Part 3 of 4 – Leading up to Two Roads

Part 2 ended with two Federal Court decisions from 2007 that are difficult to reconcile, and with a statutory landscape that had quietly changed shape underneath them.

Part 3 begins by looking at those same years from outside the civil courts, and carries the story to 2021. It was a period in which applications to leave Islam were made to the Syariah courts in their hundreds, and almost nothing of what happened to them reached the public record. It also covers East Malaysia, particularly Sarawak, which had held a different position and arrived, over these years, at the peninsula’s. It ends with the Federal Court restating the constitutional position in the strongest terms it has used, and then, in 2021, drawing the distinction that now sends almost every case in this area down one of two roads.

Applications to the Syariah Courts

One mechanism explains why these applications are filed in the Syariah courts at all. Since the identity card began recording religion, a person whose belief has changed has needed the entry corrected, and the National Registration Department will not correct it without an order from a Syariah court.¹ So applications are filed for a declaration that the applicant is not, or is no longer, a Muslim. The Federal Court, in Lina Joy, held that the Syariah court is where the question belongs, and people have gone where they were told to go.²

Between 2000 and 2010 the Syariah courts received 686 petitions for a change of official religious status out of Islam, and approved 135 – fewer than fourteen a year, nationwide.³ The figures do not say what became of the other 551: how many were refused, how many withdrawn, how many were still pending, and how many ended in the applicant’s repentance. What they do show is who succeeded. According to Tamir Moustafa, most if not all of the 135 were people who had converted to Islam in order to marry and later returned to their former faith.⁴ The recorded successes tend to rest on the same ground.

When the Penang Syariah Court of Appeal upheld a declaration in Siti Fatimah Tan Abdullah, it did so because her conversion had never been valid. It stated that to give the court power to grant leave to abandon Islam would be “abhorrent and repugnant to the principles of Hukum Syarak”.⁵ The route within the Syariah Courts that worked was not leaving Islam. It was showing that one had never been in it.

That matters because of what the civil courts had held the right to be. In Jamaluddin, the Supreme Court treated the right to profess and practise as the individual’s own, to be given effect unless his conduct went well beyond profession and practice, and qualified only by the express terms of Article 11(5).⁶ The route the civil courts later pointed to works differently. A change of religion is recognised only if a court grants it, and the person Article 11(1) most plainly protects – an adult who once professed Islam and now professes another faith – is the person for whom that route offers least. The majority in Lina Joy had an answer: that the one who professes Islam must comply with Islamic law on leaving it.⁷ But that answer makes the right to profess conditional on a forum’s approval, and Article 11(5) – public order, public health, morality – says nothing of approval or permission.

It was into this that Sarawak moved.

2016: Roneey Rebit – Jurisdiction Follows Profession

Of the Sarawak cases, the first to be heard on its merits was Azmi bin Mohamad Azam @ Roneey v Director of Jabatan Agama Islam Sarawak & Ors, decided by High Court Judge, Yew Jen Kie, in the High Court at Kuching on 24 March 2016.⁸

The applicant was a Bidayuh. When he was about ten, his parents embraced Islam and his religious status changed with theirs. He was raised in a Bidayuh Christian community, and as an adult, in 1999, he was baptised. When he applied to change his name and religion on his identity card, the National Registration Department required a letter of release from Islam and a court order. In the course of the proceedings the Sarawak Islamic religious authorities agreed, by consent order, to issue him a letter of no objection to his leaving Islam. The Department still insisted on the court order. The obstacle was no longer the religious authorities; it was the entry on his card.⁹

The judge’s reasoning ran through the constitutional text rather than around it. Item 1 of Schedule 9 provides that Syariah courts shall have jurisdiction only over persons professing the religion of Islam.¹⁰

So what does “profess” mean? She took the definition in Re Mohamed Said Nabi, decd, the meaning from the Shorter Oxford English Dictionary: to affirm, or declare one’s faith in or allegiance to a religion. Applying it, she concluded that to profess a religion is to make a public statement about the religion you believe in. A person professing the religion of Islam is therefore a person who has publicly declared or affirmed his faith in, or allegiance to, Islam.¹¹

The applicant had never done so. His conversion followed his mother’s, by her choice, when he was ten. It was not an act of his own choice. Having never professed Islam in the first place, he could not be considered a person professing that faith, and therefore fell outside Syariah jurisdiction altogether.¹²

Her conclusion on the practical question was direct:

“He does not need a Syariah Court order to release him from Islam religion because the right to choose his religion lies with the applicant himself and not the religious body.” ¹³

Every relief sought was granted. The appeal filed by the National Registration Department was subsequently withdrawn.¹⁴ This is the textual reading of Item 1 applied correctly. Jurisdiction follows profession; it does not determine it.

