I have also added some personal thoughts in the judgment. They are made on the assumption that I understand the judgment correctly.
A judgment should not just aim to pander to your own constituency (Muslims), but also aim to persuade the non-Muslims. Unless, you don't really care whether they accept it or not...?
If it were up to me, after reading the judgment, I would have reported it as something else more neutral or even positive, like "Religious Freedom for Muslims Yes, but...", "Silver Lining for Malaysian Muslim apostate", or "Malay Christian asked to go to Syariah Court to legalize apostasy from Islam".
Anyway, come back to my translation.
1, I must confess I am not 'that' fluent in Malay, especially when it's written in legalese. So, I've tried my best to translate the text by being as 'literal' as possible - while making some sense to the readers.
When I'm in doubt about the meaning of a particular Malay word, I reproduce the original Malay word with a *, then my guess of the correct translation in [square bracket] with a '?'.
If you are in doubt about the accuracy of my translation (well, you should!), please consult the original Malay version found at the Malaysian Bar Council's website - the minority judgment, in English, is also found there.
2, All lawyers out there - HELP!! I've had a hard time trying to translate a few 'funny' terms; I hope I've gotten them reasonably accurate. E.g. one strange phrase called 'peguam terpelajar' (a way to address the lawyers?) has been simply translated as 'lawyer'.
So, if you guys could help me improve any word or sentence, PLEASE drop me a line.
5, Lastly, I apologize if any part of my translation sounds ridiculous or I've misunderstood the original meaning.
JUDGMENT OF THE MAJORITY[Except Richard Malanjum, the judge in the minority](1) The appellant was given leave to appeal to this court on the following questions:
(a) whether the National Registration Department (‘NRD’) is entitled in law to impose a requirement that the appellant produce a certificate or a declaration or an order from the Syariah court that she has apostatised before the word "Islam" in the applicant's identity card (‘IC’) is deleted?
(b) whether the NRD has correctly construed its powers under the National Registration Regulation 1990 especially Rules 4 and 14, to impose the requirement as stated above when it is not expressly provided for in the 1990 rules?
(c) whether the case of Soon Singh a/l Bikar Singh vs Kedah Islamic Welfare Body, Malaysia (PERKIM) (1999) 1 MLJ 489 was rightly decided when it adopted the implied jurisdiction theory propounded in the case of Md Hakim Lee vs Federal Territory Islamic Religious Council, Kuala Lumpur (1998) 1 MLJ 681 and not following the case of Ng Wan Chan v Federal Territory Islamic Religious Council, Kuala Lumpur & Anor (No.2) (1991) 3 MLJ 487 {3}
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and Lim Chan Seng vs Director of the Department of Islamic Religion, Penang and 1 other case (1996) 3 CLJ 231 which declared that if no express jurisdiction is conferred on the Syariah court, the civil courts will retain their jurisdiction?
(2) Appellant was born a Muslim.
Because she intended to marry a Christian man, [
### Not because she wanted to undermine, confront, humiliate or insult Islam. It’s just a simple wish to lead a private life she desires with the person she loves. (For those who do not know, Malaysian Syariah laws in all states stipulates that a Muslim must only marry another Muslim (or a new Muslim convert). In theory, a Muslim man is allowed to marry another ‘follower of the books’ but it is not available in practice.) But the NRD’s IC requirements stood in her way… I am personally aware of many Muslims who wish to convert out simply because of marriage, not necessarily because of they want to embrace another religion. However, because to many Islamic authorities the excuse of ‘no longer profess Islam’ is not enough, (meaning, simply becoming an atheists is not a good enough reason; they always require proof of the choosing of another religion) that’s why these ‘apostates’, in their application, would state that they have embraced ‘another religion’. ###] Appellant made application to NRD on 21 February 1997 to change her name from Azlina binti Jailani to Lina Lelani on the reason that she had already embraced Christianity. This application was not approved by the Third Respondent (Director of National Registration). On 15 March 1999 the Appellant applied once again to change her name by this time from Azlina binti Jailani to Lina Joy. In her statutory declaration, he Appellant once again said she wanted her name to be changed because she had already embraced Christianity. On 2 August 1999, the Appellant,
acting on the advice of an officer at NRD,
made another statutory declaration in which she gave the reason of her wish to changed her name as deliberately choosing that name and
not because she changed her religion. [
### To me, this shows that Lina Joy had tried to do things quietly and cooperated with the NRD, without making it public or taking any confrontational approach right from the beginning – as what ABIM’s President has suggested, on behalf of PEMBELA. ###] In November 1999, the Appellant was given her new Identity Card but the NRD inserted the word ‘Islam’ at the front of her IC and her previous name a the back of that card. On 3 January 2000, the Appellant applied to the NRD to have the word ‘Islam’ deleted. This application was rejected and the Appellant was told that her application was incomplete without an order from the Syariah Court which {4}
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stated that she had already left the religion of Islam. The Appellant then made application to the High Court for several declarations against the Federal Territory Islamic Religious Council and the Government of Malaysia. The Declarations applied for were based on infringements of her basic right to the freedom of religion as guaranteed by Article 11(1) of the Federal Constitution. Nevertheless, the High Court rejected that application. The Appellant then appealed to the Court of Appeal. The Court of Appeal by majority rejected her appeal. The Appellant then made application for leave to appeal to this court and her application was granted on the questions as stated at the beginning of this judgment.
(3) At the Court of Appeal the parties agreed (and this is clear from the grounds of judgments of the majority and dissent) that only one issue needed to be considered by the court – namely, whether the NRD was right, under the law, when it rejected the Appellant’s application to delete the word ‘Islam’ from her IC and to require a certificate or order of apostasy from the Syariah Court beforehand. The majority judgment of that court decided that the NRD was not wrong under administration law when rejecting the appellant’s application; (2005) 6 MLJ at page 213. The Appellant in her application to NRD stated that there was an error in her IC and the said error was her religion was described as ‘Islam’. Hence the majority judgment was of the view that the Appellant’s statement had indirectly {5}
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meant that the Appellant said she had already left Islam. Because of that, NRD could require the Appellant, under Rule 4(c)(x) of the 1990 Regulation, to produce documentary evidence to support the accuracy of her claim that she was no longer a Muslim. The majority judgment also ruled that whether a person had left Islam is a question which is related to Islamic law, and that question is not within the NRD’s jurisdiction which was not equipped or qualified to decide that matter. Because of that, the NRD maintained a policy to require confirmation by the religious authority before the NRD acted to delete the word ‘Islam’ from a Muslim’s IC. This policy is completely reasonable, according to the majority judgment; (2005) 6 MLJ at page 209.
