Part 2 of 4 – The Gap, and How It Was Filled

Part 1 ended in 1991 with case authorities pointing in a broadly consistent direction in interpreting Article 121(1A), and with a request from the Supreme Court in Dalip Kaur that State legislatures enact clearer provisions for recording renunciation.

Part 2 is about what happened in between that request and its eventual answer. It is a period of roughly a decade in which the statutes were silent, the High Court divided, and the Federal Court filled the silence by implication. It ends in 2007, with two Federal Court decisions handed down months apart that are difficult to reconcile with one another.

The Gap Identified

The problem Dalip Kaur had identified was concrete. Most State Enactments contained detailed provisions on conversion into Islam – registers, registrars, requirements, certificates. Very few said anything at all about conversion out. When Dalip Kaur was decided, only Johor and Negeri Sembilan had an express provision in force, and Negeri Sembilan had enacted its months earlier.

What the Supreme Court did with that silence in 1991 is worth noting precisely, because the later cases treat it differently. It asked the legislatures to fill the gap. It did not hold that the civil courts were shut out in the meantime – the leading judgment expressly preserved their power to interpret State written law. ¹

So the question left open after 1991 was what the silence meant until the legislatures acted. The apex court gave no further guidance for eight years. In the interval, the High Court divided over what Article 121(1A) meant when State law was silent: whether the Syariah courts had jurisdiction over a person seeking to leave Islam even though no legislature had conferred it. The answer would decide whether such a person could have their status determined at all.

1996 and 1997: The Courts Divide

In a Penang case, Lim Chan Seng v Pengarah Jabatan Agama Islam Pulau Pinang, decided on 4 June 1996, two plaintiffs who had embraced Islam – one in 1994, the other in 1988 – each executed a deed poll renouncing it in 1995 and sought a declaration that the renunciation was lawful and valid. The Director of the religious department applied to have both summonses struck out before any hearing on the merits, arguing that Article 121(1A) had put the question beyond the civil court’s reach.²

Justice Abdul Hamid Mohamad refused, and his reasoning was structural: Article 121(1A) does not, by itself, give the Syariah courts power over anything – not even over matters listed in the State List. To confer such jurisdiction, the State Legislative Assembly must first act on the powers given to it by Articles 74 and 77 and the State List, and enact laws conferring it. Only once that is done, does the matter fall within Syariah jurisdiction and, consequently, outside the civil courts.³

Finding no such provision in the Penang Enactment, he held that the civil court was not precluded from hearing the applications. He dismissed the striking-out applications, gave the religious department fourteen days to file its evidence in reply, and awarded costs to the plaintiffs.⁴ The reported decision goes no further: it records no declaration that either plaintiff’s renunciation was valid. He pointed to s 90(3) of the Negeri Sembilan Administration of Islamic Law Enactment 1991 as an example of what such a provision would look like. He also addressed Dalip Kaur directly, holding that Mohamed Yusoff SCJ’s separate statement – the one about the Syariah Court being the only qualified forum – was not a binding pronouncement governing every case.⁵

The following year, in Kuala Lumpur, Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur, High Court Judge, Abdul Kadir Sulaiman, faced the same preliminary question and answered it the other way. The plaintiff, born a Buddhist, had embraced Islam in 1978. In 1995 he renounced it by deed poll and statutory declaration, and he asked the court to declare the renunciation lawful and valid, pleading Article 11.⁶ The religious council filed no evidence against him; it objected only to the court’s jurisdiction. Abdul Kadir Sulaiman J held that Article 121(1A) was clear and unambiguous, and – this is the significant step – that Syariah jurisdiction was not confined to matters expressly provided for in the State Enactment. It extended to any matter falling within Item 1 of the State List, whether or not the legislature had legislated on it. The plaintiff’s claim, he held, fell within “the category of personal law of persons professing the religion of Islam”, and the plaintiff was such a person because, on his own admission, he had embraced Islam in 1978.⁷ The application was dismissed with costs. The court accepted that the plaintiff might have no remedy in the Syariah court either. That, it said, did not make the question one for the civil court.⁸

That reasoning skips a step the Constitution requires. Item 1 of Schedule 9 tells a State Legislature what it may make laws about. It does not establish any court or give any court power over anything. The legislature must first pass a law constituting the Syariah court and conferring jurisdiction on it, and only then does that court have it – provided what is conferred is consistent with the rest of the Constitution. On the Md Hakim Lee approach, a Syariah court holds jurisdiction over matters no legislature has given it – jurisdiction arising from a schedule that addresses who may legislate, not what a court may decide.

