections 68 and 69 of the Majlis Islam Sarawak Ordinance, which can be used by the Sarawak Syariah Court to hear cases involving apostasy in Islam.

3.    Regardless, the law itself does not directly confer power to the Shariah Court to deal with any application relating to apostasy, but that does not infer that the Civil Court shall have power over the same matter.

4.    In a nutshell, the Civil High Court lacks the jurisdiction to hear the apostasy case under Article 121(1A) of the Federal Constitution because it is the exclusive jurisdiction of the Syariah Court.

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