Conversion case: Syariah court not inferior to civil court, says Apex court judge

PUTRAJAYA: The Syariah Court is not inferior to a civil court as both courts are recognised under the Federal Constitution, said a Federal Court judge in his judgment in a conversion case.

Federal Court judge Datuk Abu Bakar Jais, in his grounds of judgment, said the Syariah Court is a competent court under the Federal Constitution, the supreme law in the country, and its decision commanded the greatest respect and should be binding against all parties.

“I am aware there are expressed views that say Syariah Courts are inferior courts, thus making it possible at least by deduction to review its decisions. I respectfully depart from those opinions,” he said.

He also said there was no authority to say that when a Syariah Court has heard a case and pronounced its decision, a civil court can subsequently hear, consider and come to a decision different from a Syariah Court.

“The case could not be re-litigated by the civil courts,” said Justice Abu Bakar who supported the 2-1 decision majority of the Federal Court three-member bench to dismiss the appeal by a 37-year-old woman who wanted to overturn the appellate court’s decision in reinstating her as a Muslim.

Court of Appeal President Tan Sri Abang Iskandar Abang Hashim was the other judge who also supported the majority decision while Justice Datuk Mary Lim Thiam Suan dissented.

In the 49-page grounds of judgment dated May 3 this year, which was released on the judiciary’s website, Judge Abu Bakar said the decision by the Syariah Court which held that the woman is a Muslim is not a nullity.

He said the Syariah Court has the jurisdiction to determine the woman’s case as it is clearly an apostasy or renunciation case.

“It would indeed be inappropriate, unjust to the system of judicial administration and power of the Syariah Court and wholly unjustified for the same to be supplanted of its jurisdiction and for the jurisdiction instead to be conferred on the civil court,” he said.

Justice Abu Bakar said the woman had gone to the Syariah High Court seeking to be declared that she was no longer a Muslim.

“That clearly showed she is a Muslim and the Syariah High Court decided she is still a Muslim. She believed justice lies in the hands of the Syariah Court, but having received its decision, she became unhappy and unable to accept the same and sought another avenue with the hope she will get what she wants,” he said.

In the minority judgment, Justice Mary Lim said the woman’s conversion to Islam was invalid as she never uttered the affirmation of faith.

“No amount of practising, living or being raised as a Muslim can alter the fact that she needs to be validly converted to the religion of Islam before she is a Muslim,” she said.

In his judgment, Justice Abang Iskandar said the woman was factually a Muslim since childhood when she was legally in the care and custody of her mother, who raised her on the basis that she is a Muslim.

According to the woman, she was born a Hindu to non-Muslim parents and she was still a child when she was converted to Islam by her mother in 1991. Her father passed away in 1996.

She said her mother married a Muslim man after divorcing her father and that despite her conversion to Islam, her mother and stepfather allowed her to continue practising the Hindu faith which she was born into.

On Dec 12, 2013, the woman filed a summons at the Kuala Lumpur Syariah High Court for a declaration that she was no longer a Muslim.

On July 20, 2017, the Syariah High Court dismissed her summons. Her appeal to the Syariah Court of Appeal was dismissed on Aug 1, 2017.

She then filed a lawsuit at the civil High Court seeking a declaration that she is not a person professing the religion of Islam and named the Selangor Islamic Religious Council (Mais) and the Selangor state government as respondents.

On Dec 21, 2021, the High Court in Shah Alam allowed the woman’s suit and declared that she is not a Muslim.

However, the decision was overturned by the Court of Appeal on Jan 13 last year in a 2-1 majority decision following the appeals by Mais and the Selangor government. – BK