The Court of Appeal which dismissed appeals by three Sarawakians to convert out of Islam has suggested their remedy is with the state legislature.
However, Justice Tengku Maimun Tuan Mat, who wrote the judgment, did not elaborate on the matter.
“On the factual matrix of this case, the appellants’ remedy perhaps lies in the State Legislature,” she said in the 16-page judgment now posted in the judiciary’s official website.
Matters relating to Islam and shariah courts come under the purview of states as outlined in the Federal Constitution.
Tengku Maimun, who sat with Justices Badariah Sahamid and Kamardin Hashim, had in August rejected the move by Jenny Peter @ Nur Muzdhalifah Abdullah, Tiong Choo Ting @ Mohd Syafiq Abdullah and Salina Jau Abdullah to leave Islam.
The judge said while the Court of Appeal understood the ‘predicament’ faced by the three it had no choice but to follow the legal principle established by the Federal Court.
“It is now settled by the long line of authorities that whether a person was a Muslim or not, was a matter under the exclusive jurisdiction of the shariah court,” she said.
She said Article 11 on the freedom of religion in the Constitution and the additional powers of the High Court stipulated in Schedule 1 of the Courts of Judicature Act 1964 must be read in the context of Article 121(1A).
That provision in the Constitution states that civil courts cannot interfere in matters relating to Islam over which shariah courts had jurisdiction.
The three appellants, represented by Baru Bian, had named the director of the Sarawak Islamic Department, Sarawak Islamic Council and the National Registration Department (NRD) as the respondents.
They had sought to compel the Sarawak Islamic Department and council to issue letters of release so that they could leave Islam, and also compel the NRD to change the Muslim names on their official documentation to their original names.
They were originally non-Muslims who had converted to Islam for marriage and had left the religion after divorce or death of their spouse.
Baru had submitted that the Sarawak Shariah Court Ordinance 2001 did not make any mention on the issue of jurisdiction over apostasy and as such the High Court should have exercised its jurisdiction to allow the trio’s applications.
Tengku Maimun said although the shariah court ordinance did not provide for the conversion in or out of Islam, Part VIII of the Majlis Islam Sarawak Ordinance 2001 provided for conversion to the religion of Islam.
She said the matter was compounded when the appellants had the written confirmation from the shariah court that it had no jurisdiction to declare that the trio were no longer Muslims.
She said relying on legal principles established by the Federal Court, by implication the Sarawak Islamic Department and shariah court would have the jurisdiction to deal with conversion out of Islam even if the religious court was correct to state that it had no jurisdiction.
Source : V Anbalagan@FMT Reporters Online