Syarifah Nooraffyzza Bt Wan Hosen v Director of Jabatan Agama Islam Sarawak & Ors [2018] 2 MLJ 354

Court of Appeal (Putrajaya)

Conflict of Jurisdiction between the High Court and Syariah Court (Apostasy)

2.   On 3 October 2009, the Appellant embraced Christianity and was baptised at Sarawak.

3.   The Appellant went to the National Registration Department, Kuching to change her identity card (IC) name. However, the National Registration Department informed her that she must obtain a letter of release from Islam from the First Respondent’s office.

4.  On 3 August 2011, the Appellant wrote a letter to the First Respondent’s office to obtain the letter of release from Islam. Nevertheless, the First Respondent did not reply to the Appellant regarding the said release letter.

5.  On 9 July 2012, the Appellant went again to the First Respondent’s office and was informed she is required to renounce Islam at the Syariah Court and attend the counselling sessions, but the session did not materialize.  The Appellant’s lawyer was unsuccessful in requesting a list of criteria to be fulfilled to renounce Islam.

6.  Therefore, the Appellant applied for leave to move judicial review against the Respondents (1) to declare that she was a Christian; (2) to compel the First and/or Second Respondents to issue the letter of release from Islam via order of mandamus, and (3) to compel the Third Respondent to change the Appellant’s name from Syarifah Nooraffyzza bt Wan Hosen to Vanessa Elizabeth.

7.  On 5 January 2015, the learned judge dismissed the Appellant’s application for leave to commence judicial review against the Respondents.

8.  Thus, the Appellant appealed to the Court of Appeal because of her dissatisfaction with the order by the High Court.

9. However, in the appeal, the Respondents submitted that the learned judge correctly dismissed the leave’s application to move for judicial review because the previous apex court had decided that apostasy falls within the jurisdiction of the Syariah Court.

“Judicial power of the Federation

121. (1) There shall be two High Courts of co-ordinate jurisdiction and status, namely—

(a)  one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

(b)   one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

(c)    (Repealed).

(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”

2.  The Court of Appeal decided that the court may not decide the case merits without determining the first issue of whether it has jurisdiction over the subject matter. It is because jurisdiction is a question of law, thus, a court cannot decide the case on its merit if it does not have any jurisdiction on that matter. As a result, the jurisdictional issue must be resolved first since, without it, the court would be forced to lay down its tools.

3.  As a matter of fact, Malaysia has two distinct legal systems that coexist with one another Civil law (Common law) and Syariah law. In addition, there is a dual court system that consists of Civil Courts and the Syariah Courts.

4.  The Syariah Court has the authority to apply Syariah law to Muslims, and Civil Courts have the authority to apply civil law to Muslims and non-Muslims.

5. There are two interpretations of Article 121(1A) of the FC due to the 1998 amendment: the parallel and hierarchical interpretations.

6. Based on the parallel interpretation, the Court of Appeal referred to the case of Latifah bte Mat Zin v Rosmawati bt Sharibun & Anor [2007] 5 MLJ 101.  Abdul Hamid Mohamad FCJ explained that the civil and Syariah Court get their jurisdictions from the statutes of the Federal Constitution, federal law, or state law.  Hence, it means that the Syariah Court is not inferior to Civil Court as both courts formed two separate court systems.

7.  However, the Syariah Court are inferior to the Civil Courts based on hierarchical interpretation as expressed by Mohd Hishamuddin J in Dato’ Kadar Shah bin Tun Sulaiman v Datin Fauziah binti Haron [2008] 7 MLJ 779, it was found in that case that according to the Federal Constitution, the High Court of Malaya and the High Court of Sabah and Sarawak are the superior civil courts. Consequently, the proceedings before the High Court of Malaya or the High Court of Sabah and Sarawak must take precedence over the Syariah Court.

8.  The Appellant argued that because List II (State List) of the Ninth Schedule of the FC failed to include a full and comprehensive apostasy matter under that List, therefore, the Syariah Court is lacked of jurisdiction to hear the apostasy case.  This failure was attributed due to Article 121(1A) of FC being enacted without the consent of Yang di-Pertua Negeri of Sabah and Sarawak.

9.  Nevertheless, Mohamad Dzaiddin FCJ in Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 clarified that the matter of conversion to Islam comes under the Syariah Court’s jurisdiction, therefore, the conversion out of Islam must also fall within the jurisdiction of the same Court. Furthermore, although it does not expressly provides in the State Enactment, the jurisdiction of Syariah Court to deal with the conversion out of Islam can be understood by implication as subjected to the provisions concerning conversion to Islam. Hence, if a statute is unclear, the Court may draw an inference to fill in the obvious gaps to identify and figure out the meaning of the statute.

10. In addition, the Court of Appeal in Jenny bt Peter @ Nur Muzdhalifah Abdullah v Director of Jabatan Agama Islam Sarawak & Ors and Other Appeals [2017] 1 MLJ 340.  It was held that the state laws do not necessarily need to recognise the Syariah Court’s jurisdiction over apostasy matter expressly. Therefore, despite the fact that the Sarawak Syariah Courts Ordinance 2001 did not include a provision regarding apostasy or conversion away from Islam, the Court decided to abide by the Federal Court’s ruling in the case of Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan other cases [2007] 4 MLJ 585.

11.  In this present appeal, the Court had ultimately decided that the Syariah court has exclusive jurisdiction over matters involving apostasy. This is based on the previous apex court’s ruling that the Syariah Court has jurisdiction over apostasy or conversion out of Islam.

Key Take Away