Justice Zainun Ali, who delivered the unanimous judgment of the five-member bench on Monday, said the civil court should not shy away from hearing conversion cases as it was a constitutional right.
“We take a firm stand on this – in that before a civil court declines jurisdiction premised on the strength of Article 121(1A), it should first examine or scrutinise the nature of the matter before it.
“If it involves constitutional issues, it should not decline to hear merely on the basis of no jurisdiction,” Zainun said in a 101-page judgment.
The ruling also determined that past cases of apostasy like Lina Joy -v- Majlis Agama Islam Wilayah Persekutuan and Others (2007) and Haji Ramli Abdullah -v- Siti Hasnah Vangarama Abdullah & Other (2014) had wrongly decided that the civil courts had no jurisdiction.
Lina, a Malay-Muslim, wanted to embrace Christianity to marry her boyfriend and applied to the High Court for various declaratory orders on the basis of clause (1) of Article 11 of the constitution, which guarantees to every person the right to profess and practise his/her religion.
She also sought an order that the National Registration Department director-general enters her name in the registry book as having converted out of Islam.
Zainun said the then chief justice Ahmad Fairuz Sheikh Abdul Halim, who led the majority ruling, rejected Lina’s appeal and ruled that “a person who wanted to renounce his/her religion must do so according to existing laws or practices of the particular religion”, including in its renunciation.
In Haji Ramli’s case, the then chief justice Arifin Zakaria said the validity of Hasnah’s conversion to Islam in 1989 at the age of seven years when she was in Ramakrishna Orphanage must be determined by the Shariah Court.
The mother of three’s complaint was that the then Perkim officer Raimi Abdullah and Penang Islamic Religious Council had wrongfully caused her to renounce Hinduism and embrace Islam.
“With respect, this approach is unduly simplistic. It is worth reiterating that the effect of Article 121 (1A) is not to oust the jurisdiction of the civil courts as soon as a subject matter relates to the Islamic religion,” she said.
Zainun said that the judicial trend of the past had taken the position that since conversion involved matters of Islamic law and practice, it followed that only the shariah courts had jurisdiction to hear the matter.
She said, however, that the powers of judicial review, constitutional or statutory interpretation were pivotal constituents of the civil courts’ judicial power under Article 121(1).
As part of the basic structure of the constitution, such judicial power could not be conferred on the Shariah Court, whether by constitutional amendment, act of parliament or state legislation.
In allowing Indira’s appeal to set aside the conversion certificates of her three children, the court held that spouses who embraced Islam could not convert their minor children without the consent of the non-converting partners.
The bench was chaired by Court of Appeal President Zulkefli Ahmad Makinudin, and also comprised Richard Malanjum, Abu Samah Nordin and Ramly Ali.