LINA JOY — UNOFFICIAL TRANSLATION
IN THE FEDERAL COURT, MALAYSIA
AT PUTRAJAYA (APPELLATE JURISDICTION)
CIVIL APPEAL NO. 01-2-2006 (W)
Lina Joy
(Appellant)
vs
1. Islamic Religious Council of the Federal Territory
2. Government of Malaysia
3. Director of National Registration
(Respondents)
JUDGMENT OF THE MAJORITY
[Except Richard Malanjum, the judge in the minority]
1. The appellant was given leave to appeal to this court on the following questions:
a. whether the National Registration Department (‘NRD’) is entitled in law to
impose a requirement that the appellant produce a certificate or a declaration
or an order from the Syariah court that she has apostatised before the word
"Islam" in the applicant's identity card (‘IC’) is deleted?
b. whether the NRD has correctly construed its powers under the National
Registration Regulation 1990 especially Rules 4 and 14, to impose the
requirement as stated above when it is not expressly provided for in the 1990
rules?
c. whether the case of Soon Singh a/l Bikar Singh vs Kedah Islamic Welfare
Body, Malaysia (PERKIM) (1999) 1 MLJ 489 was rightly decided when it
adopted the implied jurisdiction theory propounded in the case of Md Hakim
Lee vs Federal Territory Islamic Religious Council, Kuala Lumpur (1998) 1
MLJ 681 and not following the case of Ng Wan Chan v Federal Territory
Islamic Religious Council, Kuala Lumpur & Anor (No.2) (1991) 3 MLJ 487
and Lim Chan Seng vs Director of the Department of Islamic Religion,
Penang and 1 other case (1996) 3 CLJ 231 which declared that if no express
jurisdiction is conferred on the Syariah court, the civil courts will retain their
jurisdiction?
2. Appellant was born a Muslim. Because she intended to marry a Christian man,
Appellant made application to NRD on 21 February 1997 to change her name from
Azlina binti Jailani to Lina Lelani on the reason that she had already embraced
Christianity. This application was not approved by the Third Respondent (Director of
National Registration). On 15 March 1999 the Appellant applied once again to change
her name by this time from Azlina binti Jailani to Lina Joy. In her statutory
declaration, he Appellant once again said she wanted her name to be changed because
she had already embraced Christianity. On 2 August 1999, the Appellant, acting on
the advice of an officer at NRD, made another statutory declaration in which she gave
the reason of her wish to changed her name as deliberately choosing that name and
not because she changed her religion. In November 1999, the Appellant was given her
new Identity Card but the NRD inserted the word ‘Islam’ at the front of her IC and
her previous name a the back of that card. On 3 January 2000, the Appellant applied
to the NRD to have the word ‘Islam’ deleted. This application was rejected and the
Appellant was told that her application was incomplete without an order from the
Syariah Court which stated that she had already left the religion of Islam. The
Appellant then made application to the High Court for several declarations against the
Federal Territory Islamic Religious Council and the Government of Malaysia. The
Declarations applied for were based on infringements of her basic right to the freedom
of religion as guaranteed by Article 11(1) of the Federal Constitution. Nevertheless,
the High Court rejected that application. The Appellant then appealed to the Court of
Appeal. The Court of Appeal by majority rejected her appeal. The Appellant then
made application for leave to appeal to this court and her application was granted on
the questions as stated at the beginning of this judgment.
3. At the Court of Appeal the parties agreed (and this is clear from the grounds of
judgments of the majority and dissent) that only one issue needed to be considered by
the court – namely, whether the NRD was right, under the law, when it rejected the
Appellant’s application to delete the word ‘Islam’ from her IC and to require a
certificate or order of apostasy from the Syariah Court beforehand. The majority
judgment of that court decided that the NRD was not wrong under administration law
when rejecting the appellant’s application; (2005) 6 MLJ at page 213. The Appellant
in her application to NRD stated that there was an error in her IC and the said error
was her religion was described as ‘Islam’. Hence the majority judgment was of the
view that the Appellant’s statement had indirectly meant that the Appellant said she
had already left Islam. Because of that, NRD could require the Appellant, under Rule
4(c)(x) of the 1990 Regulation, to produce documentary evidence to support the
accuracy of her claim that she was no longer a Muslim. The majority judgment also
ruled that whether a person had left Islam is a question which is related to Islamic
law, and that question is not within the NRD’s jurisdiction which was not equipped or
qualified to decide that matter. Because of that, the NRD maintained a policy to
require confirmation by the religious authority before the NRD acted to delete the
word ‘Islam’ from a Muslim’s IC. This policy is completely reasonable, according to
the majority judgment; (2005) 6 MLJ at page 209.
4. In this court, Appellant’s lawyer argued that only the 1990 Regulation formed the
written source of powers under which the NRD could require an apostasy order.
According to the lawyer, the 1990 Regulation did not contain provision which
permitted the NRD to require that documents from the Appellant. The lawyer then
went on to stress that the document specified under Rule 14 was only a statutory
declaration. Therefore, by requesting the production of a document and that document
was however not provided for or permitted by Rule 14, the NRD acted ultra vires its
powers under the 1990 Regulation. This, the lawyer argued, is not valid under
administration law. That lawyer then argued that the majority judgment should have
decided that way and their failure to do so should become the reasons upon which this
court, as an Appellate Court, must set aside that judgment.
