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2023 MarsdenLR 1907
HIGH COURT MALAYA PENANG
SYAFIQA SHIRLEYNA CHAN ABDULLAH – Appellant
Versus
MAJLIS AGAMA ISLAM SELANGOR & ORS – Respondent
[Judicial Review Application No: PA-25-17-04/2023]
The civil High Court lacks jurisdiction to review decisions of the Syariah Courts regarding matters of conversion to and from Islam, as such matters fall exclusively within the jurisdiction of the Syariah Courts under Article 121(1A) of the Federal Constitution.
Headnote:(A) Federal Constitution - Article 121(1A) - Selangor Administration Enactment - Sections 61(3)(b)(x) and 74(2) - Judicial review application to challenge decisions of Syariah Courts regarding conversion from Islam - The court held that the civil High Court lacks jurisdiction to review matters within the exclusive jurisdiction of Syariah Courts as per Article 121(1A) - The Impugned Decision by the Syariah Courts is not amenable to judicial review. (Paras 28, 59, 78)
(B) Jurisdiction - The Syariah Courts have exclusive jurisdiction over matters concerning individuals professing Islam, including renunciation of the faith - The civil Courts cannot interfere with the decisions made by the Syariah Courts regarding such matters. (Paras 30, 76)
Facts of the case:
The Applicant, originally a Christian, converted to Islam for marriage purposes but later sought to renounce Islam, claiming her conversion was not genuine. The Syariah Courts dismissed her application, asserting their jurisdiction over such matters. (Paras 5, 11, 12)
Findings of Court:
The court found that the decisions made by the Syariah Courts regarding the Applicant's status were valid and within their jurisdiction, as per the Federal Constitution. (Paras 77, 78)
Issues: The main issues included whether the civil High Court has jurisdiction to review the Syariah Courts' decisions on religious status and the interpretation of Article 121(1A) of the Federal Constitution. (Paras 28, 59)
Ratio Decidendi: The court reasoned that the Syariah Courts are vested with exclusive jurisdiction to determine matters of conversion to and from Islam, and the civil High Court cannot interfere with these decisions as per the constitutional provisions. (Paras 30, 78)
Result: Leave to apply for judicial review was refused.
| Table of Content |
|---|
| 1. application for judicial review (Para 1 , 2) |
| 2. reliefs sought by the applicant (Para 3) |
| 3. background facts of the applicant's conversion (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 4. role of the attorney general in judicial review (Para 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 5. test in granting leave for judicial review (Para 22 , 23 , 24 , 25 , 26) |
| 6. attorney general's objection to jurisdiction (Para 27 , 28 , 29 , 30 , 31 , 32) |
| 7. distinction between civil and syariah courts (Para 33 , 34 , 35 , 36) |
| 8. jurisdiction of syariah courts over conversion matters (Para 52 , 53 , 54 , 55 , 56) |
| 9. expertise of syariah courts in religious matters (Para 60 , 61 , 62 , 63) |
| 10. applicant's submission on jurisdiction (Para 67 , 68 , 69) |
| 11. conclusion on jurisdiction and judicial review (Para 77 , 78) |
Introduction
[1] This is an application dated 17 April 2023 filed by the Applicant for leave to apply for judicial review under O 53 r 3(1) of the Rules of Court 2012.
[2] On 26 June 2023, I refused leave for the judicial review application. Here are the grounds of my decision.
Reliefs Sought By The Applicant
[3] The Applicant seeks for the following reliefs;
(a) a declaration that the following provisions of law and each of them are contrary to and inconsistent with the Federal Constitution and are therefore null and void and of no effect:
(i) Definitions (b) to (f) of the definition of a Muslim in s 2(1) para 25 of the Selangor Admin Enactment and s 2(1) para 24 of the Penang Admin Enactment respectively;
(ii) Section 61(3)(b)(x) of the Selangor Admin Enactment and the the Penang Admin Enactment respectively; and
(iii) Sections 74(2) and 112 to 114 of the Selangor Admin Enactment and ss 112 to 114 of the Penang Admin Enactment respectively;
(b) an order in the nature of certiorari quashing:
(i) the decision of the Selangor Syariah Court of Appeal on 18 January 2023 in Appeal Case No 1000-043-0071-2020; and
(ii) the decision of the Selangor Syariah High Court dated 23 July 2020 in Mal Case No 10300-043-0185 Year 2016;
(c) further or in the alternative, a declaration that the decisions of the Selangor Syariah Court of Appeal on 18 January 2023 in Appeal Case No 1000-043-00712020 and the decision of the Selangor Syariah High Court dated 23 July 2020 in Mal Case No 10300-043- 0185 Year 2016 are contrary to and inconsistent with the Federal Constitution and are therefore null and void and of no effect;
(d) a declaration that the Applicant is a person professing Christianity and that State Islamic laws do not apply to her;
(e) consequently, an order of prohibition preventing the Respondents and each of them from exercising any power vested in them by State Islamic legislation against the Applicant; and
(f) an order that the 3rd to 7th Respondents take all necessary steps to give effect to the declarations and orders above including changing the Applicant's name and religious status in her MyKad upon the Applicant submitting the appropriate forms to the 6th Respondent.
Background Facts
[4] The Applicant was born on 7 January 1966 to Christian parents. She was baptised as an infant and was raised as a believing and practising Christian. She confirmed her belief in the Christian faith in 1979.
[5] On 30 March 1995, the Applicant converted into Islam at the Jabatan Hal Ehwal Agama Islam Pulau Pinang. The Applicant avers that she did not convert into Islam because of her belief in the Islamic faith. Rather, it was because the conversion was necessary to enable her to marry a Muslim man.
[6] The Applicant converted into Islam by undergoing the following procedures:
(a) filling in the form to convert into Islam at the Jabatan Hal Ehwal Agama Islam Pulau Pinang;
(b) uttering the two affirmations of faith (kalimah syahadah) by reading them in their Romanised form in a room before a female officer; and
(c) collecting the 'kad kemasukan Islam' the next day.
[7] On 9 July 1995, the Applicant's marriage to the said Muslim man was registered. Out of the
