Woman convert fails to get High Court leave in bid to be declared Christian after divorcing Muslim man

KUALA LUMPUR, Aug 4 — The High Court in Penang has rejected a Muslim convert’s legal bid to seek official recognition for her return to Christianity after her 2013 divorce to a Muslim man.

High Court judge Quay Chew Soon rejected the woman’s application for leave for judicial review on June 26, and wrote his judgment dated July 17, which was released only recently.

The woman had sought six orders from the civil High Court, including a declaration that she is a person professing Christianity and that state Islamic laws do not apply to her, and an order of prohibition to prevent the respondents from exercising any power vested in them by state Islamic laws against her.

The woman also wants the civil High Court to quash the Shariah High Court's and Shariah Court of Appeal's decisions --- which rejected her bid to renounce Islam, or alternatively to declare that those two Shariah court decisions are invalid for being inconsistent with the Federal Constitution.

She also wants her name and religious status in her Malaysian identity card to be changed when she submits the appropriate forms to the National Registration Department (NRD), to give effect to the other court declarations and orders that she is seeking.

For those who filed lawsuits through judicial review applications, they will have to first get the court's leave or permission for the lawsuit to be heard.

The High Court in Penang's refusal of leave does not mean that it has rejected her application for the court orders, but means that it has decided not to hear the lawsuit where the woman is seeking the six court orders.

According to details in the recently released High Court judgment, the 57-year-old woman was born to Christian parents, was baptised as an infant, was raised as a believing and practising Christian. She was also said to have confirmed her belief in the Christian faith in her teens.

Malay Mail is not naming the woman to protect her privacy.

The woman said she took the oath to become a Muslim on March 30, 1995 at the Penang Islamic Religious Affairs Department (JHEAIPP) because it was necessary to enable her to marry a Muslim man and not out of a belief in Islam. She adopted a Muslim name after converting to Islam.

The woman’s marriage was registered in early July 1995. She had three children with the Muslim man, and they were raised as Muslims and practised Islam.

The couple divorced in January 2013 by mutual consent.

In 2014, the woman signed a statutory declaration stating that she has always practised Christianity and that she wishes to continue her life as a Christian.

On March 22, 2016, she filed proceedings at the Selangor Shariah High Court to renounce Islam.

Before she could continue with her application to renounce Islam, the Selangor Islamic Religious Council (Mais) filed an application at the Shariah High Court, which resulted in her being required to first undergo 12 counselling sessions with an ustaz that lasted about a year.

At the Shariah High Court, the woman, a bishop from her church and a Mais officer testified in the proceedings on her bid to renounce Islam.

The Shariah High Court on July 23, 2020 dismissed the woman's application to renounce Islam and instead ordered her to attend further counselling sessions for 60 days.

She filed an appeal, which was dismissed by the Selangor Shariah Court of Appeal on January 18 this year.

On April 17, the woman turned to the civil courts and filed a judicial review application against the Islamic authorities, namely Mais, the Selangor Shariah Court of Appeal, the Selangor state government, JHEAIPP, the Penang state government, the NRD, and the Malaysian government.

The woman was represented by lawyers K. Shanmuga and Allyna Ng, while senior federal counsel Ahmad Hanir Hambaly @ Arwi and federal counsel Imtiyaz Wizni Aufa Othman appeared for the attorney-general.

What the High Court said

For judicial review cases, application for leave for judicial review has to be served to the attorney-general, who then decides whether or not to appear in court at the leave stage in his capacity as the attorney-general (and not for the government).

The attorney-general had objected to the woman's application for leave for judicial review, based on the argument that the Shariah court decisions — which maintained that she is still a Muslim — is not something that can be subject to judicial review in the civil courts due to the Federal Constitution's Article 121(1A).

Article 121(1A) states that the civil courts "shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

In the High Court judgment, the judge went through multiple past court judgments relating to Article 121(1A), before agreeing that the civil courts cannot review matters like this woman's case.

"I agree with the AG that the civil High Courts do not have the jurisdiction to perform judicial review on the Syariah courts' decisions concerning matters which are within their exclusive jurisdiction, as in the present case, i.e. the matter of renouncing Islam," the judge said.

Among other things, the judge viewed the Selangor Shariah High Court and the Selangor Shariah Court of Appeal as being expressly given the power under a Selangor state law — Administration of the Religion of Islam (State of Selangor) Enactment 2003 — to hear and decide on matters of conversion out of Islam.

Again citing Article 121(1A), the judge said the civil court could not carry out judicial review on those two Shariah court decisions.

"The Syariah courts would examine the facts and evidence in each case to determine whether an applicant has truly departed from the Islamic faith in the eyes of Islamic law.

"When an applicant fails to sufficiently prove this, the Syariah courts would reject the application. On the other hand, if this is sufficiently proven by the applicant, the Syariah courts would allow their application to renounce Islam. Either way, both decisions are decisions which are made by the Syariah courts in exercise of their exclusive jurisdiction," the judge said.

The woman had cited several Federal Court judgments to argue that Article 121(1A) does not take away or remove the civil courts' jurisdiction when it involves interpretation of laws, constitutionality of a state law or constitutional interpretation.

But the High Court in Penang said other past court judgments have answered the constitutional question on how the phrase "persons professing the religion of Islam" should be interpreted and on the Shariah courts' exclusive jurisdiction, saying that there is no such constitutional question remaining that could justify the civil court's interference with the Shariah courts' decisions in this woman's case.

The woman argued that the Selangor Shariah Court of Appeal's decision was collectively made by that court, Mais, and the Selangor state government and that it would mean the Shariah court decision could be subject to judicial review since it was made by these public authorities.

But the High Court in Penang disagreed, viewing the Selangor Shariah Court of Appeal's decision as having been that court's decision in affirming the Shariah High Court's decision and ruling that it could not be taken to mean that it was also a decision made by Mais and the Selangor state government.

The judge again stressed that decisions made by the Shariah courts in their exclusive jurisdiction should not be interfered with by the civil courts.

Ultimately, the judge said leave for judicial review should not be granted in this woman's case as it would amount to a breach of Article 121(1A).

It is understood that the woman is appealing at the Court of Appeal against the High Court in Penang's decision.