Case Review on Lina Joy and Latifah

Case Review on Lina Joy vs. Majlis Agama Islam Wilayah Persekutuan & others [2007] 3 CLJ 557 and Latifah Bte Mat Zin vs. Rosmawati Binti Sharibun & anor, Federal Court Civil No.:02-39-2006(W)

While our mood has been geared toward celebrating 50th anniversary of independence, there are few issues on race and religion still lingering deep in the heart of Rakyat Malaysia. To a certain extent, Malaysians are in a cross road when faced with the issues such as freedom of religions and conflict of jurisdictions between syariah and civil courts. To borrow the wisdom of his Lordship, Abdul Hamid FJ, “after 50 years, the provisions relating thereto [the jurisdictional issues between the courts] will have to be reviewed and updated to meet the present circumstances.”[1]

Over the past 3 months, the highest court of our country has 2 opportunities to provide judiciary guidance on the issues of freedom of religion and conflict of jurisdictions. The 2 cases went before the Federal Court were Lina Joy vs. Majlis Agama Islam Wilayah Persekutuan & others[2]and Latifah Bte Mat Zin vs. Rosmawati Binti Sharibun & anor[3]. However, as the judgments delivered in one instance, it is obvious that the views of the judges sitting on the bench are sharply divided, principally along the line of Muslim and non-Muslim. In another instance, the judges sought help from the legislators to solve the jurisdictional problem between syariah and civil courts. The judges wanted the legislators to draw a clear jurisdictional line between the 2 systems of courts, so that the courts are freed from the burden of attempting to solve jurisdiction issue either at a snail pace or take an easier route by sweeping the problems into the carpet.

We first review the case of Lina Joy.
The Lina Joy case
The Facts A Malay woman, known as Azalina binti Jailani, applied to the National Registration Department (NRD) to change her name, first to Lina Lelani, then to Lina Joy. Reasons for doing so were she had renounced Islam for Christianity and she intended to marry a Christian. She made 2 attempts to change her name at the NRD since 1997. Ultimately, in October 1999, her application for change of name was approved but her replaced identity card (IC) states that her religion as Islam. Lina Joy made an application to NRD office to remove the statement “Islam” and her original name from her replacement IC. NRD refused her application on the ground that it was incomplete without an order of the Syariah Court to the effect that she had renounced Islam. Lina Joy then sought legal remedies.

Proceeding in the Court Below
The High Court dismissed Lina Joy’s application. She appealed. The Court of Appeal faced with the question of whether the NRD was right in rejecting Lina Joy’s application to have the statement of her religion as “Islam” deleted from her IC and in requiring a certificate or order from the Syariah Court. The Court of Appeal, by majority, answered the question in the affirmative.

Proceeding in the Federal Court
The question phrased before the Federal Court were as follow:-
a. Whether NRD is entitled in law to impose as a requirement for deleting the entry of Islam in Lina Joy’s IC that she produce a certificate or a declaration or an order from the Syariah court that she has apostatized?
b. Whether NRD has correctly construed its power under the National Registration Regulations 1990, in particular reg. 4 and 14, to impose the requirement as stated above when it is not expressly provided for in the Regulations?
c. Whether Soon Singh[4]was rightly decided when it adopted the implied jurisdiction theory propounded in Md Hakim Lee v. Majlis Agama [1997] 3 CLJ Supp 419 in preference to Ng Wan Chan v Majlis Agama (No.2) [1991] 3 MLJ 487 and Lim Chan Seng v Pengarah Jabatan Agama Islam [1996] 3 CLJ 231, which declared that unless an express jurisdiction is conferred on the Syariah Court, the civil courts will retain their jurisdiction.

The Federal Court, by a majority 2 to 1, answered the above questions as:
(a) NRD is entitled;
(b) NRC is right; and
(c) Soon Singh case is rightly decided. Ahmad Fairuz FCJ delivered the majority judgment (with Alauddin Mohd Sheriff FJ concurred) and Richard Malanjum FJ dissenting.

Issues on administrative decision made by NRD
On questions concerning the decision of NRD insisting a certificate or an order made by the Syariah Court pertaining to the conversion out of Islam, Ahmad Fairuz FCJ said that such decision is justified. NRD may request Lina Joy to submit documentary evidence in support of her declaration that she is no longer a Muslim.