5. The 2nd and 3rd Respondents’ lawyers stressed that the Appellant’s application was
to delete the word ‘Islam’ from her IC. Therefore, that application falls under Rule
14(1)(c) which is to correct the details of her religion. Rule 14(1) reads:
(1) A person registered under these Regulations who—
(a) Changes his name;
(b) Acquires the citizenship of Malaysia or is deprived o his citizenship of
Malaysia; or
(c) Has in his possession an identity card containing any particular, other than
his address, which is to his knowledge incorrect,
shall forthwith report the fact to the nearest registration office and apply for a
replacement identity card with the correct particulars.”
The lawyer then referred to Rule 4 which reads:
Any person who is required to register under regulation 3(1) or 3(2) or to re-register
under regulation 18 or 28 or who applies for a replacement identity card under
regulation 13 or 14, shall—
(a) …
(b) …
(c) give the following particulars to the registration officer as aforesaid,
namely:
(i) his name as appearing in his Certificate of Birth or such other
document or, if he is known by different name, each of such names, in
full;
(ii) his previous identify card number, if any;
(iii) the full address of his place of residence within Malaysia;
(iv) his race;
(iva) his religion (only for Muslims);
(v) his place of birth;
(vi) his date of birth and sex;
(vii) his physical abnormalities, if any;
(viii) his status as a citizen of Malaysia or other citizenship status;
(ix) such other particulars as the registration officer may generally or
in any particular case consider necessary; and
(x) produce such documentary evidences the registration officer may
consider necessary to support the accuracy of any particulars
submitted.”
The lawyer then stressed that Rule 4(c)(ix) and (x) are the powers which justified the
NRD introducing the condition of the need for apostasy certificate.
6. Regarding these arguments, I agree with the majority agreement that Rule 14(1) is
related to:
(a) change of name under paragraph (a); and
(b) to correct particulars which are not true under paragraph (c).
The Appellant’s case falls under the particulars which are not true according to
paragraph (c). Nonetheless, Rule 14 did not state what should be given in the cases of
untrue particulars but Rule 14(1) certainly requires the Appellant to report facts
regarding untrue particulars to the nearest Registration Office and to apply for a
replacement IC which contains the correct particulars. When it comes to this, Rule 4
becomes relevant because that rule clearly states that whoever applies for a
replacement IC under Rule 13 or 14 shall follow Rule 4. Based on that, I agree with
the 2nd and 3rd Respondents’ lawyers that the NRD has justification under Rule
4(c)(x) to require confirmation from the Islamic religious authority regarding the
Appellant’s apostasy or her leaving of Islam. Based on that, I agree with the majority
judgment which states that the Appellant in her 3rd application stating the error in her
IC is regarding the statement of her religion as ‘Islam’ and the Appellant wants that
error to be corrected by removing the word ‘Islam’ from that IC. This is the same as
the Appellant saying that she has already left Islam. Therefore, the NRD can,
following Rule 4(c)(x), require the Appellant to produce documentary evidence which
supports the accuracy of her insistence that she is no longer a Muslim. I also agree
that if the NRD receives a person’s admission that he has already left Islam based on
declaration made by him then the NRD took the risk when approving, erroneously,
that a person as non-Muslim while according to the Islamic laws that person still has
not left Islam. This would also make it easy for those who were born and educated as
a Muslim but has the attitude of apathy or indifference towards Islam be classified as
non-Muslims solely to avoid being penalized for offences under Islamic laws. All
these would result in disparagement from the Muslim society. It is because of these
reasons, same as the views of the majority judgment, that I believe, the NRD adopted
the policy that statutory declaration alone is not enough to enable the word ‘Islam’ be
removed from the IC of a Muslim. This is because the matter of leaving Islam is a
matter which is related to the Islamic laws and because of that the NRD adopted the
policy which requires confirmation from the Islamic religious authority before the
NRD could act to delete the word ‘Islam’ from a Muslim’s IC. Based on the
considerations as enumerated above I agree with the majority judgment that rightly
the NRD policy is something which is completely reasonable.
7. Regarding this NRD policy, the Appellant also argued that by requiring the apostasy
certificate, the NRD has delegated its power and duties under Rule 14 to a 3rd party
so that the 3rd party would decide whether to approve the application to delete the
word ‘Islam’. This, according to the Appellant, cannot happen except when being
permitted by the relevant laws. Hence, that NRD policy without permission under
Rule 14 conflicts with the laws. Then the Appellant’s lawyer argued that the court’s
job is not to confirm that a policy is reasonable; but what the court has failed to
appreciate is that such matters are for the legislators and not for the court to decide
whether reference should be made to another religious body.
8. On that argument by the Appellant, I am of the view that, as argued by the 2nd and
3rd Respondents’ lawyers, that Rule 4(c)(x) clearly gives the power to the
Registration Officer to require documentary evidence which is deemed important to
support the accuracy of any particulars which has been put forward. Therefore the
reference to an authority of Islamic law is provided for by the laws and hence it is not
wrong under the laws as argued by the Appellant. The reference does not mean that
the Syariah Court is asked to decide whether to permit the application to delete the
word ‘Islam’. The Syariah Court is merely asked to confirm whether the Appellant is
of the religion of Islam or not based on Islamic laws. Guided by this decision then, it
is within the NRD’s discretion to decide whether the approval could be given to delete
the word ‘Islam’ or not.
