The Court of Appeal ruled against three conversion cases yesterday (Aug 17) citing the Federal Court decision in the Lina Joy case and also on their interpretation of Art 121A, Ninth Schedule List II of the Federal Constitution to justify their decision.
According to State PKR chairman Baru Bian in a press statement yesterday, the main issue before the High Court and the Court of Appeal was whether the Syariah Court or the Civil Court had jurisdiction in such cases.
“Our argument was that since the applicants are no longer Muslims, as sworn in their statutory declarations, the Syariah Court has no jurisdiction over them.
“Unfortunately the High Court and the Court of Appeal have ruled that the question of whether the applicants are now ‘murtad’ should be decided by the Syariah Court,” he disclosed.
The Court of Appeal comprised Dato Tengku Maimum Tuan Mat, Datuk Dr Badariah Sahamid and Datuk Kamardin Hashim.
Baru, a practising lawyet, said in all three cases, the applicants were originally non-Muslims who had converted to Islam for marriage and had left the religion after divorce or death of spouse.
“All three (applicants) had sworn in their statutory declarations that they are no longer practising the Islamic faith,” he said in a statement yesterday.
“Relying on the dissenting judgment of (Chief Justice of Sabah and Sarawak) Tan Sri Richard Malanjum in Lina Joy, and two other Federal Court cases, the main points of our argument were the applicants are no longer practicing the religion of Islam as sworn in their statutory declaration, and even had documentary evidence of their baptisms.
“As they are no longer Muslims, the Syariah Court should not have any jurisdiction to determine their application,” he said, adding that the two other arguments were that the Syariah Court Ordinance 2001 of Sarawak is silent on the issue of jurisdiction over apostasy or ‘murtad’ matters; and the Syariah Court itself had admitted to them in writing that they have no jurisdiction over such matters.
“We submitted that since the Syariah Court Ordinance 2001 is silent on jurisdiction over apostasy matters and the Syariah Court itself admits that it has no jurisdiction, then the High Court should exercise its inherent jurisdiction and its powers under section 25(2) of the Courts of Judicature Act 1964.
“The Syariah Court being a creature of statute, if the statute does not confer express jurisdiction, such jurisdiction cannot be implied, especially if it is on matters of fundamental substantive legal rights.”
He said that the result of yesterday’s proceedings was that the three applicants must now appeal to the Federal Court, and Lina Joy’s case needed to be revisited.
“We believe that the Lina Joy case was wrongly decided and that the facts could have been distinguished. We hope leave will be granted to have this issue fully ventilated once again at our apex court soon,” he expressed.
Baru pointed out that his firm had applied for judicial review in these cases, asking for orders of mandamus to compel the first and second respondents (State Islamic Religious Affairs Department and Islamic Council directors) to issue letters of release (‘surat murtad’) to the applicants to be released from the religion of Islam; and to compel the third respondent (National Registration Department director general) to change the names of the applicants from the Muslims names to their original names and their religions from Islam to Christian.
Lina Joy, born Azlina Jailani, brought up as a Muslim but decided to be Christian at 26, lost a six-year battle in 2007 to have the word “Islam” removed from her identity card, after the country’s highest court rejected the change.
In a recent apostasy case which saw Chief Minister Datuk Patinggi Tan Sri Adenan Satem himself intervening, the High Court here allowed a Bidayuh man, who was converted to Islam as a child by his parents, to renounce his religion and become a Christian on March 24.
Justice Datuk Yew Jen Kie made the decision on application made by Azmi Mohamad Azam Shah @ Roneey Rebit,41, who was converted when he was 10 years old.
Yew made the declaration that the applicant is a Christian, and ordered the first and second respondents to issue letter of release from the religion of Islam, and also his name to be changed from Asmi Mohamad Azam Shah to Roneey Anak Rebit in his identification card as well to change Islam in his identity card at the National Registry to Christianity.
In passing the verdict, the judge said the decision was made under Article 11 of the Federal Constitution, which guaranteed freedom of religion.
The Court had also said the conversion was not done of his own volition, so he could not be considered a Muslim and hence was not subject to either Syariah Court’s jurisdiction or the Federal Court’s decision on the Lina Joy case.
Following this landmark case, Adenan pledged look into other cases where people were left in ‘limbo’ and cases similar to Rooney’s.
“Now that I have persuaded the federal authorities to withdraw the case against Rooney Rebit, please rest assured that I will look at the other cases in due time after the election and come up with a clear policy,” he said in a statement.
The Borneo Post Online