(4) In this court, Appellant’s lawyer argued that only the 1990 Regulation formed the written source of powers under which the NRD could require an apostasy order. According to the lawyer, the 1990 Regulation did not contain provision which permitted the NRD to require that documents from the Appellant. The lawyer then went on to stress that the document specified under Rule 14 was only a statutory declaration. Therefore, by requesting the production of a document and that document was however not provided for or permitted by Rule 14, the NRD acted ultra vires its powers under the 1990 Regulation. This, the lawyer argued, is not valid under administration law. That lawyer {6}
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then argued that the majority judgment should have decided that way and their failure to do so should become the reasons upon which this court, as an Appellate Court, must set aside that judgment.
(5) The 2nd and 3rd Respondents’ lawyers stressed that the Appellant’s application was to delete the word ‘Islam’ from her IC. Therefore, that application falls under Rule 14(1)(c) which is to correct the details of her religion. Rule 14(1) reads:
“(1) A person registered under these Regulations who –
(a) Changes his name;
(b) Acquires the citizenship of Malaysia or is deprived o his citizenship of Malaysia; or
(c) has in his possession an identity card containing any particular, other than his address, which is to his knowledge incorrect,
shall forthwith report the fact to the nearest registration office and apply for a replacement identity card with the correct particulars.”
The lawyer then referred to Rule 4 which reads:
“4 – Any person who is required to register under regulation 3(1) or 3(2) or to re-register under regulation 18 or 28 or who {7}
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applies for a replacement identity card under regulation 13 or 14, shall --
(a) …
(b) …
(c) give the following particulars to the registration officer as aforesaid, namely:
(i) his name as appearing in his Certificate of Birth or such other document or, if he is known by different name, each of such names, in full;
(ii) his previous identify card number, if any;
(iii) the full address of his place of residence within Malaysia;
(iv) his race;
(iva) his religion (only for Muslims);
(v) his place of birth;
(vi) his date of birth and sex;
(vii) his physical abnormalities, if any;
(viii) his status as a citizen of Malaysia or other citizenship status;
(ix) such other particulars as the registration officer may generally or in any particular case consider necessary; and
(x) produce such documentary evidences the registration officer may consider necessary to support the accuracy of any particulars submitted.”
The lawyer then stressed that Rule 4(c)(ix) and (x) are the powers which justified the NRD introducing the condition of the need for apostasy certificate. {8}
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(6) Regarding these arguments, I agree with the majority agreement that Rule 14(1) is related to:
(a) change of name under paragraph (a); and
(b) to correct particulars which are not true under paragraph (c).
The Appellant’s case falls under the particulars which are not true according to paragraph (c). Nonetheless, Rule 14 did not state what should be given in the cases of untrue particulars but Rule 14(1) certainly requires the Appellant to report facts regarding untrue particulars to the nearest Registration Office and to apply for a replacement IC which contains the correct particulars. When it comes to this, Rule 4 becomes relevant because that rule clearly states that whoever applies for a replacement IC under Rule 13 or 14 shall follow Rule 4. Based on that, I agree with the 2nd and 3rd Respondents’ lawyers that the NRD has justification under Rule 4(c)(x) to require confirmation from the Islamic religious authority regarding the Appellant’s apostasy or her leaving o f Islam. Based on that, I agree with the majority judgment which states that the Appellant in her 3rd application stating the error in her IC is regarding the statement of her religion as ‘Islam’ and the Appellant wants that error to be corrected by removing the word ‘Islam’ from that IC. This is the same as the Appellant saying that she has already {9}
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left Islam. Therefore, the NRD can, following Rule 4(c)(x), require the Appellant to produce documentary evidence which supports the accuracy of her insistence that she is no longer a Muslim. I also agree that if the NRD receives a person’s admission that he has already left Islam based on declaration made by him then the NRD took the risk when mengecapkan* [stamping?], erroneously, that a person as non-Muslim while according to the Islamic laws that person still has not left Islam.
This would also make it easy for those who were born and educated as a Muslim but has the attitude of acuh tak acuh* [apathy?] or tidak peduli* [indifference?] towards Islam be classified as non-Muslims solely to avoid being penalized for offences under Islamic laws. All these would result in celaan* [disparagement?] from the Muslim society. [
### It seems that the Chief Justice is against those Muslims who don’t take their religious obligations in Islam seriously, and agree, indirectly, that it is acceptable for laws to be shoved down the throats of these ‘indifferent’ Muslims in order to force them to be a good, observant Muslims. Could this be interpreted as a ‘licence’/ ‘invitation’ to the states to create more laws to ‘produce’ more good Muslims?? ###] It is because of these reasons, same as the views of the majority judgment, that I believe, the NRD adopted the policy that statutory declaration alone is not enough to enable the word ‘Islam’ be removed from the IC of a Muslim. This is because the matter of leaving Islam is a matter which is related to the Islamic laws and because of that the NRD adopted the policy which requires confirmation from the Islamic religious authority before the NRD could act to delete the word ‘Islam’ from a Muslim’s IC. Based on the considerations as enumerated above I agree with the majority judgment that rightly the NRD policy is something which is completely reasonable. {10}
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(7) Regarding this NRD policy, the Appellant also argued that by requiring the apostasy certificate, the NRD has delegated its power and duties under Rule 14 to a 3rd party so that the 3rd party would decide whether to approve the application to delete the word ‘Islam’. This, according to the Appellant, cannot happen except when being permitted by the relevant laws. Hence, that NRD policy without permission under Rule 14 conflicts with the laws. Then the Appellant’s lawyer argued that the court’s job is not to confirm that a policy is reasonable; but what the court has failed to appreciate is that such matters are for the legislators and not for the court to decide whether reference should be made to another religious body.