9. Appellant’s lawyer has also referred the case of Ismail bin Suppiah vs Director of
National Registration (R-1-24-31 year 1995) to this court. According to that lawyer,
both the Ismail case and the case under appeal at this court are about:
(a) change of name because of change of religion;
(b) powers of NRD under Rule 14;
(c) a certificate from the Religious Council as a pre-condition before the NRD
could consider the application under Rule 14;
(d) the freedom of a person to choose religion guaranteed under Article 11 of
the Federal Constitution;
(e) third party cannot decide on what religion a person should choose; and
(f) Rule 14 did not introduce a condition that a certificate to be obtained from
the Religious Council.
The lawyer then showed that I was the judge in the Ismail case and I had dismissed
the NRD’s decision which required a certificate from the Religious Council as ultra
vires Rule 14.
9.1. The Plaintiff in the Ismail case was a Muslim since birth. The Plaintiff
applied so that his Muslim name as stated in his IC be changed to a Hindu
name on the reason that, as stated in his statutory declaration, he had
already left Islam and embraced Hinduism. NRD was insistent on requiring
the approval of the Johor Department of Islamic Religion or the Grand Qadi
of Johor about the Plaintiff’s action in leaving Islam. The NRD still refused
to approve the Plaintiff’s application even though the Plaintiff’s lawyer had
already reported to the Grand Qadi of Johor about the fact that the Plaintiff
had already left Islam. Hence the NRD referred the matter to and for the
action of the Johor Department of Islamic Religion. Because of that the
Plaintiff applied and obtained from Kuala Lumpur High Court a declaration
that the approval of the Johor Department of Islamic Religion was not
required and that any reference by the NRD to that Department was ultra
vires Rule 14, the 1990 Regulation, s 141(2) of the Administration of
Islamic Law Enactment 1978 Johor State, and Article 11(1) of the Federal
Constitution. The Plaintiff also applied and obtained an order so that the
NRD issued temporary IC with the Plaintiff’s new name.
9.2. Regarding the Appellant’s argument that the NRD did not appeal against
the High Court’s decision in that Ismail case and because of that the NRD
could not take a stand in this appeal which conflicts with the High Court
decision.
9.3. The majority’s judgment stressed that the Ismail case was a case which
involved application to change name in the IC whereas the Appellant’s
appeal in this court is to delete the word ‘Islam’ from her IC. Because there
was no reasons for judgment in that Ismail case, the reasons for the High
Court in making such a decision could not be known. Hence the Court of
Appeal only managed to make a few guesses regarding why I decided like
that in the Ismail case. Those guesses originate from saying that I looked at
the Ismail case from the angle that it should be decided in the context of
Johor laws. I was said to have perhaps held the view that the NRD was
wrong when required the consent of the Johor Department of Islamic
Religion before the Plaintiff could leave Islam whereas according to the
Johor Enactment the correct authority was the Qadi under s 141(2). Section
141 of the Johor Enactment says:
Section 141
(1) Whoever entered anybody to embrace Islam shall immediately
report the matter to the Qadi by giving evidence which is required for
registration.
(2) Whoever found that a Muslim has already left Islam shall
immediately report to the Qadi regarding his decisioin to leave Islam
by giving evidence required and the Qadi shall declare that the person
has left Islam, and shall be registered.
9.4. It is also the guess of the majority judgment that I have held the view that
NRD had misunderstood s 141 because at para 10 of the affidavit of NRD
dated 28.7.1995, the NRD officer seemed to have said that sub-section (2)
only applied to a person who previously embraced Islam under sub-section
(1). The majority judgment also guessed that I might have held the view,
from the clear words of sub-section (2), that in Johor, the Qadi himself also
did not have the right to give or not give consent to a Muslim to leave
Islam. That matter is left only to the relevant person. The Qadi’s job was
only to announce the facts of a person leaving Islam and then register it.
That job was only mechanical. Deducing from this, I was guessed to hold
the view that:
(a) In Johor, a Muslim was free to leave Islam and he does that by only
saying so;
(b) no approval or determination by any religious authority was
required;
(c) the NRD should have accepted the Plaintiff’s statutory declaration
which stated that the Plaintiff had already left Islam as the proof that
the Plaintiff was no longer a Muslim; and
(d) the NRD should have approved the Plaintiff’s application to change
his name.
9.5. From the guesses as enumerated above, it is clear that the Ismail case
should be analyzed in the context of Johor laws. S 141(2) of the
Administration of Islamic Law Enactment 1978 Johor State clearly showed
that even the Qadi had no right to give or not give consent for the leaving of
Islam. Hence the guess of the majority judgment was correct when it is said
that because of the clarity of the words in s 141(2), the NRD should have
accepted the Plaintiff’s statutory declaration which stated that the Plaintiff
had left Islam as the proof that the Plaintiff was no longer a Muslim and the
NRD should have approved the Plaintiff’s application to change his name.
It should be stressed at this stage that the above enumeration shows that
Article 121(1A) and item 1, list 2, Schedule 9 of the Federal Constitution
did not arise in the Ismail case.
