Civil Appeal No. Q-01(A)-45-02/2015;
Date of Judgment: 07 July 2017;
Court of Appeal;
Source: Federal Court Registry
IN THE COURT OF APPEAL
OF MALAYSIA HOLDEN IN KUCHING, SARAWAK
(APPELLATE JURISDICTION)
CIVIL APPEAL NO.
Q-01(A)-45-02/2015
BETWEEN
SYARIFAH NOORAFFYZZA
BINTI WAN HOSEN (WNKP 821109-13-5522) ... APPELLANT
AND
1. DIRECTOR OF JABATAN
AGAMA ISLAM SARAWAK
2. MAJLIS AGAMA ISLAM
3. DIRECTOR GENERAL OF
NATIONAL REGISTRATION MALAYSIA
4. STATE GOVERNMENT OF
SARAWAK ... RESPONDENTS
(In The Matter of High
Court in Sabah and Sarawak at Kuching Application for Judicial Review No.
KCH-25-4/5-2014 (HC1)
In the matter of the
refusal of the Director of Jabatan Agama Islam Sarawak to grant Syarifah
Nooraffyzza Binti Wan Hosen (WNKP 821109-13-5522) a release letter from the
religion of Islam;
And
In the matter of Section
44 of the Specific Relief Act 1950;
And
In the matter of the
Courts of Judicature Act, 1964;
And
In the matter of the
Rules of Court 2012;
And
In the matter of Article
11 of the Federal Constitution.
Between
Syarifah Nooraffyzza
Binti Wan Hosen (WNKP 821109-13-5522) ... Applicant
And
1. Director of Jabatan
Agama Islam Sarawak
2. Majlis Agama Islam
3. Director General Of
National Registration Malaysia
4. State Government of
Sarawak ... Defendants)
QUORUM: MOHD ZAWAWI
SALLEH, JCA; VERNON ONG LAM KIAT, JCA; ABDUL KARIM ABDUL JALIL, JCA
JUDGMENT OF THE COURT
Introduction
[1] This is an appeal from an order made by Rhodzariah Bujang J
(“the learned judge”) of the High Court of Sabah and Sarawak at Kuching dated
5.1.2015, dismissing the appellant’s application for leave to move for judicial
review against the respondents.
[2] The central issue in this instant appeal is whether the
Sarawak Syariah High Court has jurisdiction to deal with the question of
apostasy.
[3] We have carefully considered the able arguments that have
been presented on behalf of the appellant and the respondents and the evidence
on record, as well as the judgment in the Court below. We have come to the
conclusion that this instant appeal ought to be dismissed. We now provide the
detailed reasons for our decision.
Facts of the Case
[4] The essential facts which are relevant and germane for
disposal of this instant appeal may be shortly stated as follows -
(a) The appellant, a Malay by race, was born on
9.11.1982. Both her parents practiced the religion of Islam.
(b) The appellant left the religion of Islam and
embraced Christianity on 3.10.2009 and she was baptized in the All Saints’
Chapel, Tabuan Dayak, Kuching, Sarawak.
(c) On 26.7.2011, the appellant went to the
National Registration Department, Kuching to apply for change of her name in
her NRIC. The National Registration Department informed her by letter that she
has to first obtain the letter of release from Islam from the 1strespondent’s office.
(d) On 3.8.2011, the appellant wrote a letter to
the 1st respondent’s office for the letter of
release from Islam. The appellant did not receive any reply from the 1st respondent.
(e) On 9.7.2012, the appellant once again went
to the 1st respondent’s office and met one Ustazah
Hanisah Nahrawi who informed her that she has to go to the Syariah Court and
attend counselling sessions as an adherence procedure to renounce Islam. The
sessions never materialised. Her lawyer’s request for a list of criteria to be
fulfilled in order to renounce Islam also has not been successful.
(f) The appellant then filed an application for
ex parte leave to move for judicial review against the respondents and sought
the following reliefs -
(i) A declaration that she is a Christian;
(ii) An order of mandamus to compel the 1st and/or 2nd respondents to issue the letter of release
from the religion of Islam; and
(iii) An order of mandamus to compel the 3rd respondent to change the appellant’s name from Syarifah
Noorafyzza binti Wan Hosen to Vanessa Elizabeth;
(g) On 5.1.2015, the learned judge dismissed the
appellant’s application for leave to commence judicial review against the
respondents.
