Post by lutfi on Nov 19, 2010 2:39:06 GMT -5
State Law and Jurisdictional Issue
There are several issues which were discussed in this topic. Firstly the issue of jurisdiction, whether the Civil Court has jurisdiction to entertain the apostasy case. Secondly the issue of right to apostatize or convert out of Islam. And lastly the issue of whether there is statutory provision(substantive and Procedure which governs the apostasy case. The author has gone through several cases regarding the issues above-mentioned. Here we will try to go into more detail in discussing those cases.
Firstly the case of Dalip Kaur vs Pegawai Polis Daerah Bukit Mertajam & Anor which decided in 1992. In this case the appellant had applied for a declaration that her deceased son at the time of his death on 3 October 1990 was not a Muslim and/or had renounced the Islamic faith and for the consequential declaration that she was entitled to the body of the deceased. The deceased was born a Sikh and brought up in the Sikh faith. He converted to Islam on 1 June 1991 before the District Kadi of Kulim and the conversion was duly registered with the Majlis Agama Islam Kedah in accordance with S 139 of the Administration of Muslim Law Enactment 1962 of Kedah. The appellant had contented that subsequent to the conversion the deceased had by a deed poll on 9 September 1991 renounced the Islamic faith and resumed the practice of the Sikh faith. It was also alleged that the deceased had been rebaptized by a Sikh priest at a Sikh temple and that the deceased had regularly attended the congregation at the Sikh temple. It was also contended that the deceased continued to eat pork and had not been circumcized.
There was evidence that the deceased was engaged to be married to a Muslim girl and that the marriage was scheduled to take place on 25 November 1991. At the trial before the High Court, the learned judicial commissioner found that the signature on the deed poll was not that of the deceased and he also rejected the evidence of the Sikh priest and that of the deceased's brother with regard to the rebaptism and the congregation at the Sikh temple. He held that the deceased was a Muslim at the time of his death. The appellant appealed. At the hearing of the appeal, the Supreme Court remitted the case to the High Court for the learned judicial commissioner to refer certain questions of Islamic law that arose to the Fatwa Committee of Kedah. This was done and after receiving the fatwa the learned judicial commissioner confirmed his earlier findings and decision. The appellant appealed.
The substantial issue in the appeal stage is whether the court has the jurisdiction to determine whether a person is Muslim or has renounced Islam before his death. The court opined that this issue cannot be determined by a simple application of facts on the basis of veracity and relevancy of evidence according to civil law. Such a serious issue would, to judge 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 of 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, not the present court.
Secondly the case of Soon Singh a/l Bikar Singh vs Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor which decided in 1999. The appellant -- who was brought up as a Sikh -- converted to Islam without the knowledge and consent of his widowed mother while he was still a minor. Upon reaching 21 years of age, he went through a baptism ceremony into the Sikh faith, thereby renouncing Islam. He then executed a deed poll in which he declared unequivocally that he was a Sikh. Subsequently, he filed an originating summons in the Kuala Lumpur High Court seeking a declaration that he was no longer a Muslim. Counsel for the Jabatan Agama Islam Kedah raised a preliminary objection against the application contending that the High Court had no jurisdiction as the matter came under the jurisdiction of the syariah courts. The learned High Court judge upheld the objection and dismissed the application. The appellant appealed.
The issue in the appeal was firstly whether the High Court had jurisdiction to hear the appellant's application since there was no express provision in the Kedah Administration of Muslim Law Enactment 1962 conferring jurisdiction on the Shariah court. And secondly whether the appellant's conversion to Islam while a minor and without the knowledge of his mother was invalid; and third issue is whether by virtue of Art 11(1) of the Federal Constitution, the appellant had an unfettered constitutional right to choose his religion and to practice it and such right could not be disputed or infringed.
