Editors note: The identity of the woman and others linked to her are kept anonymous due to the sensitive nature of the case.
The Syariah Courts are fully empowered under the law to deny a Muslim-born woman from leaving Islam and embracing Buddhism and Confucianism, a federal counsel submitted.
Sallehuddin Md Ali, who appeared for the government, also told the Kuala Lumpur High Court (civil court) that the 32-year-old woman cannot seek its assistance to permit the apostasy.
The government lawyer was submitting during the hearing of the woman’s application for leave to initiate judicial review against the Syariah Courts’ refusal to permit her to renounce Islam.
On March 4, she went to the civil court to nullify the Syariah Court’s decision.
The woman, born to a Muslim convert man and Muslim-born woman on Feb 8, 1990, allegedly went through a multi-year failed bid at the Syariah Court to leave the religion and officially take on Confucianism and Buddhism.
She claimed the Syariah High Court and Court of Appeal refused her bid as they held it would go against hukum syarak (Islamic principles) to allow a fellow Muslim to leave the faith.
During this morning’s hearing before civil court judge Ahmad Kamal Md Shahid, Sallehuddin raised objections against the judicial leave application by the woman.
The federal counsel contended that it is because only the Syariah Courts are empowered to decide whether to allow apostasy or not per Article 121(1A) of the Federal Constitution.
Article 121(1A) states that the civil courts in Malaysia shall have no jurisdiction over matters within the purview of the Syariah Courts.
Lina Joy case
Sallehuddin said previous civil court rulings - such as in the controversial 2007 Federal Court case of Lina Joy’s bid to drop the word Islam from her Identity Card (IC) - showed this.
In that case, the apex court ruled that the National Registration Department (NRD) correctly refused to drop Islam from the IC until Lina - who was a Muslim-born woman seeking to embrace Christianity - could get a certificate from the Syariah Court certifying she has renounced the faith.
“The Syariah Courts have the right to hear (the woman’s bid to leave Islam), but hukum syarak does not allow this, so the Syariah Courts did not allow.
“As conversion out of Islam is under the Syariah Court (jurisdiction), then the civil courts have no power (to review the religious court’s decision).
“Once she had gone to the Syariah Court and the Syariah Court made that decision within their jurisdiction, it ends there.
“Whether correct or otherwise, it cannot be reviewed (by the civil courts),” Sallehuddin said.
When Ahmad Kamal asked what happens if the Syariah Court’s decision was wrong, the federal counsel contended it ends there.
Federal vs state laws
However, the woman’s counsel Fahri Azzat countered that the civil courts are the superior courts in the country and empowered with supervisory authority over the Syariah Courts.
The lawyer contended this is because, unlike the civil courts which are formed by federal laws, Syariah Courts in each state are instead established under state law.
“The Indira Gandhi case (from the Federal Court in 2018) states that Article 121(1A) does not oust the civil court’s jurisdiction as the Syariah Courts are inferior courts and subject to the supervisory power of the civil courts,” Fahri said.
The landmark apex court decision in M Indira Gandhi’s case declared as invalid the unilateral conversion of her children by her former husband, who previously converted to Islam.
Fahri also contended that his client’s judicial review leave application is not frivolous as there is a triable issue of whether the Syariah Courts have misapplied its own laws.
Decision in June
At the end of proceedings today, Ahmad Kamal fixed June 15 to deliver his decision on whether to allow the woman to commence with the legal action.
In the event that she obtains leave, the civil court would later set another date to hear the merits of her judicial review.
Ahmad Kamal also allowed Fahri’s application for a gag order to prevent the media and other members of the public from publishing the woman’s name.
The woman’s judicial review named the Federal Territory Syariah Appeal Court, the Federal Territory Syariah High Court, the Federal Territory Islamic Religious Council (MAIWP), and the government as first, second, third, and fourth respondents, respectively.
According to copies of the cause papers, the woman - whose parents have since divorced - claimed her Muslim mother never forced Islam on her and gave her free rein to determine her own faith.
She claimed her father only converted to Islam in order to marry her mother and that her parents never practised the faith.
Contending that she neither practised Islam nor even recited the Kalimah Syahadah, she initially went to the Federal Territory Syariah High Court to try to renounce Islam.
The Kalimah Syahadah - one of the Five Pillars of Islam - is an Islamic oath that reads "I bear witness that there is no deity but God (Allah), and I bear witness that Muhammad is the messenger of God".
The woman alleged that on Dec 10, 2018, the Syariah High Court ordered her to attend 12 pre-trial aqidah (faith) counselling sessions for a six-month period beginning Jan 14, 2019.
She said she then took leave from her employment in Oman and flew back to Malaysia to attend the 12 sessions which in the end managed to be completed between Jan 14 and 25 that year.
The woman claimed her mother and her mother’s close friend testified before the Syariah High Court over her faith in Confucianism and Buddhism.
She alleged however that on July 27, 2020, the Syariah High Court dismissed her bid and instructed her to undergo istitabah under MAIWP or the ‘Mufti’s Office’.
Under the country’s Syariah system, istitabah refers to faith rehabilitation.
She claimed that the court also ordered her to undergo continuous Islamic classes as well as more aqidah counseling. - Mkini
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