Judgment

Ahmad Fairuz Sheikh Abdul Halim, CJ

1. There are eight appeals before this court. Four of them are against the decision of the Court of Appeal in dismissing the appellants' appeal for declaratory reliefs, and the other four concern their application for habeas corpus.

2. In the beginning, all the appeals were heard before a penal of five Federal Court judges. At the end of the hearing, decision was postponed to a date to be fixed. His Lordship Mohd Noor Ahmad FCJ then retired on May 19, 2004. In consequence, this decision now represents the unanimous decision of a penal of four Federal Court judges under s 78 of the Courts of Judicature Act 1964 which provides as follows:-

   (1)

   If in the court of any proceeding, or, in the case of a reserved judgment, at any time before the delivery of the judgment, any Judge of the Court hearing the proceeding in unable, through illness or any other cause, to attend the proceeding or otherwise exercise his functions as a Judge of that Court, the hearing of the proceeding shall continue before, and judgment or reserved judgment, as the case may be, shall be given by, the remaining Judges of the Court, not being less than two, and the Court shall, for the purposes of the proceeding, be deemed to be duly constituted notwithstanding the absence or inability to act of the Judge as aforesaid.

   (2)

   In any such case as is mentioned in subsection (1) the proceeding shall be determined in accordance with the opinion of the majority of the remaining Judges of the Court, and, if there is no majority the proceeding shall be re-heard.

3. In 1992, the appellants were convicted under s 69 of the Council of the Religion of Islam and Malay Custom, Kelantan Enactment 1966 for contravening the customs and practices of Islam ("hukum Syarak") and they were sentenced to two years imprisonment. They appealed to the Kelantan Syariah Court of Appeal. In 1996, the Syariah Court of Appeal upheld their conviction but substituted the jail term with a bond of good behaviour for a period of 3 to 5 year. Each of them is required during that period to report himself every month at the office of Qadhi Jajahan to repent (melafazkan taubat).

4. In the month of August, 1998, the appellants affirmed declarations under the Statutory Declaration Act 1960 to the effect that they denounced Islam and did so voluntarily.

5. In October 5, 2000 the appellants were charged before the Syariah High Court for not complying with the order to repent made by the Syariah Court of Appeal. During trial, the appellants informed the court that they have denounced Islam. Nevertheless, the Syariah High Court convicted them and sentenced them to 3 years imprisonment. They did not file any appeal against the sentence. Instead, they applied for habeas corpus and for declaratory reliefs in the High Court at Kota Bharu. Meanwhile, in November 19, 2000 the appellants were brought before the Syariah High Court on a new charge i.e. attempting apostasy. They have yet to be tried for that charge.

6. The High Court at Kota Bharu dismissed the appellants' application for declaratory reliefs. The High Court was of the opinion, inter alia, that the appellants have not been confirmed as apostate in accordance with the procedure stipulated by the Council of the Religion of Islam and Malay Custom, Kelantan Enactment 1994 ("1994 Enactment"); and that therefore the appellants are still Muslims. Hence, the appellants following Article 121(1A) of the Federal Constitution which reads:-

   The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts

   are subject to the jurisdiction of Syariah courts and for this reason the High Court has no jurisdiction to decide their application.

7. Regarding the habeas corpus application, the High Court at Kota Bharu held that the detention of the appellants as ordered by the Syariah High Court is lawful because it is an order of a court of competent jurisdiction. The habeas corpus application was thus dismissed.

8. The appellants appealed to the Court of Appeal against the decision of the High Court at Kota Bharu.

9. In the Court of Appeal, two submissions were advanced regarding s 102 of the 1994 Enactment.

   • First, s 102 contravenes Article 11 of the Federal Constitution which stipulates that "Every person has a right to profess and practice his religion and, subject to clause 4, to propagate it."

   • Secondly, s 102 applies only to a convert (mualaf) and since the appellants are not converts that section does not apply to them.

10. The Court of Appeal rejected the first submission and held that s 102 does not prevent a Muslim from renouncing Islam. It merely requires a Muslim who intends to denounce Islam to obtain the prior confirmation of the Syariah court. This is to prevent any confusion that may arise as to whether a person is still a Muslim in the eyes of law.