For the first issue, the court decided that the jurisdiction of the Shariah courts to deal with conversions out of Islam, although not expressly provided for in some State Enactments, can be read into those enactments by implication derived from the provisions concerning conversion into Islam. It is 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 under the jurisdiction of the same courts. Thus, the appellant's application for a declaration that he was no longer a Muslim came within the jurisdiction of the Shariah, not the High Court(civil). For the second issue the court opined that the question of whether the appellant's conversions to Islam while a minor was valid or not was not a relevant issue in the appeal. There was no evidence that the appellant ever challenged his conversion to Islam after he reached 18 years of age. In the circumstances, the conclusion that the appellant's conversion to Islam was made voluntarily was amply justified. For the last issue the court held that since the High Court judge had not made any ruling or declaration to the effect that the appellant was still a Muslim, the question of an infringement of Article 11(1) of the Federal Constitution did not arise. The appellant had to wait for the decision of his principal application before he could raise the constitutional issue under Art 11(1) of the Federal Constitution. Alternatively, the appellant could file a separate action seeking a declaration that his conversion to Islam infringed article 11(1) of the federal constitution.
Thirdly the case of Daud bin Mamat & Ors v Majlis Agama Islam & Anor [2001] 2 MLJ 390. In this case the plaintiffs who are of Kelantanese descent, of Malay parentage were at the initial stages convicted and sentenced to jail for heresay. Appeals were filed but to no avail, except that the Shariah Court of Appeal had modified the sentences, in that the imprisonment orders were set aside and the plaintiffs were required to appear at the kadi's office every month for three years, whereupon they were required to declare their regrets in line with Islamic tenets. The plaintiffs had failed to adhere to these new instructions, resulting in fresh charges being preferred against them ('the first charges'). The matter culminated in their convictions and imprisonment. The plaintiffs did not file any appeals.
On 12 November 2000, the plaintiffs informed the court that with effect from 16 August 1998, they had already apostatized. Founded upon this confession, they were charged for offences pursuant to S. 102(3) of the Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994 ('the second charges'). The second charges were still pending.
The plaintiffs then filed four originating summons in the High Court of Malaya at Kelantan praying for several declarations, inter alia, the right to profess and practise their religion of choice. The premise of their prayers, inter alia, was Art 11(1) of the Federal Constitution. They also alleged that as they had apostatized, the Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994 which provided the powers for the Shariah Court, to decide whether they had indeed left the religion of Islam, was henceforth inapplicable to them.
The substantial issues in this case were whether the plaintiffs or the matter affecting the rights of the plaintiffs fell within the jurisdiction of the High Court of Malaya or the Shariah court and whether article 11(1) of the Federal Constitution, adverted to was applicable in the circumstances of the case.
For the first issue the court decided that since plaintiffs have not been confirmed as having apostatized, in accordance with procedures laid down by the Section 102(2) Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994, they thus are deemed to be Muslims and hence constitutionally and statutorily subject to the jurisdiction of the Shariah court (s 102(2)). That being so, the High Court of Malaya will be powerless to adjudge on the matters brought by them as required by article 121(1A) of the Federal Constitution. In other word as the plaintiffs were yet to be found guilty of the second charges of apostasy, what with the deeming provision available, for all intents and purposes, the plaintiffs were still Muslims. That being so, the plaintiffs being legally Muslims would still remain within the jurisdiction of the Shariah court, and thus outside the High Court jurisdictional purview.
And for the second issue the court decided that the issue of the plaintiffs having been prevented from practicing their religion of choice really did not exist because in fact the complaints actually revolved around the issue of their right to apostate. It was undisputed that the plaintiffs had voluntarily declared themselves as having left the Islamic faith. How could their constitutional rights to profess and practice their supposed religion of choice have been compromised or infringed, when their actions indicated otherwise? The act of exiting from a religion was certainly not a religion, or could be equated with the right 'to profess and practice' their religion. To seriously accept that exiting from a religion may be equated to the latter two interpretations, would stretch the scope of Article 11(1) of the Federal Constitution to ridiculous heights, and rebel against the cannon of construction. Hence, the contention of the plaintiffs that their rights pursuant to Art 11(1) of the Federal Constitution had been infringed was rejected by the court.
