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CONVERSION TO ISLAM:

WHICH COURT - CIVIL OR SYARIAH - HAS JURISDICTION?

by

Pawancheek Marican <!--[if !supportFootnotes]--> [1] <!--[endif]--> & Zainur Zakaria <!--[if !supportFootnotes]--> [2] <!--[endif]-->

 THE LEGAL/CONSTITUTIONAL BACKGROUND

 Status of Syariah Courts Prior to Article 121(1A) Amendment 

  1. From independence until 1988, no reference was made to Syariah Courts in the main body of the Constitution, despite the fact that even before the coming of the colonial powers, Islamic law applied in the Malay States. <!--[if !supportFootnotes]--> [3] <!--[endif]--> The learned writer, Harding, <!--[if !supportFootnotes]--> [4] <!--[endif]--> has described "as strange that the Syariah courts, important as they are, receive very little attention in the Constitution, apart from Article 121."

  2. The history of the Syariah Courts since independence shows that many of their decisions have been overturned by the Civil Courts. <!--[if !supportFootnotes]--> [5] <!--[endif]--> Firstly, unsatisfactory drafting of some provisions in the state enactments on administration of Islamic laws is partly responsible for this sad state of affairs. <!--[if !supportFootnotes]--> [6] <!--[endif]--> Secondly, very often, the Civil Courts have put short shrift to arguments made in favour of the Syariah Courts having jurisdiction over any particular matter or that the matter be considered from the point of view of Islamic law. <!--[if !supportFootnotes]--> [7] <!--[endif]-->

  3. <!--[if !supportFootnotes]--> <!--[endif]--> In 1988 (before Article 121(1A) was enacted), the Federal Court delivered a landmark decision on the effect of a Federal statute encroaching upon the legislative competence of the states in the case of Mamat Daud & Ors v Government of Malaysia [1988] 1 MLJ 119. In this case, the accused were charged under section 298(A) of the Penal Code for doing an act "likely to prejudice the unity among persons professing the Islamic religion". They were alleged to have acted as unauthorised bilal, khatib and imam at the Friday prayers in Kuala Trengganu without being so appointed under the Trengganu Administration of Muslim Law Enactment 1955.  The principal issue before the Court was whether section 298A, an amendment to the Penal Code, introduced by Parliament in 1983, was ultra vires article 74 of the Federal Constitution. <!--[if !supportFootnotes]--> [8] <!--[endif]-->

  4. Three judges of the Federal Court found for the accused while two dissented. The Lord President, Tun Salleh Abas, found section 298A a "colourable legislation" and held that "the power to legislate in order to control or stop such practices is given to states as could be seen from art 11 clause 4." Mohamad Azmi SCJ, who decided with the majority, took the  view that "the specified acts" and conduct enumerated in section 298A had nothing to do with "public order" as envisaged by the Federal List; but they are directly concerned with religious matters or affairs ... all of which are reserved expressly for the state legislatures." His Lordship said:

 "... by enacting a law denying Muslim of the defence of honest belief in and honest interpretation of Islamic Law and doctrine, which can only be enacted by the State Legislatures, Parliament has acted beyond its legislative competency."

  1. The Federal Court further held that (i) the state is competent to legislate on the matter because Islamic Law is the sole prerogative of the state and it has the first and primary power to legislate on Islam; and (ii) Article 75 of the Federal Constitution cannot be intended to derogate this right in favour of Parliament. The effect of this decision is that the Syariah Courts' jurisdiction in respect of any subject matter in item 1 of the State List cannot be encroached upon by the civil courts. Thus one legislature cannot trespass on matters which the other legislative body has power to legislate, even though the legislative body had not necessarily legislated on the matter.

 

Introduction of Article 121(1A)

  1. On 10 June 1988, the Constitution (Amendment) Act 1988 was passed by Parliament. It added clause (1A) to article 121 of the Constitution. Article 121 (1A) provides that the High Courts and inferior courts (Sessions and Magistrates Courts) shall have no jurisdiction with respect to matters within the jurisdiction of the Syariah courts.

  2. For a number of years after article 121(1A)  of the Federal Constitution was passed,  its implementation faced difficulty in the civil courts, and Malaysian Muslims felt that the objective behind the constitutional amendment had remained an illusive dream, and that the good wishes of our legislators were still-born and could not be realised until further amendments were made to it. This bad feeling was fuelled by a series of High Court decisions which ruled that by virtue of the Courts of Judicature Act 1964, the Civil Courts still had jurisdiction to hear disputes between Muslims in respect of Islamic family law matters. However, the Supreme Court decision in Mohd Habibullah Mahmood v Faridah Dato Talib [1993] 1 AMR 129 <!--[if !supportFootnotes]--> [9] <!--[endif]--> was to change all that. The new legal scenario was that the status of the Syariah Courts under the Constitution had been enhanced.