(h) Being dissatisfied with the said order, the
appellant appealed to this Court. Hence, this appeal before us.
Findings of the Learned Judge
[5] The principal reason for the dismissal of the appellant’s
application was on jurisdictional ground. The learned judge reasoned as follows
-
“Jurisdictional Issue
The Federal Courts have consistently spoken that
apostasy is a matter within the jurisdiction of the Syariah Court. For
reference I would list the cases as follows:
(i) Soon Singh a/l Bikar Singh v
Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ
489;
(ii) Majlis Ugama Islam Pulau Pinang dan
Seberang Perai v Shaik Zolkaffily bin Shaik Natar & Ors [2003] 3 MLJ 705;
(iii) Lina Joy lwn Majlis Agama Islam
Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585; and
(iv) Hj Raimi bin Abdullah v Siti Hasnah
Vangarama bt Abdullah and another appeal [2014] 3 MLJ 757.
The Federal Court in its latest decision
in Hj Raimi's case have decided, following that of Soon Singh a/l
Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor
[1999] 1 MLJ 489; [1999] 2 CLJ 5 held that the issue of whether a
person is a Muslim or not falls within the exclusive jurisdiction of the
Syariah Court because 'since matters on conversion to Islam come under the
jurisdiction of the Syariah Court by implication conversion
out of Islam should also fall under the jurisdiction of the same courts' (per
Mohd Dzaiddin FCJ in Soon Singh's case).
The argument of the applicant that the Majlis
Agama Islam Sarawak Ordinance does not provide for renunciation of Islam; only
conversion under s 68 and s 69 thereof and therefore the applicant can seek
recourse from the civil courts, cannot in the face of the words underlined
above be accepted as even the various State Enactment in Peninsular Malaysia
mentioned in His Lordship's judgment also do not have a specific provision on
the renouncement.”.
[6] Concerning the appellant’s assertion that art. 121 (1A) of
the Federal Constitution was enacted without the consent of the Yang di-Pertua
Negeri of Sabah and Sarawak, the learned judge stated at page 7 of the Grounds
of Judgment as follows -
“[8] As for the argument of the applicant that
art 121(1A) of the Federal Constitution was made without the consent of the
Yang di-Pertua Negeri of Sabah and Sarawak, the same argument was taken up
before David Wong Dak Wah J (as His Lordship then was) in Robert Linggi
v The Government of Malaysia [2011] 2 MLJ 741; [2011] 7 CLJ 373 and in
a supplementary judgment appearing at p 764 (MLJ); p 398 (CLJ) thereof,
His Lordship has reproduced the letters of consent from the Yang di Pertua
Negeri of both states which clearly show that such a concurrence was in fact
obtained before the amendment to art 121 was made and that includes the
introduction of art 121(1A). Coming as it were from the judgment of the court
of not just competent jurisdiction but also from the same part of Malaysia, I
have no doubt on the veracity of what is reproduced in that judgment.”.
[7] The learned judge then concluded that -
“[10] ... Unless and until the applicant obtains
her letter of release from Islam, the 3rd respondent cannot
be compelled by mandamus to effect the change that she wanted. The first
respondent in turn cannot be compelled to issue the letter of release by me
because I do not have the jurisdiction over matters of apostasy which is the
sole province of the Syariah Courts as have been decided by the Federal Court
cases I have listed above. In arriving at this decision I am fully aware of the
guarantee on the freedom of religion in the Federal Constitution and that I had
taken an oath of office to uphold its provisions. I have been reminded of the
sanctity of the relevant provisions by the applicant's counsel but I believe I
am not committing a sacrilege of that oath in this case because in the exercise
of my duties I am also dictated by doctrines and conventions. The application
for leave is therefore dismissed but with no order as to cost as graciously
agreed by the respondents’ counsel.”.
Principles Applicable to an Application for
Leave
[8] At the outset, perhaps it would be useful to state briefly
principles applicable for granting leave for judicial review. The Federal Court
had elaborated and reiterated the test for granting leave in WRP Asia
Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 CLJ 478 as follows -
“... without the need to go into depth of the
abundant authorities, suffice if we state that leave may be granted if the
leave application is not thought of as frivolous, and if leave is granted, an
arguable case in favour of granting the relief sought at the substantive
hearing may be the resultant outcome. A rider must be attached to the
application though i.e, unless the matter for judicial review is amenable to
judicial review absolutely no success may be envisaged.”.
