At the end of my previous post, I raised a question I promised to address: Should cases like mine be in the Syariah courts at all?

It is a question I did not ask for many years. I accepted, as most people do, that because my case involves my religious status as a Muslim, it naturally belongs in the Syariah court. I filed my application there in 2018. I attended 16 court appearances. I went through 72 sessions ordered by that court. I accepted the framework – until studying the law more carefully made me wonder whether I should have.

Who Does the Syariah Court Actually Govern?

The Syariah court’s jurisdiction is not unlimited. It is precisely defined by the Federal Constitution. Item 1 of the State List under the Ninth Schedule gives state legislatures the power to establish Syariah courts with jurisdiction over persons professing the religion of Islam – and only in respect of specific matters listed under that provision.

The key words are “persons professing the religion of Islam.”

I filed my application because I do not profess the religion of Islam. I am a Christian. I have a baptism certificate. I testified to my faith before the court. I brought three witnesses. The entire basis of my application – the reason I am there – is that I do not profess Islam.

So, a question arises that I have not seen adequately answered: if the Syariah court’s jurisdiction is over persons professing the religion of Islam, and the person before the court is precisely someone saying they do not profess Islam – does the court have jurisdiction over that person at all?

Dato’ Seri Mohd Hishamudin Yunus, a former judge of the Court of Appeal, addressed this directly in a lecture at the Royal Lake Club in March 2024. He stated clearly that the Syariah court:

“is to have jurisdiction only over persons professing the religion of Islam and in respect only of the matters that have been enumerated under the State List.”

Watch Dato’ Seri Mohd Hishamudin’s Lecture here > The Malaysian Contours Of Federal Constitution: Negotiating Between The Sacred And Secular.

I got a copy of the full lecture slides in PDF here > The People’s Parliament

He also identified a common misconception among some lawyers and judges – that any dispute with an Islamic law element must go to the Syariah courts. That, he said plainly, is not what the Constitution intends.

But that creates a problem. Whether I truly profess Islam is the very issue the court is meant to decide. Yet the process it applies already assumes the answer, making it difficult for the court to fairly determine even its own authority to hear the case.

When the System Has Already Decided

This is not a criticism of Islam, nor of any individual within the system. It is an observation about structure – specifically, how a constitutional right is administered in a process that involves people who no longer profess the faith that process is built around.

Every judge in the Syariah court professes Islam. Every lawyer permitted to appear before it professes Islam. The counsellors appointed by MAIS (Islamic Religious Council) profess Islam. The Mufti’s Department that conducted my sessions professes Islam. The institutional framework that evaluates my sincerity, administers my counselling, and submits the report to the court – all of it operates within a faith whose doctrinal position, as one of the panel members in my counselling sessions openly acknowledged, is that a Muslim cannot leave.

Dato’ Seri Hishamudin acknowledged this tension directly and with intellectual honesty. As a retired judge, he said:

“I appreciate the sensitivity of the subject of apostasy; and that for a Muslim person or for the Muslim community, to renounce the Islamic faith is a big NO for Muslims. As that is against the tenets of the faith.” Yet from a constitutional law standpoint, he also said: “by virtue of Article 11(1), a person, including a Muslim, has the right to practise any religion of his choice, including the right to change his religion.“

He went further still. He stated that state laws which prohibit a Muslim person from changing religion are, in his view, inconsistent with Article 11(1) of the Federal Constitution.

Here is a former appellate judge saying that the constitutional right exists, and that laws preventing its exercise are inconsistent with the supreme law of the land. Yet the system through which that right must be exercised is staffed entirely by people whose faith holds the opposite position.

I want to be clear: I am not saying that Muslim judges, lawyers, or counsellors are dishonest or incapable of fairness. Many of them are people of integrity – some of the panel members in my own sessions showed genuine compassion. Some of my Muslim friends acknowledge that what I have to go through is too much and does not reflect Islam.

But impartiality is not only about personal integrity. It is also about structural design, and it is one of the foundational principles of the rule of law, as I discussed in an earlier post. A system that asks people to adjudicate a question whose answer their faith has already resolved is not well-suited for impartial adjudication of that question.

A Framework the Court Cannot Execute

There is one more dimension worth considering. Even if one accepts that the Syariah court has jurisdiction, the framework it is expected to apply – hukum syarak [Islamic Law] – cannot be fully implemented in Malaysia.

I know this not just from legal research but from my own case. I recently obtained the first written judgment in my own case, not from the court – which has yet to provide me with my copy of the court order as a plaintiff – but through Supreme Today AI, a legal database: Shameer P V Anversha v Majlis Agama Islam Selangor [2025] MarsdenLR 5205. I will be examining that judgment in detail in my next post, including the reasoning behind it and serious questions about how the decision was reached. For now, I want to focus on one specific point it illustrates about the framework the court applied.

At paragraph [49] of the judgment, the court cited a hadith recorded by Thabarani from Mu’az bin Jabal when justifying the order for 60 istitabah sessions:

“Mana-mana lelaki yang murtad daripada Islam, hendaklah kamu menyerunya supaya kembali kepada Islam jika dia mahu. Jika tidak, pancunglah tengkuknya.” [“Any man who apostatises from Islam, call upon him to return to Islam if he so wishes. If he refuses, behead him.”]