(8) On that argument by the Appellant, I am of the view that, as argued by the 2nd and 3rd Respondents’ lawyers, that Rule 4(c)(x) clearly gives the power to the Registration Officer to require documentary evidence which is deemed important to support the accuracy of any particulars which has been put forward. Therefore the reference to an authority of Islamic law is provided for by the laws and hence it is not wrong under the laws as argued by the Appellant. The reference does not mean that the Syariah Court is asked to decide whether {11}
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to permit the application to delete the word ‘Islam’. The Syariah Court is merely asked to confirm whether the Appellant is of the religion of Islam or not based on Islamic laws. Guided by this decision then,
it is within the NRD’s discretion to decide whether the approval could be given to delete the word ‘Islam’ or not. [
### ‘discretion’ – Is the Chief Justice saying that even after the Syariah Court has given you the apostasy certificate (after your long, heart-wrenching battle…), the NRD could still create troubles for you by refusing to delete the word ‘Islam’?? So, just how many steps do apostates have to go through?? Is that the ultimate strategy – to wear them down?? ###]
(9) Appellant’s lawyer has also referred the case of Ismail bin Suppiah vs Director of National Registration (R-1-24-31 year 1995) to this court. According to that lawyer, both the Ismail case and the case under appeal at this court are about:-
(a) change of name because of change of religion;
(b) powers of NRD under Rule 14;
(c) a certificate from the Religious Council as a pre-condition before the NRD could consider the application under Rule 14;
(d)
the freedom of a person to choose religion guaranteed under Article 11 of the Federal Constitution;
(e) third party cannot decide on what religion a person should choose; and {12}
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(f) Rule 14 did not introduce a condition that a certificate to be obtained from the Religious Council.
The lawyer then showed that
I was the judge in the Ismail case
and I had dismissed the NRD’s decision which required a certificate from the Religious Council as ultra vires Rule 14. [
### Cheeky lawyer!! Basically asking the Chief Justice to eat his own words and slap his own face?! HOW DARE YOU!! J ###]
9.1 The Plaintiff in the Ismail case was a Muslim since birth. The Plaintiff applied so that his Muslim name as stated in his IC be changed to a Hindu name on the reason that, as stated in his statutory declaration, he had already left Islam and embraced Hinduism. NRD was insistent on requiring the approval of the Johor Department of Islamic Religion or the Grand Qadi of Johor about the Plaintiff’s action in leaving Islam. The NRD still refused to approve the Plaintiff’s application even though the Plaintiff’s lawyer had already reported to the Grand Qadi of Johor about the fact that the Plaintiff had already left Islam. Hence the NRD referred the matter to and for the action of the Johor Department of Islamic Religion. Because of that the Plaintiff applied and obtained from Kuala Lumpur High Court a declaration that the approval of the Johor Department of Islamic Religion was not required and that any reference by the NRD to that Department was ultra vires Rule 14, the 1990 Regulation, s 141(2) of the Administration of Islamic Law Enactment 1978 Johor State, and Article 11(1) of the Federal Constitution. The Plaintiff also {13}
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applied and obtained an order so that the NRD issued temporary IC with the Plaintiff’s new name.
9.2 Regarding the Appellant’s argument that the NRD did not appeal against the High Court’s decision in that Ismail case and because of that the NRD could not take a stand in this appeal which conflicts with the High Court decision.
9.3 The majority’s judgment stressed that the Ismail case was a case which involved application to change name in the IC whereas the Appellant’s appeal in this court is to delete the word ‘Islam’ from her IC. Because there was no reasons for judgment in that Ismail case, the reasons for the High Court in making such a decision could not be known. [
### WHAT?? Is that possible? I don’t understand – I thought all civil judges have to give reasons for their decisions? How transparent is our court, really?? ###] Hence the Court of Appeal only managed to
make a few guesses regarding why I decided like that in the Ismail case. [
### Oh isn’t this CLASSIC?! The judges have to GUESS each others’ reasons!!! Wow… Malaysia boleh! Or is it like that everywhere in the Commonwealth courts??? Should this be in the Guinness Book of World Record? ###] Those
guesses originates from saying that I looked at the Ismail case from the angle that it should be decided in the context of Johor laws.
I was said to have perhaps [
### ‘perhaps’ lagi!!! Guess is not enough!! Double maybe’s?! WTF?? Is that how laws are made in this country?!?! Or is this just part of the entertainment for VMY 2007?? ###] held the view that the NRD was wrong when required the consent of the Johor Department of Islamic Religion before the Plaintiff could leave Islam whereas according to the Johor Enactment the correct authority was the Qadi under s 141(2). Section 141 of the Johor Enactment says: {14}
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“141
(1) Whoever entered anybody to embrace Islam shall immediately report the matter to the Qadi by giving evidence which is required for registration.
(2) Whoever found that a Muslim has already left Islam shall immediately report to the Qadi regarding his decisioin to leave Islam by giving evidence required and the Qadi shall declare that the person has left Islam, and shall be registered.”
9.4 It is also the
guess of the majority judgment that I
might [
### ?!?!! ###] have held the view that NRD had misunderstood s 141 because at para 10 of the affidavit of NRD dated 28.7.1995, the NRD officer seemed to have said that sub-section (2) only applied to a person who previously embraced Islam under sub-section (1). The majority judgment also
guessed that I
might have held the view, from the clear words of sub-section (2), that in Johor, the Qadi himself also did not have the right to give or not give consent to a Muslim to leave Islam. That matter is left only to the relevant person. The Qadi’s job was only to announce the facts {15}
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of a person leaving Islam and then register it. That job was only mechanical. Deducing from this, I was
guessed to hold the view that:
(a) In Johor, a Muslim was free to leave Islam and he does that by only saying so;
(b) no approval or determination by any religious authority was required;
(c) the NRD should have accepted the Plaintiff’s statutory declaration which stated that the Plaintiff had already left Islam as the proof that the Plaintiff was no longer a Muslim; and
(d) the NRD should have approved the Plaintiff’s application to change his name.