2016–2017: Jenny bt Peter and Syarifah Nooraffyzza

Four other Sarawakians were in the courts at the same time, and their cases went the other way.

Jenny bt Peter, Mohd Syafiq Abdullah @ Tiong Choo Ting and Salina Jau bt Abdullah had each converted to Islam as adults in order to marry. Jenny divorced in 2006, Salina in 2010; Mohd Syafiq’s wife died in 2007. Each afterwards returned to Christianity. Each signed a statutory declaration recording an intention to renounce Islam, notified the religious department, and completed the counselling sessions the department required. They then wrote asking for the letter of release, and received no reply.¹⁵

In a letter dated 10 March 2015, the Sarawak Syariah Court set out its own position: based on the Ordinances in force, not one section empowered it to make a declaration of exit from Islam, and it therefore had no jurisdiction to issue the certificate the National Registration Department was demanding.¹⁶

Syarifah Nooraffyzza bt Wan Hosen was Malay and Muslim by birth. She was baptised into the Christian faith in 2009. When she applied to the National Registration Department in 2011 to change her name, she was told to obtain the letter of release first. She wrote and received no answer. Returning in person the following year, she was told she would have to attend counselling. The sessions never took place. Her lawyer’s request for a list of the criteria she would need to satisfy was also unsuccessful.¹⁷

The High Court refused leave for judicial review in all four cases – Syarifah Nooraffyzza on 5 January 2015, the other three later that year.¹⁸

The Court of Appeal dismissed the appeals. In Jenny bt Peter @ Nur Muzdhalifah Abdullah v Director of Jabatan Agama Islam Sarawak & Ors and other appeals was decided on 1 November 2016 by Court of Appeal Judges, Tengku Maimun, Badariah Sahamid and Kamardin Hashim. This was the appeals of Jenny and the two other. The Court put the statutory position this way: “Although the Sarawak Syariah Courts Ordinance 2001 did not provide for the conversion in or out of Islam, Part VIII of the Majlis Islam Sarawak Ordinance 2001 provides for conversion to the religion of Islam.” Applying Soon Singh, jurisdiction over conversion out followed by necessary implication.¹⁹

The two halves of the court’s sentence refer to different things. The Syariah Courts Ordinance, which constituted the Syariah court, conferred no jurisdiction over conversion in or conversion out. What Part VIII of the Majlis Ordinance contained were administrative rules, that is the requirements for a valid conversion, a person’s capacity to convert, and the appointment of a Registrar of Muslim Converts to keep a register and issue certification cards. None in the Ordinance gave a court anything to decide.²⁰

That was a step beyond Soon Singh. There, the provisions on conversion in sat in the same Enactment that constituted the Syariah courts.²¹ Here, jurisdiction was implied into a court from a registration scheme in a different statute. The passage from Lina Joy that the Court quoted in support spoke of a Syariah court “clearly given jurisdiction” over conversion into Islam.²² The Sarawak Syariah court had been given none, as its own letter had said so.

The Court acknowledged the position squarely: the letter issued by the Syariah Court “had, undoubtedly placed the appellants in a deadlock”. And dismissed the appeals anyway, holding that even if the Syariah Court was right that it had no jurisdiction, it did not follow that the High Court had any. It added that the appellants’ remedy might lie in the State Legislature.²³

In Syarifah Nooraffyzza bt Wan Hosen v Director of Jabatan Agama Islam Sarawak & Ors that followed on 7 July 2017, before Court of Appeal Judges, Zawawi Salleh, Vernon Ong and Abdul Karim. It went further than Jenny in one respect: Soon Singh, it held, had interpreted Article 121(1A) itself, and so applied in every State, whatever that State’s own legislation said. Jurisdiction over apostasy need not be expressly laid out in State law at all. It also named where the difficulty had come from – the failure of the State enactments, and in Sarawak the Syariah Court Ordinance 2001, to incorporate fully the matters listed in Item 1.²⁴

The reasons of the High Court Judge in Syarifah, Rhodzariah Bujang, reproduced in Court of Appeal judgment, are worth setting out. Holding that she had no jurisdiction, she added that she was fully aware of the guarantee of freedom of religion in the Federal Constitution and of the oath of office she had taken to uphold its provisions, and believed she was “not committing a sacrilege of that oath”, because in the exercise of her duties she was also “dictated by doctrines and conventions”.²⁵