11. Regarding the second submission, the Court of Appeal agreed that s 102 applies only to a convert. Further, the Court of Appeal said:-

    However, the fact that subsection (2) of section 102 does not apply to the appellants does not mean that the Syariah Court has no jurisdiction to decide whether or not a person is Muslim and on the contrary the civil court has jurisdiction to decide. .... In fact, the question whether a person is apostate or not is a question for hukum syarak, not civil laws.

12. On November 5, 2002, the Federal Court granted the appellants leave to appeal on the following questions:-

    1. Whether freedom of religion under Article 11(1) of the Constitution encompass the right of a Muslim who is of majority age to renounce his religion.

    2. Whether laws that restrict a person's right to renounce his religion are inconsistent with Article 11(1) of the Constitution and therefore invalid.

    3. Whether restrictions under s 102(1), (2) and (3) of the 1994 Enactment when read with the definition "Muslim" in s 2 of the same Enactment are inconsistent with Article 8, Article 11(1) & (5) and Article 74 of the Constitution, and therefore invalid.

13. The core of Mr. Malik Imtiaz's submission, counsel for the appellants, is that Article 11 of the Federal Constitution guarantees the rights of a person to profess and practice his religion; and that the words "every person" in Article 11 bear a very wide meaning; and cover every one including Muslims. To support his submission, Mr. Malik referred to the status of international laws, particularly, of Commonwealth nations on religious freedom. He directed the court's attention to the fact that Malaysia has rectified international instruments on basic human rights; namely United Nations Protocol, Basic Human Rights Declaration, Bangkok Declaration and Vienna Convention. Mr. Malik urged the court to give effect to the doctrine of legitimate expectation in connection with Malaysia's stand in respect of these international instruments. Referring to the case of Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 697, counsel further submitted that in construing the provisions of the Constitution, the court must ensure that the basic rights guaranteed by the Constitution does not become mere illusions.

14. Mr. Malik also submitted that it is implicit in Article 11(1) of the Constitution that a person is free to choose whichever religion to profess and the concept of choice includes the right to change or renounce from any religion; and that right is restrained only by Article 11(5) of the Federal Constitution which reads as follows:-

    This article does not authorise any act contrary to any general law relating to public order, public health or morality.

    The appellants' act of leaving Islam, Mr. Malik stressed, does not contradict any general laws relating to public order, public health or morality and therefore does not contravene Article 11(5) of the Federal Constitution.

15. On s 102 of the 1994 Enactment, Mr. Malik said the provision stipulates that a person who embraces Islam cannot renounce Islam except after confirmation by the Syariah Court. This, counsel stressed, is a form of restriction on the right to freedom of religion and contravenes Article 11(1) of the Constitution. He referred to the case of Minister for Home Affairs, Malaysia v Jamaluddin Othman [1989] 1 MLJ 418 where the Supreme Court upheld the High Court's decision to allow the respondent's application for habeas corpus. The relevant part of the High Court judgment reads as follows:-

    Although under s 8(1) of the Internal Security Act the Minister may detain a person with a view to preventing that person from "acting in any manner" prejudicial to the security of Malaysia, I am of the view the Minister has no power to deprive a person of his right to profess and practice his religion which is guaranteed under Article 11 of the Constitution. If the Minister acts to restrict the freedom of a person from professing and practicing his religion, his act will be inconsistent with the provision of Article 11 and therefore any order of detention will not be valid.

16. Although, Mr. Malik stressed again, s 102 is treated as a process or procedure, that process or procedure is inconsistent with Article 11(1) because courts should not decide whether a person can or cannot renounce Islam. Mr. Malik further submitted that the appellants have declared themselves apostate. For that reason Syariah courts no longer have any jurisdiction over them.

17. Mr. Malik also argued that the Supreme Court decision in Soon Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah [1999] 2 AMR 1211; [1999] 2 CLJ 5 is flawed because it did not consider the provision in Article 11 of the Federal Constitution; whereas Dalip Kaur v Pegawai Polis Daerah [1999] 1 MLJ 1 on the other hand according to counsel did not establish the principle that civil courts cannot decide issues on whether or not a person is a Muslim.