9.5
From the guesses [
### OMG!!! ###] as enumerated above,
it is clear [
### Question: What’s the difference between a fortune-teller and the Malaysian Federal Court judges? Answer: Both engage in guesses and speculations, but while a fortune-teller is not capable of deriving CLEAR/FIRM answers from his guesses, our judges boleh!! ###] that the Ismail case should be analyzed in the context of Johor laws. S 141(2) of the Administration of Islamic Law Enactment 1978 Johor State clearly showed that even the Qadi had no right to give or not give consent for the leaving of Islam.
Hence the guess of the majority judgment was correct [
### I think I just heard a sigh of relief from those ‘guessers’ in the Court of Appeal… phew, we were right!! ###] when it is said that because of the clarity of the words in s 141(2), the NRD should have accepted the Plaintiff’s statutory declaration which stated that the Plaintiff had left {16}
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Islam as the proof that the Plaintiff was no longer a Muslim and the NRD should have approved the Plaintiff’s application to change his name.
It should be stressed at this stage that the above enumeration shows that Article 121(1A) and item 1, list 2, Schedule 9 of the Federal Constitution did not arise in the Ismail case. [
### Well, but then the argument on Article 11 was made... (See paragraph (9) above. Besides, I'm sure the judge knew about Article 121(1A) and Schedule 9 all the time, right? If those 2 laws would not allow him to decide against NRD in the Ismail case, how could he now decide in favour of NRD???? I just don't understand... Can someone help out please? "Sorry, I screwed up last time" seems to be the hardest words for our judges... Oh well, I guess the Chief Justice must have ‘guessed’ that he did not decide on that issue (and confirms his own guess as ‘correct’). Simply brilliant. ###]
(10) The next issue argued by the Appellant is whether the Federal Territory Syariah Court had the jurisdiction to decide on apostasy. Appellant argued that the NRD had so far taken the same position regarding the Appellant’s various applications i.e. the Appellant must first obtain an apostasy order from the Syariah Court or, as later said by the Director in his affidavit, from any other Islamic authority. The Appellant also argued that the Administration of Islamic Laws Act (Federal Territory) 1993 (Act 505) did not have provision regarding apostasy. The Syariah Court or any other Islamic body was not given the jurisdiction in apostasy matter and neither was any power given to any authority under that Act to issue apostasy order. This was the situation at all time which is material in the Appellant’s case from February 1997 to January 2000 and until today. According to the Appellant again, section 46(2)(b) Act 505, as found today, listed matters in which the Syariah Court could exercise its civil jurisdiction and under this section the matter of apostasy is not found under that list. The majority judgment accepted that Act 505 {17}
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did not contain any provision regarding apostasy. That judgment then considered the Appellant’s argument that the Federal Court’s decision in the case of Soon Singh (supra) had shaped the procedure followed by the NRD in requiring the confirmation from the Syariah Court before the department accepts the fact that a Muslim has left Islam. The decision in the case of Soon Singh, according to the majority judgment, is and still authoritative in administration laws, from the angle of that decision, the NRD acted correctly when named the Syariah Court as the authority which could issue apostasy confirmation and the NRD will accept the confirmation as proof that the Appellant is no longer a Muslim. The majority judgment, nonetheless, held the view that the question of whether the decision in Soon Singh was correct or not was not important because the appeal before it was already agreed by the parties to the appeal to be deemed to be about the correctness of the NRD decision according to the administration laws and no longer about constitutional questions. Therefore the Appellant argued in the Court of Appeal that the NRD’s action in introducing the condition that the order of the Syariah Court should be obtained was an action which was not reasonable according to the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223. This was because, according to the Appellant, that order was impossible to obtain because of the lack of provision about apostasy in Act 505. At this stage, I should state my agreement with the part of the majority agreement which states that what he NRD wanted was a confirmation {18}
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from someone who has the power to make it and if the NRD acted in accordance with that confirmation, then the NRD was free from any mistake or from being faulted by the public in a matter which is so important and sensitive. Hence the majority judgment decided that the unwillingness of the NRD to act without the confirmation form the Islamic religious authority was reasonable. The judgment also decided that the question of whether a Muslim was an apostate or not was a question which was related to Islamic laws. And if the court decided that the NRD’s unwillingness was not reasonable, then it would mean that the court required the NRD to accept the fact that according to Islamic laws a Muslim could be considered by the world as having left Islam and was no longer a Muslim when that person said he had already left Islam.
10.1 Regarding the majority’s judgment that the NRD’s action was reasonable when the NRD required a certificate / declaration / order from the Syariah Court which stated that the Appellant was an apostate, I wish to add by stressing that item 1, list 2 in Schedule 9 of the Federal Constitution provided that, among others, that the Syariah Courts shall have jurisdiction only over persons who practices Islam and only regarding matters which are included in that paragraph (item 1) and one of the matters in that paragraph is “Islamic laws”. In relation to this, {19}
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Article 74(4) of the Federal Constitution stressed that the width of the general expressions in the Schedule 9 could not be deemed to be limited by the specific expressions found in that Schedule 9. Article 74(4) is as follows:
“74
(4) Where the general as well as specific expressions are used in describing any of the matter enumerated in the Lists set out in the Schedule 9 the generality of the former shall not be taken to be limited by the latter”.
As such it was reasonable for the NRD to introduce those conditions because this matter of apostasy, according to the majority judgment (and I agree with it), is a question which is related to Islamic laws and as stated by the Supreme Court in the case of Dalip Kaur vs District Police Officer, District Police Station, Bukit Mertajam & Anor (1992) 1 MLJ 1 that the answer to the question of whether a person is a Muslim or has already left Islam before he passed away, is included in the world of Syariah laws which require serious considerations and due interpretation based on those laws. In this situation, I agree with the 2nd and 3rd Respondents’ lawyer’s argument that the condition that a certificate or declaration or order from the Syariah Court that the Appellant has become {20}
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apostate is not a decision which is unreasonable until so excessive in deviating from logic or accepted moral standard such that no rational person who has concentrated his thinking to the question which needs to be decided could reach that decision.
