Federal Court to decide tomorrow on Muslim apostasy case

Lawyer Baru Bian (centre) with Joshua Baru (right) and Association of Churches of Sarawak (ACS) president Datuk Justin Wan on February 26, 2018. — Picture by Sulok Tawie
Lawyer Baru Bian (centre) with Joshua Baru (right) and Association of Churches of Sarawak (ACS) president Datuk Justin Wan on February 26, 2018. — Picture by Sulok Tawie

KUCHING, Feb 26 — The Federal Court will rule tomorrow if the Sarawak Shariah Court has jurisdiction over apostasy in the case of four Sarawakians — a Malay-Muslim and three Muslim converts — who want to convert to Christianity.

“We don’t want to rush into making a decision,” Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin said after hearing submissions from lawyers representing the appellants and the respondents.

Baru Bian, who represented the appellants — Malay-born Sharifah Nooraffyzza Wan Hosen; and Muslim converts Jenny Peter alias Nur Mudzdhalifah Abdullah, Mohd Syafiq Abdullah alias Tiong Choo Ting and Selina Jau alias Selina Jau Abdullah — said that the appeals from his four clients were similar in facts and issues.

With the exception of Sharifah Nooraffyzza, he said the three other appellants have received written letters from the Sarawak Shariah Court stating that it has no jurisdiction concerning their applications to convert out of Islam.

“That is the crux of the matter that the Federal Court has to decide,” he said.

He wanted the apex court to rule on Shariah Court Ordinance 2001 itself, and not on matters outside.

Baru contented that the present four cases are similar to the Indira Gandhi case — a Hindu woman who fought the conversion of her three children to Islam by her Muslim convert ex-husband without her consent — in so far as conversion is concerned.

But Justice Zulkefli asserted that they were not the same as the Indira Gandhi case involved a conversion of minors to Islam, whereas appellants in the current case wanted to convert out of Islam.

Baru said that the Sarawak Shariah Court Ordinance 2001 has no express provision on converting either into or out of Islam.

“Therefore, there cannot be blank,” he said, adding that the Ordinance must have expressed provision.

“We cannot imply that there is a provision when there is nothing to imply from,” he said.

State Deputy Attorney-General Saferi Ali disagreed with Baru’s contention, saying that there are provisions in the Majlis Agama Islam Sarawak (MAIS) Ordinance 2001 for the Shariah Court to rely on.

He said Sections 68, 69 and 70 of the MAIS Ordinance touch on the conversion to Islam and by implication, the sections also deal with conversion out of Islam.

Saferi said it was not correct for the Shariah Court to say that it had no jurisdiction over conversion out of Islam when it wrote letters to Jenny, Tiong and Selina.

He agreed with Justice Tan Sri Jeffrey Tan, another judge on the Federal Court panel, that the advice given to the three was not a correct opinion.

When asked by reporters later, Saferi clarified that even if there was no express provision in the Shariah Court Ordinance, the position was that by way of the implication, the Shariah Court had jurisdiction to hear cases of apostasy from Islam.

“Even in the Lina Joy case, the position is very similar to the case of Sharifah Nooraffyzza,” he said.

Like Sharifah Nooraffyzza, Lina, a Malay-Muslim, wanted to embrace Christianity to marry her boyfriend, but the NRD insisted she produce a certificate from the shariah court, which she did not possess.

“In other words, the civil court had consistently applied that the position of the Shariah Court, the position of the conversion out of Islam is within the Shariah Court,” he said.

The four Sarawakian appellants are suing the Sarawak Islamic Religious Department, the Islamic Affairs Council, the National Registration Department (NRD) and the state government as respondents.

Sharifah Nooraffyzza wants to convert out of Islam and into Christianity, taking the name of Vanessa Elizabeth after marrying a Christian man.

In the case of Jenny, Tiong and Selina, they are asking the court for an order to compel the NRD director-general to change their Muslim names to their original names and their religion from Islam to Christianity in their official records.

The High Court, in 2015, had ruled that it had no jurisdiction to hear apostasy cases.

Last August 2016, the Court of Appeal rejected their application for a judicial review to compel the four respondents to issue a letter of release to them as they are no longer practising Muslims.

Sitting with Justice Zulkefli are Chief Judge of Malaya Tan Sri Ahmad Maarop and Federal Court judges Tan Sri Hassan Lah, Tan Sri Ramly Ali and Tan.

The four appellants are represented by Baru Bian, Joshua Baru and Clarice Chan while the respondents are represented by Saferi, State Legal Officer Hishamuddin Roslan and Senior Federal Counsels Shamsul Bolhassan and Leo Saga.

Lawyers Leonard Shim and Libat Langub act as friends for the Association of Churches of Sarawak while Chua Kuan Ching is holding a watching brief for the Sarawak Dayak Iban Association, Cindy Chow Li Teen for the Methodist Church of Malaysia and Raymond Noel for the Sarawak Ministers Fellowship and Sarawak Evangelical Churches Association.

Today’s hearing on the appeal attracted both Christian and Muslim leaders.

Among the Christian leaders who attended the hearing were ACS President Datuk Justin Wan, Anglican Archbishop of Kuching Danald Jute, Roman Catholic Bishop Datuk John Ha, ACS secretary general Ambrose Labang, Pastor Lau Wee Ming of the Methodist Church and Darren Tan of the Sarawak Christian Ministers Fellowship.

Meanwhile, human rights activist Peter John Jaban said that the decision of the Federal Court on four persons will set precedents for similar cases in Sarawak.

He said there are countless number of Sarawakian natives who wish to have their conversion out of Islam be legally recognised, but face legal hurdles when they want to go back to their original religions.

“I hope that the Federal Court will properly recognise the freedom of religion accorded to the citizens of Sarawak as part of the Malaysia Agreement 1963,” he said in a statement handed to reporters at the Kuching High Court complex.

Jaban cited some of the cases of natives who are still waiting for the authorities to issue them letters of release from Islam and for official records on their faith reverted to the original status.

“In particular, are the cases of Nur Hidayatul’Asyiqin @ Tracy anak Umar, and Nurul Annisha binti Abdullah, born Cecilia anak Nyalin who has waited 21 years for a closure to her predicament and she is still waiting,” he said.

“Cecilia is treated like a ball passed from one department to another, from Mahkamah Syariah to Jabatan Pendaftaran Negara then to Jabatan Agama Islam Sarawak and then back again.”

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