Ahmad Fairuz FCJ warned that if NRD accepts one’s declaration that he/she has converted out from the religion of Islam, then NRD could run the risk of wrongfully certify a person as non-Muslim who in fact, according to the Islamic laws, he/she is still a Muslim. “Taking such stand would elevate the fear that those who born and taught as Muslims but willfully or unintentionally disregard the practice of Islam, will declare themselves as non-Muslims for purpose of avoiding punishment under the Islamic laws”, said his Lordship[5].

His Lordship was cautious of not to create any chaos in the Muslim society. As such, in his Lordship’s opinion, NRD has made a correct decision that mere statutory declaration by the applicant is not adequate to remove the statement “Islam” from a Muslim’s IC. This is because matter of converting out of the religion of Islam is a matter related to Islamic laws. If the Court rules that the decision made by NRD is unreasonable, this would mean that the Court wants the NRD to accept the facts that under Islamic laws, a Muslim can be regarded as converted out of Islam and is no longer a Muslim when he/she says that he/she has been converted out[6]. (my emphasis) This is an absolute undesired outcome.

When questions arises as to whether such decision would contradict with the notion of freedom of religion as enshrined under Article 11(1) of the Federal Constitution, the Chief Justice did not think so. His Lordship viewed that Article 11 requires Muslim to abide with the practice and rules of Islam, in particular when it comes to the issue of converting out of Islam. The manner in which a person desires to convert out of a religion shall follow the practice, rules and requirements as prescribed by that religion. Only when all requirements for converting out of Islam are followed and the relevant authorities under the Islamic laws have certified the apostasy, Lina Joy is considered a non-Muslim, or a Christian in her case. In other words, a person is prohibited from embracing and converting out of a religion at his/her own wishes. When he/she embraces a religion, common sense will require he/she performs all practices and abide with all rules of that religion[7].

The dissenting judge, Richard Malanjum FJ gave a different reasoning and decision. His Lordship referred to Article 8(2) of the Federal Constitution that prohibits any form of discrimination against citizens unless expressly authorized by the Constitution itself on the ground only on religion, race, descent or place of birth or gender in any law. Henceforth, regulation 4(c)(iva) of the National Registration Regulations 1990 that singled out Muslims to state his/her religion in IC is an additional procedural burdens and impediments which are not connected to personal laws. Such requirement is not applicable to non-Muslim and therefore, is a differential treatment for Muslim. In his Lordship’s view, it is tantamount to an unequal treatment under the law and has infringed Article 8(1) of the Constitution which proclaimed that “all persons are equal before the law and entitled to the equal protection of the law.” For this reason alone, his Lordship would grant relief sought by Lina Joy[8].

Richard Malanjum FJ opined that the NRD had acted beyond the requirements stated in the National Registration Regulations 1990. NRD should consider Lina Joy’s application within the context of the said regulations and should not bring in any extraneous factor. Lina Joy has made a statutory declaration that she had never professed or practiced Islam since birth. In fact, she has embraced Christian and she produced a baptismal certificate to support her declaration. NRD was only empowered to call for such documentary evidence that it considered “necessary to support the accuracy of any particulars submitted”, which is “Kristian” in this case, and Lina Joy has fulfilled such requirement. As such, in his Lordship’s opinion, an order from the Syariah Court does nothing to support the accuracy of Lina Joy’s particular that she is a Christian. His Lordship reminded NRD that it is not the function of NRD to ensure that Lina Joy has properly apostatized. Such matter should be left to the relevant authorities to take up any necessary action. Neither is it the statutory duty of NRD to ensure that a person has properly renounced the Islamic faith in accordance with the requirements by the Islamic authorities. As such, his Lordship held that the decision made by the NRD to request order or certificate of apostasy from the Syariah Court is legally irrelevant, and has acted ultra vires its power under the regulations[9], besides being irrational and unreasonable and breach of natural justice.

Another sharp contradiction between the majority and the dissenting judgment is Richard Malanjum FJ did not agree with Ahmad Fairuz FCJ that issue of apostasy is exclusively within the realm of the Syariah Court. In Richard Malanjum FJ’s view,

“apostasy involves complex questions of constitutional importance especially when some States in Malaysia have enacted legislations to criminalize it which in turn raises the question involving federal-state division of legislative powers. It therefore entails considerations of arts. 5(1), 3(4), 11(1), 8(2), 10(1)(a), 10(1)(e), 12(3) and the Ninth Schedule of the Constitution. Since constitutional issues are involved especially on the question of fundamental rights as enshrined in the Constitution, it is of critical importance that the civil superior courts should not decline jurisdiction by merely citing art. 121(1A). In my view, the said article only protects Syariah Court in matters within their jurisdiction which does not include the interpretation of the provisions of Constitution. Hence, when jurisdictional issues arise, civil courts are not required to abdicate their constitutional function. Legislations criminalizing apostasy or limiting the scope of the provisions of the fundamental liberties as enshrined in the Constitutions are constitutional issues in nature which only the civil courts have jurisdiction to determine[10].”

