PUTRAJAYA, July 24 — The lawyer representing a Malaysian woman who lost her bid to formally leave Islam to embrace Confucianism and Buddhism said the Shariah Court’s decision was a result of irrationality and procedural impropriety.
Today was initially fixed for the Court of Appeal’s hearing of the High Court’s June 2022 decision that denied her leave for judicial review of the Shariah Court decision over her apostasy bid.
Lawyer Fahri Azzat, representing the appellant, said the subject of the appeal is not the renunciation of the Islamic faith, but the legality and validity of the Shariah Court in arriving at its decision to reject his client’s bid to as no longer be recognised as Muslim.
“The appellant wants to commence a judicial review over the Shariah court’s decision because there are elements of irrationality.
“This is not an application for the renunciation of Islam and the learned High Court judge erred and misunderstood this,” he told a three-member bench led by Court of Appeal judge Datuk Hajjah Azizah Nawawi sitting alongside Datuk See Mee Chun and Datuk Azizul Azmi Adnan.
The Shariah Court in 2020 denied the woman’s application to renounce Islam on grounds that the court could not contravene Islamic law and must not be seen as aiding a Muslim in an act of apostasy.
Emphasising the importance of the judicial review to his client, Fahri said the options his client has would be severely impacted if the appellate court does not rule in their favour.
“This is very important for her. If she loses her case then I have to tell her there is no freedom of religion here and she has to leave (this country).
“If we cannot get in the door and argue the substance of her claims, what remedy does she have left?
“I am begging here for a chance and for her to have a chance to be heard. Please she cannot lose like this, not even with a hint of leave,” he said.
For lawsuits filed through judicial review applications, leave or permission must be obtained first from the court before the lawsuit can be heard.
In March 2022, the woman applied for judicial review in the civil High Court, naming the four respondents as the Shariah Court of Appeal, the Shariah High Court, the Federal Territories Islamic Religious Council (MAIWP) and the government of Malaysia.
Senior federal counsel Ahmad Hanir Hambaly argued that cases involving the renunciation of Islam clearly fell within the Shariah Court’s jurisdiction and that the decisions made within were not amenable to judicial review.
This he said, was expressly provided under Article 121(1A) of the Federal Constitution where the provision touches on civil courts having no jurisdiction in shariah matters.
“The appellant’s core contention is that the civil court can judicially review the decisions of the shariah courts.
“If that is the situation, I have to say this, then all the decisions made in the shariah court will be subjected to judicial review.
“This includes cases of alimony between ex-spouses, child custody disputes and this will be discriminatory to Muslims,” he said.
After hearing submissions from parties, the Court of Appeal then fixed August 28 for decision.
What happened in her case
“A’s” father had converted to Islam in order to marry her mother, and “A’s” religious status is Muslim as she was born when both parents were Muslims.
She was raised by her Muslim mother after the couple divorced, but “A” had never practised Islam as her parents did not practise it and her mother did not force Islam on her.
“A” did not have a chance to legally decide her own faith as a child, and later started professing Confucianism and Buddhism as her religion, and in August 2018 filed an application in the Syariah High Court in Kuala Lumpur to seek declarations that she was never a Muslim or alternatively no longer a Muslim or an apostate and an order that she is not required to attend any counselling sessions relating to Islam.
At the Syariah High Court, “A” said she had never recited the Syahadah or the proclamation of faith required to embrace Islam and that did not believe in Islam’s teachings, asserting that she was registered as a Muslim due to the operation of law through her birth to her Muslim parents and not due to her personal belief.
“A” had also asserted that she professed Confucianism and Buddhism as her religion and that she had lived the life of a Buddhist for a long time and regularly attends Buddhist celebrations, adding that she visits Buddhist temples annually for prayers and to prepare for reincarnation in the journey towards achieving nirvana.
Asserting that she routinely consumes pork and alcohol which are forbidden under Islam but not under Buddhism, “A” had also told the Shariah High Court that she sought the declaration to renounce Islam in order to reflect her actual faith and to prevent the image of Islam from being tarnished by her actions because she does not intend to do so by pretending to be a Muslim.
But before hearing the application by “A”, the Syariah High Court in December 2018 ordered her to first attend 12 “akidah” or faith counselling sessions or sessions regarding Islam over a six-month period from January to June 2019.
As “A” did not want to spend more time challenging these pre-trial counselling sessions, she had taken leave from her work abroad to travel to Malaysia to attend 12 sessions in January 2019, while her mother and her friend had also testified in the Syariah High Court about the Buddhist faith of “A”.
The Syariah High Court on July 27, 2020 dismissed “A”‘s bid to be declared no longer a Muslim and ordered her to go through “istitabah” or repentance and Islamic classes and further akidah counselling.
“A” in August 2020 appealed to the Syariah Court of Appeal in Kuala Lumpur, which then on December 8, 2021 rejected her appeal.
She had then filed this lawsuit at the civil High Court and subsequently sought leave for a judicial review over the Syariah Court’s decision in March 2022.