(11) Regarding the 2nd and 3rd Respondents’ lawyer’s argument that the NRD is entitled to enter the word ‘Islam’ at the front of the Appellant’s IC in November 1999 because of amendments to Rule 4(c)(iva) and Rule 5(2) have been made effective retrospectively to 1 October 1999 and this retrospective effectiveness was allowed because the amendments were in the nature of procedure, the Appellant argued that so long as the amendment was not gazetted the executive (such as the NRD) could not apply that amendment and act on it. The Appellant brought attention to the fact that her application for IC was made on 25 October 1999 whereas on 1 October 1999 that amendment was not gazetted. The Appellant stressed that the real state of the laws at that time was that the Appellant was entitled to a new IC with the name Lina Joy without any statement about religion placed on that IC. That amendment according to the Appellant could not be made effective retrospectively because it affected the existing right of the Appellant.
11.1 On the issue of retrospective effectiveness I wish to refer to the case of Sim Seoh Beng @ Sin Sai Beng & Anor vs Tunas Muda Sungai Ara Cooperative Limited (1995) 1 CLJ 491 {21}
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which states that the correct test to be applied to determine whether a written law is prospective or retrospective is to first ascertain whether it would affect substantive rights if applied retrospectively. If it would, then, prima facie that law must be construed as having prospective effect only, unless there is a clear indication in the enactment that it is in any event to have retrospectivity. The Federal Court in the case of Lim Phin Khian vs Kho Su Ming (1996) 1 MLJ 1 has said that the question that falls for determination is whether the prima facie presumption against retrospectivity has been displaced by contrary Parliament intention, and if so, to what extent. The case of Attorney General vs Bernazar (1960) 3 AIIER 97 says but it is different when the statute is retrospective either because it contains clear words to that effect or because it deals with matters of procedures only; for then Parliament has shown an intention that the Act should operate {22}
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on pending proceedings, and the Court of Appeal is entitled to give effect to this retrospective intent as well as court of 1st instance. In the case of Yew Bon Teow vs Mara Bus Vehicle (1983) 1 MLJ 1 the Privy Council has said that the question of whether a statute is to be construed in a retrospective sense, and if so to what extent, depends on the intention of the legislature as expressed in the wording of the statute, having regard to the normal canons of construction and to the relevant provisions of any interpretation statute. I wish to also refer to section 19 of the Interpretation Act 1948 and 1967 which states:
“19
(1) The commencement of an Act or subsidiary legislation shall be the date provided in or under the Act or subsidiary legislation or, where no date is so provided, the date immediately following the date of its publication in pursuance of section 18.
(2) Acts and subsidiary legislation shall come into operation immediately on the expiration of the day preceding their commencement.” {23}
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(3) Notwithstanding section 2(1) and (2) and section 65(2), subsections (1) and (2) shall apply –
(a) to all Acts enacted after the 31st December 1968 including Acts which amend laws enacted before the commencement of Part I of this Act; and
(b) to all subsidiary legislation made after the 31st December 1968, whether made under a law enacted before or after the commencement of Part I of this Act whether or not that law has been revised under the Revision of Laws Act 1968.”
In the appeal in this court there is clearly a direction (as mentioned in the case of Sim Seoh Beng) that amendments to 1990 Regulation, except for Rule 19, shall be deemed to have come into operation on 1 October 1990). Hence amendments to Rule 3, Rule 5 and 1st schedule is effective retrospectively. Therefore the NRD’s action to issue the IC with addition of the word ‘Islam’ is valid legally.
[
### I wonder whether they had purposely created those amendments because of Lina Joy’s actions at that time. Just shows you the great length they would go through to make sure nobody could leave. ###]
(12) The Bar Council, HAKAM, and Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism, as watching brief, have in turn given their respective opinions which are briefly as follows:
(a) if a person no longer profess Islam, then he could no longer be under the jurisdiction of the Syariah Court. If he is said to be still under {24}
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the Syariah Court’s jurisdiction then that act is an invasion on his human rights under Article 11(1) and 8, of the Federal Constitution;
(b) apostasy is not included in item 1, list 2 of Schedule 9 of the Federal Constitution;
(c) apostasy confirmation is clearly in conflict with the provision of basic freedom under Article 11;
(d) the Appellant’s declaration that she is a Christian means that she professes Christianity and this means that she could no longer be regarded as a Muslim or a person professing Islam;
(e) Chua H in the case of Re Mohamed Said Nabi, deceased (1965 (3) MLJ 121) has referred to the Shorter Oxford English Dictionary for the meaning of ‘profess’. That dictionary states: “profess” means ‘to affirm one’s faith in or allegiance to (a religion, principles, God or Saint etc)’. This means the NRD was not entitled to introduce the condition that the Appellant produces a certificate because the Syariah Courts have no jurisdiction over the Appellant who no longer professes Islam. The Appellant still lives and has already made statutory declaration and affidavits which show that she professes Christianity. Hence, there is o need for any Islamic authority to decide whether she is an apostate or not; {25}
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(f)
The Malaysian Government has represented at the international level and to her citizens, that she subscribes to the norms of freedom of comprehensive faith, thought and conscience as declared under Article 18 of the Universal Declaration of Human Rights. Hence the Appellant has legitimate expectation that the Government of Malaysia and her agencies would not act in conflict against that representation;
[### I think the Chief Justice has completely ignored this argument in his reasoning later... :( ###](g) The Appellant has been, because of her application to delete the word ‘Islam’ was disallowed, denied her rights to marry someone who professes Christianity or to marry someone according to her wish. This is a denial of her rights under Article 5(1) of the Federal Constitution.
(13) ABIM, Muslim Lawyers Association and the Malaysian Syarie Lawyers Association, also as watching brief, have in turn gave their respective opinions which are briefly as follows:
(a) Article 11 of the Federal Constitution used the words ‘profess and practice’. Hence, the matter of leaving Islam should follow the related laws.