10. The next issue argued by the Appellant is whether the Federal Territory Syariah Court
had the jurisdiction to decide on apostasy. Appellant argued that the NRD had so far
taken the same position regarding the Appellant’s various applications i.e. the
Appellant must first obtain an apostasy order from the Syariah Court or, as later said
by the Director in his affidavit, from any other Islamic authority. The Appellant also
argued that the Administration of Islamic Laws Act (Federal Territory) 1993 (Act
505) did not have provision regarding apostasy. The Syariah Court or any other
Islamic body was not given the jurisdiction in apostasy matter and neither was any
power given to any authority under that Act to issue apostasy order. This was the
situation at all time which is material in the Appellant’s case from February 1997 to
January 2000 and until today. According to the Appellant again, section 46(2)(b) Act
505, as found today, listed matters in which the Syariah Court could exercise its civil
jurisdiction and under this section the matter of apostasy is not found under that list.
The majority judgment accepted that Act 505 did not contain any provision regarding
apostasy. That judgment then considered the Appellant’s argument that the Federal
Court’s decision in the case of Soon Singh (supra) had shaped the procedure followed
by the NRD in requiring the confirmation from the Syariah Court before the
department accepts the fact that a Muslim has left Islam. The decision in the case of
Soon Singh, according to the majority judgment, is and still authoritative in
administration laws, from the angle of that decision, the NRD acted correctly when
named the Syariah Court as the authority which could issue apostasy confirmation and
the NRD will accept the confirmation as proof that the Appellant is no longer a
Muslim. The majority judgment, nonetheless, held the view that the question of
whether the decision in Soon Singh was correct or not was not important because the
appeal before it was already agreed by the parties to the appeal to be deemed to be
about the correctness of the NRD decision according to the administration laws and
no longer about constitutional questions. Therefore the Appellant argued in the Court
of Appeal that the NRD’s action in introducing the condition that the order of the
Syariah Court should be obtained was an action which was not reasonable according
to the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1
KB 223. This was because, according to the Appellant, that order was impossible to
obtain because of the lack of provision about apostasy in Act 505. At this stage, I
should state my agreement with the part of the majority agreement which states that
what he NRD wanted was a confirmation from someone who has the power to make it
and if the NRD acted in accordance with that confirmation, then the NRD was free
from any mistake or from being faulted by the public in a matter which is so
important and sensitive. Hence the majority judgment decided that the unwillingness
of the NRD to act without the confirmation form the Islamic religious authority was
reasonable. The judgment also decided that the question of whether a Muslim was an
apostate or not was a question which was related to Islamic laws. And if the court
decided that the NRD’s unwillingness was not reasonable, then it would mean that the
court required the NRD to accept the fact that according to Islamic laws a Muslim
could be considered by the world as having left Islam and was no longer a Muslim
when that person said he had already left Islam.
10.1. Regarding the majority’s judgment that the NRD’s action was reasonable
when the NRD required a certificate / declaration / order from the Syariah
Court which stated that the Appellant was an apostate, I wish to add by
stressing that item 1, list 2 in Schedule 9 of the Federal Constitution
provided that, among others, that the Syariah Courts shall have jurisdiction
only over persons who practices Islam and only regarding matters which are
included in that paragraph (item 1) and one of the matters in that paragraph
is “Islamic laws”. In relation to this, Article 74(4) of the Federal
Constitution stressed that the width of the general expressions in the
Schedule 9 could not be deemed to be limited by the specific expressions
found in that Schedule 9. Article 74(4) is as follows:
Article 74
(4) Where the general as well as specific expressions are used in
describing any of the matter enumerated in the Lists set out in the
Schedule 9 the generality of the former shall not be taken to be limited
by the latter.
As such it was reasonable for the NRD to introduce those conditions
because this matter of apostasy, according to the majority judgment (and I
agree with it), is a question which is related to Islamic laws and as stated by
the Supreme Court in the case of Dalip Kaur vs District Police Officer,
District Police Station, Bukit Mertajam & Anor (1992) 1 MLJ 1 that the
answer to the question of whether a person is a Muslim or has already left
Islam before he passed away, is included in the world of Syariah laws
which require serious considerations and due interpretation based on those
laws. In this situation, I agree with the 2nd and 3rd Respondents’ lawyer’s
argument that the condition that a certificate or declaration or order from
the Syariah Court that the Appellant has become apostate is not a decision
which is unreasonable until so excessive in deviating from logic or accepted
moral standard such that no rational person who has concentrated his
thinking to the question which needs to be decided could reach that
decision.
11. Regarding the 2nd and 3rd Respondents’ lawyer’s argument that the NRD is entitled
to enter the word ‘Islam’ at the front of the Appellant’s IC in November 1999 because
of amendments to Rule 4(c)(iva) and Rule 5(2) have been made effective
retrospectively to 1 October 1999 and this retrospective effectiveness was allowed
because the amendments were in the nature of procedure, the Appellant argued that so
long as the amendment was not gazetted the executive (such as the NRD) could not
apply that amendment and act on it. The Appellant brought attention to the fact that
her application for IC was made on 25 October 1999 whereas on 1 October 1999 that
amendment was not gazetted. The Appellant stressed that the real state of the laws at
that time was that the Appellant was entitled to a new IC with the name Lina Joy
without any statement about religion placed on that IC. That amendment according to
the Appellant could not be made effective retrospectively because it affected the
existing right of the Appellant.
11.1. On the issue of retrospective effectiveness I wish to refer to the case of Sim
Seoh Beng @ Sin Sai Beng & Anor vs Tunas Muda Sungai Ara
Cooperative Limited (1995) 1 CLJ 491 which states that the correct test to
be applied to determine whether a written law is prospective or
retrospective is to first ascertain whether it would affect substantive rights if
applied retrospectively. If it would, then, prima facie that law must be
construed as having prospective effect only, unless there is a clear
indication in the enactment that it is in any event to have retrospectivity.