Besides, the fourth case to be perused is Kamariah bte Ali & Anor vs Majlis Agama Islam dan Adat Melayu Terengganu & Anor [2006] 5 MLJ 470. In this case, the officers of the Department of Religious Affairs Terengganu with the help of the police had carried out a raid at the 'Ayah Pin' village in the District of Besut, Terengganu, on 25 July 2005 and arrested many villagers including both the plaintiffs in this application. They were charged under the Criminal Offences (Takzir) Enactment (Terengganu) 2001 at the Shariah High Court of Kuala Terengganu. They were subsequently released on bail pending hearing of their case in the Shariah High Court of Kuala Terengganu. The plaintiffs filed in the present court an application for several declarations.
The issues in this case among others are whether the right to embrace a religion under art 11(1) of the Federal Constitution includes the right of a Muslim who has reached the age of majority to renounce his faith and if this is so, whether the law and/or the act of any authority limiting or imposing other restrictions on the right of a Muslim who has attained the age of majority to renounce his faith is inconsistent with art 11(1) of the Federal Constitution and is therefore void.
For the first issue the court opined that the question whether the plaintiffs who were Muslim and thereafter declared to have renounced Islam is a matter within the jurisdiction of the Shariah Court and that the Civil Court does not have the jurisdiction on the said matter, is consistent with the provision of the article 121(1A) of the Federal Constitution. It is clear that there are special provisions in the Terengganu Enactments that confers jurisdiction on the Shariah court to determine whether a person is no longer a Muslim or has become an apostate. In such circumstances, the Civil Court ought not to interfere in matters which lie exclusively within the jurisdiction of the Shariah court. Regarding the second issue, the court stressed that the existence of the Shariah Court Enactment (Terengganu) 2001 is not meant to restrict Muslims from renouncing their faith, because this would definitely be inconsistent with Article 11 of the Federal Constitution. On the contrary, the existence of the said Enactment is to play its role as a forum that has been conferred jurisdiction by the Federal Constitution to administer Muslim personal and family law in the state of Terengganu, inclusive of applications by those who intend to renounce the faith of Islam.
Besides the quite recent case encountering apostasy is the case of Lina Joy vs Majlis Agama Islam Wilayah Persekutuan & Anor.[2007] 4 MLJ 585. In this case the appellant was a Malay woman born on 8 January 1964. She was brought up as Muslim by her family and her given name was Azlina bte Jailani. On 21 February 1997 she applied to the National Registration Department ('NRD') ('the first application') to change her name to Lina Lelani. The reason she gave in her statutory declaration to support the application was that she had renounced Islam for Christianity and that she intended to marry a Christian. Her application for name change was rejected by the NRD without any reason being given on 11 August 1997. However, she made a second application for name change but this time to Lina Joy on 15 March 1999 ('the second application'). In accordance with sub-reg (1) of 14 of the National Registration Regulations 1990 ('the Regulations'), she again submitted a statutory declaration and stated that the reason for name change was her conversion to Christianity. According to her, she received no reply and when she went to enquire about her second application in July 1999 she was told by an officer at the NRD office in Petaling Jaya that since her identity card did not state her religion, to avoid any difficulty in processing her application she should not mention conversion as the reason for name change. The appellant asserted that at that time it was not known to the appellant then nor was she informed by NRD that the Regulations would shortly be amended and that her change of name alone would be insufficient for her purposes. The amendment that was introduced shortly was to make it a requirement that in the identity cards of Muslims the religion must be stated. She brought the case to seek the declaratory orders because she said that she entertained fear that action would be taken against her by the religious authorities. She lost and appealed but gets the same result. Finally she appealed at the Federal court.