A person could leave {26}
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Islam [### !!!!!!!!!!!!!!!!!!!!!!!!!!!!!?????? ###] but has to follow its procedures. If follows the whims and fancies of a person then the ummah and Islam would be in chaos. Therefore the confirmation by the Syariah Court is in accordance with the requirements of Syariah laws and hence it cannot be in conflict with Article 11;
(b) Regarding the equal rights under Article 8 of the Federal Constitution, Article 8 is subject to provisions which regulate personal law.
(14) Regarding the views at paragraphs (12) and (13) above I agree with the views at paragraph (13). [
### THIS COULD BE THE SILVER LINING WHICH ALL NEWSPAPER REPORTS SEEM TO HAVE MISSED... The Islamists who argue that there is absolutely no freedom to leave Islam actually did not ‘win’ in this case, because the Chief Justice of the Federal Court has just confirmed that you CAN ACTUALLY APOSTATE (well, at least in theory). ABIM has been opposing Lina Joy’s appeal by arguing that Muslims should not be given the right to leave Islam, but the Chief Justice has just disagreed with that view. ###] In the appeal before this court now, there is no firm determination that the Appellant no longer professes Islam. So, the statement that the Appellant could no longer be under the jurisdiction of the Syariah Court because the Syariah Court only has jurisdiction over a person professing Islam cannot / should not be stressed. The manner for a person to leave a religion must follow the rules or laws or practices which have been fixed by that religion itself. [
### Do these judges know that there is actually NO such ‘rules or laws or practices’ fixed by Islamic laws in this country for leaving Islam?? But that on the other hand, there are severe penalties against those to try to apostate under Syariah laws in this country?! See some of the state laws criminalizing apostasy found at http://www.esyariah.gov.my and reproduced by comment on Thursday, May 31, 2007 4:21:00 PM at Walski's post on , Joy Overload, and comment No. 20 on 31 May 2007 @ 4:55 pm, at Aisehman's post on 29 May 2007, 'Just Do It'. If you believe these judges are ignorant about these draconian laws, then I’m sure you would believe that Christians have complete freedom to build Churches in Saudi Arabia. ###] The Appellant is not prevented from marrying.
[### Not true – she tried to register her marriage at the civil marriage registry, but they said they could not do that for her because she was a Muslim in law. She wants to marry a Christian man under Syariah law but that law requires the boyfriend to convert first. Maybe we need to re-define what is the meaning of ‘not prevented’? ###] The freedom of religion under Article 11 of the Federal Constitution requires the Appellant to follow practices or rules of Islam especially regarding leaving that religion. When the requirements of Islam are followed and the Islamic authority confirms her apostasy then the Appellant {27}
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could profess Christianity. In other words a person cannot enter and leave a religion as she likes it. When she professes a religion, common sense itself requires that she follows the practices and laws of that religion. [
### Ok, can the Chief Justice confirm whether these so-called ‘practices or rules of Islam especially regarding leaving that religion’ actually exist in Malaysia? On the other hand, there are Syariah laws criminalizing apostasy, as I have suggested above. ###]
(15) The Appellant then argues that the NRD could not act in a way which memperkosakan* [undermines?] the rights to freedom of religion of every citizen under Article 11 of the Federal Constitution or in a discriminatory way mencabuli* [violates?] the guarantees under Article 8(2) of the Federal Constitution which prohibits any discrimination on grounds of religion. The Appellant stressed that Article 11 gives her unconditional freedom to leave Islam and become a Christian. According to her that freedom cannot be lawfully restricted or regulated by any laws such as the Administration of Islamic Laws Act (Federal Territory) 1993 by the Syariah Court, or any other authority. Hence, the Appellant applied that the High Court confirms that her act of leaving Islam was proper and valid under Article 11 of the Federal Constitution. This, stressed the lawyer for the Malaysian Muslim Lawyers Association, assumes that the Civil Court has jurisdiction to make the declaration applied by the Appellant (hence it raises the 3rd question).
15.1 The Appellant’s lawyer then brought this Court’s attention to the conflicting decisions of the High Court. Cases such as Ng Wan Chan v {28}
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Federal Territory Religious Council (No. 2) (supra) and Lim Chan Seng v Director of the Department of Islamic Religion (supra) decided that without jurisdiction which is clearly given to the Syariah Court on a particular matter, the civil court should maintain its jurisdiction on that matter. However, the case of Md. Hakim Lee v Federal Territory Islamic Religious Council (supra) put forward the theory of implied jurisdiction. According to that theory, it is sufficient if the matter has been specified for Syariah Court under item 1, list 2, in Schedule 9 of the Federal Constitution. According to that lawyer again, the case of Soon Singh (supra) has resolved that conflict by applying the theory of implied jurisdiction as put forward by the case of Md. Hakim Lee. The Appellant’s lawyer then referred to the decisions of the Federal Court in cases of Penang Islamic Religious Council v Shaik Zolkaffily (2003 (3) MLJ 705) and Azizah binti Shaik Ismail v Fatimah binti Shaik Ismail (2004 (2) MLJ 529) which followed the decision of the Soon Singh case. Be that as it may, the lawyer firmly argues that the Soon Singh case is wrong in law because:
(a) that decision failed to consider that all state Islamic law enactments creates 2 different entities, i.e. Religious Council and Syariah Court. In those enactments, the Religious Council plays the role of administration whereas the Syariah Court is a judicial body. That lawyer later {29}
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referred to Act 505 which through sections 24, 7 and 10 provided matters of establishment, membership, functions, duties and activities of the Religious Council whereas section 46 provided for the Syariah Court’s jurisdiction. The Soon Singh case (supra), says that lawyer, made a mistake because of not distinguishing between the Council and the Syariah Court. Due to the above error the Soon Singh case is accordingly wrong when it considered that Syariah Court anywhere is the authority which manages and deals with matters of embracing Islam. Sections 139-141 of the Kedah state Enactment refer to the Council as the authority which handles matters of embracing Islam. So are sections 77-89 of the Penang Enactment which refers to the Registry of Embracing Islam and section 82 shows that it is the Council which keeps the record of those embracing Islam. This is also the same for Act 505 which through sections 85-95 explains that it is the Council which handles matters of embracing Islam. Hence, the lawyer stressed, the statement by the Soon Singh case tht all state enactments give jurisdiction to the Syariah Court in matters related to the embracing of Islam is clearly wrong.