Both appellate panels cited Latifah, the Federal Court’s 2007 decision on where the civil and Syariah courts get their jurisdiction, and both took from it only half. Jenny relied on its point that one court’s lack of jurisdiction does not give jurisdiction to the other, but not on its point that a Syariah court’s jurisdiction “has to be provided for”. Syarifah Nooraffyzza quoted Latifah‘s statement that both courts are “creatures of statutes”, and noted the cases, including Richard Malanjum’s dissent in Lina Joy, holding that jurisdiction must be expressly conferred. It nonetheless followed Soon Singh: jurisdiction over apostasy “need not be expressly laid out in the state laws”.²⁶

The Difference Between the Roneey and the Sarawak Appeals

Roneey and the Sarawak appeals (Jenny bt Peter & Syarifah Nooraffyzza) can be described as a conflict. It is more accurate to say the courts asked different questions. Roneey asked who the applicant was: did he profess Islam at all? The appeals asked what the application was about: leaving Islam, a matter for the Syariah courts.

Yew Jen Kie J began with the person. She accepted that, on the authorities, Syariah jurisdiction over apostasy could be implied in Sarawak, but held that the case before her was “not one of jurisdictional issue but rather it is constitutional in nature”.²⁷ Roneey had been converted as a child, but the conversion had been his mother’s choice, not his own affirmation of faith. Having never himself professed Islam, he fell outside Item 1, and no question of Syariah jurisdiction arose. The Court of Appeal began with the subject matter. Apostasy is a matter for the Syariah courts; therefore these applicants must go there, whatever the Syariah court had said about its own powers.

She drew the distinction herself. The Federal Court had held in 2014, in Hj Raimi bin Abdullah, that whether a person converted as a child had validly become a Muslim was for the Syariah court alone.²⁸ She distinguished it: the plaintiff there had challenged the validity of her childhood conversion, whereas Roneey did not dispute that he had been converted; he asked only to exercise, as an adult, a choice that was now his. That, she held, “raises the constitutional issue as opposed to jurisdiction issue”.²⁹ In the appeals, Hj Raimi was relied on in the opposite direction, as settling that whether a person is a Muslim is for the Syariah court.³⁰

Both are recognisable ways of reading Item 1, which limits Syariah jurisdiction to persons professing Islam and to listed matters. The first limb governed Roneey; the second governed the Sarawak appeals. The applicants’ facts did not fit so neatly. Roneey had been brought into Islam by his parents’ choice, and three of the others had entered it by their own, as adults. Syarifah Nooraffyzza sits between them: born into Islam, she had never chosen it by conversion.

What is harder to explain is that nothing in the appeals turned on how each applicant had come to be a Muslim. The Jenny appellants had argued that they did not profess Islam. At first instance, the answer was that they were “still Muslims on papers”.³¹ The Court of Appeal did not consider whether they professed Islam at all. Syarifah Nooraffyzza, a Muslim by birth, and three adult converts were treated identically.

2018: The Appeals End, and a New Procedure

Both Court of Appeal judgments left the appellants where they had started. Neither disputed the facts; both held that the question belonged to the Syariah court.

The four appellants took the matter to the Federal Court. According to the Borneo Post, leave was granted on 9 February 2017 on a single question: “Whether the Sarawak Syariah Court’s jurisdiction over apostasy matters or conversion out of Islam could be read into the Syariah Court Ordinance 2001 by implication …” ³²

The same report records that on 27 February 2018 a five-member Federal Court sitting in Kuching, led by Court of Appeal President Zulkefli Ahmad Makinudin, unanimously dismissed the appeals. Although the Syariah Court Ordinance contained no provision on apostasy, ss 68 and 69 of the Majlis Islam Sarawak Ordinance, the Court held, “could be deployed by the Sarawak Syariah Court”.³³

Four days later the Chief Minister announced that the Syariah Court Ordinance 2001 would be amended: “Give me six months to do this.” ³⁴ What followed, nine months later, was the Syariah Civil Procedure (Declaration of Islamic Religious Status) Rules 2018. They provide that the Syariah High Court “shall have the exclusive jurisdiction” to hear an application for a declaration of religious status, and they set out the procedure: an invitation to repent, which the court records if it is accepted; if it is not, referral to the Jawatankuasa Akidah for counselling; and only then a hearing.³⁵

In a series in which so much has turned on where jurisdiction comes from, the source of this one is worth noting. It did not come from an amendment to the Syariah Courts Ordinance, which constitutes the court and defines its jurisdiction, and which the Chief Minister had said would be amended. It came from rules made by the Syariah Court Rules Committee under s 247(1)(a) of the Syariah Civil Procedure Ordinance 2001, a power to make rules for carrying out that Ordinance and, in particular, for “the procedure and practice of the registry offices of the Syariah Court”.³⁶ Whether a power of that kind can confer jurisdiction, as rule 5 of the Rules purports to do, is a question the Rules themselves do not address.

