In a supporting judgment issued in a case which saw the apex court dismiss a woman’s challenge to her religious status as a Muslim earlier this month, Justice Abu Bakar Jais said:
“I am aware there are expressed views that say shariah courts are inferior courts, thus making it possible at least by deduction to review its decisions. I respectfully depart from those opinions.
“The shariah high court is a competent court under our own Federal Constitution, the supreme law in the country,” the judge said in a 49-page judgment issued on May 3.
Abu Bakar said the mere assertion by the woman that she did not profess the religion of Islam did not automatically mean that the shariah courts were without jurisdiction.
He said a civil court must first determine whether the applicant claimed not to have been a Muslim “ab initio” (from the very outset) or whether it was a case of renouncing the faith.
Abu Bakar also said matters pertaining to renunciation were within the sole domain of the shariah courts.
“The Federal Constitution provides that the shariah courts have exclusive jurisdiction in the administration of Islamic law.
“Issues concerning conversion out of Islam, whether a person is a Muslim or otherwise or whether a person renounced the religion before his death, all are within the jurisdiction of the shariah courts.”
The civil courts “cannot take over the duty to hear or review such cases”, the judge said, adding that the woman’s case was one of renunciation.
“It would indeed be inappropriate, unjust to the system of judicial administration and the power of the shariah courts, and wholly unjustified for the same to be supplanted of its jurisdiction and for the jurisdiction instead to be conferred on the civil courts,” said Abu Bakar.
Earlier this month, the Federal Court, in a 2-1 majority decision, dismissed the 38-year-old woman’s challenge to her religious status as a Muslim.
The woman claimed that she was born a Hindu in 1986 but was unilaterally converted to Islam by her mother at the Selangor Islamic religious department’s office in 1991.
The conversion took place while her parents were in the midst of a divorce, which was finalised in 1992. Her mother went on to marry a Muslim man in 1993, while her father died in an accident three years later.
The woman contended that despite her conversion to Islam, her mother and stepfather had allowed her to continue practising the Hindu faith.
Abu Bakar and Court of Appeal president Abang Iskandar Abang Hashim, who chaired the three-member panel, took the majority view that the case was one of renunciation which was the exclusive jurisdiction of the shariah courts.
Justice Mary Lim dissented. She said the shariah courts in Kuala Lumpur had no jurisdiction to hear the woman’s application as her purported conversion took place in Shah Alam. Lim also said the woman was not born a Muslim and had been unilaterally converted by her mother.
Abu Bakar disagreed, saying the woman had previously filed an application to renounce Islam in the shariah court, which was rejected.
“When she went to the Kuala Lumpur shariah court, she admitted she was a Muslim. That is proven by the declaration she requested – to be declared no longer a Muslim.
“Her submission (in the Federal Court) trivialises the role, function and duty of the shariah courts,” he said, adding that the shariah courts made a finding of fact that she had practised the Islamic lifestyle, including by praying and fasting.