There is also what Item 1 does not say. It is a list of subjects on which a State may legislate. Renunciation of Islam is not among them. To bring the plaintiff’s claim within it, the court had to characterise his renunciation as a matter of “personal law”, and then treat him as a person professing Islam because of a conversion he had since renounced. Nothing in Item 1 makes a person’s profession of faith a matter for adjudication, and nothing in Article 11(1) makes the right conditional on a court’s permission.

Two High Court judges, two readings, one constitutional text – and in neither case did a civil court decide whether the applicant had actually left Islam. In Lim Chan Seng the plaintiffs survived the objection, but what is reported is only the fight over which court could hear them. In Md Hakim Lee the plaintiff was turned away, with the court acknowledging that he might find no remedy in the Syariah court either.

That is the pattern this series keeps returning to. A person comes to the civil courts to have a constitutional right given effect: the right, under Article 11(1), to profess the religion he in fact holds. What he receives is a ruling on jurisdiction. Article 121(1A) says nothing about a person’s profession of faith, yet after 1988 it became the ground on which such claims were contested, and often the ground on which they ended. The matter was ripe for the apex court.

1999: Soon Singh and the Doctrine of Implied Jurisdiction

Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor reached the Federal Court in 1999.⁹ The appellant was a Sikh who had been converted to Islam as a minor. On reaching majority age, he was baptised into the Sikh faith, executed a deed poll renouncing Islam, and sought a civil declaration confirming his status. The High Court had declined jurisdiction on 2 February 1994.

The Federal Court chose Md Hakim Lee over Ng Wan Chan and Lim Chan Seng. Federal Court Judge, Mohd Dzaiddin began by agreeing with Dalip Kaur that clear provisions should be incorporated in all State Enactments, then continued:

“the jurisdiction of the Syariah Courts to deal with the conversion out of Islam, although not expressly provided in the State Enactments, can be read into them by implication derived from the provisions concerning conversion into Islam.” ¹⁰

Since matters of conversion to Islam fall within Syariah jurisdiction, it followed, in the Court’s view, that conversion out must do the same.

There are two problems with reasoning that way:

The first is textual. Item 1 provides that Syariah courts “shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph.” ¹¹ The word “only” appears twice. It is difficult to read a provision drafted in those terms as an invitation to imply jurisdiction that no legislature conferred. Ng Wan Chan had said so directly eight years earlier. ¹²

The second is circular. Syariah jurisdiction is conditioned on the person professing Islam. But the matter the applicant brings is precisely that he no longer professes Islam. On this approach, it is that same court which decides whether he does. The applicant’s own profession of faith – the very thing Article 11(1) protects – is no longer a right vested in him but a matter for a court to determine.

The same circle closed on the constitutional question. Article 11(1) was argued at length, counsel relying on Jamaluddin bin Othman for the proposition that there is no restriction on the right to profess and practise. The Court did not reach it. The originating summons sought only a declaration that the appellant was no longer a Muslim and made no prayer for a declaration under Article 11, so the question of an infringement was, in the Court’s words, “quite misplaced”.¹³ But the same judgment held that the principal application belonged in the Syariah Court,¹⁴ which does not determine whether a State law offends Article 11(1). The constitutional question was postponed to a stage the ruling itself placed beyond reach.

There is also the foundation. Soon Singh drew its principle from Dalip Kaur. As Part 1 set out, the passage in Dalip Kaur that supports it came from Mohamed Yusoff SCJ’s separate judgment, and had already been held by Abdul Hamid Mohamad J in Lim Chan Seng not to be a binding pronouncement for every case.

