Saturday, 2 April 2016

Roneey anak Rebit conversion case - High Court judgment



IN THE HIGH COURT IN SABAH AND SARAWAK  AT KUCHING:
APPLICATION FOR JUDICIAL REVIEW 

In the matter of the refusal of the Director of Jabatan Agama Islam Sarawak to grant AZMI B MOHAMAD AZAM @ RONEEY (WNKP 750219-13-5165) a release letter from the religion of Islam;
And
In the matter of Section 44 of the Specific Relief Act, 1950; And In the matter of the Courts of Judicature Act, 1964;  And  In the matter of the Order 53 Rules of Court 2012; 
And In the matter of Article 11 of the Federal Constitution.
BETWEEN
AZMI B MOHAMAD AZAM @ RONEEY 20 [WNKP 750219-13-5165]
No 53, Kampung Bunuk, Batu 21, Jalan Penrissen 23 93250 Kuching, Sarawak …
APPLICANT
 AND
 1. DIRECTOR OF JABATAN
 AGAMA ISLAM SARAWAK
2. MAJLIS AGAMA ISLAM
3. DIRECTOR-GENERAL OF NATIONAL REGISTRATION MALAYSIA
4. STATE GOVERNMENT OF SARAWAK …



RESPONDENTS
GROUNDS OF DECISION
1. This is an application by the Applicant for the following relief:
 a. A Declaration that the Applicant is a Christian.
b. An Order of Mandamus to compel the 1st and/or 2nd  Respondents to issue the Letter of Release from the religion of Islam (“Surat Murtad”) to the Applicant effecting the Applicant’s intention to be released from the religion of Islam.
c. An Order of Mandamus to compel the 3rd Respondent to  change the Applicant’s name from Azmi B Mohamad  Azam Shah @ Roneey to Roneey Anak Rebit.
d. An Order of Mandamus to compel the 3rd Respondent to drop the Applicant’s religion Islam in his identity card  and/or the records and/or particulars of the Applicant’s religion held at the National Registry to that of Christianity.
e. Costs.
 f. Any further or other relief deems fit and proper by this Honourable Court.
2. The application for leave to file judicial review was made ex parte but it was heard inter parte.
 The Law
3. Granting leave in a judicial review procedure is the discretion of the Court. In the exercise of this discretionary power, the Court must have regard to the following guidelines as laid down by the Federal Court in Tuan Haji Abdul Aziz Kolek Sarip Hamid & Anor v Patco Malaysia Bhd. [1995] 2 MLJ .
The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application.
Further, there must be merit in the Applicant’s application to be argued on full inter parte basis as is necessary on the facts and all such argument as is necessary on the law. This has been decided in Syarifah Nooraffyzza Wan Hosen v. Director Of Jabatan Agama Islam Sarawak & Ors, [2015] CLJ 399,  wherein Her Ladyship decided:
 “[3] In order to succeed being granted the leave, I must be satisfied that the reliefs sought by the applicant merits consideration "on a full inter parte basis with all such evidence as is necessary on the facts and all such argument  as is necessary on the law" but if there is "no arguable case" I must dismiss the application for leave (see Tuan Sarip Hamid & Anor v. Patco Malaysia Berhad [1995] 3 CLJ 627; [1995] MLJ 442).
When I read the applicant's affidavit it is clear to me that there is no arguable case for her in this case because I simply do not have the jurisdiction to grant the remedies relating to her renouncement of the religion of her birth.”
The Facts
5. In the affidavit in support affirmed on 11th December 2014 to  support the application for leave under Order 53 rules 2 & 3 of the Rules of Court 2012, the Applicant deposed that his parents are Bidayuh by race and Christian by religion. However, both his parents embraced Islam in or about 1983 when his father, a soldier, was serving in Kuala Lumpur.
Upon conversion, his father Rebit Anak Ngaei was given alias name of Mohamad Azam Shah Bin Abdullah while his mother Molen Anak Sangok was given an alias name of Faezah Binti Abdullah.
The Applicant was eight years old at the time of his parents’ conversion and by virtue of his parents’ conversion, he was also given an alias Azmi Bin Mohamad Azam @ Roneey.
6. The Applicant deposed that since birth he was raised and brought up in the Bidayuh Christian community and on his own volition he had left the religion of Islam and embraced Christianity.
On 26 September 1999, he was baptized in Sidang Injil Borneo (SIB) Sarawak at Bunuk as evidenced by the baptism certificate.