  3. Under article 121(1A) of the Constitution, the civil courts have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts. The rationale for this provision was considered in the decision of the Supreme Court in Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1.  In this case, Mohammed Yusof SCJ explained why such a serious issue as apostasy needed consideration from a forum other than the civil courts. His Lordship said (at p 9):

 The present question, in my view cannot be determined by a simple application of facts as has been found by the learned Judicial Commissioner on the basis of veracity and relevancy of evidence according to civil law. Such a serious issue would in my mind, need consideration by eminent jurists who are properly qualified in the field of Islamic jurisprudence. On this view it is imperative that the determination on the question in issue requires substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the Syariah Court.

  1. Subsequent authorities (cases) have shown that for the purpose of interpreting article 121(1A) of the Constitution, the expression “the jurisdiction of the Syariah courts” refer to either (a) the matters which are expressly provided in the legislation on Islam (the restrictive or narrow approach), or (b) the matters which can be implied from the legislation on Islam (the wider approach).

  2. Under this narrow approach, it is necessary to refer to the specific Syariah legislation under state law (or under federal law in the case if the Federal Territories) to interpret article 121(1A). A good example of this interpretation approach is found in the decision of Faiza Thamby Chik J in the case of Majlis Agama Islam, Negeri Sembilan v Hun Mun Weng [1992] 2 MLJ 676 at the Seremban High Court.

  3. In this case, one Nurul Aini bt Abdullah (Nurul) had left the house of her father (the respondent) of her own accord and had gone to the office of the Kadi in Tampin where she had willingly embraced the religion of Islam on 27 May 1992. She was slightly above 18 years of age then and had been registered in the Register of Muslim Converts. On 31 July 1992, she announced at a press conference her wish to leave Islam and return to her original religion, i.e. Buddhism. The appellant (Majlis Agama Islam Negeri Sembilan) applied to the civil court for a writ of habeas corpus against Nurul’s father - who was alleged to have detained her since 16 July 1992 - and directing the person of Nurul to be brought before the court.

  4. High Court judge, Faiza Tamby Chik J, noted that, from the evidence of the Majlis, which were not disputed by Nurul’s father, and from the oral evidence of Nurul herself, it was clear that she had lawfully embraced the religion of Islam willingly. Therefore she was bound by the provisions of the Administration of Islamic law (Negeri Semblan) Enactment 1991. He held that Nurul’s decision to leave the religion of Islam by her affidavit dated 31 July 1992 could not be regarded as final until she herself states her intention to the Majlis and her decision is registered. The court ruled that Nurul remained a Muslim. <!--[if !supportFootnotes]--> [10] <!--[endif]-->

  5. In coming to this decision, the learned judge relied on section 90(3) of the Negeri Sembilan Enactment, which provides:

Seorang Islam, atau seorang saudara baru yang telah memeluk Agama Islam menurut Bahagian ini, dan kemudian memutuskan untuk keluar daripada Agama ini hendaklah melaporkan keputusan tersebut kepada Pendaftar Saudara Baru dan Pendaftar Saudara Baru hendaklah mendaftarkan keputusan tersebut dalam borang dalam borang yang ditetapkan. Sebelum keputusan tersebut dilaporkan dan didaftarkan, dia hendaklah disifatkan masih seorang Islam

  1. A prominent example of the wider approach in the interpretation of article 121 (1A) of the Constitution is found in the judgment of the Federal Court in Soon Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah [1999] 2 AMR 1211. In this case, the Federal Court had to decide whether it was the civil court or the Syariah Court that had jurisdiction to hear a case on apostasy. The Federal Court decided that it was the Syariah Court that had jurisdiction.

  2. In Soon Singh, Federal Court judge Mohamed Dzaiddin FCJ had approached the question by looking at  certain provisions in the State Islamic Enactment and had held that “by necessary implication” the Syariah Court  had jurisdiction in the matter. In his written judgment Mohamed Dzaiddin FCJ explained what he meant by necessary implication:

From the analysis of the State Enactments, it is clear that all State Enactments and the Federal Territories Act contain express provisions vesting the Syariah courts with jurisdiction to deal with conversion to Islam. On the other hand, only some State Enactments expressly confer jurisdiction on the Syariah courts with conversion out of Islam. In this regard we share the view of Hashim Yeop A Sani CJ (Malaya) in Dalip Kaur p 7 that “clear provisions should be incorporated in all State Enactments to avoid difficulties of interpretation by the civil courts,” particularly in view of the new cl (1A) of Article 121 of the Constitution which from 10 June 1988 had taken away the jurisdiction of civil courts in respect of matters within the jurisdiction of the Syariah courts.