18. In reply, the Attorney General (for the second respondent) drew the court's attention to the fact that the appellants made their respective declarations to renounce Islam only after they had been convicted of wrongdoing by the Syariah Court. Hence, it is questionable whether their actions in renouncing Islam is truly sincere; or are they merely avoiding the punishment meted by the Syariah Court. The Attorney General submitted that s 102 of the 1994 Enactment is equivalent to a procedure only and it is not a provision that restricts Muslims from renouncing Islam. Further, the Attorney General referred to Article 74(2) and Article 121(1A) of the Federal Constitution and argued that matters relating to Islamic laws lie within the jurisdiction of Syariah courts. To support his argument, the Attorney General referred to the case of Mohd Habibullah v Faridah Talib [1993] 1 AMR 129; [1992] 2 MLJ 793 where at p 145 (AMR) [p 803 (MLJ)] the Supreme Court said:-

    Taking an objective view of the Constitution, it is obvious from the beginning that the makers of the Constitution clearly intended that the Muslims in this country shall be governed by Islamic family law as evident from the 9th schedule to the Constitution: see Item 1 of the state list: Muslim law and personal and family law of persons professing the Muslim religion .... the constitution, organisation and procedure of Muslim court .... the determination of matters of Muslim law and doctrine and Malay custom. .... What Article 121(1A) has done is to grant exclusive jurisdiction to the Syariah Courts in the administration of such Islamic laws. In other words, article 121(1A) is a provision to prevent conflicting jurisdictions between the Civil and the Syariah Courts.

    Also, said the Attorney General, by Article 11(3)(a) of the Constitution every religious group has the right to manage its own religious affairs.

19. The submission that the words "the right to renounce" must be implied into Article 11(1) will create a situation whereby a Muslim can at any time turn apostate without confirmation by the Syariah Court. This, the Attorney General stressed, is not a correct interpretation as its effect is to oust the jurisdiction of Syariah courts as granted by Articles 74(2) and 121(1A) of the Constitution.

20. With regards to international instruments, the Attorney General submitted that courts are not bound by the stand that the Executive maintain internationally except where the provisions concerned have been incorporated into national laws. The Attorney General also argued that whatever that had been agreed upon internationally bears only persuasive authority and may be applied only if the laws of the country are incomplete or ambiguous.

21. On the validity of laws that restrict a person from renouncing his religion, the Attorney General said that the question raised is general and hypothetical as the appellants did not identify the provisions concerned; and so the court need not give an answer. The Attorney General referred to the case of Sri Kelangkota-Rakan Engineering JV Sdn Bhd v Arab Malaysian Prima Realty Sdn Bhd [2003] 4 AMR 337; [2003] 3 CLJ 349.

22. The same goes for the question whether ss 102(1), (2) & (3) of the 1994 Enactment are inconsistent with the Federal Constitution. According to the Attorney General this question too is hypothetical and need not be answered by the court since s 102 does not apply to the appellants. The provisions of s 102 concern converts whereas the appellants were borned Muslims.

23. It is apparent from the submissions put forth that the issue to be decided is whether the appellants were Muslims at the time when they were brought before the Syariah Court for failing to comply with the Syariah Court of Appeal's order to repent. According to Schedule 9, List II, only Syariah courts have jurisdiction over "persons professing the religion of Islam".

24. The words "persons professing the religion of Islam" if read literally will bear the meaning that the appellants, after denouncing Islam, are no longer persons professing the religion of Islam; and that hence they are not subject to the jurisdiction of Syariah courts. The question here is whether the court ought to apply a literal interpretation? With regards to this matter this court refers to the case of Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 697 at p 709:

    Secondly, as the judicial committee of the Privy Council held in Minister of Home Affairs v Fisher [1980] AC 319 at p 329, a constitution should be construed with less rigidity and more generosity than other statutes and as sui juris, calling for principles of interpretation of its own, suitable to its character but nor forgetting that respect must be paid to the language which has been used. In this context, it is worth recalling what Barwick CJ said when speaking for the High Court of Australia, in AG of the Commonwealth, Ex Rel McKinley v Commonwealth of Australia (1975) 135 CLR 1 at p 17: The only true guide and the only course which can produce stability in constitutional law is to read the language of the constitution itself, no doubt generously and not pedantically, but as a whole and to find its meaning by legal reasoning.

25. In the case of Othman Baginda v Syed Alwi [1981] 1 MLJ 29 Raja Azlan Shah LP (as His Royal Highness then was) also referred to Minister of Home Affairs v Fisher and said at p 32:

    A constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in court of law. Respect must be paid to the languages which has been used and to the traditions and usages which have given meaning to that language.