[9] In Mkini Dotcom Sdn. Bhd. & Ors v Chief Judge of
Malaya & Ors [2015] MLJU 1271, it was held that -
“[10] It is settled law, the function of the
Court in exercising its power to grant leave for judicial review is to sieve
through the application before it by examining the facts and the law and decide
if the case is one which is frivolous and or one which merits further argument
on the substantive motion. In exercising this function the Court is guided by
the principles laid down by the Court of Appeal in England in R v
Secretary of State for Home Department, ex parte Rushkanda Begum [1990] Crown
Office Digest 109, Dip as follows:-
(i) If it is clear to the judge that there is a
point for further investigation on a full inter parte basis with all evidence as
is reasonably necessary on the facts and all such arguments on the law then
leave ought to be granted;
(ii) If the judge hearing the leave application
is satisfied that there is no arguable case the judge should dismiss the
application for leave to move for leave for judicial review; and
(iii) If the judge is not really sure whether
there is or is not an arguable case, the judge may invite the putative
respondent to attend and submit as to whether or not leave ought to be granted;
and
(iv) In exercising the powers in an inter parte
leave application the test applicable by the Court must be the same approach as
that as the test adopted in deciding whether to grant leave to appeal against
the arbitrator’s award. The Court has to consider the facts and law before it
and ask itself whether the Court is satisfied that there is a case fit for
further consideration or otherwise.”.
[10] In Tuan Hj. Sarip Hamid & Anor v Patco Malaysia Bhd
[1995] 2 MLJ 442, the Supreme Court approved the following guidelines
stated in R v Secretary of State for the Home Department, ex parte
Rukshanda Begum [1990] COD 107 -
“thus: leave may be granted if the leave
application is not thought of as frivolous, and if leave is granted, an
arguable case in favour of granting leave the relief sought at the substantive
hearing may be the resultant outcome. A rider must be attached to application
though i.e. unless the matter for judicial review is amenable to judicial
review no success may be envisaged.”
Parties’ Competing Submissions
[11] Learned counsel for the appellant submitted that the learned
judge erred in law in dismissing the appellant’s leave to move for judicial
review. According to learned counsel, at this stage of the proceedings, the
Court need not go into the matter in any depth. All that the appellant need to
establish for leave to be granted is there is a prima facie case and the
application is not frivolous or vexatious and that there is some substance in
the grounds supporting the application. (See Tang Kwor Ham & Ors v
Pengurus Danaharta Nasional Berhad & Ors [2000] 1 CLJ 927; Chin Mee Keong
& Ors v Pesuruhjaya Sukan [2007] 5 CLJ 363; Clear Water Sanctuary Golf
Management Bhd v Ketua Pengarah Perhubungan Perusahaan & Anor [2007] 10 CLJ
111, Association of Bank Officers, Peninsular Malaysia v Malayan Commercial
Banks Association [1990] 1 CLJ Rep 33; Ta Wu Realty Sdn Bhd v Ketua Pengarah
Hasil Dalam Negeri [2004] 6 MLJ 53).
[12] Learned counsel for the appellant further submitted that
leave to move for judicial review ought to be granted to the appellant as it is
clear that there is point for further investigation on a full inter parties
basis with necessary evidence on the facts and argument on the law.
[13] Learned counsel posited that the appellant’s application
involves prayers and/or remedies concerning the enforcement of fundamental
liberties guaranteed under the Federal Constitution i.e. freedom of religion
under art.11 of the Federal Constitution and therefore could not be in any way
regarded as vexatious or frivolous.
[14] In reply, learned senior federal counsel appearing for the
respondents submitted that leave to move for judicial review was correctly
dismissed by the learned judge. The apex court has consistently decided that
apostasy is a matter within the exclusive jurisdiction of the Syariah Court.
In Hj Raimi bin Abdullah v Siti Hasnah Vangrama bt Abdullah and another
appeal (supra), the Federal Court held that the question whether a person
was a Muslim or not was a matter falling under the exclusive jurisdiction of
Syariah Court.