The Federal Court in the case of Lim Phin Khian vs Kho Su Ming (1996) 1
MLJ 1 has said that the question that falls for determination is whether the
prima facie presumption against retrospectivity has been displaced by
contrary Parliament intention, and if so, to what extent. The case of
Attorney General vs Bernazar (1960) 3 AIIER 97 says but it is different
when the statute is retrospective either because it contains clear words to
that effect or because it deals with matters of procedures only; for then
Parliament has shown an intention that the Act should operate on pending
proceedings, and the Court of Appeal is entitled to give effect to this
retrospective intent as well as court of 1st instance. In the case of Yew Bon
Teow vs Mara Bus Vehicle (1983) 1 MLJ 1 the Privy Council has said that
the question of whether a statute is to be construed in a retrospective sense,
and if so to what extent, depends on the intention of the legislature as
expressed in the wording of the statute, having regard to the normal canons
of construction and to the relevant provisions of any interpretation statute. I
wish to also refer to section 19 of the Interpretation Act 1948 and 1967
which states:
Section 19
(1) The commencement of an Act or subsidiary legislation shall be the
date provided in or under the Act or subsidiary legislation or, where no
date is so provided, the date immediately following the date of its
publication in pursuance of section 18.
(2) Acts and subsidiary legislation shall come into operation
immediately on the expiration of the day preceding their
commencement.
(3) Notwithstanding section 2(1) and (2) and section 65(2), subsections
(1) and (2) shall apply—
(a) to all Acts enacted after the 31st December 1968 including
Acts which amend laws enacted before the commencement of
Part I of this Act; and
(b) to all subsidiary legislation made after the 31st December
1968, whether made under a law enacted before or after the
commencement of Part I of this Act whether or not that law has
been revised under the Revision of Laws Act 1968.
In the appeal in this court there is clearly a direction (as mentioned in the
case of Sim Seoh Beng) that amendments to 1990 Regulation, except for
Rule 19, shall be deemed to have come into operation on 1 October 1990).
Hence amendments to Rule 3, Rule 5 and 1st schedule is effective
retrospectively. Therefore the NRD’s action to issue the IC with addition of
the word ‘Islam’ is valid legally.
12. The Bar Council, HAKAM, and Malaysian Consultative Council of Buddhism,
Christianity, Hinduism and Sikhism, as amici curiae, have in turn given their
respective opinions which are briefly as follows:
(a) if a person no longer profess Islam, then he could no longer be under the
jurisdiction of the Syariah Court. If he is said to be still under the Syariah
Court’s jurisdiction then that act is an invasion on his human rights under
Article 11(1) and 8, of the Federal Constitution;
(b) apostasy is not included in item 1, list 2 of Schedule 9 of the Federal
Constitution;
(c) apostasy confirmation is clearly in conflict with the provision of basic
freedom under Article 11;
(d) the Appellant’s declaration that she is a Christian means that she professes
Christianity and this means that she could no longer be regarded as a Muslim
or a person professing Islam;
(e) Chua H in the case of Re Mohamed Said Nabi, deceased (1965 (3) MLJ
121) has referred to the Shorter Oxford English Dictionary for the meaning of
‘profess’. That dictionary states: “profess” means ‘to affirm one’s faith in or
allegiance to (a religion, principles, God or Saint etc)’. This means the NRD
was not entitled to introduce the condition that the Appellant produces a
certificate because the Syariah Courts have no jurisdiction over the Appellant
who no longer professes Islam. The Appellant still lives and has already made
statutory declaration and affidavits which show that she professes Christianity.
Hence, there is no need for any Islamic authority to decide whether she is an
apostate or not;
(f) The Malaysian Government has represented at the international level and to
her citizens, that she subscribes to the norms of freedom of comprehensive
faith, thought and conscience as declared under Article 18 of the Universal
Declaration of Human Rights. Hence the Appellant has legitimate expectation
that the Government of Malaysia and her agencies would not act in conflict
against that representation;
(g) The Appellant has been, because of her application to delete the word
‘Islam’ was disallowed, denied her rights to marry someone who professes
Christianity or to marry someone according to her wish. This is a denial of her
rights under Article 5(1) of the Federal Constitution.
13. ABIM, Muslim Lawyers Association and the Malaysian Syarie Lawyers Association,
also as amici curiae, have in turn gave their respective opinions which are briefly as
follows:
(a) Article 11 of the Federal Constitution used the words ‘profess and
practice’. Hence, the matter of leaving Islam should follow the related laws. A
person could leave Islam but has to follow its procedures. If follows the whims
and fancies of a person then the ummah and Islam would be in chaos.
Therefore the confirmation by the Syariah Court is in accordance with the
requirements of Syariah laws and hence it cannot be in conflict with Article
11;
(b) Regarding the equal rights under Article 8 of the Federal Constitution,
Article 8 is subject to provisions which regulate personal law.
