MOHD SYAFIQ ABDULLAH @ TIONG CHOO TING V. DIRECTOR OF JABATAN AGAMA ISLAM SARAWAK & ORS [2016] 1 SHLR 41

High Court of Kuching (Sarawak)

Jurisdiction of Apostasy Case

2.  He embraced Islam in 1996, at approximately 36 years old, before marrying Siti Aishah bt Bahadar, a Muslim on 13 December 1997.

3.  Unfortunately, his wife passed away on 8 September 2007 after nearly a decade of marriage.

4.  Subsequently, he returned to his previous Christian faith, which he practised with his Chinese family. Further, he underwent Christian baptism at the Anglican Church of Saint Faith’s Church.

5.  The Applicant communicated to the Department of Islamic Affairs of Sarawak of his desire to renounce Islam and revert to Christianity in 2009, two years after his Muslim wife passed away.

6.  In 2010, he participated in a three-day course called ‘Kursus Esq,’ following the prescribed procedures for leaving Islam. However, despite completing the course, the Department of Islamic Affairs of Sarawak declined to issue the certificate required for the Applicant to formally leave Islam.

7.  Then, the Applicant sent two letters to the First Respondent, dated 27 August 2014, and 25 November 2015 respectively, requesting official documents confirming his release from the religion of Islam and his non-Muslim status.

8.  Regrettably, there was no response from the First and Second Respondents.

9.  Therefore, the Applicant applied the leave for a judicial review, seeking to compel the First and Second Respondents to provide the documents confirming his release from the Islam and to request that the National Registration Department (‘NRD’), the Third Respondent to change his name from Mohd Syafiq Abdullah back to his original name, Tiong Choo Ting, as well as to update his religion to Christian on his identity card.

1. Whether the state legislature have the statutory power to grant the power to the Syariah Court to adjudicate the issue of apostasy?
2. Whether the jurisdiction to hear apostasy matters fall within Civil or Syariah Court?

(a)  The Applicant contended that there are two pieces of legislation in Sarawak concerning Islamic matters, i.e. the Syariah Court Ordinance 2001 (Chapter 42 of the Ordinance) and the Majlis Islam Sarawak Ordinance 2001.

(b)  The Applicant submitted that under the Ordinance of Chapter 43, there was no provision allowing the Syariah Court to handle cases related to apostasy or conversion from Islam.

(c)  Similarly, he argued that the Majlis Islam Sarawak Ordinance 2001 (Chapter 41 of the Ordinance) lacks provisions pertaining to apostasy or conversion out of Islam, despite containing provisions relating to –

(i) conversion to Islam in Sections 68 and 69;

(ii) the appointment of the registrar of Muslim converts,

(iii) the responsible registrar to be maintaining a register and issuing certification cards to Muslim converts as provided in Section 70 of Chapter 41 of the Ordinance.

(d)  The Applicant argued that according to Item 1 of the Second List under the Ninth Schedule of the Federal Constitution, there were no specific provisions about ‘apostasy’, in which it suggested that the State Legislative Assembly in Sarawak may not had the jurisdiction to grant the power to Syariah Court to hear apostasy cases since the legislation did not cover such apostasy matters.

(e)  The Applicant filed submitted Affidavit in support No. 2, which included two letters from the Jabatan Kehakiman Syariah Sarawak, dated 10 March 2015 (ATI), and 7 July 2015 (AT3). The application was intended to confirm that the Syariah Court lacked the authority to issue a letter of release for individuals seeking to renounce Islam.

(f)  In regards to the jurisdiction of Syariah Court relating to the conversion of Islam, the Court referred to the Federal Court
case of Lina Joy Iwn Majlis Agama Islam Wilayah Persekutuan dan Iain-Iain [2007] 4 MLJ 585, in which majority decision of the Federal Court in Lina Joy’s case was aligned with the decision reached in me same Court of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489.

(g) In Lina Joy’s case, the Court held that since the Syariah Court has jurisdiction over matters related to converting to Islam, it can be implied that cases involving conversion out of Islam should also fall under the jurisdiction of the same Court. The Federal Court’s judgement at para 15.5 held that-

“…Therefore, the Federal Court opines that it is consistent with logic for the Syariah Court, which has been clearly granted jurisdiction to adjudicate matters related to the acceptance of the Islamic religion, to also, by implication, have jurisdiction over matters pertaining to a Muslim’s departure from the Islamic faith or apostasy.”   [Emphasis Added]

(h)  In the Federal Court’s case of Hj Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah and another appeal [2014] 3 MLJ 757, the Court applied the ratio in Lina Joy’s case and held that it is settled law that in determining whether an individual adheres to the Islamic faith or not falls exclusively within the jurisdiction of the Syariah Court.

(i)  In the Federal Court’s case of Majlis Ugama Islam Pulau Pinang dan Seberang Perai v Shaik Zolkaffily bin Shaik Natar & Ors [2003] 3 MLJ 705, the Court approved the judgment of Abdul Kadir Sulaiman J in Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur [1998] 1 MLJ 681, in which the Court held as follows:

“…The question that may flow from the judgment of Abdul Kadir Sulaiman J, which we agree, would be what happens when a party may not have his remedy expressly stated in the state law pertaining to Muslims? In our view, the answer is not for the courts to legislate and confer jurisdiction to the civil courts but for the state legislature to provide the remedy. The role of the courts is to interpret the laws and whenever necessary to give effect to the purpose or object of the laws enacted by the legislatures.”

(j) The Federal Court in the case of Majlis Ugama Islam Pulau Pinang agreed with Abdul Kadir Sulaiman J’s broader perspective in Md Hakim Lee’s case. The Court further upheld that according to Item 1 in List II of the Ninth Schedule to the Federal Constitution, the jurisdiction lies with the Syariah Court, which has a broader authority over individuals professing the Islamic faith, even in the absence of specific provisions in the relevant law. Article 74 of the Federal Constitution allows the legislature to legislate on such matters. The absence of express provisions in the Act does not confer jurisdiction to the Civil Court.

2.  Whether the jurisdiction to hear apostasy matters fall within Civil or Syariah Court?

(a)  The Court found that it is appropriate for the Applicant’s case to be adjudicated by the Syariah Court as the matter of renouncing Islam pertains to the personal law of individual professing the religion of Islam.

(b) This issue necessitates a substantial consideration of Islamic law and jurisprudence by experts in these fields. Therefore, the most suitable forum to address this matter is the Syariah Court as established in the case of Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1.

(c)  Therefore, the two letters presented by the Applicant from the Jabatan Kehakiman Syariah Sarawak merely indicate the current status concerning the two Sarawak legislations of Chapter 41 and 42 of the Ordinance, which do not have any provisions related to apostasy.

(d)  By referring to the provisions cited earlier, the Court held that the absence of express provisions related to apostasy in these Ordinances does not confer the jurisdiction of such matter to the civil court. In addition, It is important to note that even if the Applicant may not find his remedy in the Syariah Court, it does not confer jurisdiction upon the civil court, as established in the case of Majlis Ugama Islam Pulau Pinang.

1. In Malaysia, the Federal Constitution holds the highest legal authority in the country, and any inconsistency between state laws and the Federal Constitution is resolved in favour of the latter, which means that the Federal Constitution shall prevail.
2. Therefore, in cases where state laws do not expressly address apostasy matters or provide specific provisions for apostates, the Federal Court then has have the authority to interpret federal laws, including the Federal Constitution, to address such matters.