Be that as it may, in our opinion, the jurisdiction of the Syariah courts to deal with conversion out of Islam, although not expressly provided in the State Enactments can be read into them by necessary implication from the provisions concerning conversion into Islam. 

It is quite clear to us that the legislative purpose of the State Enactments and the Act is to provide a law concerning the enforcement and administration of Islamic law, the constitution and organisation of the Syariah courts and related matters. Therefore when jurisdiction is expressly conferred on the Syariah courts to adjudicate on matters relating to conversion to Islam, in our opinion, it is logical that matters concerning conversion out of Islam (apostasy) could be read as necessarily implied in and falling within the jurisdiction of the Syariah courts.

In short, it does seem inevitable that since matters on conversion to Islam come under the jurisdiction of the Syariah courts, by implication, conversion out of Islam should also fall within the  jurisdiction of the same courts.”            

  1. Part IX of the Administration of Islamic Law (Federal Territories) Act 1993 provides for conversion to Islam. It contains provisions on the Requirements for Conversion (section 85), Moment of Conversion (section 86), Duties and Obligations of a Muallaf (Muslim convert) (section 87), the Registrar, Register and Registration of Muallaf  (sections 87-89), Certificate of Conversion, Recognition of Muallafs as Muslims (section 91), Determining whether a non-registered person is a Muallaf (section 92), the Offence of giving false information when applying for registration as a Muallaf  (section 93), Power of the Council for the Muslim Religion to make Rules relating to matters in Part IX (section 94), and Capacity to convert into Islam (section 95). 

  2.  Part IX and other parts of statute do not however contain provisions on conversion out of Islam. However, applying the statement of the law by Justice Mohamed Dzaiddin FCJ in Soon Singh (at pp 501-502), it is submitted that since matters on conversion to Islam fall within the jurisdiction of the Syariah courts under Part IX of the  Administration of Islamic Law (Federal Territories) Act, 1993, by implication, conversion out of Islam should also fall within the  jurisdiction of the Syariah Courts.

  3.  The most recent case that relies on the Soon Singh decision is the Court of Appeal decision in Lina Joy v Majlis Agama Islam Wilayah Persekutuan Dan 2 Lagi [2005] 5 AMR 663. The facts of the case are as follows.

  4.  The appellant was born on 8 January 1964 of Malay (Muslim) parents. She was therefore born a Muslim and her name was Azlina binti Jailani. Claiming that she had never believed in Islam, that since 1990 she had believed fully in Christianity and had been attending Mass every Sunday. She claimed that on 11 May 1998 she was baptised and exhibited the certificate of baptism. By an originating summons dated 15 May 2000, when she was thirty-six, she sought in the High Court certain declarations against the Majlis Agama Islam Wilayah Persekutuan (the first respondent) and the Government of Malaysia (the second respondent) on the basis of clause 1 of Article 11 of the Federal Constitution, which guarantees to every person “the right to profess and practise his religion”. She contended that clause gave her absolute freedom to renounce Islam and become a Christian, which could not validly be restricted or controlled by any law, such as the Administration of Islamic Law (Federal Territory Act) 1993, by the Syariah Court or by any other authority. The effect of the declarations, she claimed, would be to uphold her contention and confirm her status as a Christian, so that, she hoped, “her progress in life would no longer be hampered by any uncertainty as to her religion or by any claim that she is a Muslim.”

  5.  As a consequence of the declarations, she also sought an order that the defendants enter in whatever records or registers about her that may be in their possession the fact that she had renounced Islam. She also expressed the problem of deleting the word “Islam” from her identity card, saying that she desired to contract a non-Muslim marriage and set up home and have a family, but so long as her identity card shows that she is a Muslim she would not be able to achieve her desire. What happened was, the National Registration Department (NRD) had refused to accept her application for the deletion of the word “Islam” from her identity card. 

  6. The respondents did not file a reply to the appellant’s affidavit, so that there was no challenge to her averments of fact, such as those relating to her baptism and the problem about her identity card. They instead applied separately for the striking out of her Originating Summons on the ground that it is the Syariah Court, and not the High Court, that has the jurisdiction to decide the issues in the originating summons. In particular, the government contended that the question of renouncing Islam lies solely and absolutely within the jurisdiction of the Syariah Court. The High Court held that only the Syariah Court is competent to determine the question of renunciation of Islam by a Muslim and dismissed her Originating Summons. Following the dismissal of the Originating Summons, the trial judge found the striking out applications to be academic and struck them out.      