14. Regarding the views at paragraphs (12) and (13) above I agree with the views at
paragraph (13). In the appeal before this court now, there is no firm determination that
the Appellant no longer professes Islam. So, the statement that the Appellant could no
longer be under the jurisdiction of the Syariah Court because the Syariah Court only
has jurisdiction over a person professing Islam cannot / should not be stressed. The
manner for a person to leave a religion must follow the rules or laws or practices
which have been fixed by that religion itself. The Appellant is not prevented from
marrying. The freedom of religion under Article 11 of the Federal Constitution
requires the Appellant to follow practices or rules of Islam especially regarding
leaving that religion. When the requirements of Islam are followed and the Islamic
authority confirms her apostasy then the Appellant could profess Christianity. In other
words a person cannot enter and leave a religion as she likes it. When she professes a
religion, common sense itself requires that she follows the practices and laws of that
religion.
15. The Appellant then argues that the NRD could not act in a way which undermines the
rights to freedom of religion of every citizen under Article 11 of the Federal
Constitution or in a discriminatory way violates the guarantees under Article 8(2) of
the Federal Constitution which prohibits any discrimination on grounds of religion.
The Appellant stressed that Article 11 gives her unconditional freedom to leave Islam
and become a Christian. According to her that freedom cannot be lawfully restricted
or regulated by any laws such as the Administration of Islamic Laws Act (Federal
Territory) 1993 by the Syariah Court, or any other authority. Hence, the Appellant
applied that the High Court confirms that her act of leaving Islam was proper and
valid under Article 11 of the Federal Constitution. This, stressed the lawyer for the
Malaysian Muslim Lawyers Association, assumes that the Civil Court has jurisdiction
to make the declaration applied by the Appellant (hence it raises the 3rd question).
15.1. The Appellant’s lawyer then brought this Court’s attention to the
conflicting decisions of the High Court. Cases such as Ng Wan Chan v
Federal Territory Religious Council (No. 2) (supra) and Lim Chan Seng v
Director of the Department of Islamic Religion (supra) decided that
without jurisdiction which is clearly given to the Syariah Court on a
particular matter, the civil court should maintain its jurisdiction on that
matter. However, the case of Md. Hakim Lee v Federal Territory Islamic
Religious Council (supra) put forward the theory of implied jurisdiction.
According to that theory, it is sufficient if the matter has been specified
for Syariah Court under item 1, list 2, in Schedule 9 of the Federal
Constitution. According to that lawyer again, the case of Soon Singh
(supra) has resolved that conflict by applying the theory of implied
jurisdiction as put forward by the case of Md. Hakim Lee. The
Appellant’s lawyer then referred to the decisions of the Federal Court in
cases of Penang Islamic Religious Council v Shaik Zolkaffily (2003 (3)
MLJ 705) and Azizah binti Shaik Ismail v Fatimah binti Shaik Ismail
(2004 (2) MLJ 529) which followed the decision of the Soon Singh case.
Be that as it may, the lawyer firmly argues that the Soon Singh case is
wrong in law because:
(a) that decision failed to consider that all state Islamic law enactments
creates 2 different entities, i.e. Religious Council and Syariah Court. In
those enactments, the Religious Council plays the role of
administration whereas the Syariah Court is a judicial body. That
lawyer later referred to Act 505 which through sections 24, 7 and 10
provided matters of establishment, membership, functions, duties and
activities of the Religious Council whereas section 46 provided for the
Syariah Court’s jurisdiction. The Soon Singh case (supra), says that
lawyer, made a mistake because of not distinguishing between the
Council and the Syariah Court. Due to the above error the Soon Singh
case is accordingly wrong when it considered that Syariah Court
anywhere is the authority which manages and deals with matters of
embracing Islam. Sections 139-141 of the Kedah state Enactment refer
to the Council as the authority which handles matters of embracing
Islam. So are sections 77-89 of the Penang Enactment which refers to
the Registry of Embracing Islam and section 82 shows that it is the
Council which keeps the record of those embracing Islam. This is also
the same for Act 505 which through sections 85-95 explains that it is
the Council which handles matters of embracing Islam. Hence, the
lawyer stressed, the statement by the Soon Singh case tht all state
enactments give jurisdiction to the Syariah Court in matters related to
the embracing of Islam is clearly wrong.
(b) Authorities used by the case of Soon Singh as the basis for the
implied jurisdiction theory does not support its decision. If those
authorities are studied, the authority “Craies on Statute Law (7th
edition) page 112 actually states that express and unambiguous
language are needed to alter the jurisdiction of courts of law. The
authority case Albon v. Pyke (1842 (4) M&G 421) shows that Tindal
CJ at para 424 says that the general rule undoubtedly is that the
superior courts’ jurisdiction is not taken away, except by express
words or necessary implication.
(c) The errors of the Soon Singh case as enumerated in paragraph
15(a)-(b) above has caused the Soon Singh case to summarise that the
Syariah Court’s jurisdiction does not need to be given by laws but
sufficient by referring to the state list in the Schedule 9 as done by the
Md Hakim Lee case. This, says the lawyer, contradicts the principle of
creating laws by the legislator and the rule that a written law must be
made by the legislator and it cannot be effective until that law is made
know by gazette. According to the lawyer again, the effect of the Soon
Sing case is that a law is regarded as already exists even though the
matter is only found in item 1, list 2, Schedule 9 of the Federal
Constitution and the legislator has not made laws on that matter. The
Soon Sing case has failed to identify the difference between power to
make laws on a matter and the making of the laws itself. The lawyer
then quoted what the Supreme Court of India says in the case of
Calcutta Gas Co v State of Weat Bengal (AIR 1962 SC 1044 at 1049)
i.e. the power to legislate is given to the appropriate Legislatures by
Article 246 of the Indian Constitution. The entries in the 3 lists are
only legislative heads or fields of legislation: they demarcate the area
over which the appropriate Legislatures can operate. Hence, the
Appellant’s lawyer stressed, the decision of Soon Singh that the right
to make law on a matter is the same as making the laws itself should be
rejected as bad precedent.