Among the substantial issue here is whether Soon Singh a/l Bikar Singh lawan Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 was rightly decided when it adopted the implied jurisdiction theory propounded in Md Hakim Lee v Majlis Agama [1998] 1 MLJ 681 in preference to Ng Wan Chan v Majlis Agama (No 2) [1991] 3 MLJ 487 and Lim Chang Seng v Pengarah Jabatan Agama Islam [1996] 3 CLJ 231 which declared that unless an express jurisdiction was conferred on the Shariah court, the civil courts will retain their jurisdiction. Regarding this issue the court is in opinion that the case of Soon Singh clearly showed that the apostast matter was within the jurisdiction of the Shariah court. And Item 1, Second List, Ninth Schedule of the Federal Constitution showed that the Islamic law was on of the matters that was in item 1 and when read together with the case of Dalip Kaur thus it was obvious that the apostasy matter was a matter relating to Islamic law and it was clear that it was within the jurisdiction of the Shariah court and due to art 11 of the Federal Constitution, thus the civil courts could not interfere in this matter.
We want to take note here that another main issue in this case is relating to Article 11 of the Federal Constitution. The court held that It was clear that in article 11 there was usage of the words '.....right to profess and practice his religion....' The words 'has the right' was applicable to 'profess' and also 'practise' and this was stressed in Kamariah bte Ali lwn Kerajaan Negeri Kelantan, Malaysia [2002] 3 MLJ 657; Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 and hereby followed. Islam is not only a collection of dogma and rituals but it is also a complete way of life comprising of all kinds of human, individual or public, legal, political, economic, social, cultural or judicial activities. And when reading article 11(1), 74(2) and item 1 in second list of the Ninth Schedule of the Federal Constitution it was obvious that Islam among others included of Islamic law. Hence, if a Muslim intends to renounce from Islam, he is actually exercising his rights in the Shariah law context which has it own jurisprudence relating to apostasy. The conduct of the NRD officer was only to determine that the appellant was no longer Islam as specified in Islam. Hence, such act could not be said to be contrary to article 11(1) which itself provides the requirement to comply with the conditions of the religion before she had renounce Islam.
Procedural Requirement
The author stressed that even though the issue on jurisdiction over apostasy is quite settled, but the saga remains as there is no standardized legislation governing apostasy in state level. In fact only several states have legislation and the most comprehensive one is Negeri Sembilan which it details out the procedures on covert in and out of Islam. However this rule only governs who is still alive.
Whereby, for the dead person, it is more complicated to encounter it. The court has to look at the evidence in determining the person religious status at the time of his death. In Re Permohonan Pengistiharan Status Agama Si Mati Nyonya Binti Tahir, there is cogent evidence to show that the Deceased was not a Muslim at the time of her death. Therefore the court declares as such.
In contrast, in Moorthy’s case, the deceased was declared as aMuslim at the time of his death since no cogent proof to prove otherwise. Even there is affirmation of oath and registration record which can prove that the deceases was a Muslim at the time of his death.
Besides in case of Re Permohonan Keluar islam Muhamad Ramzan Maniarason, Pahang Shariah Court has applied the deleted old provision regarding the conversion out of Islam since it was not contrary to the new one. Based on the old one, the court rejected the application to convert out of Islam since the application was not supported by the cogent evidence as required by the deleted old provision. Like author we also agree with the judge approach in this case as it can curb apostasy problem.
Conclusion
The author opines that there is the need to have a comprehensive legislation governing the conversion out of Islam like Negeri Sembilan’s Enactment to avoid conflict. We agree with the author but we think we have to have stricter procedure for the apostasy such as those who convert out has to undergo counseling class for a longer period in order to make them repent. Besides they should be asked to undertake to not persuade others and they also must state most reasonanle reason in application, otherwise the court must strictly reject the application. This must be specified in the provision mandatorily. The provision and court can not simply permit others to convert out of Islam as it will open the floodgate for the apostasy.