The Rules did not cover everyone. They do not apply to a person who converted to Islam outside Sarawak.³⁷ In 2019 the point was illustrated by a Sarawakian woman who had converted in Brunei in 1990; she would first need a letter of release from Brunei.³⁸ So the deadlock the Court of Appeal had identified in 2016 was addressed, two years later, by a procedure for applying to the Syariah court. What that procedure produces is a different question that will be addressed in Part 4.

2018: Indira Gandhi – The Civil Courts’ Role Restated

Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors was not a renunciation case. It concerned the unilateral conversion of three children.³⁹ But it restated the framework around Article 121(1A), building on the Court’s holding the previous year, in Semenyih Jaya, that judicial power remained with the civil courts despite the 1988 amendment described in Part 1.⁴⁰

Article 121(1A), the Federal Court held, does not oust the jurisdiction of the civil courts, nor does it confer judicial power on the Syariah courts. “Parliament does not have the power to make any constitutional amendment to give such an effect.” ⁴¹ And it gave a direction to the courts below:

“before a civil court declines jurisdiction premised on the strength of art 121(1A), it should first examine or scrutinise the nature of the matter before it. If it involves constitutional issues, it should not decline to hear merely on the basis of no jurisdiction.” ⁴²

The Court was careful about the limits of its holding. It was not deciding any question of Islamic law. It was asking only whether the Registrar had followed the Perak Enactment’s own conditions for converting a child: that the child utter the affirmation of faith, and that the parent consent. That is the ordinary work of a civil court reviewing an official’s decision.⁴³

Read against Soon Singh, the tension is apparent. Soon Singh extended Syariah jurisdiction by implication, and left the Article 11 question to a forum that could not decide it. Indira Gandhi held that the civil courts’ constitutional functions could not be displaced even by express amendment, and directed them not to turn away constitutional questions for want of jurisdiction. Both remain on the books.⁴⁴

2020: Maqsood Ahmad – What “Professing” Carries

Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors and another appeal was decided by the Court of Appeal on 25 August 2020.⁴⁵ Court of Appeal Judge, Badariah Sahamid, who had sat on the Jenny panel in 2016, delivered the judgment.

The respondents were members of the Ahmadiyya community in Selangor. After a raid on their place of prayer in April 2014, the religious authorities required them to appear before the Syariah court for an offence under s 97 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003: using premises, without the Majlis’s written permission, for purposes that may only be carried on in a mosque.⁴⁶ Their answer was that Selangor’s own fatwas of 1998 and 2000 had declared the Ahmadiyya not to be Muslims. The Court agreed that they could not be presumed to be Muslims under s 74(2) of the Enactment and also be non-Muslims under the fatwas: “these two contradictory positions are irreconcilable”.⁴⁷ An Ahmadi by origin stood where a Hindu, a Buddhist or a Christian stood, the Court likened the position to that of the applicant in Roneey.⁴⁸

Along the way, the Court said three things that matter for this series.

The first concerned Article 11. The right belongs to every “person”, not only to citizens, and Article 11 contains no qualification like the phrase “save in accordance with law” found in Articles 5 and 13. Article 150(6A) keeps this right beyond the reach of emergency legislation. The Court described freedom of religion as “an absolute and non-derogable right save for the express limitations that the Federal Constitution itself allows”, namely Articles 11(4) and 11(5).⁴⁹

The second concerned the wording of Item 1. Article 11(1) protects the right to “profess and practise”; Item 1 speaks only of persons “professing”. The Court read the omission as deliberate. A person born and raised a Muslim, “whether he chooses to practise his beliefs or not”, is in law a person professing the religion of Islam. Section 74(2), and its equivalents in other States exist to presume that status until a Syariah court declares otherwise.⁵⁰

The third concerned evidence. The word “Islam” on a MyKad is “not conclusive evidence of religious identity”. Where the entry is disputed, the person who relies on it must prove it. The Court read Lina Joy as a decision in administrative law: whether the National Registration Department could require a Syariah court order. It did not read it as holding that the card settles who is a Muslim. An entry could be corrected, as Roneey showed.⁵¹ But the Court also held that what a person professes is “a state of mind especially within that person’s knowledge”. Under s 106 of the Evidence Act 1950, the burden of proving it therefore lies on the believer, and the evidence must be “objective and credible”.⁵²