The academic commentary of Kuek Chee Ying and Tay Eng Siang has shown how this happened. In Dalip Kaur, Hashim Yeop A Sani CJ (Malaya), speaking for the majority view, dismissed the appeal on the merits, upholding the trial judge’s finding that the deed poll had not been signed by the deceased. Jurisdiction was never in issue. The passage treating the Syariah court as the only qualified forum came from Mohamed Yusoff SCJ writing alone. Yet the High Court in Soon Singh and in Md Hakim Lee followed that minority view as if it were binding, and when the Federal Court adopted that reasoning in Soon Singh, a view that had never been the law of Dalip Kaur became the law thereafter.¹⁵

Abdul Hamid Mohamad J, who had tried Dalip Kaur at first instance, had made the point himself in Lim Chan Seng three years before Soon Singh: jurisdiction had never been raised before him, and if the civil court had lacked it, the appeal ought not to have been dismissed on its merits.¹⁶ And the passage in the leading judgment was asking legislatures to create clearer statutory pathways, not asking courts to imply them.

Some practitioners have offered a further explanation. The civil courts’ readiness to cede jurisdiction, they argue, owes more to the pressures on the judiciary after 1988 than to the text of Article 121(1A).¹⁷

The Legislatures Answer – In a Different Form

Here the story turns, and it turns in a way that is often missed.

Soon Singh tried to solve a specific problem: statutory silence. That problem did not remain unsolved. Over the following years the State legislatures did what Dalip Kaur had asked, in the sense of enacting clear provisions – but the provisions they enacted were of a different character from the registration mechanisms the Supreme Court had described.

Selangor is the clearest example. Section 61(3)(b)(x) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 confers on the Syariah High Court jurisdiction to hear and determine an application for a declaration that a person is no longer a Muslim. Section 74(2) of the same Enactment provides that a Muslim shall at all times be acknowledged and treated as a Muslim unless a declaration has been made by a Syariah Court that he is no longer a Muslim.¹⁸

Set s 74(2) beside Pahang’s repealed s 103(2). Both create a presumption of continuing Muslim status. But under s 103(2) the presumption ended once the decision was reported and registered;¹⁹ under s 74(2) it ends only when a Syariah court declares otherwise. The repealed provision treated the change of status as a fact to be recorded. The 2003 model treats it as an outcome to be adjudicated.

That difference is the substance of what changed. And it had a doctrinal consequence that has taken time to become visible: once the express provisions conferring that jurisdiction were in place, implied jurisdiction was no longer needed in states that had them. Where they were not, it remained what the jurisdiction rested on.

A second development ran alongside the State enactments, and it came not from any legislature but from the federal executive.

Nothing in the National Registration Act 1959 requires a person’s religion to appear on the identity card. The requirement was created by subsidiary legislation, in two steps.

On 1 March 2000, the Minister of Home Affairs made the National Registration (Amendment) Regulations 2000, P.U.(A) 70/2000, introducing the particular “Religion (only for Muslims)” into the First Schedule and providing for the word “ISLAM” to be entered on the obverse of the identity card. It was expressed to take effect from 1 October 1999.²⁰ On 1 August 2001, he made the National Registration (Amendment) Regulations 2001, P.U.(A) 232/2001, introducing the particular “his religion” in regulation 4(cc)(v) and requiring a person applying for a replacement card to disclose it. That was expressed to take effect from 1 November 2000.²¹

Both were retrospective. The second was made some months after the High Court dismissed Lina Joy’s originating summons on 18 April 2001,²² and was backdated to a date during the pendency of those proceedings.

The requirement is also applied unevenly. The particular appears on the face of the card for Muslims. For adherents of every other religion it is recorded only in the chip. ²³

A third obstacle was thereby added to the two already in place. The first is jurisdictional: which court may decide. The second is statutory: the presumption that a person remains a Muslim until a Syariah Court declares otherwise. The third is documentary. A person’s religious status is now recorded on a document issued by a federal authority which will not amend it without an order from a Syariah court. That third layer has proved consequential in a way the 2001 amendment cannot have anticipated. The entry was introduced to record religious status. In the cases Part 4 examines, it has come to be treated as evidence of it.

