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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