There are several issues which were discussed in this topic. Firstly the issue of jurisdiction, whether the Civil Court has jurisdiction to entertain the apostasy case. Secondly the issue of right to apostatize or convert out of Islam. And lastly the issue of whether there is statutory provision(substantive and Procedure which governs the apostasy case. The author has gone through several cases regarding the issues above-mentioned. Here we will try to go into more detail in discussing those cases.
Firstly the case of Dalip Kaur vs Pegawai Polis Daerah Bukit Mertajam & Anor which decided in 1992. In this case the appellant had applied for a declaration that her deceased son at the time of his death on 3 October 1990 was not a Muslim and/or had renounced the Islamic faith and for the consequential declaration that she was entitled to the body of the deceased. The deceased was born a Sikh and brought up in the Sikh faith. He converted to Islam on 1 June 1991 before the District Kadi of Kulim and the conversion was duly registered with the Majlis Agama Islam Kedah in accordance with S 139 of the Administration of Muslim Law Enactment 1962 of Kedah. The appellant had contented that subsequent to the conversion the deceased had by a deed poll on 9 September 1991 renounced the Islamic faith and resumed the practice of the Sikh faith. It was also alleged that the deceased had been rebaptized by a Sikh priest at a Sikh temple and that the deceased had regularly attended the congregation at the Sikh temple. It was also contended that the deceased continued to eat pork and had not been circumcized.
There was evidence that the deceased was engaged to be married to a Muslim girl and that the marriage was scheduled to take place on 25 November 1991. At the trial before the High Court, the learned judicial commissioner found that the signature on the deed poll was not that of the deceased and he also rejected the evidence of the Sikh priest and that of the deceased's brother with regard to the rebaptism and the congregation at the Sikh temple. He held that the deceased was a Muslim at the time of his death. The appellant appealed. At the hearing of the appeal, the Supreme Court remitted the case to the High Court for the learned judicial commissioner to refer certain questions of Islamic law that arose to the Fatwa Committee of Kedah. This was done and after receiving the fatwa the learned judicial commissioner confirmed his earlier findings and decision. The appellant appealed.
The substantial issue in the appeal stage is whether the court has the jurisdiction to determine whether a person is Muslim or has renounced Islam before his death. The court opined that this issue cannot be determined by a simple application of facts on the basis of veracity and relevancy of evidence according to civil law. Such a serious issue would, to judge 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 of 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, not the present court.
Secondly the case of Soon Singh a/l Bikar Singh vs Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor which decided in 1999. The appellant -- who was brought up as a Sikh -- converted to Islam without the knowledge and consent of his widowed mother while he was still a minor. Upon reaching 21 years of age, he went through a baptism ceremony into the Sikh faith, thereby renouncing Islam. He then executed a deed poll in which he declared unequivocally that he was a Sikh. Subsequently, he filed an originating summons in the Kuala Lumpur High Court seeking a declaration that he was no longer a Muslim. Counsel for the Jabatan Agama Islam Kedah raised a preliminary objection against the application contending that the High Court had no jurisdiction as the matter came under the jurisdiction of the syariah courts. The learned High Court judge upheld the objection and dismissed the application. The appellant appealed.
The issue in the appeal was firstly whether the High Court had jurisdiction to hear the appellant's application since there was no express provision in the Kedah Administration of Muslim Law Enactment 1962 conferring jurisdiction on the Shariah court. And secondly whether the appellant's conversion to Islam while a minor and without the knowledge of his mother was invalid; and third issue is whether by virtue of Art 11(1) of the Federal Constitution, the appellant had an unfettered constitutional right to choose his religion and to practice it and such right could not be disputed or infringed.
