JUDGMENT

Mohamed Dzaiddin FCJ:

This appeal arose from the decision of Dato' Wan Adnan J (as he then was) who on 2 February 1994 upheld a preliminary objection raised on behalf of the 2nd respondent that the High Court had no jurisdiction to hear the appellant's originating summons for a declaration that he was not a Muslim. The appeal raises a question of law of public importance in view of conflicting judicial decisions on the question which court, the High Court or the Syariah court has jurisdiction to hear apostasy (murtad) cases.

Factual Background

The appellant was born on 3 January 1971 at Butterworth to Sikh parents and brought up as a Sikh. From 1984 he attended school in Perlis. On 14 May 1988, apparently without the knowledge and consent of his widowed mother, he converted to Islam at Perkim office at Alor Setar, Kedah and assumed the Muslim name of Salman bin Abdullah. He was then a minor. The conversion was duly registered at the Syariah Court Kota Setar, Kedah under s. 139 of the Kedah Administration of Muslim Law Enactment 1962 (Kedah Enactment). On 16 July 1992 (by which time he was over 21 years of age), he went through a Baptism ceremony into the Sikh faith at Sikh Gurdwara in Kuala Lumpur, thereby renouncing the religion of Islam. Following this, on 27 July 1992, he executed a Deed Poll in which he declared unequivocally that he was a Sikh, that he had abandoned the name of Salman bin Abdullah and that he had reverted to his original name of Soon Singh a/l Bikar Singh. On 2 September 1992, he filed the originating summons in the Kuala Lumpur High Court seeking a declaration that he was no longer a Muslim and was supported by an affidavit which he affirmed on even date.

At the hearing before the learned judge on 11 November 1993, counsel for Jabatan Agama Islam Kedah raised a preliminary objection against the application contending that the High Court had no jurisdiction as the matter came under the jurisdiction of the Syariah courts. After hearing the submissions of counsel, on 2 February 1994, his Lordship upheld the objection and dismissed the application. In his judgment, the subject matter in the application was a matter within the jurisdiction of the Syariah courts. The civil courts had no jurisdiction.

The Learned Judge's Reasons

In dismissing the appellant's application for the High Court to hear the originating summons, the learned judge relied on the Supreme Court decision in Dalip Kaur v. Pegawai Polis Daerah, Bukit Mertajam & Anor [1991] 3 CLJ 2768; [1992] 1 MLJ 1, and the separate judgment of Mohamed Yusoff SCJ in the same case. Relying on the fatwa issued by the Fatwa Committee of the Majlis Agama Islam Negeri Kedah in Dalip Kaur, his Lordship held that a Muslim who renounced Islam by a deed poll or who went through baptism ceremony to reconvert to Sikhism continued to remain in Islam until a declaration had been made in a Syariah court that he was a "murtad". His Lordship found the fatwa clearly showed that only a Syariah court has the exclusive jurisdiction to determine whether or not a person has ceased to be a Muslim. In accordance with the fatwa, the appellant was still a Muslim. Whether or not his conversion is invalid was a matter for the Syariah court to determine in accordance with Hukum Syarak. Article 11 of the Federal Constitution had no application. According to him, the fatwa was not found or contained in the Kedah Enactment. Nor was it provided for in the Kedah Mahkamah Syariah Enactment 1983 (now replaced by Syariah Court Enactment 1993). It was however based on Hukum Syarak. His Lordship then referred to s. 25(2) of Enactment 1983 which states:

(1) Any provision or interpretation of any provision in the Enactment which is inconsistent with Hukum Syarak shall be void to the extent of the inconsistency.

(2) In the event of a lacuna or in the absence of any matter not expressly provided for by this Enactment the Court shall apply Hukum Syarak.

He concluded that the Syariah cou