KUALA LUMPUR (May 15): The Shariah Courts are not "inferior" to the Civil Courts, an apex court judge has ruled.
Federal Court judge Datuk Abu Bakar Jais said this in his individual written grounds, where he, along with president of Court of Appeal Tan Sri Abang Iskandar Abang Hashim, had ruled in the majority to dismiss a woman's final challenge to change her Muslim religious status, earlier this month.
"It could not be disputed and should always be acknowledged that the Shariah High Court is a competent court under our own Federal Constitution, the supreme law in the country. Its decision commands the greatest respect and should accordingly be binding against all parties rightly coming under its jurisdiction," he said in the full grounds of judgement released on Tuesday.
Abu Bakar was elaborating on the case where a woman, who turns 38 this year, is contesting the appellate court's majority decision which had reinstated her religious status as a Muslim in January last year.
Abu Bakar said that although he is aware that some held the view that the Shariah Courts are inferior courts, which would enable the Civil Courts to possibly "review its decisions", there were case laws which stated otherwise.
In gist, the woman, whose identity has been withheld at the request of her counsels, maintains that her unilateral conversion as a minor and the validity of the conversion certification was illegal as it contradicted the enforced state enactment at that time. Thus, she argues that she was never a Muslim in the first place and the Civil Courts have jurisdiction to decide on her case.
She had relied on the landmark 2021 Rosliza Ibrahim case. A nine-member apex court panel, led by Chief Justice Tengku Maimun Tuan Mat, drew a distinction between renunciation and ab initio (never a Muslim to begin with). Cases that are ab initio in nature, the matter would fall under the Civil Court's jurisdiction.
Rosliza had taken her case straight to the Civil Courts with no prior findings by the Shariah Courts.
However, in the recent unnamed woman's case, she had gone through proceedings at the Shariah Courts, hence Abu Bakar's observation about the Shariah Courts’ standing is pivotal for the case at hand.
The woman also filed a summons in the Shariah High Court against the Federal Territory Islamic Religious Council in 2013, among others seeking a declaration that she was no longer Muslim. This was dismissed in July 2017.
Subsequently, she appealed against this decision in the Shariah Court of Appeal in August 2017, but this was dismissed in January 2021.
In his 49-page judgement, Abu Bakar noted that in her pleadings to the Shariah Court, she had requested a declaration that she is "no longer a Muslim" and not that she was "never a Muslim", which she was not restricted from asking.
Therefore, this, in his view, was an apostasy case, which squarely fell within the Shariah jurisdiction which could not be reviewed or relitigated at the Civil Courts.
"A Civil Court could not substitute its own decision in replacement of a Shariah Court’s decision. In our case the Shariah High Court had decided the appellant is still a Muslim and [this was] confirmed by the Shariah Court of Appeal," he said.
He added that by asking for such a declaration, it was obvious that the woman had acknowledged that she was a Muslim. Citing excerpts of the Shariah Court’s proceedings, he said that, based on witness testimonies, the Shariah Court could not find evidence that the woman had been practising Hinduism while growing-up with her [Muslim] mother and stepfather.
'One needs to look at the matrix of the case holistically'
The woman, born to a non-Muslim couple in 1986, was converted to Islam at around the age of four-and-a-half by her mother when the mother embraced Islam in May 1991. The woman's father did not know about the conversion and had not given approval or consent for his daughter's conversion up until his death in 1996.
A conversion card was issued to the child two years later in 1993.
A crucial point to the woman's case is also the legality of the unilateral conversion when she was a minor. This is because during her conversion, the administration of Muslim Law Enactment 1952 was still in force, in which Section 147 explicitly states that “no person who has not attained the age of puberty shall be converted to the Muslim religion”.
To this, Abu Bakar said that the Shariah Court had decided that the woman was a Muslim not only due to her conversion but also because the woman's upbringing was on the basis that she was Muslim and that she is a person "commonly reputed" as a Muslim as set out in Section 2 of the Administration of Islamic Law (Federal Territories) Act 1993.
"Thus, that certificate of conversion and the fact she converted to Islam before the age of puberty were not matters that should be taken in isolation, devoid of appreciation of her life in general and her upbringing in particular, including the time she attained puberty," he said.
Minority: Case clearly ab-initio
In her dissenting judgement, Datuk Mary Lim Thiam Suan, who has since retired, said that the woman was never a Muslim to begin with due to the illegal unilateral conversion and that the Civil Courts do have jurisdiction to hear and decide on the woman's case.
She said that the interpretation of a person's constitutional identity falls within the Civil Court's jurisdiction and not the Shariah Court’s.
"In view of Article 11(1) of the Federal Constitution, which guarantees the right to profess and practise one’s religion, the Federal Court further explained that the question of whether a person is a Muslim or a person ‘professing the religion of Islam’ necessarily relates to the person’s constitutional identity. That is a question of constitutional interpretation that the Shariah Courts are in no position to determine. That interpretation falls squarely within the duty of the Civil Courts to adjudicate, as it is one ‘which only the superior courts have the right to address’," she said in her 43-page judgement.
She also noted that the issue of re-litigation does not apply in this case, because the issue of constitutional identity or "ab initio" cases can never be raised before the Shariah Courts as it can only dismiss applications to leave Islam.
Lim also said that as the applicable state law is the Selangor state enactment, the Kuala Lumpur Shariah Courts which decided on the woman's case had no jurisdiction to interpret or determine the Selangor state laws.
"The Shariah High Court in the Federal Territory of Kuala Lumpur has no jurisdiction to adjudicate on any of the laws of the state of Selangor, where the appellant was “converted” in 1991. The decisions of the Shariah High Court and Court of Appeal are thus null by reason of absence of jurisdiction," she said.