(b) Authorities used by the case of Soon Singh as the basis for the implied jurisdiction theory does not support its decision. If those authorities are studied, {30}
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the authority “Craies on Statute Law (7th edition) page 112 actually states that express and unambiguous language are needed to alter the jurisdiction of courts of law. The authority case Albon v. Pyke (1842 (4) M&G 421) shows that Tindal CJ at para 424 says that the general rule undoubtedly is that the superior courts’ jurisdiction is not taken away, except by express words or necessary implication.
(c) The errors of the Soon Singh case as enumerated in paragraph 15(a)-(b) above has caused the Soon Singh case to summarise that the Syariah Court’s jurisdiction does not need to be given by laws but sufficient by referring to the state list in the Schedule 9 as done by the Md Hakim Lee case. This, says the lawyer, contradicts the principle of creating laws by the legislator and the rule that a written law must be made by the legislator and it cannot be effective until that law is made know by gazette. According to the lawyer again, the effect of the Soon Sing case is that a {31}
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law is regarded as already exists even though the matter is only found in item 1, list 2, Schedule 9 of the Federal Constitution and the legislator has not made laws on that matter. The Soon Sing case has failed to identify the difference between power to make laws on a matter and the making of the laws itself. The lawyer then quoted what the Supreme Court of India says in the case of Calcutta Gas Co v State of Weat Bengal (AIR 1962 SC 1044 at 1049) i.e. the power to legislate is given to the appropriate Legislatures by Article 246 of the Indian Constitution. The entries in the 3 lists are only legislative heads or fields of legislation: they demarcate the area over which the appropriate Legislatures can operate. Hence, the Appellant’s lawyer stressed, the decision of Soon Singh that the right to make law on a matter is the same as making the laws itself should be rejected as bad precedent.
(d) Section 67 of the Interpretation and General Clauses Act 1967 declares that every Act of Parliament or State Enactment is an Act or Enactment for general and it could be given judiciary notice. The case of Soon Singh has already exempted the need to publish the laws or the process of making laws by the stage of {32}
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draft laws and ends with the King’s recognition. Hence the Soon Singh case should be corrected immediately, as pressed by the Appellant’s lawyer. In proceeding with his arguments on this Soon Singh case, the lawyer quoted the observation by Hashim Yeop Sani in the case of Dalip Kaur a/p Gurbox Singh vs District Police Officer, District Police Station, Bukit Mertajam & Anor (supra) which among other things, says that the new clause (1A) of Article 121 of the constitution effective from 10 June 1988 has taken away the civil courts’ jurisdiction in respect of matters within the Syariah Court’s jurisdiction. But that clause does not take away the jurisdiction of civil court to interpret any written laws of the states enacted for the administration of Islamic law. For that lawyer, that observation clearly showed that the civil court should decide whether a matter is within its jurisdiction or the jurisdiction of the Syariah Court.
15.2 The lawyer for the 2nd and 3rd Respondents however took the position that the Md Hakim Lee case was decided correctly. Hence, he was of the view that the cases of Soon Singh and Shaik Zolkaffily {33}
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contain the correct principles regarding the jurisdiction of Syariah Court.
15.3 1st Respondent’s lawyer referred to the implication word as found in “Bernion’s Statutory Interpretation 2nd Edition” at page 362 i.e. Implication may arise from the language used, from the context, or from the application of some external rule. The that lawyer stressed that because Act 505 contained provisions regarding matters related to the embracing of Islam as under the Syariah Court’s jurisdiction (s 87 and s 91 read with s 46(2)(b) Act 505) then by implication, matters regarding apostasy and leaving Islam are also within the Syariah Court’s jurisdiction.
15.4 In the Soon Singh case, the Appellant applied so that the High Court issue declaration that he was not a Muslim. The lawyer for the Department of Religion of Islam Kedah (JAIK) made opposition early applied so that the Appellant’s application be rejected because the High Court had no jurisdiction on matter that a person is not Muslim. That matter is under the Syariah Court’s jurisdiction. The High Court agreed with the lawyer of JAIK and rejected the Appellant’s application who later appealed to the Federal Court. In {34}
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its judgment the Federal Court said that the question before it was regarding the jurisdiction of Syariah Courts under Article 121(1A) of the Federal Constitution. The Federal Constitution also admitted that there were no express provisions in the Kedah Enactment to deal with the question of apostasy. After that the Federal Court referred to Craies on Statute Law, the case of Albon v Pyke, Bennion’s Statutory Interpretation and the case of Dalip Kaur.
15.5 Regarding the Appellant’s lawyer’s criticism on the reference made by the Federal Court to Craies on Statute Law and the case of Albon v Pyke, I only need to stress that Tindal CJ also used words of necessary implication. Hence the Federal Court was of the view that it was logical for the Syariah Court, which has been clearly given jurisdiction to deal with matters related to the embracing of Islam do, by necessary implication, also have jurisdiction to deal with matters related with a Muslim’s leaving of Islam or apostasy. I do not see any defect in that reasoning of the Federal Court. Therefore I have no choice except to answer the 3rd question by saying that the Soon Singh case was decided correctly. {35}
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(16) Like already enumerated at the previous paragraph, the Soon Singh case clearly showed that the matter of apostasy is within the Syariah Court’s jurisdiction. At paragraph (10) I also referred to item 1, list 2, Schedule 9 of the Federal Constitution to show that the important word used there was ‘matters’ and because ‘Islamic Law’ is one of the ‘matters’ which is found in item 1 and when read in the background of the Dalip Kaur case, then it is very clear that rightly the matter of apostasy is a matter which is related with Islamic Law and clearly therefore it is within the Syariah Court’s jurisdiction and because of Article 121(1A) of the Federal Constitution, then the Civil Courts cannot interfere in the matter.
