Federal Court dismisses bid for apostasy applications to be heard in civil court

Desmond Davidson

The Federal Court ruling today means that Salina Jau Abdullah, Jenny Peter, Mohd Syafiq Abdullah @ Tiong Choo Ting and Syarifah Nooraffyzza Wan Hosen, who is an ethnic Malay and Muslim by birth, have to go to the shariah court for their apostasy applications. – The Malaysian Insight file pic, February 27, 2018.

THE Federal Court, in a unanimous decision today, dismissed the appeals of three Muslim converts and a Muslim by birth to have their applications to apostate be heard in the civil high court.

The apex court ruled that the Sarawak shariah court had jurisdiction to hear their apostasy applications.

Court of Appeal president Zulkefli Ahmad Makinudin, in his ruling in Kuching today, said even though there was no provision in the shariah court, there was a section in the Majlis Islam Sarawak Ordinance 2001 that could be used to hear apostasy cases.

The other members of the five-man bench were Ahmad Maarop, Hasan Lah, Ramly Ali and Jeffrey Tan Kok Wha.

The dismissal means that Salina Jau Abdullah, Jenny Peter, Mohd Syafiq Abdullah @ Tiong Choo Ting and Syarifah Nooraffyzza Wan Hosen, who is an ethnic Malay and Muslim by birth, have to go to the shariah court for their apostasy applications.

Zulkefli said the appeal had no merit when responding to the converts’ counsel, Baru Bian, who said the Sarawak shariah court’s jurisdiction over apostasy matters could not be read into the Shariah Court Ordinance 2001 by implication, when there was no expressed provision under the Shariah Court Ordinance 2001 concerning conversions into Islam.

Syarifah Nooraffyzza had left Islam to embrace Christianity, while Salina, Jenny and Tiong had converted to Islam to facilitate their marriage to Muslim partners.

Salina, who is of Kayan-Kenyah ethnicity, was a Christian before her marriage to Malay-Muslim Shazali Saleh.

She had taken on her Muslim name after her conversion, but following her divorce, she returned to Christianity.

Jenny, a Melanau, converted to Islam to marry Nazri Abdul Rahman. After her divorce, she returned to Christianity, too.

Tiong, who is of Chinese-Bidayuh parentage, converted to Islam to marry Siti Aishah Badahar, but when his wife died, he returned to Christianity.

The four had, in 2015, filed applications in the high court for a judicial review, for the declaration that they are Christians; an Order of Mandamus (a judicial remedy in the form of an order from a superior court) to compel the director of the Sarawak Islamic Affairs Department or state Islamic Religious Council to issue them a “letter of release” from Islam, or Surat Murtad; and, an Order of Mandamus to compel the director-general of the National Registration Department (NRD) to drop “ Islam” as their religion on their MyKad and other documents, and to change information on them in the national registry to reflect that they are Christians.

Their applications were only at the “Leave Stage”, where objections were raised by their counsel against the grounds that the civil high court had no jurisdiction or power to hear such applications as they related to apostasy, which fell under the shariah court.

The argument was based on an interpretation of Article 121(1A) of the federal constitution, and this argument or submission is supported by three Federal Court cases.

Baru argued that the high court had jurisdiction to hear apostasy cases, saying the state shariah court was “not clothed with that power, to decide on apostasy cases, as the Sarawak Shariah Court Ordinance 2001 does not provide for this issue to be dealt with by the shariah court”.

He pointed to letters from the Kuching shariah court to the four, which he said confirmed that it had no power to deal with apostasy cases.

The four converts had, on various occasions, submitted applications to NRD to have their Muslim names on their MyKad changed to their non-Muslim names, while Syarifah Nooraffyzza had applied to use the name “Vanessa Elizabeth”.

Their applications, however, were rejected as they had failed to obtain a “letter of release” from Islam, from the Sarawak Islamic Affairs Department.

The state Islamic Affairs Department later informed them that it had no jurisdiction in Sarawak to issue such a letter.

The department told the four that based on the Islamic ordinances that were applicable and enforceable with respect to the shariah court in Sarawak, there were no provisions conferring the shariah court power to issue the letter required by NRD.

Christian organisations, including the Association of Churches in Sarawak, have appointed senior lawyers Leonard Shim and Libat Langub as amicus curae (friends of the court) to monitor their interests, while the Sarawak Dayak Iban Association, which represents the state’s largest ethnic group, Methodist Church in Malaysia, Sarawak Ministers Fellowship and Sarawak Evangelical Churches Association have appointed lawyers to hold a watching brief. – February 27, 2018.

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  • If Islam is a religion of peace n that there is no compulsion in Islam, then, why are you all making it so difficult for anyone to come out of the religion? You should make the laws in conformity with what you have professed

    Posted 6 years ago by Peace Maker · Reply

  • I always say it's a trap. No matter how they camouflage it as 'no compulsion', the truth is, it's the opposition. A sensible way is to let them go if they don't want ...fast.

    Posted 6 years ago by Alphonz Jayaraman · Reply

  • Hotel California!

    You can check out any time you like,
    But you can never leave!'

    Posted 6 years ago by Bob Archie · Reply

  • Your Islam is fucking you up Malaysia. Wake up!

    Posted 6 years ago by Love and Peace · Reply

  • rrespective of whether the Sarawak Syariah Court can hear the apostasy cases, the appellants are still entitled to their constitutional rights of freedom of religion and equality under the law as guaranteed under Articles 11 & 8 of the Federal Constitution respectively.
    If the outcome of the future Syariah Court hearing is unsatisfactory to the appellants, they can still come back to the civil court for remedy, if there are elements of unconstitutionality in the Syariah Court hearing or judgment.
    The current case reminds us of the famous Lina Joy apostasy case in 2007, which resulted in the woman migrating from this country. The rather complicated issues relating to the subject of apostasy peculiar to Malaysia were then analysed by me in an article titled “Untangling the knotty Lina Joy case”, which later appeared as Article 53 in my book “The March to Putrajaya” (http://www.themarchtoputrajaya.com/)

    Posted 6 years ago by Kim quek · Reply

  • Another dark chapter in the broken history of our judiciary and democracy.

    Posted 6 years ago by Xuz ZG · Reply