Our Decision
[15] We noted that during the hearing for leave to move for judicial
review, in the Court below, learned senior federal counsel appearing for the 1st, 2nd and 4th defendants had
taken preliminary objection that the High Court has no jurisdiction to hear the
matter.
[16] It is trite that once jurisdiction is challenged, the Court
may not decide on the merits of the case without first determining whether it
has jurisdiction over the subject matter. Jurisdiction is a question of law and
a court is precluded from adjudicating the matter on merits when it lacks
jurisdiction. Therefore, the question of jurisdiction has to be decided first.
(See Pentadbir Tanah Daerah Seberang Perai & Anor v Bagan Serai
Housing Estate Sdn Bhd [2016] 8 CLJ 846).
[17] Jurisdiction is everything and without it, the Court must
down its tools.
[18] Learned counsel for the appellant vehemently submitted that
the applicable laws governing Islamic matters in Sarawak are Syariah Court
Ordinance 2001 and Majlis Agama Islam Sarawak Ordinance 2001. These Ordinances
did not provide for matters relating to apostasy or conversion out of the
religion of Islam. Therefore, in the absence of any laws, rules, regulations
and/or any ordinance or legislation which prohibit the appellant from
converting out of Islam in Sarawak, art.11 of the Federal Constitution is the
only governing law relating to apostasy and/or conversion out of Islam.
[19] Art.11 of the Federal Constitution provides for freedom of
religion. Art.11 does not explicitly forbid apostasy.
[20] To put our discussion in its proper perspective, perhaps it
would be useful at the outset to note that Malaysia has a unique system of
legal pluralism. Two sets of law coexist: civil law (common law) and syariah
law and there is a dual court system comprising the Civil Courts and the
Syariah Courts. The latter have jurisdiction to apply syariah law to Muslims
and Civil Courts have jurisdiction to apply civil law to Muslims and
non-Muslims.
[21] The Federal Constitution was amended in 1988 to clarify the
distribution of jurisdiction between Civil Courts and Syariah Courts. According
to Farid Sufian Shuaib, in an article entitled: “Constitutional Restatement of
Parallel Jurisdiction between Civil Courts and Syariah Courts in Malaysia:
Twenty Years on (1980 - 2008) [2008]” 5 MLJ xxxiii pp xxxiii-l -
“The Federal Constitution of Malaysia has
restated under art. 121(1A) that Syariah Courts - as the courts that administer
Islamic law - have exclusive jurisdiction over matters under their
jurisdiction. The premise of the restatement is to give effect to a pluralistic
law and court system as it existed in Malaysia...”.
[22] It would appear that there are two different interpretations
of art. 121 (1A) of the Federal Constitution resulting from 1988 amendment -
the parallel and hierarchical interpretations. According to parallel
interpretation, Syariah Courts and Civil Courts form two separate courts
system. Syariah Courts are not inferior to the Civil Courts. In the case
of Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ
101 (FC), Abdul Hamid Mohamad FCJ (as he then was) explained:
“The point to note here is that both courts,
civil and syariah, are creatures of statutes. Both owe their existence to
statutes, the Federal Constitution, the Acts of Parliament and the State
Enactments. Both get their jurisdictions from statutes i.e. Constitution,
federal law or State law, as the case may be.”.
[23] According to the hierarchical interpretation, Syariah
Courts, as state courts, are inferior to the Civil Courts. In the case of Dato’
Kadar Shah bin Tun Sulaiman v Datin Fauziah binti Haron [2008] 7 MLJ 779,
Mohd Hishamudin J (as he then was) said -
“In my judgment, where there is an issue of
competing jurisdiction between the civil court and the Syariah Court, the
proceedings before the High Court of Malaya or the High Court of Sabah and
Sarawak must take precedence over the Syariah Courts as the High Court
of Malaya and the High Court of Sabah and Sarawak are superior civil courts,
being High Courts duly constituted under the Federal Constitution. Syariah
Courts are mere state courts established by state law, and under the Federal
Constitution these state courts do not enjoy the same status and powers as the
High Courts established under the Courts of Judicature Act 1964. Indeed, the
High Courts have supervisory powers over Syariah Courts just as the High Courts
have supervisory powers over other inferior tribunals like, for instance, the
Industrial Court.”. (Emphasis added)
[24] The view that art.121(1d) of the Federal Constitution does
not exclude the supervisory review power of the High Court is supported by
several commentators, such as Andrew Harding (Law, Government and the
Constitution of Malaysia, 136 - 7 (1996), Thio Li-Ann (in an essay in
“Constitutional Landmarks in Malaysia: The first 50 Years”, 197 at 202).