Personal view on the judgment against NRD’s decision The judgments and reasoning between the Chief Justice and Richard Malanjum FJ on the administrative decision made by NRD are clearly in contrast. The Chief Justice being a Muslim approached the apostasy issue on the ground that:
“Islam is not only a collective of dogmas and rituals but also is a complete way of life that consists of all areas of human activities, private or public, legal, politic, economy, social, culture, moral or judiciary. And if examines art. 11(1), 74(2) and item 1 of List 2 of Ninth Schedule, it is clear that Islam comprises, among other, Islamic laws. As such,… if a Muslim wishes to convert out of Islam, he/she should in fact use his/her rights in the context of syariah laws, which has its own jurisprudence on issue of apostasy. If he/she embraced and practiced Islam, certainly it means that he/she has to abide with the Islamic law which has prescribed the way he/she embraced Islam and also the manner in which he/she convert out of Islam. This is the meaning of embracing and practicing Islam.” [11]

In addition, the Chief Justice took into account the public interest in reaching his conclusion, in particular the Muslim society. If the Court permits Muslim to convert out of Islam at his/her own wishes and fancies, the Muslim society would be in chaos. In the circumstance, consideration of public interests override individual interest, i.e. Lina Joy’s right to convert out of Islam merely by her own declaration within going through the process prescribed under the Islamic laws.

I would agree with the observation made by the Chief Justice which is as follow:
a. issue on conversion of religion is directly related to rights and obligations of Lina Joy as a Muslim before the conversion is made;
b. Article 11(1) should not be interpreted as giving right of freedom without limit; and
c. Right to embrace and practice a religion should subject to the principles and practices of that religion.[12]

Despite Richard Malanjum FJ’s forceful dissenting judgment, with respect, I could not agree with his Lordship’s reasoning because his Lordship fails to appreciate the nature of Islamic faith is beyond the relationship between an individual and the God. It is the whole Islamic institutions which cover all aspects of Muslim’s life that come into picture. It is not the issue of freedom of religion. Neither is there any discrimination based on religion. It is the practice of a religion that one has to observe and respect. The respect and acceptance of different religion practice is crucial to maintain harmony in our multi-racial and multi-religion society. As such, I agree with the majority judgment which upheld the NRD’s decision.

Issue on Soon Singh case
However, I fail to see any sensible reason in the majority judgment over the issue of implied jurisdiction of Syariah Court as decided in the Soon Singh case.

Dr. Cyrus Das, counsel for Lina Joy, submitted that Soon Singh case was wrongly decided. The case stated that the Syariah Court’s jurisdiction derived from the State List described in Ninth Schedule of the Constitution, it does not need to be expressly granted by an Act of Legislatives. According to Dr. Cyrus Das, this is in contradiction with the cardinal principle of legislations or rules enacted have to be gazette before the laws come into effect. The effect of Soon Singh case is that laws is assumed to be in existence even though the matter which the laws purported prescribed is just being listed in item 1, State List of Ninth Schedule and the legislators has yet to make laws with respect to the matter. Soon Singh case fails to differentiate between the power to make law on a subject matter and the law enactment itself. The entries in the list are merely heads or fields of legislation, which demarcate the area over which the appropriate legislature can operates[13].

Ahmad Fairuz FCJ did not agree with Dr Cyrus Das’ submission, citing the only reason that since Syariah Court has been clearly given the jurisdiction to adjudge matters relating to embracing Islam, it is only logic and by necessary implication, the Syariah Court has jurisdiction to adjudge matters on conversion out of Islam or apostasy[14] . As such, civil courts should not interfere with cases concerning apostasy.