26. The Federal Court in Lam Kong Co Ltd v Thong Guan Co Pte Ltd [2000] 3 AMR 3304; [2000] 4 MLJ 1 adopted the purposive approach to construe the provision of s 68(1)(a) of the Courts of Judicature Act 1964; and the same approach was also followed by the Federal Court in construing Articles 181, 182 and 183 of the Federal Constitution in the case of DYTM Tengku Idris Shah v Dikim Holdings Sdn Bhd [2002] 2 AMR 1503; 1785; [2002] 2 CLJ 57. In DYTM Tengku Idris Shah, Haidar J said (p 515 (AMR); p 69 (CLJ)):

    This purposive approach has now been given statutory recognition by our Parliament enacting s 17A in the Interpretation Acts 1948 and 1967 (Act 388) which reads: In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose of object.

27. Against the background of these authorities, the court now reverts to the facts in this appeal. The appellants affirmed statutory declarations to renounce Islam in August 5, 1998. In October 5, 2000, they were sentenced to imprisonment for not complying with the repent order issued by the Syariah Court of Appeal in respect of wrongdoings in August 1998. Therefore, whether the appellants were still professing the religion of Islam when punishments were meted out in the month of October 2000 is a relevant or crucial question. It must be remembered that the offences in respect of which the appellants were punished were committed before they affirmed the statutory declarations to leave Islam.

28. In PP v David John White [1940] MLJ 214 the accused married a woman of christian faith in Taiping in 1918 following the church ceremony which was practised in England. In 1936, whilst his wife was still alive, the accused married another woman also of christian faith but following Islamic laws after both he and the woman had embraced Islam. Horne J held that the accused had committed the offence of bigamy because:

    He cannot, therefore, whatever his religion may be, during the subsistence of that monogamous marriage marry or go through a legally recognised form of marriage with other woman and the accused had thus committed the offence of bigamy.

29. In Sarla Mudgal v Union of India [1995] 3 SCC 635 at p 647 Kuldip Singh J said:-

    We also agree with the law laid down by Chagla J in Robasa Khanum v Khodadad Irani case wherein the learned judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and the right or equity and good conscience .... The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of s 494 IPC .... Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his earlier marriage dissolved .... The interpretation we have given to s 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities ....

30. The decision of Sarla Mudgal was said to challenge the rights to freedom of religion in India; and hence a petition was filed in the Supreme Court to review that decision. In Lily Thomas v Union of India [2000] 6 SCC 224 at p 239 Saghir Ahmad J said:-

    In order to avoid the clutches of s 17 of the Act, if a person renounces his "Hindu" religion and converts to another religion and marries a second time, what would be the effect on his criminal liability is the question which may now be considered.

    At p 245 his Lordship said:

    Religion, faith or devotion are not easily interchangeable. If a person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce previous marriage and desert his wife, cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited.

    At p 251 Sethi J said:

    In review petition the notice issued was limited to the question of Article 20(1) of the Constitution. It was contended that the judgment of the court entailed on a convert to Islam the liability of prosecution for the offence of bigamy under s 494 of the Indian Penal Code which would, otherwise not be an offence under the law applicable to him.

    His Lordship at pp 253-254 continued:

    The alleged violation of Article 21 is misconceived. What is guaranteed under Article 21 is that no person shall be deprived of his life and personal liberty except according to the procedure established by law. It is conceded before us that actually and factually none of the petitioners has been deprived of any right of his life and personally liberty so far. The aggrieved persons are apprehended to be prosecuted for the commission of offence punishable under s 494 IPC. It is premature, at this stage, to convass that they would be deprived of their life and liberty without following the procedure established by law .... The grievance that the judgment of the court amounts to violation of the freedom of conscience and free profession, practice and propagation of religion is also far-fetched and apparently artificially carved out by such persons who are alleged to have violated the law by attempting to cloak themselves under the protective fundamental right guaranteed under Article 21 of the Constitution. No person, by judgment umpugned, has been denied the freedom of conscience and propagation of religion.