7. Thereafter on 15th July 2014, the Applicant went to the 3rd  Respondent’s office in Limbang for the purpose of applying for change of name in his identity card but was informed that a Letter Of Release From Islam and a Court Order are required to effect the change.
8. Thereupon, the Applicant approached the Jabatan Agama Islam, Limbang Branch and was duly informed that Jabatan Agama Islam, Limbang Branch cannot help and was advised to apply to the Court. Hence the present application. Consent Order between the Applicant and the 1st, 2nd and 4th  Respondents.
9. It is worth mentioning that on 12th June 2015, a consent order was entered between the Applicant and 1st, 2nd and 4th Respondents in the following terms:
 “The 1st, 2nd and 4th respondents to issue letter of no  objection to the applicant to come out of Islam and the copy of the same to be forwarded to the applicant's counsel”.
Objection of the 3rd Respondent
10. Learned Senior Federal Counsel acting for the 3rd Respondent contended that the Applicant cannot resort to the civil Court in order to be released from Islam. It was submitted that the law is established that in deciding whether a matter falls within the jurisdiction of Syariah Court, the Court should apply “subject matter” approach in contrast to “remedy prayer for” approach, citing Abdul Shaik bin Md Ibrahim & Anor v Hussien bin Ibrahim & Ors [1999] 5 MLJ 618 [HC], Majlis Ugama Islam
 Pulau Pinang dan Seberang Perai v Shaik Zolkaffily bin Shaik Natar & Ors [2003] 3 MLJ 705 [FC] and Rema bte Simban v Bujang bin Jahaili & Anor [2013] 1 MLJ 127 [HC].

11. It was submitted for the 3rd Respondent that the matter of apostasy lies within the domain of the Syariah Court. Hence, in order to certify whether a person professing Islam has renounced the religion, it is within the knowledge of the Syariah Court to say so. For support, Dalip Kaur v Pegawai Polis Daerah, Balai  Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 was cited.

12. Bearing in mind that judicial review is to review the process of arriving at a decision and not the decision itself, submitted Senior Federal Counsel, there must be a Syariah Court’s order before any decision on the Applicant’s application for his Muslim name to be dropped from and to change the word “Islam” to “Christianity” in his identity card can be made. In support of this contention, the following cases were cited in support.

13. In Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan Lain-lain [2007] MLJ 585, the applicant applied to the National Registration Department for the word “Islam” to be dropped in her identity card since she had has been converted to Christianity. The National Registration Department imposed a condition on her to produce a certificate or declaration or an order from Syariah Court stating that she was released from Islam. Dissatisfied, the applicant filed the judicial review to challenge the said decision. In dismissing the application, the Federal Court by the majority of two, held at p 608:
Oleh demikian adalah munasabah bagi JPN mengenakan syarat-syarat tersebut kerana perkara murtad ini, mengikut penghakiman majoriti (dan saya bersetuju dengannya), adalah satu persoalan yang berkaitan dengan undang- undang Islam dan seperti yang telah dinyatakan oleh Mahkamah Agong dalam kes Dalip Kaur lwn Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 bahawa jawapan kepada persoalan sama ada  seseorang itu adalah seorang Muslim atau telah keluar dari agama Islam sebelum dia meninggal dunia, adalah termasuk dalam dunia undang-undang Syariah yang memerlukan pertimbangan-pertimbangan serius dan tafsiran wajar atas undang-undang itu.

