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2023 MarsdenLR 2877
HIGH COURT MALAYA KUALA LUMPUR
ADAM LEE SHIONG LIM – Appellant
Versus
MAHKAMAH RAYUAN SYARIAH WILAYAH PERSEKUTUAN & ORS – Respondent
[Judicial Review Application No: WA-25-78-02-2022]
The Syariah Courts possess jurisdiction over matters of conversion and renunciation of Islam, and their decisions on such matters are non-justiciable by Civil Courts.
Headnote:(A) Administration of Islamic Law (Federal Territories) Act 1993 - Sections 46(2)(b), 85, 89; Syariah Courts Evidence (Federal Territories) Act 1997 - Sections 17, 78 - Jurisdiction of Syariah Courts - The applicant sought to renounce Islam after conversion, but the KL Syariah Courts ruled that they lacked jurisdiction to grant such renunciation. The applicant argued that the KL Syariah Court Orders were unlawful and exceeded jurisdiction. The court affirmed that jurisdiction over conversion and renunciation matters lies with the Syariah Courts, and the applicant's claim was dismissed. (Paras 12, 36, 45)
(B) Freedom of Religion - The court discussed the applicant's right to profess his chosen religion, referencing art 11(1) of the Federal Constitution, but concluded that the Syariah Courts had jurisdiction over renunciation cases. (Paras 28, 36)
(C) Judicial Review - The court ruled that the decisions of the KL Syariah Courts on renunciation are non-justiciable by Civil Courts, reaffirming the principle of judicial hierarchy. (Paras 44, 45)
| Table of Content |
|---|
| 1. factual background of the applicant's conversion and legal proceedings. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. applicant's grounds for judicial review. (Para 7 , 8 , 9 , 11) |
| 3. jurisdictional arguments regarding syariah courts. (Para 12 , 13 , 14 , 15 , 19 , 20 , 21 , 22) |
| 4. legal principles regarding jurisdiction and renunciation. (Para 24 , 25 , 38 , 39) |
| 5. rights to profess religion and implications of court orders. (Para 28 , 29 , 30 , 32) |
| 6. court's observations on judicial review limitations. (Para 33 , 34 , 35 , 36 , 37) |
| 7. court's reasoning on evidence requirements. (Para 41 , 42) |
The Factual Background
[1] The applicant converted to Islam on 26 July 2010 at the Majlis Agama Islam Wilayah Persekutuan ("MAIWP"), the 3rd respondent herein. His conversion was duly registered by the Registrar of Muallafs of the 3rd respondent. After his conversion, the applicant married Hayati binti Jamalul ("Hayati") on 14 October 2010.
[2] Unfortunately, the marriage did not last. It ended up in a divorce. The divorce was recorded by the Kuala Lumpur Syariah Subordinate Court on 17 September 2015 by a single talaq rajie.
[3] On 9 November 2018, the applicant commenced a proceeding at the Kuala Lumpur Syariah High Court, the 2nd respondent herein, against the 3rd respondent, inter alia, for a declaratory order that the applicant is no longer a Muslim.
[4] On 19 October 2020, the Kuala Lumpur Syariah High Court ("KL Syariah High Court") dismissed the applicant's claim. The KL Syariah High Court also allowed the 3rd respondent's counterclaim which required the applicant to attend Akidah Counselling ("the KL Syariah High Court Order").
[5] The KL Syariah High Court Order states inter alia as follows:
(i) Mahkamah menolak tuntutan ini;
(ii) Plaintif hendaklah menghadiri kelas bimbingan akidah yang dianjurkan oleh Majlis Agama Islam Wilayah Persekutuan (MAIWP);
(iii) MAIWP hendaklah memberi bimbingan akidah dan bantuan termasuk bantuan kebajikan kepada Plaintif.
[6] Aggrieved, the applicant filed an appeal to the Kuala Lumpur Syariah Court of Appeal ("the KL Syariah Court of Appeal "), the 1st respondent herein. The KL Syariah Court of Appeal dismissed the applicant's appeal on 29 November 2021 and affirmed the KL Syariah High Court Order ("the KL Syariah Court of Appeal Order").
The Judicial Review
[7] Aggrieved by the decision of the KL Syariah High Court and the dismissal of his appeal to the KL Syariah Court of Appeal the applicant commenced this judicial review application against all the respondents inter alia for a declaration that the KL Syariah High Court Order and the KL Syariah Court of Appeal Order (collectively referred to as "the KL Syariah Court Orders") are unlawful and illegal and therefore void.
[8] The applicant also seeks a declaration that the KL Syariah High Court and the KL Syariah Court of Appeal do not have the jurisdiction or power to declare that a person is no longer a Muslim. Further, the applicant seeks a declaratory order that the KL Syariah High Court and the KL Syariah Court of Appeal have no jurisdiction over the 3rd respondent, MAIWP.
[9] Leave to commence this judicial review application was granted by this Court on 2 March 2022.
[10] The application for judicial review is supported by the affidavit of the applicant in Encl 4 ("AIS-4").
[11] The grounds of the applicant's application can be summarised as follows:
(a) The KL Syariah High Court and the KL Syariah Court of Appeal (collectively referred to as the "KL Syariah Courts") do not have jurisdiction over applications to renounce Islam. In short, by issuing the KL Syariah Court Orders, the KL Syariah Courts have acted in excess of their jurisdiction.
(b) The KL Syariah Court Orders are violative of the applicant's right to religion.
(c) The applicant falls out of the jurisdiction of the KL Syariah Courts the moment he declares that he has ceased to be a Muslim.
(d) The KL Syariah Courts have no jurisdiction over corporate entities such as