(d) Section 67 of the Interpretation and General Clauses Act 1967
declares that every Act of Parliament or State Enactment is an Act or
Enactment for general and it could be given judiciary notice. The case
of Soon Singh has already exempted the need to publish the laws or the
process of making laws by the stage of draft laws and ends with the
King’s recognition. Hence the Soon Singh case should be corrected
immediately, as pressed by the Appellant’s lawyer. In proceeding with
his arguments on this Soon Singh case, the lawyer quoted the
observation by Hashim Yeop Sani in the case of Dalip Kaur a/p
Gurbox Singh vs District Police Officer, District Police Station, Bukit
Mertajam & Anor (supra) which among other things, says that the new
clause (1A) of Article 121 of the constitution effective from 10 June
1988 has taken away the civil courts’ jurisdiction in respect of matters
within the Syariah Court’s jurisdiction. But that clause does not take
away the jurisdiction of civil court to interpret any written laws of the
states enacted for the administration of Islamic law. For that lawyer,
that observation clearly showed that the civil court should decide
whether a matter is within its jurisdiction or the jurisdiction of the
Syariah Court.
15.2. The lawyer for the 2nd and 3rd Respondents however took the position
that the Md Hakim Lee case was decided correctly. Hence, he was of the
view that the cases of Soon Singh and Shaik Zolkaffily contain the correct
principles regarding the jurisdiction of Syariah Court.
15.3. 1st Respondent’s lawyer referred to the implication word as found in
“Bernion’s Statutory Interpretation 2nd Edition” at page 362 i.e.
Implication may arise from the language used, from the context, or from
the application of some external rule. The that lawyer stressed that
because Act 505 contained provisions regarding matters related to the
embracing of Islam as under the Syariah Court’s jurisdiction (s 87 and s
91 read with s 46(2)(b) Act 505) then by implication, matters regarding
apostasy and leaving Islam are also within the Syariah Court’s
jurisdiction.
15.4. In the Soon Singh case, the Appellant applied so that the High Court issue
declaration that he was not a Muslim. The lawyer for the Department of
Religion of Islam Kedah (JAIK) made opposition early applied so that the
Appellant’s application be rejected because the High Court had no
jurisdiction on matter that a person is not Muslim. That matter is under the
Syariah Court’s jurisdiction. The High Court agreed with the lawyer of
JAIK and rejected the Appellant’s application who later appealed to the
Federal Court. In its judgment the Federal Court said that the question
before it was regarding the jurisdiction of Syariah Courts under Article
121(1A) of the Federal Constitution. The Federal Constitution also
admitted that there were no express provisions in the Kedah Enactment to
deal with the question of apostasy. After that the Federal Court referred to
Craies on Statute Law, the case of Albon v Pyke, Bennion’s Statutory
Interpretation and the case of Dalip Kaur.
15.5. Regarding the Appellant’s lawyer’s criticism on the reference made by the
Federal Court to Craies on Statute Law and the case of Albon v Pyke, I
only need to stress that Tindal CJ also used words of necessary
implication. Hence the Federal Court was of the view that it was logical
for the Syariah Court, which has been clearly given jurisdiction to deal
with matters related to the embracing of Islam do, by necessary
implication, also have jurisdiction to deal with matters related with a
Muslim’s leaving of Islam or apostasy. I do not see any defect in that
reasoning of the Federal Court. Therefore I have no choice except to
answer the 3rd question by saying that the Soon Singh case was decided
correctly.
16. Like already enumerated at the previous paragraph, the Soon Singh case clearly
showed that the matter of apostasy is within the Syariah Court’s jurisdiction. At
paragraph (10) I also referred to item 1, list 2, Schedule 9 of the Federal Constitution
to show that the important word used there was ‘matters’ and because ‘Islamic Law’
is one of the ‘matters’ which is found in item 1 and when read in the background of
the Dalip Kaur case, then it is very clear that rightly the matter of apostasy is a matter
which is related with Islamic Law and clearly therefore it is within the Syariah
Court’s jurisdiction and because of Article 121(1A) of the Federal Constitution, then
the Civil Courts cannot interfere in the matter.
17. A few arguments are also made about a few of the Appellant’s rights under the
Federal Constitution. Also it has been argued that the need to produce
certificate/confirmation from the Syariah Court/Authority to confirm that the
Appellant is an apostate is in conflict with the freedom under Article 11 of the Federal
Constitution. According to that argument Article 11 of the Federal Constitution gives
freedom to the Appellant to profess whichever religion and to leave from any religion.
Nobody and nothing could stop her from doing so. Any action stopping the Appellant
from doing as she likes in choosing religion or to leave from any religion is in conflict
with Article 11 of the Federal Constitution.
17.1. Article 11 of the Federal Constitution is as follows:
Article 11
(1) Every person has the right to profess and practice his religion and,
subject to Clause (4), to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are
specially allocated in whole or in part for the purposes of a religion other
than his own.