2003: Tongiah Jumali – An Express Provision, Read the Other Way

In a Johor case, Tongiah Jumali & Anor v Kerajaan Negeri Johor & Ors, decided 14 March 2003, ²⁴ the High Court gave a judge-made implication higher standing than the State legislature’s own express provision.

The first plaintiff sought declarations that she was a Christian, no longer subject to Johor’s Islamic laws, and that her marriage to the second plaintiff was valid under the laws of Malaysia. There was also a claim in false imprisonment against the first and second defendants. The defendants met none of it. They raised a preliminary objection that the civil court had no jurisdiction to grant the relief sought at all. ²⁵

Counsel for the plaintiffs argued from the Johor Enactment itself. Section 141(2) required the Kadi to record a renunciation and announce it. That is registration, not adjudication: the act is the person’s, and the Kadi’s function is to enter it. Johor also had no provision, as Negeri Sembilan did in s 90(3), presuming a person to remain a Muslim until the renunciation had been reported and registered. On that reading, the Enactment left renunciation to the individual, and there was nothing in the Enactment for a Syariah court to decide.²⁶

The High Court Judge, Jeffrey Tan, did not decide whether that reading was right. He did not have to. Under Soon Singh, jurisdiction over conversion out is implied from a State Enactment’s provisions on conversion in, and Johor had those in ss 138 to 141. The implication therefore ran whatever s 141(2) meant – “even if it is true that the Johore Enactment contains no provisions regarding conversion out”, as he put it, the Syariah court would have jurisdiction.²⁷ He treated the matter as closed: Soon Singh, in his words, had “most conclusively settled and answered the often-thorny question of the jurisdiction of the civil court to hear an application concerning conversion out”. ²⁸ The whole action was struck out, the marriage and false imprisonment claims with it, neither of which a Syariah court could have heard.

Two things follow. Soon Singh had implied jurisdiction from statutory silence; Johor was not silent, and the implication was applied anyway, so what had been a way of filling a gap now operated whether or not there was a gap to fill. And because the rule attached to the conversion-in provisions, the conversion-out provision never had to be read at all – the construction of a State enactment, which is the civil court’s own function and which the leading judgment in Dalip Kaur had expressly preserved, went undone. Counsel’s question was left where he put it: “The present parties are non-Muslims. How could they appear before the Syariah Court?” ²⁹

Thirteen months after the judgment the provision was repealed: the 1978 Enactment was replaced by the Administration of the Religion of Islam (State of Johor) Enactment 2003, which came into force on 1 April 2004. ³⁰

2004 and 2007: Kamariah Ali and Lina Joy

In Kamariah bte Ali dan lain-lain lwn Kerajaan Negeri Kelantan, Kamariah Ali and the others were defendants in Syariah criminal proceedings who asserted non-Muslim status as a defence. The Federal Court held that a person facing Syariah criminal proceedings could not simply assert that they were no longer Muslim and thereby place themselves outside Syariah jurisdiction. ³¹ The concern was intelligible in that posture: a defendant cannot choose the court that tries him. Lina Joy, three years later, was in the opposite position – not a defendant resisting proceedings, but an applicant asking that a record be corrected.

In Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan, the appellant, born Muslim, had converted to Christianity and sought to have “Islam” removed from her identity card. The National Registration Department applied the requirement described above and refused without a Syariah court order.³²

The Federal Court dismissed her appeal by a majority, affirming Soon Singh. Ahmad Fairuz, Chief Justice, reasoned that because Islam is a complete way of life, a Muslim who wishes to leave it is exercising her rights within Islamic law, and that Article 11(1) itself requires compliance with that law before she leaves. Only when the requirements of Islam had been met, and the religious authority had certified her apostasy, could she profess Christianity. A person, the Court said, may not leave and enter a religion at will.³³

That reading is difficult to reconcile with the constitutional text and with prior authority. Article 11(1) confers a right to profess and practise; the majority read “practise” as imposing a duty to comply with the rules of the religion one is leaving. The only qualification Article 11 itself contains is in clause (5) – general laws relating to public order, public health and morality – and there is none by reference to the doctrines of a religion. Jamaluddin had already set the threshold for when the right gives way; it was not cited. Che Omar was cited, but only for its observation that Islam is a complete way of life. The majority did not mention that the Supreme Court in Che Omar, having made that observation, went on to hold that this was not the sense in which the framers used the word “Islam” in Article 3.³⁴

The practical effect falls on a particular group of people. For every other Malaysian, a change of religion is a matter for the person. For a Muslim, after Lina Joy, it takes effect only when a religious authority certifies it – and in the Federal Territories, where Lina Joy lived, no statute set out any procedure by which that certification could be obtained.

Richard Malanjum, Chief Judge of Sabah and Sarawak, dissenting, took a different view. Quoting Ng Wan Chan and Lim Chan Seng, he held that jurisdiction must be express and not implied, and added a caution that has aged well: “in the matters of fundamental rights there must be as far as possible be express authorisation for curtailment or violation of fundamental freedoms. No court or authority should be easily allowed to have implied powers to curtail rights constitutionally granted.” ³⁵

2007: Latifah bte Mat Zin – Jurisdiction Comes From Statutes

Later in the same year, a differently constituted Federal Court decided Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor.³⁶ Abdul Hamid Mohamad, by then Chief Justice – the same judge who had decided Lim Chan Seng eleven years earlier – sitting with Arifin Zakaria and Augustine Paul FCJJ, delivered the judgment. The case had nothing to do with religious profession. It was a petition for letters of administration of a Muslim’s estate, in which the parties agreed that the issue was whether money in joint accounts had been given to the appellant as a gift recognised in Islamic law as hibah.

On Item 1, the court held that in constituting and organising the Syariah courts a State legislature must also provide for their jurisdiction within the limits Item 1 allows. The word “any” between “in respect only of” and “of the matters” means a State may include some or all of those matters. It can never be that once Syariah courts are established they are seised of every matter in Item 1 automatically. It has to be provided for.³⁷

And then, in a passage that has been relied on repeatedly since:

“both courts, civil and syariah, are creatures of statutes… Both get their jurisdictions from statutes ie Constitution, federal law or State law, as the case may be. So, it is to the relevant statutes that they should look to determine whether they have jurisdiction or not.” ³⁸ He added that just because one court lacks jurisdiction over a matter does not mean the other has it.³⁹

One feature of the disposition is worth noting. The probate petition remained in the civil High Court. Only the hibah question went to the Syariah Court, and the civil court was to give effect to the answer in granting letters of administration and distributing the estate. Article 121(1A) did not require the civil court to give up the case; it required it to give up one issue. ⁴⁰

Set that beside Tongiah Jumali four years earlier, where a question of religious status caused the whole action to be struck out, claims in marriage validity and false imprisonment included. The same provision produced a division of issues in one case and the loss of an entire action in the other.

Where Part 2 Ends

By the close of 2007, the Federal Court had said two things in the same year.

In Lina Joy, it affirmed that Syariah jurisdiction over conversion out could be implied from provisions on conversion in, and held that a Muslim’s right to profess another religion takes effect only when a religious authority certifies that she has left. In Latifah bte Mat Zin, it held that both court systems take their jurisdiction from statutes, that Item 1 confers nothing automatically, and that it is to the relevant statutes that a court must look.

Both remain on the books. Which of them governs a given case has depended a good deal on which is cited.

Meanwhile, the statutory landscape had changed underneath the doctrine. In several States, the silence that made implication necessary in 1999 had been filled by 2003 – but filled with provisions that conferred adjudicative jurisdiction and created a presumption of continuing religious status, rather than the registers Dalip Kaur had described. Where it had not been filled, implication continued to do the work. And on top of both, the identity card now recorded the status that only a court could change.