The High Court had granted the respondents the relief they sought, but without examining whether each of them was an Ahmadi by origin or had converted from Islam. The Court of Appeal therefore set that order aside. It did not, however, decline jurisdiction or leave the respondents to the Syariah court. It remitted the case to the civil High Court, where any respondent who proved “by cogent and credible supporting evidence” that they were Ahmadiyya could obtain orders quashing and prohibiting the Syariah investigation and prosecution against them. Where earlier cases had been struck out or dismissed for want of jurisdiction, this one was sent back to be decided on the evidence.⁵³

Having held that the identity card is not conclusive of religious identity, and described freedom of religion as absolute and non-derogable, the Court nonetheless followed Lina Joy where it mattered most. For those who were originally Muslims and had later embraced the Ahmadiyya faith, the Court held that “an order of renunciation of Islam by the Syariah Court is required”.⁵⁴ It acknowledged this as a “thorny issue”.⁵⁵

It closed by calling on the States and the federal government to establish a proper mechanism for determining the religious status of the Ahmadiyya, a reform it considered necessary to protect the right in Article 11(1), “a right which the Ahmadiyya are no less entitled to along with the adherents of other religious faiths in Malaysia”.⁵⁶

2021: Rosliza – The Distinction

Rosliza bt Ibrahim v Kerajaan Negeri Selangor & Anor was decided on 5 February 2021 by a nine-member bench of the Federal Court. Chief Justice, Tengku Maimun Tuan Mat, who had presided in Jenny in 2016, delivered the majority judgment.⁵⁷

The appellant was born in 1981 to a Buddhist mother and a Muslim father. Her birth certificate recorded her religion as “Maklumat Tidak Diperoleh” (information not obtained). In 1994 her father applied for her identity card and stated her religion as Islam. She sought declarations that she was illegitimate, that her mother was a Buddhist, and that she was not a person professing the religion of Islam. The High Court and the Court of Appeal found that her parents had been married, which made her a Muslim through her father. On that footing, what she sought was in substance a renunciation, a matter for the Syariah court as per Lina Joy.⁵⁸

The Federal Court began with the evidence. Under reg 24 of the National Registration Regulations 1990, the contents of an identity card, or of an application for one, are not proof of their truth where they are disputed. A person cannot benefit “by converting the fraud or the mistake into a false truth”. On this point the Court adopted Maqsood Ahmad.⁵⁹ The courts below had treated the parents’ identity card applications, which stated that they were married, as evidence of the marriage. That finding was “legally perverse”. Marriage is a construct of law. Once the appellant had cast sufficient doubt on it, the burden shifted to the defendants to prove the marriage affirmatively. They could not.⁶⁰ Under s 111 of the Islamic Family Law (State of Selangor) Enactment 2003, paternity could not be ascribed to her father. On the authority of Indira Gandhi, he could not in any event have decided her religion alone. To assume that she had been raised a Muslim without proof was “merely a conjecture”.⁶¹

The Court then turned to jurisdiction. The Syariah courts may act only where two conditions are met. The person must profess the religion of Islam (jurisdiction ratione personae), and the subject matter must fall within Item 1 (ratione materiae). “Professing the religion of Islam” is a term of the Federal Constitution. Interpreting it is “a power vested strictly and only in the civil superior courts”.⁶² From that followed the distinction:

…there is a significant distinction between “one who no longer professes the religion of Islam” on the one side, and “one who never professes the religion of Islam”, on the other.⁶³

A renunciation case falls to the Syariah court. An ab initio case “cannot, on a coherent application of the law, fall within the jurisdiction of the Syariah Courts”.⁶⁴ Lina Joy was a renunciation case. Roneey was an ab initio case, and the Court recorded that the appeal against it had been withdrawn and that the National Registration Department had complied.⁶⁵ Which side a case falls on is “a matter of proof that the person affirmatively professed the religion of Islam at the material time”.⁶⁶ The Attorney General, appearing as amicus curiae, agreed that the civil courts have jurisdiction over the ab initio category.⁶⁷ In those cases the civil courts are “empowered, indeed, duty-bound to adjudicate”, and deciding which category a case belongs to “will require a careful examination of the factual matrix of the case”.⁶⁸

The Court was unanimous on both questions of law. On relief it divided seven to two. Chief Judge of Malaya, Azahar Mohamed, with whom Federal Court Judge, Hasnah Mohammed Hashim, agreed, would have declared that the appellant was illegitimate and that her mother was a Buddhist. Before going further, he would have sought the opinion of the Selangor Fatwa Committee on whether she was a Muslim at birth. The majority granted all three declarations sought: that she was illegitimate and her mother a Buddhist; that “parents” in the Selangor definition of “Muslim” does not include the putative father of an illegitimate child; and that she is not a person professing the religion of Islam, so that neither Selangor’s Islamic laws nor its Syariah courts apply to her.⁶⁹

Two further features matter for what follows.

