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Malaysia: Federal Court Rules that State Sharia Court Has Jurisdiction Over Apostasy Cases

(Mar. 6, 2018) On February 27, 2018, it was reported that the Malaysian Federal Court (the highest court in Malaysia) had dismissed an appeal by four people from the state of Sarawak who wished to have their apostasy cases considered in a civil court. (Sharon Ling, Federal Court Rules Jurisdiction to Hear Apostasy Cases Lies with Syariah Court, STAR ONLINE (Feb. 27, 2018).)

Each of the four appellants is seeking a court order to compel the National Registration Department to amend the National Registry and their identity cards to reflect their conversion from Islam to Christianity. One of the four, Syarifah Nooraffyza Wan Hosen, was born Muslim and converted to Christianity as an adult; the other three appellants, Tiong Choo Ting (aka Mohd Syafiq Abdullah), Jenny Peter (aka Nur Muzdhalifah Abdullah), and Salina Jau Abdullah, had converted to Islam in order to marry Muslim spouses and sought to return to Christianity after divorce or the death of their spouses. (Sarawak Shariah Court Can Hear Apostasy Cases, Rules Apex Court, FREE MALAYSIA TODAY (Feb. 27, 2018).)

In 2015, the High Court in Sarawak refused to hear the applications, holding that the civil court had no jurisdiction to hear apostasy cases. In 2016, the Court of Appeal dismissed their appeals, after which they appealed to the Federal Court on the jurisdiction question. (Ling, supra; the decision of the Court of Appeal in the Syarifah Nooraffyza Wan Hosen case is available on the ASEAN LIP website.) Previously, the Sarawak Syariah [Sharia] Court had stated that it had the authority to approve conversions to Islam, but not conversions from Islam to any other religion. (Laja Laing, Only Sharia Court Can Hear Apostasy Cases, Malaysia’s Highest Court Rules, BENARNEWS (Feb. 27, 2018); Crowd Gathers as Federal Court Hears Conversion Appeals, BORNEO POST (Feb. 26, 2018).) The Sarawak State Islamic Department director, the Sarawak Islamic Council, the National Registration Department director-general, and the Sarawak state government were listed as respondents in the case. (Sarawak Sharia Court Can Hear Apostasy Cases, Rules Apex Courtsupra.)

The case involved the interpretation of the Sarawak Syariah Courts Ordinance 2001, which states that the Syariah High Court has criminal jurisdiction over offenses committed by Muslims that are prescribed in any written law as being against the precepts of the religion of Islam, and civil jurisdiction in such matters as marriage and divorce, maintenance, legitimacy and guardianship of children, and inheritance involving Muslims. (Syariah Courts Ordinance, 2001 (Sarawak), s 10, Cap. 42, Sarawak LawNet System.) The jurisdiction of the Syariah subordinate courts contained in section 11 of the Ordinance also does not refer to apostasy cases.

The Federal Court held unanimously that even though there were no provisions in the Ordinance on apostasy, “there were provisions on matters of conversion to Islam, which implied that the Sarawak Shariah Court had jurisdiction over apostasy cases.” (Sarawak Sharia Court Can Hear Apostasy Cases, Rules Apex Courtsupra.) In particular, it considered that sections 68 and 69 in the Majlis Islam [Islamic Council] Sarawak Ordinance 2001 could be used by the Court to hear apostasy cases. (Id.; Majlis Islam Sarawak Ordinance, 2001, Cap. 41, Sarawak LawNet System.) These two provisions relate to the requirements for, and effects of, conversion to Islam; they do not refer to conversion to another religion from Islam.

Syariah Courts

The Federal Constitution of Malaysia gives the thirteen states of Malaysia exclusive jurisdiction over the administration of Islamic law. (FEDERAL CONSTITUTION, sch 9 list II.) In 1988, the Constitution was amended to clarify that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.” (Id. art. 121(1A). See generally Shaikh Mohamed Noordin, Update: Researching Islamic Law; Malaysian Sources, GLOBALEX (May/June 2011).) Under this dual legal system, the Syariah courts established in each state have jurisdiction over personal status issues and some criminal offenses involving Muslims, with separate laws applying to such matters. The question over whether the Syariah courts have jurisdiction over a particular matter has emerged as a significant issue in Malaysia. (See Yvonne Tew, The Malaysian Legal System: A Tale of Two Courts, 19 Commonwealth Jud. 3–7 (2011); Rosli Dahlan & Fawza Sabila Faudzi, The Position of the Shariah Court in the Malaysian Legal System, MALAY MAIL ONLINE (May 15, 2015).)

Previous Conversion Cases

The Federal Court has previously been asked to adjudicate cases involving conversion from Islam to Christianity, including in the 2007 landmark Lina Joy case. (Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585. See Jalil Hamid & Syed Azman, Malaysia’s Lina Joy Loses Islam Conversion Case, REUTERS (May 30, 2007).) In that case, the Federal Court refused to order the National Registration Department to change the appellant’s religion to Christianity, and confirmed the decision in the 1999 case of Soon Singh vs Perkim Kedah that only Syariah courts have jurisdiction to hear cases in which a person renounces Islam, even if this is not explicit in relevant state laws. (Soon Singh v. Pertubuhan Kebajikan Islam Malaysia (PERKIMKedah [1999] 1 MLJ 489, CaseLaws website.) In that case, the Federal Court stated that,

[a]s in the case of conversion to Islam, certain requirements must be complied with under Hukum Syarak [Sharia laws] for a conversion out of Islam to be valid, which only the Syariah courts are the experts and appropriate to adjudicate. In short, 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. (Id.)

The need for individuals to apply to the Syariah courts for an order recognizing their conversion from Islam to another religion raises significant practical obstacles: according to statistics provided by the Islamic Affairs Minister in 2011, only 135 out of 686 applications to change religious status were approved by Syariah courts between 2000 and 2010. (Ida Lim, Only One Way Out for Malaysians Seeking to Drop Muslim Status?, MALAY MAIL ONLINE (July 13, 2014).) According to one author, “no Syariah court has ever granted such an order of apostasy to a living person; indeed, apostasy is regarded as an offence by the Syariah courts in certain states.” (Tew, supra, at 5–6.) Therefore, although the jurisdiction issue appears relatively settled, those who have converted from Islam continue to seek resolution of their status in the civil courts. (Lim, supra.)