Apostasy case: Syariah courts not inferior to civil counterparts - judge

 

The apex civil court has ruled that the syariah courts are not inferior to their civil counterparts, as the Federal Constitution recognised both separate branches of the legal system.

Federal Court judge Abu Bakar Jais stated this for a majority 2-1 ruling that dismissed a 36-year-old woman’s bid to nullify her childhood Islamic unilateral conversion.

He said that the majority verdict - which included Court of Appeal president Amar Abang Iskandar Abang Hashim - disagreed with the appellant’s arguments that syariah courts are akin to inferior tribunals and thus cannot be compared with the civil courts.

The woman’s lawyers were relying on the landmark 2018 apex court ruling involving kindergarten teacher M Indira Gandhi’s unilaterally converted children, where the Federal Court said the Federal Constitution requires the consent of both parents for a valid childhood conversion.

A portion of the Indira Gandhi judgment relied on by the woman’s legal team read: “As has been illustrated, civil and syariah courts are distinct in nature and status: the former are established under the Federal Constitution and vested with inherent judicial powers; whereas the latter are creatures of state legislation under the State List (of the Federal Constitution), and akin to inferior tribunals.”

In a written grounds of judgment released yesterday, Abu Bakar said he had already expressed his view earlier that he disagreed that syariah courts are inferior courts, and he had referred to case law authorities supporting his view.

“Both syariah courts and civil courts are recognised under our Federal Constitution. After all, each state in the country makes up the Federation and stands tall in the formation of Malaysia.

“Their institutions should not come secondary to the ones established under the central administration,” he added.

‘Clearly apostasy’

The apex court judge noted that as only the syariah courts have jurisdiction over matters of Muslims wishing to leave Islam, thus the woman’s case is “clearly an apostasy or renunciation case”.

Abu Bakar pointed out that the woman initially went to the syariah court on the premise of renunciation rather than challenging her 1991 unilateral conversion, and that only after she failed before the religious court that she went to the civil court on the basis of her challenge being that she was never a Muslim.

“It would indeed be inappropriate, unjust to the system of judicial administration and power of the syariah courts and wholly unjustified for the same to be supplanted of its jurisdiction and for the jurisdiction instead to be conferred on the civil courts, considering the facts and law that should be applicable in this case,” he said.

The written grounds of judgment are in relation to the apex court ruling on May 3, which ended the woman's over 10-year legal battle to nullify her 1991 childhood Islamic conversion by her Muslim convert mother without the consent of her Hindu father.

In 1991, her mother - then having separated from her father - converted to Islam and sought the Selangor Islamic Religious Council’s (Mais) assistance to convert the woman, who was five years old at the time, to Islam as well.

Two years later, the Selangor Islamic Religious Department (Jais) issued a conversion certificate for her. However, her mother - having married a Muslim man by then - allowed her to continue practising Hinduism.

Between December 2013 and July 2017, the syariah courts denied her bids to nullify the conversion, prompting her to turn to the civil court.

In 2021, Shah Alam High Court allowed her challenge and quashed her religious conversion.

However in January last year, the Court of Appeal allowed Mais and the state government’s appeal to reinstate the woman's Islamic conversion.

‘Raised a Muslim’

In the majority ruling by Abang Iskandar and Abu Bakar, the apex court ruled that the woman falls under the category of “no longer a Muslim” rather than “never a Muslim”, thus only the syariah court has jurisdiction over her matter.

The Federal Court said that this is because the woman, despite being converted to Islam when young, was raised as a Muslim till adulthood.

However, in a dissenting ruling, fellow apex bench member judge Mary Lim Thiam Suan ruled that the woman was never a Muslim from the very beginning as the appellant was converted when young and non-adults are not able to consent to the conversion.

She noted that the prevailing Selangor state enactment back in 1991 required the consent of both father and mother to convert their children to Islam.

Selangor later amended the state enactment to allow the unilateral conversion of a child by one parent. - Mkini