  7.  In the course of argument by the counsel for the appellant at the Court of Appeal, the ground of appeal was narrowed to an administrative law question relating to the matter of the appellant’s identity card, that is, whether the NRD was right in law in rejecting the appellant’s application under Regulation 14 of the National Registration Regulations 1990 to have the statement of her religion as “Islam” deleted from her identity card and in requiring a certificate or order from the Syariah Court. The Director-General of the NRD was then added as the third respondent in the appeal, and the parties were given liberty to exchange affidavits only upon the issue as framed.

  8.  The Court of Appeal held that the NRD was not wrong in administrative law in rejecting the appellant’s application for the deletion of the word “Islam” from her identity card on the ground that her renunciation of Islam was not confirmed by the Syariah Court or any other Islamic religious authority.

  9.  One of the arguments raised by counsel for the appellant at the Court of Appeal was that the Federal Court decision in Soon Singh that was relied on by the High Court in this case - was “fundamentally flawed if not given per incuriam.” The presiding judge of the Court of Appeal, Abdul Aziz Mohamad CAJ, disagreed; he was of the view that “the decision of Soon Singh remains authoritative, and in administrative law, in view of that decision, the NRD acted correctly in naming the Syariah Court as the authority on whose word it would accept that the appellant was no longer a Muslim.”

  10.  Another contention of the appellant was that it was unreasonable on the part of the NRD to impose the requirement of an apostasy order of the Syariah Court, because it was impossible for the Syariah Court to obtain such an order as “there is no provision for apostasy in the Administration of Islamic Law (Federal Territories) Act 1993.” The Court of Appeal ruled that it was reluctant to conclude that the Syariah Court would consider it as a bar to making a declaration of apostasy if it accepted, whether on its own or in agreement with Soon Singh, that it nevertheless had jurisdiction to make declarations of apostasy. As to the unwillingness to make a declaration of apostasy, the Court of Appeal said, the appellant had not sought a declaration of apostasy from the Syariah Court, and the Appeal Court was therefore “reluctant to assume, on the knowledge of the Bar Council, that the appellant would be bound to fail in any attempt to obtain a declaration of apostasy from the Syariah Court.”

  11. Abdul Aziz Mohamad CAJ pointed out that the unwillingness of the NRD to accept that the appellant had renounced Islam solely on the basis of her word in the statutory declaration was reasonable bearing in mind that the NRD had specified that it would accept the decision of the Syariah Court as the proper authority. The learned judge explained his reasons for saying that the act of the NRD was reasonable:

 “The question of apostasy of a Muslim, as I have said, is a question of Islamic law. The Islamic law on the question has not been examined in this appeal. For this Court to hold that the unwillingness of the NRD was unreasonable would amount to holding, and to requiring the NRD to accept, that in Islamic law a Muslim may be treated by the world at large as having renounced Islam and as no longer a Muslim when he says that he has renounced Islam. That is something to my mind we cannot do in this appeal. The unwillingness of the NRD does not become unreasonable or any less reasonable if a system that is not within its control makes it difficult for the appellant to obtain the confirmation that it needs.”

  1. Abd Aziz Mohamad CAJ also touched on the sensitivity of the subject of apostasy among the members of the Muslim community. This is a very important aspect of the judgment as non-Muslim leaders and non-Muslim controlled NGO’s seem to regard the issue of apostasy in Islam in a cavalier fashion, full of derision and prejudice. This was what Abd Aziz said:

Renunciation of Islam is generally regarded by the Muslim community as a very grave matter. This is reflected in the very things reported in the newspapers that constituted one of the reasons why the appellant said it was necessary that her right to renounce Islam, and her position as a Muslim, be recognized. The Muslim community regards it as a grave matter not only for the person concerned, in terms of the afterlife, but also for Muslims generally, as they regard it to be their responsibility to save another person from the damnation of apostasy. The incidence of apostasy is therefore a highly sensitive matter among Muslims. Apart from the spiritual aspect, Muslims in this country, where Islam is the official religion, are subject to special laws that no other community is subject to. In particular there are statutory offences that are committable by Muslims as Muslims that are not committable by others. Against that background must be mentioned the fact that whether a person has renounced Islam is a question of Islamic law that is not within the jurisdiction fo the NRD and that the NRD is not equipped or qualified to decide.” 