 14. Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489, the Federal Court held: One reason we can think of is that the determination of a
 Muslim convert's conversion out of Islam involves inquiring into the validity of his purported renunciation of Islam under Islamic law in accordance with hukum syarak (Dalip Kaur).
 As in the case of conversion to Islam, certain requirements  must be complied with under hukum syarak 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.

15. In Hj Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah and another appeal [2014] MLJ 757, the Federal Court held:
[21] Thus, in James v Government of Malaysia [2012]  MLJ 721 and Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585, it was held that apostasy was a matter within the exclusive jurisdiction of the Shariah Court.
 [22] Premised on the above authorities, it is settled law that  the question of whether a person is a Muslim or not is a  matter falling under the exclusive jurisdiction of the Shariah  Court. On the facts in the present case, it is not in dispute  that the plaintiff's parents converted to Islam in 1983  together with the plaintiff and her siblings. This is supported  by the statutory declaration of the late father referred to earlier.

16. Senior Federal Counsel submitted that this Court is bound by the decisions of the highest court of the land, that is, the Federal  Court in Lina Joy case, the matter of apostasy or renunciation of  Islam is within the jurisdiction of the Syariah Court to adjudge upon since the subject matter is touching on the personal law of persons professing the religion of Islam.

 17. Senior Federal Counsel further submitted that since there is no evidence in any of the affidavits affirmed by the Applicant to show that there is an order issued by the Syariah Court certifying  that the Applicant has converted out of Islam, the application herein is therefore frivolous or vexatious; there is no substance in the grounds supporting the application or show that there is  no arguable case which requires full inter parte hearing. It was submitted that the 3rd Respondent cannot be compelled to effect  the changes as prayed for since this Court has no jurisdiction to  entertain the application.

The Applicant’s Contention
18. Learned counsel for the Applicant submitted that the application herein is not subject to the jurisdiction of the Syariah Court on the following grounds:
a. There are merits in the application and the application is not frivolous based on the legal principles in leave application.
b. The Applicant does not profess the religion of Islam.
c. There is no statutory power under the State Legislation that  grants the Syariah court power to adjudicate the issue of  apostasy.
d. The 1st and 2nd 11 Respondent have no objection to issue the 12 Letter of No Objection to Come Out From Islam to the Applicant.

 Application is Not Frivolous
 19. There is no question or doubt that the matter raised in the application herein is by no means trivial and far from being frivolous. It concerns a person’s personal choice of faith and to
 exert the fundamental liberties, that is, freedom of religion enshrined under Article 11 of the Federal Constitution.

 Non-professing of Islam
20. Article 74(2) of the Federal Constitution gives power to the  Legislature of a State to make laws in respect of any of the matter  enumerated in the State List, or, the Second List set out in the Ninth Schedule or the Concurrent List.

21. Item 1 of List II of the Ninth Schedule states:
 Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and  intestate, betrothal, marriage, divorce, dower, maintenance,
adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts;
Wakafs and the definition and  regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in  respect of Islamic religious and charitable endowments,  institutions, trusts, charities and charitable institutions  operating wholly within the State; Malay customs;
Zakat,  Fitrah and Baitulmal or similar Islamic religious revenue;  mosques or any Islamic public place of worship, creation  and punishment of offences by persons professing the  religion of Islam against precepts of that religion, except in  regard to matters included in the Federal List;
the  constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing  the religion of Islam and in respect only of any of the  matters included in this paragraph, but shall not have  jurisdiction in respect of offences except in so far as conferred by federal law;
the control of propagating doctrines and beliefs among persons professing the religion  of Islam;
the determination of matters of Islamic law and  doctrine and Malay custom. (emphasis added)

22. In Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007]  MLJ 101, the Federal Court held unanimously that:
[43] What it means is that, the Legislature of a State, in making law to 'constitute' and 'organize' the syariah courts  shall also provide for the jurisdictions of such courts within the limits allowed by item of the State List, for example, it is limited only to persons professing the religion of Islam.

