JUDGMENT

Mohamad Ariff J:

[1] This was an appeal from the decision of the senior assistant registrar who had dismissed the application by the Government of Malaysia ('the defendant') to strike out the plaintiff's originating summons under O 18 r 19(1)(d) on the ground of abuse of process. I allowed the appeal and ordered that the originating summons be struck out on this ground with costs.

[2] The senior federal counsel submitted this present action was essentially an action to renounce the religion of Islam by the plaintiff who was born to Muslim parents but claimed he had been practising Christianity since his secondary school days. That being so, the plaintiff argued he could not be regarded in law as a person 'professing' the religion of Islam and thus could not be made subject to the Administration of Islamic Law (Federal Territories) Act 1993. The plaintiff's prayer for a declaration, explained below, had to be assessed in this context.

[3] I agreed with the senior federal counsel's submission that the essential subject matter of this action was renunciation of the religion of Islam or apostasy (irtidad or murtad), and as such was a matter within the exclusive jurisdiction of the Shariah courts by virtue of art 121(1A) of the Federal Constitution. In pith and substance, the plaintiff's action was an action to acknowledge him as a person who had left the religion of Islam, although born a Muslim.

[4] This action was commenced as an originating summons purportedly for one broad declaration, as spelt out therein:

the definition of a 'Muslim' in s 2 of the Administration of Islamic Law (Federal Territories) Act 1993, except for definition (a), is inconsistent with and/or contrary to the 9th Schedule, List II, paragraph 1 of the Federal Constitution read together with List I, Paragraph 6(e) and/or Article 8(2) and/or 11 of the Federal Constitution and is therefore null and void in accordance with Article 4 of the Federal Constitution.

[5] It is necessary to appreciate and note the full provision of s 2(1) of the 1993 Act, in order to conclude whether the plaintiff's claim was an abuse of process. I quote the entire section below:

Muslim' means:-

(a) a person who professes the religion of Islam;

(b) a person either or both of whose parents were, at the time of the person's birth, Muslims;

(c) a person whose upbringing was conducted on the basis that he was a Muslim;

(d) a person who has converted to Islam in accordance with the requirements of s 85;

(e) a person who is commonly reputed to be a Muslim; or

(f) a person who is shown to have stated, in circumstances in which he was bound by law to state the truth, that he was a Muslim whether the statement be verbal or written.

[6] The plaintiff by his action sought to declare almost the entire definition of 'Muslim' under the Act invalid, except for para (a) which refers to a person who 'professes' the religion of Islam. The only relevant paragraph in his case is para (b) and yet the net is cast wide. The logical flow of the plaintiff's argument starts with the reference to 'persons professing the religion of Islam: in para 1 of the State List (List II of the Ninth Schedule). In brief, this constitutional provision provides that a State Legislature can make laws, inter alia, on 'Islamic law', 'the creation and punishment of offences of persons professing the religion of Islam', 'the constitution, organisation and procedure of Syariah Courts which shall have jurisdiction only over person professing the religion of Islam', and 'the determination of matters of Islamic law'.

[7] Granted that the term 'professing' is not explicitly defined, this feature of the Federal Constitution cannot, in my view, be a ground and a reason to narrow the breadth of the relevant constitutional proviso in this connection, namely para 1 of the State List (List II of the Ninth Schedule). It is obvious that the subject matter belonging to a State Legislature includes the determination of matters of Islamic law, and on it