The Court of Appeal in Kuching, Sarawak, today dismissed an appeal by three people from the state who want to leave Islam.
The three are Jenny Peter @ Nur Muzdhalifah Abdullah, Tiong Choo Ting @ Mohd Syafiq Abdullah and Salina Jau Abdullah. All of them were represented by state PKR chief Baru Bian.
They named the director of the Sarawak Islamic Department, Sarawak Islamic Council and the National Registration Department (NRD) as the respondents.
All three of them want to compel the Sarawak Islamic Department, and the council to issue letters of release (surat murtad) to the applicants to be released from the religion of Islam.
They also sought to compel the director-general of the NRD to change the Muslim names of the applicants to their original names.
The three-member bench led by Justice Tengku Maimun Tuan Mat ruled that the question on whether they could leave Islam, should be brought to the Syariah Court.
The other judges were Justice Badariah Sahamid and Justice Kamardin Hashim.
Their fate is different from that of Rooney Rebit – the High Court in Kuching on March 24 granted his judicial review and ruled that he had a constitutional right to choose his faith. The decision was made just before the Sarawak state elections.
The High Court had then disagreed with the NRD’s insistence that Rooney @ Azmi Mohamad Azam required a release letter from the Syariah Court to change his religion.
In Rooney’s case, even Prime Minister Najib Abdul Razak had stepped in and assured Sarawak chief minister Adenan Satem that the NRD would drop its appeal against the Bidayuh man.
Setback to freedom of religion
Lawyer Baru described the decisions in the trio’s case as a setback for freedom of religion in Sarawak.
He said the applicants were originally non-Muslims who had left Islam after a divorce or death of a spouse.
“All three had sworn in their statutory declarations that they are no longer practising the Islamic faith,” said Baru in a statement today.
“The main issue before the High Court and the Court of Appeal was whether the Syariah Court or the Civil Court has jurisdiction in such cases.
“Our argument is that since the applicants are no longer Muslims, as sworn in their statutory declarations, the Syariah Court has no jurisdiction over them.”
But the High Court and the Court of Appeal have ruled that the question of whether the applicants are now ‘murtad’ (apostates) should be decided by the Syariah Court, according to Baru.
They had cited the Federal Court’s decision in the Lina Joy case and the interpretation of Article 121A of the Federal Constitution.
Lina Joy had mounted a legal challenge against the NRD to change her religious status from ‘Muslim’ to ‘Christian’, but after much controversy, the Federal Court ruled against her in 2007.
Baru said that they relied on the dissenting judgment by the chief judge of Sabah and Sarawak, Richard Malanjum, in the Lina Joy case.
He had argued that the three are no longer practising Islam and the statutory declaration and documentary evidence of their baptisms are sufficient.
“We also argued that the Syariah Court Ordinance 2001 of Sarawak is silent on the issue of jurisdiction over apostasy or ‘murtad’ matters,” he said.
“The Syariah Court itself submitted that since the Syariah Court ordinance 2001 is silent on jurisdiction, then the civil High Court should exercise its inherent jurisdiction and its powers under the Courts of Judicature Act to allow the applications.”
The Ba’kelalan assemblyperson said that they had initially asked for an adjournment in today’s appeal as there is a similar case at the Federal Court, namely Syarifah Nooraffyzza Wan Hossen vs the director of Sarawak Islamic Department and three others.
However, Baru said the appellate court decided to hear the cases as no dates had been fixed for Sharifah’s case.
“As a result of today’s proceeding, the three must now appeal to the Federal Court for the Lina Joy case to be revisited. We hope leave (permission) will be granted to have this case fully ventilated at the apex court,” he said.
To questions whether the cases are different from Rooney’s, Baru said the Rooney case was politically resolved but the facts are also distinguishable from the three cases.