For the first issue, the court decided that the jurisdiction of the Shariah courts to deal with conversions out of Islam, although not expressly provided for in some State Enactments, can be read into those enactments by implication derived from the provisions concerning conversion into Islam. It is 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 under the jurisdiction of the same courts. Thus, the appellant's application for a declaration that he was no longer a Muslim came within the jurisdiction of the Shariah, not the High Court(civil). For the second issue the court opined that the question of whether the appellant's conversions to Islam while a minor was valid or not was not a relevant issue in the appeal. There was no evidence that the appellant ever challenged his conversion to Islam after he reached 18 years of age. In the circumstances, the conclusion that the appellant's conversion to Islam was made voluntarily was amply justified. For the last issue the court held that since the High Court judge had not made any ruling or declaration to the effect that the appellant was still a Muslim, the question of an infringement of Article 11(1) of the Federal Constitution did not arise. The appellant had to wait for the decision of his principal application before he could raise the constitutional issue under Art 11(1) of the Federal Constitution. Alternatively, the appellant could file a separate action seeking a declaration that his conversion to Islam infringed article 11(1) of the federal constitution.
Thirdly the case of Daud bin Mamat & Ors v Majlis Agama Islam & Anor [2001] 2 MLJ 390. In this case the plaintiffs who are of Kelantanese descent, of Malay parentage were at the initial stages convicted and sentenced to jail for heresay. Appeals were filed but to no avail, except that the Shariah Court of Appeal had modified the sentences, in that the imprisonment orders were set aside and the plaintiffs were required to appear at the kadi's office every month for three years, whereupon they were required to declare their regrets in line with Islamic tenets. The plaintiffs had failed to adhere to these new instructions, resulting in fresh charges being preferred against them ('the first charges'). The matter culminated in their convictions and imprisonment. The plaintiffs did not file any appeals.
On 12 November 2000, the plaintiffs informed the court that with effect from 16 August 1998, they had already apostatized. Founded upon this confession, they were charged for offences pursuant to S. 102(3) of the Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994 ('the second charges'). The second charges were still pending.
The plaintiffs then filed four originating summons in the High Court of Malaya at Kelantan praying for several declarations, inter alia, the right to profess and practise their religion of choice. The premise of their prayers, inter alia, was Art 11(1) of the Federal Constitution. They also alleged that as they had apostatized, the Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994 which provided the powers for the Shariah Court, to decide whether they had indeed left the religion of Islam, was henceforth inapplicable to them.
The substantial issues in this case were whether the plaintiffs or the matter affecting the rights of the plaintiffs fell within the jurisdiction of the High Court of Malaya or the Shariah court and whether article 11(1) of the Federal Constitution, adverted to was applicable in the circumstances of the case.
For the first issue the court decided that since plaintiffs have not been confirmed as having apostatized, in accordance with procedures laid down by the Section 102(2) Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994, they thus are deemed to be Muslims and hence constitutionally and statutorily subject to the jurisdiction of the Shariah court (s 102(2)). That being so, the High Court of Malaya will be powerless to adjudge on the matters brought by them as required by article 121(1A) of the Federal Constitution. In other word as the plaintiffs were yet to be found guilty of the second charges of apostasy, what with the deeming provision available, for all intents and purposes, the plaintiffs were still Muslims. That being so, the plaintiffs being legally Muslims would still remain within the jurisdiction of the Shariah court, and thus outside the High Court jurisdictional purview.
And for the second issue the court decided that the issue of the plaintiffs having been prevented from practicing their religion of choice really did not exist because in fact the complaints actually revolved around the issue of their right to apostate. It was undisputed that the plaintiffs had voluntarily declared themselves as having left the Islamic faith. How could their constitutional rights to profess and practice their supposed religion of choice have been compromised or infringed, when their actions indicated otherwise? The act of exiting from a religion was certainly not a religion, or could be equated with the right 'to profess and practice' their religion. To seriously accept that exiting from a religion may be equated to the latter two interpretations, would stretch the scope of Article 11(1) of the Federal Constitution to ridiculous heights, and rebel against the cannon of construction. Hence, the contention of the plaintiffs that their rights pursuant to Art 11(1) of the Federal Constitution had been infringed was rejected by the court.