23. Relying on Re Mohamed Said Nabi, deceased (1965) MLJ 121 and Latifah case, supra, learned counsel for the Applicant submitted that the Applicant did not affirm publicly or declare openly that he believes in the Islamic faith. To the contrary, he  has left Islamic faith through his statutory declaration and in the  filing of the affidavit in this case. Thus, the Applicant cannot be subjected to Syariah Court’s jurisdiction.

24. On the other hand, learned Senior Federal Counsel for the 3rd Respondent submitted that the Applicant is unquestionably a Muslim as per his averment in paragraph 5 of his affidavit in support. The fact that the Applicant did not affirm publicly or declare openly that he believes in the Islamic faith cannot be a factor to suggest that he is not a Muslim.

25. Given that the Syariah Court shall have jurisdiction only over persons professing the religion of Islam, it is therefore helpful at this juncture to ascertain the meaning of “professing” or “profess”.

26. In WORDS AND PHRASES JUDICIALLY DEFINED, 1990 edition, p. 447, under the word “profess”, it stated: “Now what is the meaning to be attached to the word “profess”? According to the Shorter Oxford English Dictionary “profess” means “to affirm, or declare one’s faith in or allegiance to (a religion, principle, God or Saints etc)" Re Mohamed Said Nabi, deceased [1965] MLJ 121 @ 122
27 per Chua J.”.

 27. Longman Dictionary of Contemporary English defined “profess” as “a statement of your belief, opinion, or feeling”.

28. From the definition aforesaid, it conveys the meaning that to profess a religion is making a public statement about the religion you believe in. Thus, a person professing the religion of Islam is a person who has made a public declaration, affirmed his faith in or his allegiance to Islam.

29. In paragraph 5 of the Applicant’s affidavit in support under Enclosure 3, he averred that his parents were converted to Muslim when he was eight years old [in fact, ten years old based on his mother’s Conversion Certificate Exhibit RR-7] and he has no choice but to follow his parents’ conversion.

30. In Exhibit RR-7, under the heading “Keterangan Anak - Anak- anak yang di bawah umur 15 tahun dengan sendirinya jadi Islam dengan sebab Islam salah seorang dari ibubapa yang diikutinya”, the name of the Applicant was stated therein.

31. The contents of Exhibit RR-7 vividly shows that the conversion of the Applicant was because of his mother’s conversion; his conversion was not by reason that he professed the religion of Islam. To put it in another way, the conversion of the Applicant to Muslim faith was not on his own volition by
affirming, declaring his faith in or allegiance to Islam religion but by virtue of his mother’s conversion as he was still below the age of 15 years and in the custody of his mother at the material time. Indeed, the Applicant said that he had no choice but to convert due to his mother’s conversion. In my view, since the Applicant, who is a Bidayuh by birth, had not in the first place professed his faith in Islam but his conversion followed that of his mother as he was a minor at the material time, logic dictates that he cannot be considered as a person professing that particular faith. That the Applicant had not lived like a person professing Islam is seen in his averment that he was raised and brought up in the Bidayuh Christian community.

32. In my view, by reason that the Applicant’s conversion in the first place was not based on his professing Islam but by virtue of his mother’s conversion, he ought not be subjected to the jurisdiction of Syariah Court as the jurisdiction of Syariah Court is limited only to persons professing the religion of Islam.

 33. For the reasons aforesaid, I allow the leave application as prayed for.

 (DATUK YEW JEN KIE)
Judge
 Date of Grounds of Decision: 29.1.2016
 Date of Delivery of Judgment: 17.12.2015
 For the Applicant: Miss Chua Kuan Ching of Messrs Baru Bian & Co. Advocates, Kuching
For the 1st, 2nd and Mr. Hishamuddin Roslan
 Respondents: State Legal Officer,
State Attorney General Chambers Sarawak, Kuching
For the 3rd 6 Respondent: Mr. Mohd Taufik
Senior Federal Counsel Jabatan Peguam Negara Malaysia Sarawak, Kuching

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