The first is what Rosliza did not decide. Counsel argued that the 1988 amendment was constitutionally invalid and that Lina Joy had been wrongly decided. The Court found it unnecessary to deal with either argument. Counsel also contended that the Syariah courts have no implied jurisdiction over renunciation. That too was left undecided, because in Selangor s 74(2) of the 2003 Enactment confers the jurisdiction expressly.⁷⁰

The second is what it confirmed. So long as a person is a Muslim by identification, “whether he practises or not, or whether he continues to believe in the faith or not, he is no less legally identified as a ‘person professing the religion of Islam’”.⁷¹ The civil courts decide who was never within Item 1. For anyone who was, the way out runs through the Syariah court.

Where Part 3 Ends

The Sarawak cases had approached Item 1 through different limbs: Roneey through the person, the Court of Appeal in Jenny and Syarifah through the subject matter. Rosliza required both, and made the first, whether the person professes Islam, the gateway question. That was the question Yew Jen Kie J had asked in 2016, and Rosliza used Roneey to illustrate the ab initio category.⁷²

It did not change the position of the other Sarawak appellants. Jenny and her co-appellants had converted to Islam; Syarifah Nooraffyzza was born to Muslim parents. On Rosliza‘s test each was a renunciation case, and the way out still lay through the Syariah court.

These are the two roads that Rosliza‘s distinction creates. A person who never professed Islam can go to the civil court and prove, on the evidence, that the Syariah courts never had jurisdiction over them. A person who once professed Islam must apply to the Syariah court, which decides whether to declare that they have left.

Three propositions therefore stood together at the close of 2021. Indira Gandhi held that the civil courts’ power to interpret the Constitution cannot be removed even by express amendment, and so, a fortiori, not by implication.⁷³ Maqsood Ahmad held that freedom of religion is absolute and non-derogable save for the Constitution’s own express limits. At the same time it read Item 1 as fixing a legal status that persists whether or not a person practises.⁷⁴ Rosliza drew a line whose position in any given case depends on evidence.

That evidence cuts both ways. Neither an identity card nor an assumption about upbringing makes a person a Muslim in law; the fact must be proved. But what a person professes lies within his own knowledge, and under Maqsood Ahmad it is for him to prove it.⁷⁵

Neither Maqsood Ahmad nor Rosliza says that a person born a Muslim can never leave Islam. Both say that the change is not his alone to make in law. Maqsood Ahmad, while describing freedom of religion as absolute, held that anyone who was a Muslim by origin needs an order of the Syariah court. Rosliza held that such a person remains a person professing Islam “whether he continues to believe in the faith or not”.⁷⁶ What the cases decide is that the change has legal effect only when a Syariah court declares it, and only through that court’s procedure. The question is therefore which court decides. But which court decides also determines the process: in the Syariah court, under the procedures described earlier, an application begins with counselling and advice to repent before any declaration is made.⁷⁷

The question Rosliza left open, whether the Syariah courts have implied jurisdiction over renunciation, now matters in fewer places than it once did.⁷⁸ Where a State has conferred the jurisdiction expressly, as Selangor has in ss 61(3)(b)(x) and 74(2) of its 2003 Enactment,⁷⁹ the implication is no longer needed. Where a State has not, the implication from Soon Singh still carries the weight. The question has not been answered. It has been set aside only where statute has made it unnecessary.

Part 4 follows what has happened since: how the ab initio route has narrowed, where implied jurisdiction still does its work, and what remains of the framework Part 1 described.

Part 4 follows: The Distinction, and What Falls on Each Side (2021–2026).

