Abdul Aziz Mohamad JCA

(delivering majority judgment)

1 The appellant was born on 8 January 1964 of Malay parents practising the religion of Islam. She was therefore born a Muslim and her name originally was Azlina bte Jailani. Claiming that she had never believed in Islam, that since 1990 she had believed fully in Christianity and had been attending Mass every Sunday, and that on 11 May 1998 she was baptised, and exhibiting the certificate of baptism, by an originating summons dated 15 May 2000, when she was 36, she sought in the High Court certain declarations against the Majlis Agama Islam Wilayah Persekutuan, the first defendant, and the Government of Malaysia, the second defendant. The declarations were sought on the basis of cl (1) of art 11 of the Federal Constitution, which guarantees to every person ‘the right to profess and practise his religion’, which she contended gave her absolute freedom to renounce Islam and become a Christian, which could not validly be restricted or controlled by any law, such as the Administration of Islamic Law (Federal Territory) Act 1993, by the Syariah Court, or by any other authority. The effect of the declarations would be to uphold her contention and confirm her status as a Christian, so that, she hoped, her progress in life would no longer be hampered by any uncertainty as to her religion or by any claim that she is a Muslim. As a consequence of the declarations, she also sought an order that the defendants enter in whatever records or registers about her that may be in their possession the fact that she had renounced Islam. In her affidavit in support of her application she set out the problems and fears that she would continue to face unless the declarations and order were granted. As to fears, she referred to certain reports in the press of talk from certain quarters of taking action against Muslims who renounce Islam. Of problems, she highlighted the problem of deleting the word ‘Islam’ from her identity card, saying that she desired to contract a non-Muslim marriage and set up home and have a family, but so long as her identity card shows that she is a Muslim she would not be able to achieve her desire. What had happened was that the National Registration Department (‘the NRD’) had refused to accept her application for the deletion.

2 The Majlis and the Government did not reply to the appellant's affidavit, so that there was no reply to her averments of fact, such as those as to her baptism and the problem about her identity card. They instead separately applied for the striking out of her originating summons on the ground that it is the Syariah Court, and not the High Court, that has jurisdiction to decide the issues in the originating summons. In particular, the Government, seeing that the declarations and order that the appellant sought were sought on the basis of her claim that she had renounced Islam, contended that the question of renunciation of Islam lies solely and absolutely within the jurisdiction of the Syariah Court.

3 The learned judge heard the originating summons and dismissed it. Among his reasons were the following. The appellant being originally a Malay, by reason of the definition of ‘Malay’ in cl (2) of Article 160 of the Federal Constitution, with its requirement of professing the religion of Islam, the appellant will remain a Malay to her dying day and cannot renounce Islam. The freedom to profess and practise the religion of one's choice guaranteed by cl

(1) of art 11 does not include freedom of choice of religion. Only the Syariah Court is competent to determine the question of renunciation of Islam by a Muslim. With the dismissal of the originating summons, the judge found the defendants’ striking-out applications to be academic and struck them out.

4 Although in the appeal before us the appellant's counsel, Dato’ Dr Cyrus Das, began his oral submission by dealing with cl

(1) of art 11 and cl (1A) of art 121 (which denies to the High Court jurisdiction in resp