Besides, the fourth case to be perused is Kamariah bte Ali & Anor vs Majlis Agama Islam dan Adat Melayu Terengganu & Anor [2006] 5 MLJ 470. In this case, the officers of the Department of Religious Affairs Terengganu with the help of the police had carried out a raid at the 'Ayah Pin' village in the District of Besut, Terengganu, on 25 July 2005 and arrested many villagers including both the plaintiffs in this application. They were charged under the Criminal Offences (Takzir) Enactment (Terengganu) 2001 at the Shariah High Court of Kuala Terengganu. They were subsequently released on bail pending hearing of their case in the Shariah High Court of Kuala Terengganu. The plaintiffs filed in the present court an application for several declarations.
The issues in this case among others are whether the right to embrace a religion under art 11(1) of the Federal Constitution includes the right of a Muslim who has reached the age of majority to renounce his faith and if this is so, whether the law and/or the act of any authority limiting or imposing other restrictions on the right of a Muslim who has attained the age of majority to renounce his faith is inconsistent with art 11(1) of the Federal Constitution and is therefore void.
For the first issue the court opined that the question whether the plaintiffs who were Muslim and thereafter declared to have renounced Islam is a matter within the jurisdiction of the Shariah Court and that the Civil Court does not have the jurisdiction on the said matter, is consistent with the provision of the article 121(1A) of the Federal Constitution. It is clear that there are special provisions in the Terengganu Enactments that confers jurisdiction on the Shariah court to determine whether a person is no longer a Muslim or has become an apostate. In such circumstances, the Civil Court ought not to interfere in matters which lie exclusively within the jurisdiction of the Shariah court. Regarding the second issue, the court stressed that the existence of the Shariah Court Enactment (Terengganu) 2001 is not meant to restrict Muslims from renouncing their faith, because this would definitely be inconsistent with Article 11 of the Federal Constitution. On the contrary, the existence of the said Enactment is to play its role as a forum that has been conferred jurisdiction by the Federal Constitution to administer Muslim personal and family law in the state of Terengganu, inclusive of applications by those who intend to renounce the faith of Islam.
Besides the quite recent case encountering apostasy is the case of Lina Joy vs Majlis Agama Islam Wilayah Persekutuan & Anor.[2007] 4 MLJ 585. In this case the appellant was a Malay woman born on 8 January 1964. She was brought up as Muslim by her family and her given name was Azlina bte Jailani. On 21 February 1997 she applied to the National Registration Department ('NRD') ('the first application') to change her name to Lina Lelani. The reason she gave in her statutory declaration to support the application was that she had renounced Islam for Christianity and that she intended to marry a Christian. Her application for name change was rejected by the NRD without any reason being given on 11 August 1997. However, she made a second application for name change but this time to Lina Joy on 15 March 1999 ('the second application'). In accordance with sub-reg (1) of 14 of the National Registration Regulations 1990 ('the Regulations'), she again submitted a statutory declaration and stated that the reason for name change was her conversion to Christianity. According to her, she received no reply and when she went to enquire about her second application in July 1999 she was told by an officer at the NRD office in Petaling Jaya that since her identity card did not state her religion, to avoid any difficulty in processing her application she should not mention conversion as the reason for name change. The appellant asserted that at that time it was not known to the appellant then nor was she informed by NRD that the Regulations would shortly be amended and that her change of name alone would be insufficient for her purposes. The amendment that was introduced shortly was to make it a requirement that in the identity cards of Muslims the religion must be stated. She brought the case to seek the declaratory orders because she said that she entertained fear that action would be taken against her by the religious authorities. She lost and appealed but gets the same result. Finally she appealed at the Federal court.
