By Zairil Khir Johari
I refer to the Court of Appeal’s decision on Wednesday to dismiss an application to renounce Islam by three Bumiputera Muslim converts in Sarawak. The applicants were originally non-Muslims who had converted to Islam for marriage. Following the dissolution of their marriages, they are now, by their own declaration, no longer practising Muslims.
Central to this issue is the question of whether the civil or shariah courts should decide in such cases. In this instance, the three-judge appellate court panel decided that jurisdiction lies with the shariah and not civil courts, citing the Federal Court decision in the Lina Joy case, as well as their interpretation of Article 121(1A) of the Federal Constitution.
The 1988 insertion of Clause 1A to Article 121 of the Federal Constitution does make clear that the High Court and its subordinate courts would no longer have jurisdiction on matters under the purview of the shariah courts. Read together with the Courts of Judicature Act 1964, which determines that the appellate courts are limited to the same powers as those exercised by the High Court, then it follows that the Court of Appeal and the Federal Court would not also have authority over the same matters.
However, this presents a constitutional dilemma.
Under the ninth schedule of the Federal Constitution, Islamic law and, correspondingly, the jurisdiction of the shariah courts are limited to “persons professing the religion of Islam”. Based on this premise, as argued by the applicants’ legal counsel who also quoted the dissenting judgement in the Lina Joy case, the shariah courts would not have jurisdiction over the applicants because they no longer profess the religion of Islam.
Religion a matter of faith
On such issues, we should take a leaf out of progressive decisions made by other Muslim countries. The Jordanian government, for example, recently announced that their citizens’ new identity cards would no longer indicate the holder’s religion. This is in adherence to the constitutional position that guarantees every citizen equality under the law, as well as to avoid discrimination on grounds of religion.
In defending the move, Marwan Qutaishat, head of Jordan’s Passport Authority, stated that “religion cannot be expressed with a written word or a beard”.
The same logic holds true in the case of Malaysians. Religion should be a matter of individual faith, and not for the bureaucracy to decide. It defies common sense that someone is legally a Muslim even though they no longer adhere to the faith. Even more so if they already profess a different religion.
Such a view is not only in line with the guarantee of freedom of religion as stipulated by Article 11 of the Federal Constitution of Malaysia, but also the Quran, where it is determined that there should be no compulsion in matters of faith. This is furthermore relevant for citizens of Sabah and Sarawak where Islam is not the official religion.
Direct petitions to the Federal Court
Article 121(1A) and the resultant creation of parallel systems of justice present a constitutional lacuna. Because of this grey area, many Malaysians spend years trying to seek redress from the judicial system.
Besides conversion cases, child custody disputes involving Muslim and non-Muslim parents have also been difficult to resolve, with some cases lasting close to a decade before a final decision is made. Often, it is too little too late.
What is clear is that a solution is needed. As such, I would like to reiterate the need for the Courts of Judicature Act to be amended in two ways.
Firstly, the Federal Court must no longer be limited to the jurisdictional authority of the High Court. In other words, the Federal Court should act as a final arbiter on all legal matters in the country.
Secondly, a procedure should be created to allow direct petitions to the Federal Court in matters involving constitutional rights and fundamental liberties, including matters of unclear jurisdiction, such as those that fall within Article 121(1A).
Not only would these amendments create a clear avenue for remedy in cases that overlap between the shariah and the civil courts, but it would also shorten the tedious process of going through the High Court and Court of Appeal, thereby saving time, resources and emotional anguish for those seeking legal redress.
If the government is unprepared to make such amendments, I will sponsor a private members’ bill to this effect in the next parliamentary sitting.
Zairil Khir Johari is MP for Bukit Bendera and DAP Assistant National Publicity Secretary.
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