However, Richard Malanjum FJ disagreed with the Chief Justice’s reasoning. His Lordship referred to 2 eminent judges, first: Hashim Yeop Sani CJ’s view in Dalip Kaur[15]case as follow:-

“The new cl. (1A) of art.121 of the Constitution effective from 10 June 1988 has taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the syariah courts. But that clause does not take away the jurisdiction of the civil court to interpret any written laws of the States enacted for the administration of Muslim law. If there are clear provisions in the State Enactment, the task of the civil court is made easier when it is asked to make a declaration relating to the status of a person whether such person is or is not a Muslim under the Enactment. A clear provision can, for example, be in the form of a provision imposing obligation on the relevant authority to keep and maintain a register of converts who have executed a deed poll renouncing Islam.”

And second, Harun Hashim SCJ in Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib[16]as follow:-
“I am therefore of the opinion that when there is a challenge to jurisdiction, as here, the correct approach is to firstly see whether syariah court has jurisdiction and not whether the state legislature has power to enact the law conferring jurisdiction on the syariah court.”

Richard Malanjum FJ concluded that “the doctrine of implied power must be limited to those matters that are incidental to a power already conferred or matters that are necessary for the performance of a legal grant. And in the matters of fundamental rights, there must be as far as possible express authorization for curtailment or violation of fundamental freedoms. No court of authority should be easily allowed to have implied powers to curtail rights constitutionally granted[17].”

In my view, Richard Malanjum FJ’s decision that jurisdiction must be expressed and not implied is more persuasive. The syariah court will not be deprived of any jurisdiction over matters that it has power to make laws pursuant to the State List of Ninth Schedule. The syariah court would have to wait until the state legislature makes law pertaining to matter under the State List. The express jurisdiction approach will reduce, if not eliminate, any conflict of jurisdiction between the syariah and the civil court, besides providing certainty to our dual judiciary system.

The issue of conflict of jurisdiction was once again raise in the case of Latifah. We now turn to this case.

Facts of Latifah case:
The facts are straight forward. Daughters of second wife and third wife were disputing over the money in the joint account between the deceased and the third wife, whether it formed part of the deceased’s estate or had been given by the deceased as gift inter vivos, which is recognized in Islamic law as “hibah”. All parties involved in this case are Muslims.

The High Court ruled that the Islamic law applied for determination of the above issue. The Court of Appeal held that in determining whether the assets is a gift inter vivos or hibah between Muslims, the Syariah Court shall have the jurisdiction, to the exclusion of civil High Court by virtue of Article 121(1A) of the Federal Constitution[18].

Issues Before the Federal Court:
The case went to the Federal Court, and the issues were on the conflict of jurisdiction between the civil court and the syariah court. The Federal Court upheld the decision of its lower courts and decided that it is the syariah court which has the jurisdiction to decide the issue[19].

Abdul Hamid FJ delivered the judgment of the Court, with the other judges concurred. His Lordship first reviewed 46 cases (including Lina Joy case) which dealt the jurisdictional conflict issue over the past 2 decades, and went on to examine the Ninth Schedule in details. Ninth Schedule is a “Legislative List” of Federal and State. It contained matters that the Parliament and the States’ Legislature may make laws.

The Parliament has power to make laws pertaining to, as his Lordship observed, inter alia, the following:-
a. marriage and divorce of non-Muslim, whereas State Legislature has jurisdiction to make laws on Muslim’s marriage and divorce;
b. succession, testate and intestate; probate and letters of administration, except Islamic personal law relating to gifts or succession, testate or intestate;
c. criminal laws such as those provisions contained in the Penal Code. Even though State Legislatures have power to make laws for the creation and punishment of offences by Muslims, the laws shall not be inconsistent to the Penal Code;
d. Islamic banking, Islamic finance and takaful as banking and finance came explicitly under the Federal jurisdiction.

Jurisdiction of Syariah and Civil Courts
A syariah court in a State is established when the Legislatures make law to establish it. Session Courts and Magistrates’ Courts are in the same position as the syariah court as the former is also come into existence through Parliament make laws. The position of civil High Courts, Court of Appeal and Federal Court are different as these courts formed part of the Constitution.

On the jurisdiction of the courts, his Lordship has this to say: “a question arises whether a particular provision of a law made by Parliament or the State Legislature is in contravention of the provisions of the Ninth Schedule; it is the Federal Court that has jurisdiction to decide[20].”