Based on this and scholarly consensus, the underlying classical position is that an apostate who refuses to repent is liable to be put to death.

But the Syariah High Court of Kuala Lumpur, in Balbir Abdullah lwn Pendaftar Muallaf, Wilayah Persekutuan [2009] 1 CLJ (Sya) 365, acknowledged that the Syariah court has no power to impose that sentence. The Federal Law – Syariah Courts (Criminal Jurisdiction) Act 1965 – limits Syariah court’s sentencing powers to imprisonment not exceeding three (3) years, a fine not exceeding RM5,000, and lashing not exceeding six (6) strokes. The prescribed classical consequence cannot be executed by any Syariah court in Malaysia.

I want to be honest about something. During one of my 60 counselling sessions, one of the panel members offered a different explanation – that “pancunglah tengkuknya” does not mean what it literally says, and that it must be understood in a specific historical context. I am not in a position to say who is right. That is a matter of Islamic jurisprudence, and it is not my place to enter that debate. What I can say is that I heard two very different explanations from within the same framework – which suggests the doctrinal position is not as settled as the court’s reasoning might imply.

With respect, I find it difficult to see how it sits comfortably as the basis for evaluating a civil applicant exercising a constitutional right guaranteed by the Federal Constitution. What I can say from a legal standpoint is this: whatever the correct interpretation, the Syariah court cannot impose the classical consequence regardless.

If the court is applying a framework it cannot fully execute, and the applicant’s case is being evaluated against that same framework – what exactly is the process measuring?

There is also a tension in the case law itself. In Adam Lee Shiong Lim v Mahkamah Rayuan Syariah Wilayah Persekutuan & Ors [2024] 7 MLJ 588, the judge noted that jurisdiction cannot be derived by implication. The jurisprudence on this question is not settled. And where jurisdiction over a fundamental right is uncertain, that uncertainty itself is worth taking seriously.

The Constitution Already Speaks to This

Item 1 of the State List gives state legislatures the power to legislate on Islamic matters – including the administration of Islamic personal law and the creation of offences against the precepts of Islam. But Item 1 already sets a limit: states cannot create offences on matters within the Federal List. Above all, Article 4(1) affirms that the Federal Constitution is supreme and any state law or process inconsistent with it is void to the extent of the inconsistency. Freedom of religion is not a matter of state law. It is guaranteed by Article 11(1) at the highest level of our legal order.

When a state process requires a person to meet criteria defined under Islamic law – and go through an Islamic court – before that right can be exercised, and where that process has no clear statutory basis as I showed in my previous post, it is worth asking whether the state is regulating something the Constitution has already addressed. The state’s power under Item 1 is real, but it is not unlimited. It operates within the framework the Constitution sets, not above it.

A Question of Constitutional Scrutiny

The civil courts directed cases like mine to the Syariah courts. As I discussed in an earlier post, the Federal Court in Lina Joy v Majlis Agama Islam Wilayah Persekutuan [2007] 4 MLJ 585 held that matters of religious status for Muslims are to be determined by the Syariah courts.

But did the civil courts scrutinise whether those courts could hear such cases consistently with the Constitution?

The Syariah courts are not directly established under the Federal Constitution. As Dato’ Seri Hishamudin pointed out, they are established under state laws pursuant to the State List. Their jurisdiction comes from statute. And as the Federal Court held in Latifah bte Mat Zin v Rosmawati bte Sharibun [2007] 5 MLJ 101, courts are creatures of statute – they must look to their enabling legislation to determine what they can and cannot do.

The Federal Court in Indira Gandhi a/p Mutho v Pengarah JAIP [2018] 1 MLJ 545 clarified something important: Article 121(1A) – which removed civil court jurisdiction over matters within Syariah court jurisdiction – does not prevent civil courts from asking whether an Islamic institution has acted within its statutory powers, or whether a matter has been incorrectly treated as falling within Syariah jurisdiction when it does not.

That is significant. It means the civil courts retain the power and, arguably, the duty to ask whether cases like mine belong in the Syariah courts at all. Not as a matter of deference, but as a matter of constitutional scrutiny. Whether the civil courts have adequately exercised that scrutiny in applications to leave Islam is a question I respectfully raise. The jurisdictional basis – that the applicant is a “person professing the religion of Islam” – is the very thing the applicant is disputing. Accepting that basis without scrutiny means accepting the conclusion before the case is even heard.

The Questions I Am Left With

These questions sit at the intersection of constitutional law and lived experience. I raise them not to attack the Syariah courts or the people within them, but because eight years of going through this system have made them impossible to ignore – and because the Constitution itself gives rise to them.

If the Syariah court’s jurisdiction is over persons professing Islam, and I am precisely a person saying I do not profess Islam – is that the right court to decide my case?

If the entire system through which my case is adjudicated holds a doctrinal position against the outcome I seek – can that system be structurally impartial, regardless of the integrity of the individuals within it?

If the framework the court is expected to apply cannot be fully executed, and the case law on jurisdiction is unsettled – what is the constitutional basis on which these cases continue to be heard there?

I do not have all the answers. But I believe the questions deserve to be asked openly, respectfully, and with the seriousness owed to fundamental liberties – liberties the Constitution guarantees, but which are not equally accessible to all.