[25] We are of the view that Syariah Courts and Civil Courts form
two separate legal system. We agree with the view expressed by Salbiah Ahmed in
her article entitled: “Islam in Malaysia: Constitutional and Human Rights
Perspectives”, Muslim World Journal of Human Rights 2, No. 1 (2005), when she
assets that -
“State Syariah Courts are not courts inferior to
the federal courts as the term “inferior court” is understood in terms of
appeal and judicial review by superior courts over inferior courts. The State
Syariah Courts are in a separate hierarchy to that of the federal civil
courts. There is no right of appeal from the State Syariah courts to the
federal civil courts. There is no power of judicial review by the federal high
court over the State Syariah Courts.”
(See also Hassan Saeed, “Freedom Religion,
Apostasy and Islam” (2004) 149 at 150).
[26] In the same vein, in Kamariah bte Ali lwn Kerajaan
Negeri Kelantan, Malaysia dan satu lagi [2002] 3 MLJ 657, Abdul Hamid
Mohamed JCA (as he then was) said:
“... bukanlah dalam bidang kuasa Mahkamah ini
untuk mengkaji semula keputusan-keputusan mahkamah syariah yang terletak dalam
sistem berlainan itu. Mahkamah ini mesti menerima Mahkamah Tinggi Syariah itu
telahpun membuat keputusan fakta itu, mengikut hokum syarak dan mahkamah ini
tidak berkuasa campur tangan dalam keputusan itu dan menggubahnya,
membatalkannya, mengisytiharkan ia tidak sah atau tidak menghiraukan dan
membebaskan perayu-perayu...”.
(See also Nor Kursiah bte Baharuddin v
Shahrul bin Lamin & Anor [1997] 1 MLJ 537).
[27] In Subashini Rajasingam v Saravanan Thangathoray
[2007] 7 CLJ 584, a case concerning the custody of children when one parent
had converted to Islam, the demarcation between the Civil and Syariah Courts
was interpreted to mean that Syariah Courts “are not lower in status than civil
courts. they are of equal standing under the (Federal Constitution) (at [23]).
[28] The issue of the alleged lacking of “jurisdiction” of the
Syariah Court to hear apostasy case is no doubt due the failure of the States’
Administration of Islamic Law Enactments, and in the case of Sarawak, the
Syariah Court Ordinance 2001, to incorporate fully and comprehensively the
matters enumerated under List II (State List) of the Ninth Schedule of the
Federal Constitution, including the matter relating to apostasy.
[29] In a series of cases, inter alia, Ng Wan Chan v
Majlis Ugama Islam Wilayah Persekutuan & Anor (No 2) [1991] 3 MLJ 487, Lim
Chan Seng v Pengarah Jabatan Agama Islam Pulau Pinang & Satu Tindakan Yang
Lain [1996] 3 CLJ 231; Barkath Ali bin Abu Backer v Anwar bin Abu Backer & Ors
[1997] 4 MLJ 389, In the Estate of Tunku Abdul Rahman Putra ibni Almarhum
Sultan Hamid [1998] 4 MLJ 623, the courts held that the existence of a
particular subject matter under Item I of the State List does not automatically
mean Syariah Courts have jurisdiction over the subject matter. State
legislatures need to expressly confer such jurisdiction to Syariah Courts.
[30] In Lina Joy v Majlis Agama Wilayah Persekutuan dan
Lain-lain [2007] 4 MLJ 585, Richard Malanjum Chief Judge (Sabah & Sarawak)
in his dissenting judgment said -
“[99] In Ng Wan Chan v Majlis Ugama
Islam Wilayah Persekutuan & Anor (No 2) [1991] 3 MLJ 487 Eusof
Chin J (as he then was) who incidentally was also in the panel that decided
Soon Singh case said this at p 489:
The Federal Constitution, Ninth Schedule List II
- State List, specifically gives powers to state legislatures to
constitute Muslim courts and when constituted, ‘shall have jurisdiction only
over persons professing the Muslim religion and in respect only of any of the
matter included in this paragraph’.