Footnotes

1. National Registration (Amendment) Regulations 2000 (PU(A) 70/2000) ↩︎
2. Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585; [2007] 3 CLJ 557 (FC) [14]–[16] ↩︎
3. Tamir Moustafa, Constituting Religion: Islam, Liberal Rights, and the Malaysian State (CUP 2018) 70 and n 26, citing figures announced by the Minister in the Prime Minister’s Department responsible for Islamic affairs, reported in Malaysiakini (14 June 2011) ↩︎
4. ibid 70 ↩︎
5. Majlis Agama Islam Pulau Pinang lwn Siti Fatimah Tan Abdullah [2009] 1 CLJ (Sya) 162, 166, quoted in Moustafa (n 3) 78 ↩︎
6. Minister for Home Affairs, Malaysia & Anor v Jamaluddin bin Othman [1989] 1 MLJ 418 (SC) 419–20 ↩︎
7. Lina Joy (n 2) [17.2]; see also [14] ↩︎
8. Azmi bin Mohamad Azam @ Roneey v Director of Jabatan Agama Islam Sarawak & Ors [2017] 9 MLJ 541; [2016] 6 CLJ 562 (HC) (‘Roneey‘) ↩︎
9. ibid [3]–[5], [8]–[9] ↩︎
10. ibid [40]–[41]; Federal Constitution, Ninth Schedule, List II, Item 1 ↩︎
11. Roneey (n 8) [42]–[44], citing Re Mohamed Said Nabi, decd [1965] 31 MLJ 121, (HC, Singapore) 122 ↩︎
12. Roneey (n 8) [45]–[46] ↩︎
13. ibid [38] ↩︎
14. ibid [48]; Court of Appeal Civil Appeal No Q-01-159-05/2016, recorded in Rosliza bt Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 181; [2021] 3 CLJ 301 (FC) [97] ↩︎
15. Jenny bt Peter @ Nur Muzdhalifah Abdullah v Director of Jabatan Agama Islam Sarawak & Ors and other appeals [2017] 1 MLJ 340 (CA) [2]–[6] ↩︎
16. ibid [26]; see also Roneey (n 8) [10]–[12] (letters of the Ketua Hakim Syarie dated 10 March and 7 July 2015) ↩︎
17. Syarifah Nooraffyzza bt Wan Hosen v Director of Jabatan Agama Islam Sarawak & Ors [2018] 2 MLJ 353 (CA) [4] ↩︎
18. ibid [1]; Jenny (n 15) [1], [7]–[12] ↩︎
19. Jenny (n 15) [24], [27] ↩︎
20. Majlis Islam Sarawak Ordinance 2001 (Cap 41) ss 68, 69, 70(1); Roneey (n 8) [19]. Jenny (n 15) [27] refers to s 79 for the Registrar; the Registrar of Muslim Converts is appointed under s 70: Syariah Civil Procedure (Declaration of Islamic Religious Status) Rules 2018, Swk LN 225, Sarawak Government Gazette Pt II, Vol LXXIII, No 65 (3 December 2018), r 2 ↩︎
21. Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 (FC) 501–02 ↩︎
22. Jenny (n 15) [24], quoting Lina Joy (n 2) [15.5] “(author’s translation)” ↩︎
23. Jenny (n 15) [27]–[28], [34] ↩︎
24. Syarifah Nooraffyzza (n 17) [28], [35]–[36] ↩︎
25. ibid [7] ↩︎
26. Jenny (n 15) [22]–[27]; Syarifah Nooraffyzza (n 17) [22], [29]–[31]; Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 (FC) [43], [45]; Lina Joy (n 2) [104] (Richard Malanjum CJ (Sabah and Sarawak), dissenting) ↩︎
27. Roneey (n 8) [18]–[21] ↩︎
28. Hj Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah and another appeal [2014] 3 MLJ 757 (FC) [25]–[27], [30]–[33]; Roneey (n 8) [30]–[34] ↩︎
29. Roneey (n 8) [33]–[35] ↩︎
30. Jenny (n 15) [11], [19]; Syarifah Nooraffyzza (n 17) [5], [34] ↩︎
31. Jenny (n 15) [9]–[10] ↩︎
32. Churchill Edward and Anasathia Jenis, ‘Apostasy Cases under Syariah Court’ Borneo Post (Kuching, 28 February 2018) https://www.theborneopost.com/2018/02/28/apostasy-cases-under-syariah-court/ accessed 14 September 2026. ↩︎
33. ibid. See also Sharon Ling, ‘Federal Court Rules Jurisdiction to Hear Apostasy Cases Lies with Syariah Court’ The Star (27 February 2018) https://www.thestar.com.my/news/nation/2018/02/27/federal-court-dismisses-conversion-appeals-case-to-be-heard-in-civil-court/ accessed 22 September 2026 ↩︎