31. This court agrees with the grounds of the judgment cited above. Affirming statutory declarations and declaring that they no longer profess the religion of Islam per se will not exonerate the appellants from the allegations made against them before the Syariah Court. Using the purposive approach, this court is of the opinion that the material time for determining whether the appellants were professing the religion of Islam is the time when the appellants committed the offence under the Council of the Religion of Islam and Malay Custom, Kelantan Enactment. Therefore, although the appellants have declared their apostasy in the year 1998, they are qualified to be brought before the Syariah Court in year 2000 in relation to wrongdoings that were committed whilst they were still professing Islam. If this approach is not adopted, Muslims who are being charged before Syariah courts could easily raise the defence that they no longer profess the religion of Islam and as such are not subject to the jurisdiction of Syariah courts. Such a situation would undermine the administration of Islamic Enactments in Malaysia and possibly other religious laws too.

32. From the above, it is obvious that the question or issue concerning the appellants' right to renounce Islam is not relevant. This court agrees with the Court of Appeal that the duty of the courts is to decide a case according to facts adduced and also agrees with the statement of Lord Bridge in Ainsbury v Millington [1987] 1 All ER 929 that:

    It has always been a fundamental feature of our judicial system that the court decide disputes between the parties before them; they do not pronounce on the abstract questions of law when there is no dispute to be resolved.

33. In The Minister for Human Resources v Thong Chin Yoong [2001] 3 AMR 3429; [2001] 3 CLJ 933 and in the majority judgment of Rapheal Pura v Insas Bhd [2003] 1 AMR 45; [2003] 1 CLJ 61, this court decided not to answer a question that was raised although leave to appeal on the said question was given. In Sri Kelangkota-Rakan Engineering Sdn Bhd, supra, Abdul Malek Ahmad FCJ said at p 358 (AMR) [p 369 (CLJ)]:

    The question merely relate to the set of facts in the appeal and the application of the settled principles of law as is plain from the judgment of the Court of Appeal. As such, they do not come within the ambit of s 96(a) of the CJA and, therefore, there is no necessity or purpose for this court to answer the question posed regardless of the fact that leave to appeal has in fact been granted at an earlier hearing.

34. Relying on the facts that are before this court, we are of the unanimous opinion that questions (1), (2) and (3) need not be answered although leave to appeal on these questions has been granted. The appeal is hereby dismissed with costs here and below and deposit to be paid to the respondent to the account of taxed costs.

Cases

Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 697; Minister for Home Affairs, Malaysia v Jamaluddin Othman [1989] 1 MLJ 418; Soon Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah [1999] 2 AMR 1211; [1999] 2 CLJ 5; Dalip Kaur v Pegawai Polis Daerah [1999] 1 MLJ 1; Mohd Habibullah v Faridah Talib [1993] 1 AMR 129; [1992] 2 MLJ 793; Sri Kelangkota-Rakan Engineering JV Sdn Bhd v Arab Malaysian Prima Realty Sdn Bhd [2003] 4 AMR 337; [2003] 3 CLJ 349; Othman Baginda v Syed Alwi [1981] 1 MLJ 29; Lam Kong Co Ltd v Thong Guan Co Pte Ltd [2000] 3 AMR 3304; [2000] 4 MLJ 1; DYTM Tengku Idris Shah v Dikim Holdings Sdn Bhd [2002] 2 AMR 1503; 1785; [2002] 2 CLJ 57; PP v David John White [1940] MLJ 214; Sarla Mudgal v Union of India [1995] 3 SCC 635; Lily Thomas v Union of India [2000] 6 SCC 224; Ainsbury v Millington [1987] 1 All ER 929; The Minister for Human Resources v Thong Chin Yoong [2001] 3 AMR 3429; [2001] 3 CLJ 933; Rapheal Pura v Insas Bhd [2003] 1 AMR 45; [2003] 1 CLJ 61

Legislations

Federal Constitution: Art.8, Art.11, Art.74, Art.121(1A)

Council of the Religion of Islam and Malay Custom, Kelantan Enactment 1994: s.102

Representations

Malik Imtiaz, Haris Ibrahim, HL Ang & Nor Isma Ismail (Harris & Co) for the appellants.

Abdul Ghani Patail, Azhar Mohamad, Azizah Nawawi & Muhd Ruzima Ghazali for the respondents.

Notes:-

This decision is also reported at [2004] 4 AMR 529. The judgment was originally written in Malay Language by his Lordship, Ahmad Fairuz Sheikh Abdul Halim CJ: see [2004] 4 AMR 529.