  1. There is a pattern emerging from appellate court decisions of recent years on the issue of jurisdiction of the Syariah Court under article 121(1A) of the Constitution. Thepattern shows that the civil courts are adopting a wider approach in determining the question of jurisdiction of the Syariah Court to hear matters of Islamic law, including apostasy matters. Although in most states of the Federation there are no specific legislation on apostasy, the wider approach of interpretation makes sense as it will bring about consistent court decisions on the issue of apostasy.

 *****

APPENDIX

1.         The Constitutional Provisions

 The Subject Matters of Islamic Law over which the States (and Parliament in the case of the Federal Territories) can pass laws

 Under item 1 of List II (State List) of Schedule 9 of the Federal Constitution it is provided, inter alia, that the power of the State Legislative Assemblies to enact Islamic laws includes the following subject matters:

 "Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic Law and personal and family law of persons professing the religion of Islam ...

 "creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in  respect of matters included in the Federal List...

 “the control of propagating doctrines and beliefs among persons professing the religion of Islam;

 "the determination of matters of Islamic law and doctrine ... ."

2.         Court Jurisdiction Under the Constitution

 The matters above-referred to are required to be adjudicated before the Syariah Court by virtue of item 1 of the State List, which provides that the Syariah Courts:

  " shall have jurisdiction only over persons professing the religion of Islam and in respect only of any matters included in this paragraph, but shall not have jurisdiction in respect of offences except insofar as conferred by Federal law ...”

3.         Court Jurisdiction Under the State Enactments

 In the Federal Territory, the civil (mal) jurisdiction of the Syariah is found in section 46(2) (b) of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505). Section 46(2) (b) provides:

 “(2)     A Syariah High Court shall -

(b)       In its civil jurisdiction, hear and determine all actions and proceedings in which all parties are Muslims and which relate to -

 (i) - (ix).

 (x)        Other matters in respect of which jurisdiction is conferred by any written law.”            


<!--[endif]-->

<!--[if !supportFootnotes]--> [1] <!--[endif]--> Advocate & Solicitor, High Court of Malaya, LLB Hons, LLM (Malaya).

<!--[if !supportFootnotes]--> [2] <!--[endif]--> Advocate & Solicitor, High Court of Malaya, Barrister-at-Law, Gray’s Inn (London).

<!--[if !supportFootnotes]--> [3] <!--[endif]--> Ahmad Ibrahim and Ahilemah Joned, The Malaysian Legal System (1987) (MLJ), Chapters 1-3.  

<!--[if !supportFootnotes]--> [4] <!--[endif]--> See Andrew Harding, “Law, Government and the Constitution of Malaysia" (MLJ) (1996), p 136. 

<!--[if !supportFootnotes]--> [5] <!--[endif]--> See, for example, Myriam v Mohamed Ariff [1971] 1 MLJ 265; Tengku Mariam v Commissioner of Religious Affairs, Trengganu & Ors [1969] 1 MLJ 10; 1 MLJ 222.

<!--[if !supportFootnotes]--> [6] <!--[endif]--> S 45(6) of the Selangor Administration of Muslim Law Enactment 1952 (now repealed) provides that "nothing in this Enactment contained shall affect the jurisdiction of any civil courts and in the event of any difference or conflict between the decision of a court of Kathi Besar or a Kathi and a civil court acting within its jurisdiction, the decision of the Civil Court shall prevail. Save for some sections, which have been adopted into the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505), the Enactment has been repealed, and there is a new statute for the State of Selangor.” 

<!--[if !supportFootnotes]--> [7] <!--[endif]--> Ainan v Syed Abubakar [1939] MLJ 209; Commissioner for Religious Affairs Trengganu v Tengku Mariam [1970] 1 MLJ 222.

<!--[if !supportFootnotes]--> [8] <!--[endif]--> Article 74 of the Federal Constitution provides Article 74(2) provides: 

Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

<!--[if !supportFootnotes]--> [9] <!--[endif]--> See Salleh Buang, "Historic Judgment on Article 121(1A) of the Federal Constitution', Malaysian Law News, February 1993, p 11; S Jaffer Hussain, "Battle of Jurisdiction: Is it Settled?", Malaysian Law News, May 1993, p 12.

<!--[if !supportFootnotes]--> [10] <!--[endif]--> See also Lim Chan Seng v Pengarah Jabatan Agama Islam Pulau Pinang & Anor [1996] 3 CLJ 231; Ng Wan Chan V Majlis Ugama Islam Wilayah Persekutuan & Anor [1991] 3 MLJ 174

 

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