However, on the jurisdiction of syariah court, it is limited to the matters allowed under item 1 of the State List. For example, it is limited to Muslims. It can choose one or more matters as listed in item 1 of the State list so long as the matters which conferred the jurisdiction is expressly provided for.[21]

As his Lordship observed both civil and syariah court derived their jurisdictions from statutes, i.e. Constitution, federal law or State law, as the case may be. So, the parties should look at the relevant statutes to determine whether they have jurisdiction or now. Even if one court does not have express jurisdiction over a matter, it does not follow that the other court automatically granted with the jurisdiction. For an example, if one party is a non-Muslim, the syariah court does not have jurisdiction over the case, even if the subject matter falls within its jurisdiction[22].

His Lordship provides some guidance when there is situation where the State law has infringed on the matters within the Federal Lists. His Lordship reminded that Article 121(1A) was not introduced to oust the jurisdiction of the civil courts, and if the judges face with jurisdictional issue between syariah court and the civil court, they should ask the following questions:-
a. are such laws constitutional in the first place? and
b. constitutionality of such laws is a matter for the Federal Court to decide.[23]

On issue related to the interpretation of the federal constitution, the Federal Court has the final say, not the syariah court. If the Federal Court says that the syariah court has jurisdiction, it has, and vice versa[24].

It is clear that Latifah case reinstates that express jurisdiction position as decided decades ago in cases like Ng Wan Chan and Lim Chan Sing. Latifah case appears to endorse the observation made by Richard Malanjum FJ in Lina Joy case that syariah court shall only have express jurisdiction. Since Latifah is the latest Federal Court decision on the issue of conflict of jurisdictions between syariah and civil courts, and the judges on the Latifah’s bench have the opportunities to read Lina Joy’s judgment, I am of the view that we should follow Latifah’s decision that the syariah court’s jurisdiction shall be conferred expressly by the State laws (or Parliament laws made in relation to the Federal Territories) and there is no implied jurisdiction by merely referring to the State List of Ninth Schedule.

Legislature Should Step
In Abdul Hamid FJ observes that with more inter-State movement and inter-marriages, and more frequent conversation to Islam and re-conversation, the jurisdictional problems between civil and syariah courts have become more complex. In some instances, there may be cases where both civil and syariah courts have no jurisdiction. His Lordship was of the view that such problem is not for the court to solve as the court owes their jurisdiction to statues. It is for the Legislature to step in, to decide as a matter of policy what should be the solution and legislate accordingly to solve the jurisdiction problems between these 2 systems of courts[25].

As such, until the jurisdictional problem is solved by the Legislature, civil court can only deal with matters within its jurisdiction. If an Islamic issue arises, then the party will have to go to the syariah court. Likewise will be happened in syariah court. But if one of the parties is a non-Muslim, the route for switching to syariah court will be stuck. The party will have no alternative to solve his/her problem.

The Prime Minister has said that he is aware about this complex jurisdictional conflict between the syariah and civil courts. He has requested the public to be patience as the Prime Minister Department and the Attorney General would need time to look into the issues and find ways to clear the ambiguity. As member of the legal profession, I am eagerly looking forward to the learned and highly wisdom legislators to quickly shoulder the responsibility and provide solution to this conflict of jurisdiction which is unable to solve by the judiciary for decades.


Quek Ngee Meng, Written on 26 August 2007 for the assignment of Issues of Constitutional Law, a subject of Diploma Lanjutan Undang-undang Syariah dan Amalan Guaman (DSLP)

[1] Latifah Bte Mat Zin vs. Rosmawati Binti Sharibun & anr, Federal Court Civil No.:02-39-2006(W),at p 51.
[2][2007] 3 CLJ 557
[3]Federal Court Civil No.:02-39-2006(W)
[4]Soon Singh Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & anr [1999] 2 CLJ 5 FC
[5]Lina Joy, at p575
[6]Ibid, at p581
[7]Ibid, at p587
[8]Ibid, at pp606-607
[9]Ibid, at pp608-610
[10]Ibid, at p613
[11]Ibid, at p594
[12] Ibid, at pp596-597
[13]Ibid, at p590
[14]Ibid, at pp592-593
[15] Dalip Kaur v Pegawai Polis Daerah Balai Polis Daerah, Bukit Mertajam, & anor [1991] 3 CLJ 2768; [1991] 1 CLJ (Rep) 77 SC
[16]1993] 1 CLJ 264, at p268
[17]Lina Joy, at p619
[18]see [2006] 4 MLJ 705
[19]Latifah, at pp24-26
[20] Latifah case, at p27
[21] Ibid, at pp29-30
[22]Ibid, at pp30-31
[23] Ibid, at p36
[24]Ibid, at p50
[25]Ibid, at p52