Therefore, a Syariah Court derives its
jurisdiction under a state law, (for Federal Territories - Act of Parliament)
over any matter specified in the State List under the Ninth Schedule of the
Federal Constitution.
If state law does not confer on the Syariah
court any jurisdiction to deal with any matter stated in the State List, the
Syariah Court is precluded from dealing with the matter. Jurisdiction cannot be
derived by implication.
[100] And in Lim Chan Seng v Pengarah
Jabatan Agama Islam Pulau Pinang [1996] 3 CLJ 231 the learned High
Court Judge was of the view that art 121(1A) by itself did not automatically
confer jurisdiction on the Syariah Court, even on matters that fell under the
State List of the Ninth Schedule. It was the view of the learned Judge that the
state legislature must first act upon the power given it by arts 74 and 77 of
the Constitution and the State List and thus enact laws conferring the
jurisdiction.
…
[104] Hence, I am in agreement with those views
in that jurisdiction must be express and not implied. The doctrine of implied
powers must be limited to those matters that are incidental to a power already
conferred or matters that are necessary for the performance of a legal grant.
And in the matters of fundamental rights there must be as far as possible be
express authorization for curtailment or violation of fundamental freedoms. No
court or authority should be easily allowed to have implied powers to curtail
rights constitutionally granted.”.
[31] In our view, the interpretation that reflects the state of
the law today is that the Syariah Court and not the Civil Court has the
jurisdiction to deal with the issue of conversion out of Islam. The
constitutional and jurisdictional issues as to whether the Syariah Court has
jurisdiction to deal with the questions of apostasy was clarified by Mohamad
Dzaiddin FCJ (as he then was) in the case of Soon Singh a/l Bikar Singh (supra)
wherein His Lordship said -
“... 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 under the jurisdiction of
the same courts.”.
[32] In Lina Joy (supra), the majority
opinion affirmed the implied jurisdiction approach taken in Soon Singh
a/l Bikar Singh (supra). Ahmad Fairuz C.J said -
“... the case of Soon Singh clearly
showed that the apostate matter was within the jurisdiction of the Syariah
Court. Item I, Second list, Ninth Schedule of the Federal Constitution showed
that the Islamic law was one of the matters that was in item I and when read
together with case of Dalip Kaur v Pegawai Polsi Daerah, Balai Polis
Daerah, Bukit Mertajam & Anor [1992]1 MLJ 1 thus it was obvious
that the apostasy matter relating to Islamic law and it was clear that it was
within the jurisdiction of the Syariah Court.”.
[33] The learned C.J added that requiring apostates to go through
the Syariah Court system in order convert is not an infringement of the
individual’s constitutional right because “((i)f a person professes and
practices Islam, it would definitely mean that he must comply with Islamic law
which has prescribed the way to embrace Islam and converting out of Islam” (at
[17.2]). According to the Chief Justice, “one cannot renounce or embrace a
religion at one’s own whims and facies” (at [14]).
[34] Recently, in Hj. Raimi bin Abdullah (supra),
Arifin Zakaria C.J in delivering the judgment of the Federal Court said -
“[21] Thus, in James v Government of
Malaysia [2012] 1 MLJ 721 and Lina Joy lwn Majlis Agama Islam Wilayah
Persekutuan dan lain-lain [2007] 4 MLJ 585, it was held that apostasy
was a matter within the exclusive jurisdiction of the Syariah Court.
[22] Premised on the above authorities, it is
settled law that the question of whether a person is a Muslim or not is a
matter falling under the exclusive jurisdiction of the Syariah Court. On the
facts in the present case, it is not in dispute that the plaintiff's parents
converted to Islam in 1983 together with the plaintiff and her siblings. This
is supported by the statutory declaration of the late father referred to
earlier.”.
