Civil courts have no jurisdiction to hear renunciation cases, says judge
High Court judge Ahmad Kamal Md Shahid says the shariah courts have done nothing wrong in rejecting a woman’s bid to renounce Islam.
KUALA LUMPUR: The High Court has dismissed a woman’s bid to start a legal challenge to renounce her religion, saying civil courts did not have the jurisdiction to hear such cases.
Judge Ahmad Kamal Md Shahid said the Federal Constitution has given power under Article 121(1A) to the shariah courts to determine renunciation cases.
“To me, it does not matter what the decision (made by the shariah court) is, but the issue is that the civil courts have no jurisdiction to hear matters within shariah courts nor do they have power to review a shariah court’s decision in cases involving the renunciation of Islam.
“The shariah courts have also done nothing wrong in determining her case as it was within their jurisdiction and have not acted ultra vires when they made the order,” he said.
Last month, the judge turned down the 32-year-old woman’s bid to start a legal challenge to be allowed to renounce Islam.
However, at the time, the court did not provide its grounds as to why it refused to entertain her attempt to initiate a legal challenge.
The woman, born a Muslim, claimed she never practised Islam and that her mother had allowed her to choose her religion.
She said she had gone to the Shariah High Court here in 2018 to seek an order to convert out of Islam as she wanted to practise Buddhism.
Shortly after she filed her application at the Shariah High Court seeking to renounce Islam, the court ordered her to attend 12 counselling sessions.
Subsequently, the court denied her application to leave Islam in 2020 and told her to go for more counselling. When she appealed, the Shariah Appeals Court upheld the ruling.
The woman then turned to the civil courts to nullify the decisions of the shariah courts. She claimed the decision to reject her “conversion out” application violated Article 11, which guaranteed a person’s freedom of religion.
Her lawyers have since filed an appeal over the decision in rejecting her bid for judicial review.
KUALA LUMPUR: The High Court has dismissed a woman’s bid to start a legal challenge to renounce her religion, saying civil courts did not have the jurisdiction to hear such cases.
Judge Ahmad Kamal Md Shahid said the Federal Constitution has given power under Article 121(1A) to the shariah courts to determine renunciation cases.
“To me, it does not matter what the decision (made by the shariah court) is, but the issue is that the civil courts have no jurisdiction to hear matters within shariah courts nor do they have power to review a shariah court’s decision in cases involving the renunciation of Islam.
“The shariah courts have also done nothing wrong in determining her case as it was within their jurisdiction and have not acted ultra vires when they made the order,” he said.
Last month, the judge turned down the 32-year-old woman’s bid to start a legal challenge to be allowed to renounce Islam.
However, at the time, the court did not provide its grounds as to why it refused to entertain her attempt to initiate a legal challenge.
The woman, born a Muslim, claimed she never practised Islam and that her mother had allowed her to choose her religion.
She said she had gone to the Shariah High Court here in 2018 to seek an order to convert out of Islam as she wanted to practise Buddhism.
Shortly after she filed her application at the Shariah High Court seeking to renounce Islam, the court ordered her to attend 12 counselling sessions.
Subsequently, the court denied her application to leave Islam in 2020 and told her to go for more counselling. When she appealed, the Shariah Appeals Court upheld the ruling.
The woman then turned to the civil courts to nullify the decisions of the shariah courts. She claimed the decision to reject her “conversion out” application violated Article 11, which guaranteed a person’s freedom of religion.
Her lawyers have since filed an appeal over the decision in rejecting her bid for judicial review.
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kt comments:
Article 121(1A) was a Mahathir-created blockage in 1988 for people who wanted to leave Islam - see my post of 07 January 2006, yeap more than 16 years ago, as follows:
Saturday, January 07, 2006Article 121(1)(A) - What terrified the Civil Courts!
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Also read (extracts from my post
Converted to Islam just for custody of children?), as follows:
Whether the civil courts have exclusive jurisdiction and inherent jurisdiction to review the actions of a public authority (e.g. Registrar of Muallafs)?
Short answer: Yes.
Because the civil courts’ powers to review a public authority’s actions is a basic part of the Federal Constitution that cannot be altered or removed. The Shariah courts do not have the same power and cannot be given such power as the constitutional safeguards for judiciary independence do not apply to them.
About the civil courts
The Federal Constitution's basic structure includes judicial powers such as judicial review, the principles of separation of powers, rule of law, protection of minorities. Parliament cannot remove such features by amending the Constitution.
The Federal Constitution’s Article 121(1) vests judicial power exclusively in the civil courts.
Judicial powers — including judicial review or the review of public authorities’ actions and decisions — cannot be removed from the civil courts, and cannot be given to any other body who do not have the same level of constitutional protection as civil judges to safeguard their independence.
About the Shariah courts
Unlike the civil courts that are established by and entrenched in the Federal Constitution, Shariah courts only come into existence when the state legislatures make state laws to establish them.
Unlike the civil courts, the constitutional safeguards for judicial independence in Part IX of the Federal Constitution -- including judges' qualifications, appointment, removal, security of tenure and remuneration -- do not apply to Shariah courts.
About the Federal Constitution’s Article 121(1A)
[kt's comment - Mahathir was responsible for this (1A), one of his zillion amendments to the World's most amended Constitution]
Article 121(1A) says civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts
The core question: Does Article 121(1A) grant exclusive jurisdiction to Shariah court in all matters of Islamic law, including those relating to judicial review?
Short answer: No.
Article 121(1A) does not remove the civil courts’ jurisdiction to interpret the Constitution or laws even when the matter is related to Islamic law.
Unduly simplistic to say Shariah courts must have sole jurisdiction over matters of conversion (as it involves Islamic law and practice). No constitutional amendment, federal law or state law can remove the civil courts' powers of judicial review, interpretation of Constitution and laws; or give them to Shariah courts.
Yes, the above successful challenge by M Indira Gandhi has been thanks to the wise ruling by 5 judges on the Federal Court's five-man panel, namely, Federal Court judge Tan Sri Zainun Ali, Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, Federal Court judges Tan Sri Abu Samah Nordin and Tan Sri Ramly Ali.
Tan Sri Zainun Ali
There was another case where the players were/are Chinese, with the divorced mother being the Muslim. Several years (or more) after the divorce, when the kid has grown up somewhat, she returned to Penang as a Muslim and just seized the kid from the poor shocked father who could do nothing as no one in authority wanted to touch his plight with a ten-foot bamboo pole.
Even the so-called brave and defiant then-CM Lim Guan Eng kept his mouth shut and his hands clean a la Pontius Pilate - such was been the predicted outcome of any dispute pertaining to such cases involving one Muslim parent.
usually loud mouthed but ... don't spook the Malays
T'was M Indira Gandhi's sad story (still sad until today, no thanks to pathetic piss-poor police so-called investigation and search) that justice has been rightfully restored a la the original (English-version) Constitution [the translated Malay version of the Constitution was a victim of either unwitting or deliberately mis-translations which allowed only one parent to make such an unilateral decision to convert minors into Muslims - can you imagine any unilateral religious conversion of minors by one parent into a non-Islamic religions?].
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Thus the above ruling is not correct and an appeal is justified.
Upholding & protecting zombieicism is the core of the ketuanan narrative.
ReplyDeleteNothing within the bolihland legal system can change that!
At the end of the day, my question is simply where is the vaunted "there is no compulsion in islam"?
ReplyDeleteAs far as I can see, once you are in, there is no way out. If it happens (freed from the shackles of islam) it is simply the rarest of occasion.
I have never been impressed by islam and never will be.