Court to decide June 15 whether woman who wants to leave Islam to embrace Confucianism and Buddhism can continue with court challenge

An aerial view of the Kuala Lumpur High Court April 23, 2020. — Picture by Hari Anggara
An aerial view of the Kuala Lumpur High Court April 23, 2020. — Picture by Hari Anggara

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KUALA LUMPUR, April 27 — The High Court here will decide on June 15 whether a Malaysian woman — who wants to be declared no longer a Muslim in order to be free to embrace Confucianism and Buddhism — can proceed to have her lawsuit heard.

The 32-year-old woman, who was born to a Muslim convert father and a Muslim mother, cannot be named publicly due to a court order.

High Court judge Datuk Ahmad Kamal Md Shahid fixed the decision date on whether the woman would be granted leave for judicial review, after hearing arguments from her lawyer and the Attorney General’s Chambers (AGC).

For lawsuits filed through judicial review applications, leave or permission must be obtained first from the court before the lawsuit can be heard.

In this case, the woman — hereon referred to as “A” — had on March 4 filed for judicial review, naming the four respondents as the Shariah Court of Appeal, the Shariah High Court, the Federal Territories Islamic Religious Council (Maiwp) and the government of Malaysia.

The woman “A” is seeking at least 12 court orders as part of her lawsuit, including declarations that the Shariah courts do not have the jurisdiction or power to declare that a person is no longer a Muslim.

She is also seeking a declaration from the civil High Court that she is no longer a Muslim and a declaration that she is entitled to profess her religion of Confucianism and Buddhism.

She is also asking the civil High Court to declare the Shariah High Court’s July 2020 and the Shariah Court of Appeal’s December 2021 decisions — which rejected her bid to be recognised as a no longer a Muslim — as illegal and unlawful and void, and to have these decisions by the Shariah courts quashed.

She also sought for a court order to compel the Shariah Court of Appeal to immediately issue a certificate of renunciation of Islam and other required legal documents to give effect to such renuncation immediately, and for compensation over the illegal akidah counselling sessions that she was made to attend, as well as an interim stay against the Shariah court decisions.

According to a court document sighted by Malay Mail through a file search, A’s father had converted to Islam in order to marry her mother, and A’s religious status is Muslim as she was born when both parents were Muslims.

The lawyers for “A” said the woman was raised by her Muslim mother after the couple divorced, but that “A” had never practised Islam as her parents did not practise it and her mother did not force Islam on her.

“A” did not have a chance to legally decide her own faith as a child, and later started professing Confucianism and Buddhism as her religion, and in August 2018 filed an application in the Shariah High Court in Kuala Lumpur to seek declarations that she was never a Muslim or alternatively no longer a Muslim or an apostate and an order that she is not required to attend any counselling sessions relating to Islam.

At the Shariah High Court, “A” said she had never recited the Syahadah or the proclamation of faith required to embrace Islam and that did not believe in Islam’s teachings, asserting that she was registered as a Muslim due to the operation of law through her birth to her Muslim parents and not due to her personal belief.

“A” had also asserted that she professed Confucianism and Buddhism as her religion and that she had lived the life of a Buddhist for a long time and regularly attends Buddhist celebrations, adding that she visits Buddhist temples annually for prayers and to prepare for reincarnation in the journey towards achieving nirvana.

Asserting that she routinely consumes pork and alcohol which are forbidden under Islam but not under Buddhism, “A” had also told the Shariah High Court that she sought the declaration to renounce Islam in order to reflect her actual faith and to prevent the image of Islam from being tarnished by her actions because she does not intend to do so by pretending to be a Muslim

But before hearing the application by “A”, the Shariah High Court in December 2018 ordered her to first attend 12 “akidah” or faith counselling sessions or sessions regarding Islam over a six-month period from January to June 2019.

As “A” did not want to spend more time challenging these pre-trial counselling sessions, she had taken leave from her work abroad to travel to Malaysia to attend 12 sessions in January 2019, while her mother and her friend had also testified about the Buddhist faith of A.

The Shariah High Court on July 27, 2020 dismissed A’s bid to be declared no longer a Muslim and ordered her to go through “istitabah” or repentance and Islamic classes and further akidah counselling.

“A” in August 2020 appealed to the Shariah Court of Appeal in Kuala Lumpur, which then on December 8, 2021 rejected her appeal.

What the lawyers argued

Earlier today in arguing why the High Court should grant leave and proceed to hear the lawsuit by “A”, her lawyer Fahri Azzat listed nine main arguments, including the Shariah courts’ contradictory rulings by insisting that it had the jurisdiction to determine on the facts whether someone was a Muslim but at the same time admitting that it had no power to allow anyone to leave Islam.

Citing excerpts from the Shariah Court of Appeal’s and the Shariah High Court’s decisions in the case by “A”, Fahri highlighted that the Shariah Court of Appeal for example had said it could not give permission for “A” to leave Islam as it was allegedly contrary to Shariah code.

Fahri also said that “A” had renounced Islam and that this has been proven through her own declaration that she is no longer a Muslim and that she has embraced Confucianism and Buddhism, and that it is irrational not to accept her evidence.

Fahri noted that the Shariah High Court had — in rejecting A’s bid to be known as no longer a Muslim — ruled that the right to freedom of religion in Article 11(1) of the Federal Constitution is not applicable to Muslims.