Across the whole period, the pattern held. People came to the civil courts to have Article 11(1) given effect, and what they received, almost without exception, was a ruling on which court could hear them.

Part 3 follows: Leading up to Two Roads (2007–2021).

Footnotes

1. Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 (SC) 7 ↩︎
2. Lim Chan Seng v Pengarah Jabatan Agama Islam Pulau Pinang [1996] 3 CLJ 231 (HC) ↩︎
3. ibid 248-49 ↩︎
4. ibid. ↩︎
5. ibid 254–55; see also Aston Paiva, ‘Religious Cases in the Malaysian Courts’ (Penang Institute) 20; Kuek Chee Ying and Tay Eng Siang, ‘When Obiter Dictum and Minority View Become Ratio Decidendi’ [2015] 3 MLJ lxxxii, xci ↩︎
6. Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur [1998] 1 MLJ 681 (HC) 683; [1997] 4 CLJ Supp 419 ↩︎
7. ibid 685–86 ↩︎
8. ibid 689 ↩︎
9. Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 (FC) ↩︎
10. ibid 501–02 ↩︎
11. Federal Constitution, Ninth Schedule, List II (State List), item 1 ↩︎
12. Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan & Anor (No 2) [1991] 3 MLJ 487 (HC) 489 ↩︎
13. Soon Singh (n 9) 495–96; Counsel’s reliance on Jamaluddin is at 495, citing the High Court decision, Jamaluddin bin Othman v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1989] 1 MLJ 368 ↩︎
14. Soon Singh (n 9) 501–02 ↩︎
15. Kuek and Tay (n 5) xc–xciv; See also Paiva (n 5) 20–24 ↩︎
16. Lim Chan Seng (n 2) 246ff ↩︎
17. Tamir Moustafa, Constituting Religion: Islam, Liberal Rights, and the Malaysian State (Cambridge University Press, 2018) 80 ↩︎
18. Administration of the Religion of Islam (State of Selangor) Enactment 2003, ss 61(3)(b)(x), 74(2) ↩︎
19. Administration of the Religion of Islam and the Malay Custom Enactment 1982 (Pahang), s 103(2) ↩︎
20. National Registration (Amendment) Regulations 2000, PU(A) 70/2000; see Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585 (FC) 621 (Richard Malanjum CJ (Sabah & Sarawak), dissenting) ↩︎
21. National Registration (Amendment) Regulations 2001, PU(A) 232/2001, reg 4(cc)(v) ↩︎
22. Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor [2004] 2 MLJ 119 (HC) ↩︎
23. Ida Lim, ‘Why “Islam” is on Malaysian Muslims’ identity cards’ Malay Mail (Kuala Lumpur, 28 January 2020) https://www.malaymail.com/news/malaysia/2020/01/28/why-islam-is-on-malaysian-muslims-identity-cards/1831992 accessed 12 September 2026. ↩︎
24. Tongiah Jumali & Anor v Kerajaan Negeri Johor & Ors [2004] 5 MLJ 40 (HC) ↩︎
25. ibid [1]–[4]; Administration of Islamic Law Enactment 1978 (Johor), s 141(2) ↩︎
26. ibid. ↩︎
27. ibid [12] ↩︎
28. ibid [9] ↩︎
29. ibid [4] ↩︎
30. Administration of the Religion of Islam (State of Johor) Enactment 2003 ↩︎
31. Kamariah bte Ali dan lain-lain lwn Kerajaan Negeri Kelantan dan satu lagi [2005] 1 MLJ 197 (FC) [37] ↩︎
32. Lina Joy (n 20) ↩︎
33. ibid 612, [17.2] at 616–17 ↩︎
34. ibid 616–17; Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 (SC) 56 ↩︎
35. Lina Joy (n 20) 636 ↩︎
36. Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 (FC) ↩︎
37. ibid [43] ↩︎
38. ibid [45] ↩︎
39. ibid [45]–[46] ↩︎
40. ibid [82] ↩︎