(3) Every religious group has the right—
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable
purposes; and
(c) to acquire and own property and hold and administer it in
accordance with law.
(4) State law and in respect of the Federal Territories of Kuala Lumpur,
Labuan and Putrajaya, federal law may control or restrict the propagation
of any religious doctrine or belief among persons professing the religion
of Islam.
(5) This Article does not authorize any act contrary to any general law
relating to public order, public health or morality.
17.2. What is clear in Article 11 is that the use of the words “…right to profess
and practice his religion…” As said by Abdul Hamid Mohamad HMR (at
that time) in the case of Kamariah bte Ali v Kelantan State Government,
Malaysia (2002 (3) MLJ page 657 at page 665): “words ‘has the right’
applies to ‘profess’ and also ‘practice’.” Following the case of Che Omar
bin Che Soh v Public Prosecutor (1988 (2) MLJ 55). Islam is not only a
gathering of dogmas and rituals but it is also a complete way of life
including all fields of activities of humans, private or public, laws,
politics, economy, social, culture, moral or judiciary. And if studied,
Articles 11(1), 74(2) and item 1 in list 2 in Schedule 9 of the Federal
Constitution is clear that Islam includes among other things, Islamic laws.
Hence, as argued by the lawyer for the Malaysian Muslim Lawyers
Association watching brief, if a Muslim wishes to leave Islam, he should
use his right in the contexts of Syariah laws which has its own
jurisprudence about the issue of apostasy. If a person professes and
practices Islam, surely it means he should follow Islamic laws which
determines the way of entering Islam and also the way of leaving Islam.
That is the meaning of professing and practicing Islam. And what has
been done by the NRD officer is only to decide the Appellant was no
longer professing Islam like the way which has been decided by Islam.
Hence, I cannot see how that action could be said to conflict with Article
11(1) which by itself provides the need to follow the requirements of that
religion before he leaves Islam. Professing and practicing Islam surely
means practicing not only the theological aspect in that religion but also
the laws of that religion.
17.3. The Appellant in the Kamariah case (supra) argued that Article 11 not
only gives her the freedom to profess any religion, but also to leave any
religion. The Appellant says that the laws cannot prevent her from doing
so. The laws, according to the Appellant, cannot require her to follow a
rule whether to embrace or leave a religion. Laws like that, the Appellant
argues, is in conflict with Article 11 and therefore not valid and void.
17.4. On this argument by the Appellant, Abdul Hamid Mohamad, HMR in the
Kamariah case says:
“If that is the meaning of that provision then not only the laws which
determines the manner for a person to embrace Islam and leave Islam
are not valid, but the laws which make it an offence if a Muslim
commits adultery, close proximity, not paying zakat and so on are also
all not valid. Because, following that argument, Article 11 gives the
right to a person to practice his religion, and it is up to him whether he
wants to practice any of the direction which he wants to practice and
which not, follow whichever prohibition he wishes to follow and
which not. Therefore, following that argument, any law which requires
a person to carry out a matter or to abandon a matter is in conflict with
the freedom given by Article 11 and therefore all not valid.
In my view, in relation to Islam (I do not decide regarding other
religions), Article 11 cannot be interpreted so wide until it nullifies all
laws which requires a Muslim to pursue a religious obligation of Islam
or prohibits them carrying out a matter which is prohibited by Islam or
which determines other methods to carry out a matter related to Islam.
This is because the position of Islam in the Federal Constitution is
different from the position of other religions. Firstly, only Islam, as a
religion, is mentioned by its name in the Federal Constitution, i.e. as
‘the religion of the Federation’ — Article 3(1).
Secondly, the Constitution itself gives power to the State Legislative
Body (for states) to codify Syariah Laws in matters mentioned in List
II, State List, Schedule 9, the Federal Constitution (‘List II’). In
accordance with the requirements of that List II, Syariah Courts
(Criminal Jurisdiction) Act 1965 [*666] (‘Act 355/1965’) and various
enactments (for States) including as mentioned in this judgment, have
been codified.
So, if those laws, including s 102 of Enactment 4/1994, do not conflict
with the provisions of List II, and do not conflict with the provisions of
Act 355/1965, then they are valid laws.
This provision could be compared with provisions about marriage and
divorce. Syariah Laws requires a man and a woman who wish to stay
together to marry according to particular conditions and regulations.
Current needs require laws be made about it, including, among others,
requiring the marriage be registered and application for divorce be
made at the Syariah Court and order be given, if given, be registered
(for me the law last mentioned which is frequently called
‘administration law’, is a part of the development of Syariah Laws
also.) Are these laws also not valid and void on the basis that it
conflicts with Article 11 because, following that argument, it prevents
the freedom of religion which is guaranteed by Article 11? In my
opinion, no.”
17.5. Based on the above authorities it is very clear that:
(a) The issue of changing religion is directly related to the rights and
duties of the Appellant a a Muslim before the change happens;
(b) Article 11(1) should not be argued as a provision which gives the
right to unlimited freedom;
(c) The right to profess and practice a religion should always be subject
to the principles and practices as determined by that religion.
18. Based on the reasons enumerated above my answers to the questions at paragraph (1)
above are as follows:
(a) NRD is entitled to;
(b) NRD is correct; and
(c) The case of Soon Singh has been decided correctly.
In this situation, this appeal is rejected without order on cost.
Date 30 May 2007
Signed by Tun Dato’ Sri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim
The Nation’s Chief Justice