V Anbalagan | November 10, 2016
The legal principle established in the well-known Lina Joy case is not applicable to Sarawak as the shariah court in the state has no power to issue a "conversion out" certificate, argues lawyer.
PETALING JAYA: The much talked about conversion case of Lina Joy could be revisited. Lina could not convert out of Islam as the National Registration Department (NRD) insisted she produce a certificate from the shariah court.
This new development follows the decision of three Sarawakians, in a similar predicament as Lina, who have filed an appeal to reverse the findings of the Court of Appeal in August that they had to seek relief in the shariah court.
Their lawyer, Joshua Parir Baru, said a leave application had been filed in the Federal Court.
“We have submitted two legal questions to obtain leave in order for the Federal Court to hear the merits of the case,” he told FMT.
Joshua said his clients had to refer to Lina’s case as the court cited the decision to prevent civil courts to rule on conversion matters coming from the state.
“For Sarawak, we need to depart from the legal principles established in Lina’s case,” he said.
Lina, a Malay-Muslim, wanted to embrace Christianity to marry her boyfriend, but the NRD insisted she produce a certificate from the shariah court, which she did not possess.
Her lawyers had argued that the NRD only needed to consider the baptism certificate from the church to facilitate the change in name and religion.
In a majority verdict, the Federal Court in 2007 rejected her 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”.
On Aug 17, the Court of Appeal rejected Jenny Peter @ Nur Muzdhalifah Abdullah, Tiong Choo Ting @ Mohd Syafiq Abdullah and Salina Jau Abdullah’s appeal.
They had named the Director of the Sarawak Islamic Department, Sarawak Islamic Council and the NRD as the respondents.
The trio had sought to compel the Sarawak Islamic Department and council to issue letters of release so that they could leave Islam, and also compel the NRD to change the Muslim names on their official documentation to their original names.
Justice Tengku Maimun Tuan Mat, who wrote the judgment, said while the Court of Appeal understood the “predicament” faced by the three, it had no choice but to follow the legal principle established by the Federal Court in Lina’s case.
“It is now settled by the long line of authorities that whether a person was a Muslim or not was a matter under the exclusive jurisdiction of the shariah court,” she said.
She said Article 11 on the freedom of religion in the Federal Constitution and the additional powers of the High Court stipulated in Schedule 1 of the Courts of Judicature Act 1964 must be read in the context of Article 121(1A).
That provision in the Constitution states that civil courts cannot interfere in matters related to Islam over which shariah courts had jurisdiction.
Alternatively, Tengku Maimon said the three had a remedy in the Sarawak state legislature although she did not elaborate.
Joshua said the Sarawak Shariah Court Ordinance 2001 did not mention the issue of jurisdiction over apostasy and as such the religious court could not issue a certificate to convert out of Islam.
He said for such cases in Sarawak, it is the High Court that should have exercised its jurisdiction to allow the trio’s applications.
All were originally non-Muslims. They had converted to Islam for marriage and had left the religion after divorce or death of their spouse.
~ Free Malaysia Today