“I would say on this point alone we should get leave, because this is a clear violation of Article 11(1) and the Shariah court does not have any authority to interpret Article 11(1). That is clear, the law is trite that only the civil courts have the right to interpret the Federal Constitution,” he said.

Fahri argued that his client’s right under Article 11(1) had been violated when the Shariah courts admitted they had no power to grant her permission to leave Islam and when she could not embrace Buddhism and Confucianism as she could not renounce Islam.

Fahri also argued her constitutional rights under the Federal Constitution were breached when she had to attend the counselling sessions as ordered by the Shariah High Court before the latter started hearing her case.

The whole process that “A” was subjected to in order to achieve her goal of renouncing Islam was also disproportionate, as she had to go through 12 counselling sessions and was also made to show up in Shariah court to be cross-examined with the entire process taking up about a year and only to be told at the end of the process that she could not leave the religion.

As this was the leave stage of the hearing, the AGC, in this case, appeared on behalf of the attorney-general in his capacity as the attorney-general, instead of on behalf of the government. The AG’s role at this stage was to help the court to filter through any frivolous applications.

Federal counsel Mohammad Sallehuddin Md Ali, who represented the AG, argued that the High Court should not grant leave to “A”.

Sallehuddin said the AG’s sole contention — against A’s challenge of the Shariah High Court and the Shariah Court of Appeal decisions — was that the Shariah courts’ decisions cannot be reviewed by the civil courts.

“We objected to this on the grounds that both the decisions of the Shariah High Court and Shariah Court of Appeal are not amenable to judicial review by virtue of Article 121(1A) of the Federal Constitution,” he argued.

Article 121(1A) states that the civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.

Sallehuddin argued that the Shariah High Court had decided in A’s case that it has jurisdiction to hear her bid to renounce Islam and that it had however also decided it had no power to allow her to renounce Islam after having heard the evidence given by her witnesses and applying Shariah code, and said the Shariah Court of Appeal had agreed with this.

Arguing that the issue of conversion out of Islam falls within the Shariah courts’ jurisdiction as it is an implied power even if the Federal Territories’ state Islamic laws did not provide for leaving Islam, Sallehuddin argued that Article 121 (1A) would mean that the civil courts cannot carry out a judicial review on the Shariah courts’ decision once the Shariah courts make a decision on the matter.

Sallehuddin repeatedly stressed that the civil courts cannot review the Shariah courts’ decision, even if the Shariah courts made a wrong decision.

“And we say as long as matter comes within its jurisdiction, whether it is correct or otherwise, that is not the concern of the civil court. That is the whole Article 121 (1A). Once decision is made, it cannot be reviewed,” he said.

“Once they go to the Shariah court and the Shariah court has made the decision within their own jurisdiction, it ends there. If it starts at the Shariah High Court, then can appeal to the Shariah Court of Appeal, it ends there. They cannot question the correctness of the Shariah court’s decision in the civil court. Article 121 (1A) confers jurisdiction on matters within Shariah court, correct or otherwise, it cannot be reviewed,” he added.

“Rightly or wrongly, it ends there, by virtue of Article 121 (1A),” he later said, arguing that otherwise that all those who lost in the Shariah courts would come to the civil courts to seek judicial review.

Sallehuddin said the AG does not disagree that the powers of judicial review belong to the civil courts and not the Shariah courts, but again insisted that Shariah courts’ decision cannot be subject to judicial review by the civil courts.

Fahri then replied by pointing out that the Federal Court’s 2018 decision in M. Indira Gandhi’s case, where it was held that Article 121(1A) does not oust or remove the civil courts’ jurisdiction to interpret the Federal Constitution or laws, just because the matter is related to Islamic law.

“Article 121 (1A) has been repeatedly decided time and time again, it does not take away the civil courts’ power for judicial review,” he said when citing other past court cases.

He noted that Shariah courts are inferior courts as they are established under state laws while the civil courts are established under the Federal Constitution, and that this means Shariah courts are subject to judicial review by and the supervisory powers of the civil courts.

“The High Court always has supervisory powers over inferior tribunals of which the Shariah court is one, so it doesn’t matter what the subject matter is because the High Court in exercising judicial review power is not looking at the merits of the case,” Fahri said.

Fahri explained that his client A’s challenge in the civil High Courts was not meant to be an appeal against the Shariah courts’ decision, but was a challenge based on the argument that the Shariah court had misapplied and ignored certain laws in arriving at its decision.

Fahri also argued that the Shariah courts had in his client’s case arrived at court decisions that were not in accordance with the law and the Federal Constitution, and that was why a judicial review is necessary.

Arguing that the civil courts have jurisdiction to hear his client’s case and that it is not a frivolous application, Fahri then asked for the High Court to grant leave for his client’s lawsuit to proceed.

The other two lawyers who represented “A” today are Ameerul Aizat Noor Haslan and Iqbal Harith Liang Danial Liang.

At the end of the hearing today, Fahri asked the High Court to order for the name of “A” to not be published, and also asked for court papers for this case that are filed to the court’s online system to not be accessible by the public.

Sallehuddin who was representing the AG did not object to the request.

The High Court judge then gave a court order that disallowed anyone — and not just the media — from naming “A”, saying: “On the lawyer’s request and with no objection from the AGC, I order for all including the media to not name those who are involved in this case, and all cause papers that are related to this case to be restricted from public display.”

Later when met at the court complex here, Fahri confirmed to reporters that “A” had not attended any further counselling sessions apart from the 12 akidah sessions she attended before the trial at the Shariah High Court.

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