[35] We are not persuaded that the decision in Soon Singh
a/l Bikar Singh should be distinguished from the present case as that
case was with regard to Kedah State laws and only applicable to the State of
Kedah. In our view, Soon Singh a/l Bikar Singh had interpreted
the provision of art. 121 (1A) of the Federal Constitution and therefore applicable
to all states in Malaysia. At page 489, Mohamed Dzaiddin FCJ (as he then was)
stated -
“Be that as it may, in our opinion, the
jurisdiction of the Syariah Courts to deal with the conversion out of Islam,
although not expressly provided in the State Enactments, can be read into them
by implication derived from the provisions concerning conversion into Islam. It
is a general rule of construction that if the meaning of a statute is not
plain, it is permissible in certain cases to have recourse to a construction by
implication and the court may draw inferences or supply the obvious
omissions.”.
[36] It is clear, therefore, that our apex court had consistently
and repeatedly held that jurisdiction of the Syariah Court regarding apostasy
need not be expressly laid out in the state laws. We are in full agreement in
the decision of this Court in Jenny bin Peter @ Nur Muzahlifah Abdullah
v Director of Jabatan Agama Islam Sarawak & Ors & Anoter Appeal [2016]
1 LNS 1132, wherein the Court stated -
“Although the Sarawak Syariah Courts Ordinance
2001 did not provide for the conversion in or out of Islam, Part VIII of the
Majlis Islam Sarawak Ordinance 2001 provides for conversion to the religion of
Islam. In this regard it is pertinent to highlight the majority judgment
in Lina Joy (supra) at pg 616, which affirmed the
decision of the Federal Court in Soon Singh:
“15.5... adalah sejajar dengan logik untuk
Mahkamah Syariah, yang telah dengan jelasnya diberi bidang kuasa untuk
mengadili perkara-perkara yang berkaitan dengan pemelukan agama Islam adalah,
secara implikasi perlu, juga mempunyai bidang kuasa untuk mengadili
perkara-perkara yang berkaitan dengan keluarnya seorang Muslim dari agama Islam
atau kemurtadan.”.
[37] We are satisfied that the learned judge did not err in law
in holding that the High Court had no jurisdiction to hear apostasy matters.
[38] Now we turn to the appellant’s submission that art.121 (1A)
of the Federal Constitution was enacted without the consent of Yang di-Pertua
Negeri of Sabah and Sarawak. The submission flies in the face of the evidence.
In Robert Linggi v The Government of Malaysia [2011] 7 CLJ 373, the
learned judge stated that the issue relating to art.121 of the Federal
Constitution was put in abeyance “pending production by counsel for the
defendant of the originating consent of the Yang di-Pertua Negeri Sabah”.
However, subsequently, the learned judge, in his supplementary judgement, after
consent Yang di-Pertua Negeri of Sabah and Sarawak was furnished, dismissed the
plaintiff’s claim that art.121 clause (1) contravenes art.161E of the Federal
Constitution.
Conclusion
[39] For the foregoing reasons, we agree with the conclusion of
the learned judge that the appellant’s application for leave to move for
judicial review against the respondents ought to be dismissed as the matter is
within the exclusive jurisdiction of Syariah Court and not the Civil High
Court. Accordingly, we dismiss the appeal with no order as to costs. Deposit
was refunded. So ordered.
Dated: 7th July 2017
sgd.
MOHD ZAWAWI SALLEH
Judge
Court of Appeal
Malaysia
Judge
Court of Appeal
Malaysia
COUNSEL
For the Appellant: Baru Bian (Chua Kuan Ching
and Joshua Parir Baru with him), Baru Bian Advocates, No: 6, 2nd Floor, Lot 5430, Block G, RH Plaza, Jalan Lapangan Terbang,
93350 Kuching, Sarawak
For the 1st, 2nd and 4th Respondents: Saferi bin Ali, State Legal
Officer, State Attorney-General’s Chambers, 15th & 16th Floor, Wisma Bapa Malaysia, Petra Jaya,
93502 Kuching, Sarawak
For the 3rd Respondent:
Shamsul Bolhassan, Senior Federal Counsel, State Attorney-General’s Chambers,
15th & 16th Floor, Wisma Bapa Malaysia, Petra Jaya, 93502 Kuching,
Sarawak
SOURCE:
https://www.aseanlip.com/malaysia/disputeresolution/judgments/syarifah-nooraffyzza-binti-wan-hosen-v-director-of-jabatan-agama-islam-sarawak-and-3-others/AL17741
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