34. Sulok Tawie, ‘Sarawak to Amend State Shariah Laws on Apostasy’ Malay Mail (Kuching, 3 March 2018) https://www.malaymail.com/news/malaysia/2018/03/03/sarawak-to-amend-state-shariah-laws-on-apostasy/1589537 accessed 25 September 2026. The report carries an editor’s note that the Chief Minister’s press secretary later clarified that he did not mean the amendment would make it easier for converts to leave Islam. ↩︎
35. Rules 2018 (n 20) rr 5, 8 ↩︎
36. Syariah Civil Procedure Ordinance 2001 (Cap 44) s 247(1)(a): “tatacara dan amalan pejabat pendaftaran Mahkamah Syariah” (author’s translation); Rules 2018 (n 20) preamble. The Syariah High Court is constituted under the Syariah Courts Ordinance 2001 (Cap 42) s 3(2) ↩︎
37. Rules 2018 (n 20) r 3(1)(a) ↩︎
38. Sulok Tawie, ‘Look into Cases of Sarawakian Muslim Converts Who Want to Return to Original Faith, State Govt Told’ Malay Mail (Kuching, 16 May 2019) https://www.malaymail.com/news/malaysia/2019/05/16/look-into-cases-of-sarawakian-muslim-converts-who-want-to-return-to-origina/1753636 accessed 25 September 2026. ↩︎
39. Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545; [2018] 3 CLJ 145 (FC) ↩︎
40. Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (FC) [62], [74]–[76], [86]; Indira Gandhi (n 39) [42] ↩︎
41. Indira Gandhi (n 39) [92] ↩︎
42. ibid [105] ↩︎
43. ibid [108], [184] ↩︎
44. Soon Singh (n 21) 501–02; Indira Gandhi (n 39) [103]–[104], where the approach in Hj Raimi (n 28) is described as “unduly simplistic” ↩︎
45. Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors and another appeal [2021] 1 MLJ 120; [2020] 10 CLJ 748 (CA) ↩︎
46. ibid [8]–[13]; Administration of the Religion of Islam (State of Selangor) Enactment 2003, s 97 ↩︎
47. Maqsood Ahmad (n 45) [19]–[21], [117] ↩︎
48. ibid [153] ↩︎
49. ibid [85]–[88], [118(a)] ↩︎
50. ibid [92]–[93], [118(b)]–[118(d)] ↩︎
51. ibid [136]–[137], [166] ↩︎
52. ibid [167]–[170], [172]; Evidence Act 1950, s 106 ↩︎
53. Maqsood Ahmad (n 45) [182], [186], [189]–[191]. On 21 December 2020 the Federal Court dismissed both parties’ applications for leave to appeal against the Court of Appeal’s decision: the Ahmadiyya respondents’ application (Federal Court Civil Application No 08(f)-266-09-2020(B), Maqsood Ahmad & Ors v Ketua Pegawai Penguatkuasa Agama & Ors) and the Selangor religious authorities’ application (No 08(f)-272-09-2020, Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors); recorded in Rosliza (n 14) [102] ↩︎
54. Maqsood Ahmad (n 45) [153], citing Lina Joy (n 2), Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 (SC) (printed as “Dalip Kumar“) and Soon Singh (n 21) ↩︎
55. Maqsood Ahmad (n 45) [197] ↩︎
56. ibid [199]–[200] ↩︎
57. Rosliza (n 14) ↩︎
58. ibid [5], [7]–[8], [16]–[18] ↩︎
59. ibid [21]–[22], [29]–[30]; National Registration Regulations 1990, reg 24 ↩︎
60. Rosliza (n 14) [33], [38]–[40], [43]–[47] ↩︎
61. ibid [63]–[69], [121]; Islamic Family Law (State of Selangor) Enactment 2003, s 111 ↩︎
62. Rosliza (n 14) [78]–[80], [104] ↩︎
63. ibid [85] ↩︎
64. ibid [90] ↩︎
65. ibid [91], [93]–[97] ↩︎
66. ibid [98] ↩︎
67. ibid [99] ↩︎
68. ibid [108] ↩︎
69. ibid [5], [126]–[127], [131], [148], [162]–[163] ↩︎
70. ibid [110]–[111] ↩︎
71. ibid [83] ↩︎
72. ibid [78]–[80], [93]–[97] ↩︎
73. Indira Gandhi (n 39) [92], [104] ↩︎
74. Maqsood Ahmad (n 45) [118] ↩︎
75. Rosliza (n 14) [22], [121]; Maqsood Ahmad (n 45) [167]–[170] ↩︎
76. Maqsood Ahmad (n 45) [118(a)], [153]; Rosliza (n 14) [83] ↩︎
77. Rules 2018 (n 20) r 8 ↩︎
78. Rosliza (n 14) [87], [111] ↩︎
79. Administration of the Religion of Islam (State of Selangor) Enactment 2003, ss 61(3)(b)(x), 74(2); Rosliza (n 14) [87], [111] ↩︎