Among the substantial issue here is whether Soon Singh a/l Bikar Singh lawan Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 was rightly decided when it adopted the implied jurisdiction theory propounded in Md Hakim Lee v Majlis Agama [1998] 1 MLJ 681 in preference to Ng Wan Chan v Majlis Agama (No 2) [1991] 3 MLJ 487 and Lim Chang Seng v Pengarah Jabatan Agama Islam [1996] 3 CLJ 231 which declared that unless an express jurisdiction was conferred on the Shariah court, the civil courts will retain their jurisdiction. Regarding this issue the court is in opinion that the case of Soon Singh clearly showed that the apostast matter was within the jurisdiction of the Shariah court. And Item 1, Second List, Ninth Schedule of the Federal Constitution showed that the Islamic law was on of the matters that was in item 1 and when read together with the case of Dalip Kaur thus it was obvious that the apostasy matter was a matter relating to Islamic law and it was clear that it was within the jurisdiction of the Shariah court and due to art 11 of the Federal Constitution, thus the civil courts could not interfere in this matter.
We want to take note here that another main issue in this case is relating to Article 11 of the Federal Constitution. The court held that It was clear that in article 11 there was usage of the words '.....right to profess and practice his religion....' The words 'has the right' was applicable to 'profess' and also 'practise' and this was stressed in Kamariah bte Ali lwn Kerajaan Negeri Kelantan, Malaysia [2002] 3 MLJ 657; Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 and hereby followed. Islam is not only a collection of dogma and rituals but it is also a complete way of life comprising of all kinds of human, individual or public, legal, political, economic, social, cultural or judicial activities. And when reading article 11(1), 74(2) and item 1 in second list of the Ninth Schedule of the Federal Constitution it was obvious that Islam among others included of Islamic law. Hence, if a Muslim intends to renounce from Islam, he is actually exercising his rights in the Shariah law context which has it own jurisprudence relating to apostasy. The conduct of the NRD officer was only to determine that the appellant was no longer Islam as specified in Islam. Hence, such act could not be said to be contrary to article 11(1) which itself provides the requirement to comply with the conditions of the religion before she had renounce Islam.
Procedural Requirement
The author stressed that even though the issue on jurisdiction over apostasy is quite settled, but the saga remains as there is no standardized legislation governing apostasy in state level. In fact only several states have legislation and the most comprehensive one is Negeri Sembilan which it details out the procedures on covert in and out of Islam. However this rule only governs who is still alive.
Whereby, for the dead person, it is more complicated to encounter it. The court has to look at the evidence in determining the person religious status at the time of his death. In Re Permohonan Pengistiharan Status Agama Si Mati Nyonya Binti Tahir, there is cogent evidence to show that the Deceased was not a Muslim at the time of her death. Therefore the court declares as such.
In contrast, in Moorthy’s case, the deceased was declared as aMuslim at the time of his death since no cogent proof to prove otherwise. Even there is affirmation of oath and registration record which can prove that the deceases was a Muslim at the time of his death.
Besides in case of Re Permohonan Keluar islam Muhamad Ramzan Maniarason, Pahang Shariah Court has applied the deleted old provision regarding the conversion out of Islam since it was not contrary to the new one. Based on the old one, the court rejected the application to convert out of Islam since the application was not supported by the cogent evidence as required by the deleted old provision. Like author we also agree with the judge approach in this case as it can curb apostasy problem.
Conclusion
The author opines that there is the need to have a comprehensive legislation governing the conversion out of Islam like Negeri Sembilan’s Enactment to avoid conflict. We agree with the author but we think we have to have stricter procedure for the apostasy such as those who convert out has to undergo counseling class for a longer period in order to make them repent. Besides they should be asked to undertake to not persuade others and they also must state most reasonanle reason in application, otherwise the court must strictly reject the application. This must be specified in the provision mandatorily. The provision and court can not simply permit others to convert out of Islam as it will open the floodgate for the apostasy.