(17) A few arguments are also made about a few of the Appellant’s rights under the Federal Constitution. Also it has been argued that the need to produce certificate/confirmation from the Syariah Court/Authority to confirm that the Appellant is an apostate is in conflict with the freedom under Article 11 of the Federal Constitution. According to that argument Article 11 of the Federal Constitution gives freedom to the Appellant to profess whichever religion and to leave from any religion. Nobody and nothing could stop her from doing so. Any action stopping the Appellant from doing as she likes in choosing religion or to leave from any religion is in conflict with Article 11 of the Federal Constitution.
17.1 Article 11 of the Federal Constitution is as follows: {36}
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“11.
(1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
(3) Every religious group has the right -
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable purposes; and
(c) to acquire and own property and hold and administer it in accordance with law.
(4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
(5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.”
17.2 What is clear in Article 11 is that the use of the words “…right to profess and practice his religion…” As said by Abdul Hamid Mohamad HMR (at that time) in the case of Kamariah bte Ali v Kelantan State Government, Malaysia (2002 (3) MLJ page 657 at page 665): “words ‘has the right’ applies to ‘profess’ and also ‘practice’.” Following the case of Che Omar bin Che Soh v Public Prosecutor (1988 (2) MLJ 55). Islam is not only a gathering of dogmas and rituals but it is also a complete way of life including all fields of activities {37}
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of humans, private or public, laws, politics, economy, social, culture, moral or judiciary. And if studied, Articles 11(1), 74(2) and item 1 in list 2 in Schedule 9 of the Federal Constitution is clear that Islam includes among other things, Islamic laws. Hence, as argued by the lawyer for the Malaysian Muslim Lawyers Association watching brief, if a Muslim wishes to leave Islam, he should use his right in the contexts of Syariah laws which has its own jurisprudence about the issue of apostasy. If a person professes and practices Islam, surely it means he should follow Islamic laws which determines the way of entering Islam and also the way of leaving Islam. That is the meaning of professing and practicing Islam. And what has been done by the NRD officer is only to decide the Appellant was no longer professing Islam like the way which has been decided by Islam. Hence, I cannot see how that action could be said to conflict with Article 11(1) which by itself provides the need to follow the requirements of that religion before he leaves Islam. Professing and practicing Islam surely means practicing not only the theological aspect in that religion but also the laws of that religion. [
### So, the Catholic Church of Malaysia could now require any Catholic who wishes to convert to Islam to obtain the Pope’s ‘apostasy certificate’ from Vatican as a precondition? The Hinduism Governing Body could require any Hindu to obtain the same approval when any Hindu wants to leave the Hindu caste system to convert to, especially, Islam? The Buddhists – get the same apostasy cert from Shaolin Temple in China (and beat the 18 Shaolin martial art monks if that’s part of the requirement? ###]
17.3 The Appellant in the Kamariah case (supra) argued that Article 11 not only gives her the freedom to profess any religion, but also to leave {38}
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any religion. The Appellant says that the laws cannot prevent her from doing so. The laws, according to the Appellant, cannot require her to follow a rule whether to embrace or leave a religion. Laws like that, the Appellant argues, is in conflict with Article 11 and therefore not valid and void.
17.4 On this argument by the Appellant, Abdul Hamid Mohamad, HMR in the Kamariah case says:
“If that is the meaning of that provision then not only the laws which determines the manner for a person to embrace Islam and leave Islam are not valid, but the laws which make it an offence if a Muslim commits adultery, close proximity, not paying zakat and so on are also all not valid. Because, following that argument, Article 11 gives the right to a person to practice his religion, and it is up to him whether he wants to practice any of the direction which he wants to practice and which not, follow whichever prohibition he wishes to follow and which not. Therefore, following that argument, any law which requires a person {39}
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to carry out a matter or to abandon a matter is in conflict with the freedom given by Article 11 and therefore all not valid.
In my view, in relation to Islam (I do not decide regarding other religions), Article 11 cannot be interpreted so wide until it nullifies all laws which requires a Muslim to pursue a religious obligation of Islam or prohibits them carrying out a matter which is prohibited by Islam or which determines other methods to carry out a matter related to Islam.
This is because the position of Islam in the Federal Constitution is different from the position of other religions. Firstly, only Islam, as a religion, is mentioned by its name in the Federal Constitution, i.e. as ‘the religion of the Federation’ – Article 3(1).
Secondly, the Constitution itself gives power to the State Legislative Body (for states) to codify Syariah Laws in matters mentioned in List II, State List, Schedule 9, the Federal Constitution (‘List II’). In accordance with the requirements of that List II, Syariah Courts (Criminal Jurisdiction) Act 1965 [*666] (‘Act 355/1965’) {40}
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and various enactments (for States) including as mentioned in this judgment, have been codified.
So, if those laws, including s 102 of Enactment 4/1994, do not conflict with the provisions of List II, and do not conflict with the provisions of Act 355/1965, then they are valid laws.
This provision could be compared with provisions about marriage and divorce. Syariah Laws requires a man and a woman who wish to stay together to marry according to particular conditions and regulations. Current needs require laws be made about it, including, among others, requiring the marriage be registered and application for divorce be made at the Syariah Court and order be given, if given, be registered (for me the law last mentioned which is frequently called ‘administration law’, is a part of the development of Syariah Laws also.) Are these laws also not valid and void on the basis that it conflicts with Article 11 because, following that argument, it prevents the freedom of religion which is guaranteed by Article 11? In my opinion, no.”
17.5 Based on the above authorities it is very clear that: {41}
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(a) The issue of changing religion is directly related to the rights and duties of the Appellant a a Muslim before the change happens;
(b) Article 11(1) should not be argued as a provision which gives the right to unlimited freedom;
(c) The right to profess and practice a religion should always be subject to the principles and practices as determined by that religion.
18. Based on the reasonings enumerated above my answers to the questions at paragraph (1) above are as folliows:-
(a) NRD is entitled to;
(b) NRD is correct; and
(c) The case of Soon Singh has been decided correctly.
In this situation, this appeal is rejected without order on cost.
Date 30 May 2007
Signed by Tun Dato’ Sri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim
The Nation’s Chief Justice
Lawyers [omitted]
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If you are interested, here is my assessment.
