E-MAGAZINE LAW084 CASE ANALYSIS

SPECIAL THANKS TO PI007/K10 TEAM: APRIL 2022 | ISSUE 5

NASRIN AKHTAR
Relevant court to
(2021200718) discuss apostasy
MUHAMMAD FARRIS
(2021825954) matters.
NUR MISHYA AZRIN
(2021869916)
BALQIS INSYIRAH
(2021825666)
ATIQAH SOFIAH
(2021860622)
ARIFAH SYAURAH
(2021825728)

Justitia

RAMADHAN HOT TOPICS

Psstt!! THIS RAYA JUST GOT A LOT SPICier

SHHHH! SINNERSSS!! KUIH RAYA PODCAST

Is 18 years old still too Is it true that High Court
young to make cannot give a judgment to
decisions?
any religion matters

RM 26.50

INTRODUCTION RPTFOL"DRROIEFEMEALSEIICCTGDTARIOIOTISMBNIEOE" N

Islam is declared to be the Federation's religion in
article 3 of the Federal Constitution, but other
religions such as Christianity, Buddhism,
Hinduism, and others can also be practised in
Malaysia. Article 11 of the Federal Constitution
protects freedom of religion by ensuring that
everyone, not just Muslims, has the right to
practise any religion they choose and further
explains a person's right to profess, practise, and
propagate their religion. This freedom, however, is
not absolute and is subject to limitations most
notably in the areas of public order, public health,
and morality. The limitation of freedom of religion
is further explained in cases faced in Malaysia.

ARTICLE 11 ARTICLE 11

(1) Every person has the right to profess (b) to establish and maintain institutions for
and practise his religion and, subject to religious or charitable purposes; and
Clause (4), to propagate it. (c) to acquire and own property and hold and
administer it in accordance with law.
(2) No person shall be compelled to pay
any tax the proceeds of which are specially (4) State law and in respect of the Federal
allocated in whole or in part for the Territories of Kuala Lumpur, Labuan and
purposes of a religion other than his own. Putrajaya, federal law may control or restrict
the propagation of any religious doctrine or
(3) Every religious group has the right— belief among persons professing the religion of
(a) to manage its own religious affairs; Islam.

(5) This Article does not authorise any act
contrary to any general law relating to public
order, public health or morality.

CASE 1 : TEOH ENG CASES OF THE MONTH
HUAT v KADHI, PASIR 22 April, 2022
MAS & ANOR
Issue : Whether the
conversion of religion by a
person under 18 years old
without parental consent is
null and void.

The appellant is a Buddhist, and his daughter, Susie Teoh Bee Kue, was reported missing on
April 18, 1985, when she was nearly 18 years old, making her a minor under secular law. The
appellant later discovered that the Kadhi of Pasir Mas, Kelantan, had converted her to Islam.
There is no indication that any responsible person or authority encouraged the appellant's
daughter to change her faith in any way. In the Kota Bahru High Court, the appellant sought a
declaration that he, as the legitimate father and guardian, had the right to decide on his
daughter's religion, education, and upbringing. The High Court in Kota Bahru ruled that the
conversion was legal since the child had the freedom to choose her own religion, as long as
she did so freely thus it was not a violation of Articles 11 and 12 of the Federal Constitution.
Furthermore, since there was no evidence that the infant was coerced into Islam, her
conversion of religion was allowed and the appellants' application was dismissed. The
appellant appealed to the Supreme Court and the decision was overruled by the court,
stating that the High Court had wrongly interpreted Article 12(4). However, Susie had already
reached the age of 18 years old by the time the court made the ruling.

CASE 2: Syarifah Issue :
Nooraffyzza bt Wan Hosen Whether the court decision not

v Director of Jabatan allowing the conversion of

Agama Islam Sarawak & religion matter to be discussed

Ors in the High Court is contrary to

Federal Constitution.

The appellant, Syarifah Nooraffyzza who is a Malay by race was born on 9 November 1982
and both of her parents is a Muslims who practiced the Islamic belief. On 3 October 2009,
Syarifah decided to leave her original religion which is Islam and embraced Christianity.
Later, on 26 July 2011, the appellant went to the National Registration Department in Kuching
to apply for changing her name on her identity card. However, NRD Kuching only allows her to
do so if she obtains the letter of release from Islam that she will only get from Jabatan
Agama Islam Sarawak, the respondent in this case. Syarifah then wrote a letter to the
respondent about the conversion of her religion but the respondent did not reply. After a year,
she went to the respondent's office once again and met Ustazah Hanisah Nahrawi who asks
her to go to Syariah Court and attend a counselling session to renounce Islam. Failed to do
so, she then filed a judicial review against the respondent at High Court and seek for relief
and one of them is an order of mandamus to force the respondent to grant her the letter of
release from Islam. In fact, even though Syarifah has done the statutory duty(mandamus),
she cannot compel the respondent to grant her the letter of release from Islam based on the
ground that it is not the High Court's matter to give a judgment on this issue since the Article
121(1A) has stated that the High Court shall have no jurisdiction in respect of any matter within
the jurisdiction of the Syariah Court.

LAW

Article 3 of the Federal Constitution declares Islam to be
the federation's religion but other religions may be
practiced in peace and harmony in any part of the
federation. Article 11(1) also states that every person has
the right to profess and practice their religion. His freedom,
however, is limited by Article 11(4), where state and federal
law may control or restrict the propagation of any
religious doctrine or belief among people professing
Islam. Moreover, Article 12(3) is also relevant where
nobody can be instructed or take part in any religious
ceremony for a religion other than their own. Nonetheless,
Article 12(4) places restrictions, stating that if a person is
under the age of 18, their religion would be decided by
their parents or guardians. A minor is defined in Section of
the Age of Majority Act 1971, which is someone who has not
reached the age of majority, 18 years old. This aligned with
the Guardianship of Infants Act of 1961, providing non-
Muslim parents the right to decide on their children's
religious practices until they reach the age of majority.

Firstly, article 121(1A) of the federal constitution mentioned that Civil
courts do not have jurisdiction over any matter that falls under the
jurisdiction of the Syariah courts. Besides, List-II of the Ninth
Schedule of the Federal Constitution has listed all matters relating
to Islamic law that will fall under the Syariah courts’ jurisdiction
which specifically gives powers to state legislatures to constitute
Muslim courts. Next, Section 68 and 69 of the Majlis Islam Sarawak
Ordinance 2001, explained the effects, rules and requirements to
be fulfilled regarding the matter of conversion of non-muslim to
Muslims. These sections did not provide matters relating to
apostasy out of the religion of Islam. Therefore, the absence of any
laws that prohibit the act of converting out of Islam in Sarawak
makes Article 11 of the Federal Constitution, the only law that
governs this matter. Article 11(1) of the Federal Constitution stated
that every Malaysian citizen is free and has the right to practice
and profess their religion regardless of what type of religion. But,
there is a limitation on freedom to rehearse religion as stated in
Article 11(4) of the Federal Constitution whereby, the propagation
of any religion or belief can be confined or regulated by the state
and the federal laws.

How to apply ?

TEOH ENG HUAT v KADHI, PASIR MAS & ANOR, [1990] 2 MLJ 300

Applying to the case, a parent or a guardian of a non-Muslim has the right to
decide the choice of many issues affecting an infant's life until he reaches the age
of 18, including religion. This is strengthened by the provisions of the Guardianship
of Infants Act 1961, which incorporates the rights and liabilities of infants and
regulates the relationship between infants and parents. Even though the word
"religion" is not clearly spelt out in the act, the rights relating to the religion of a
child are still under their parents' authority since it can affect their life. Returning
to the case, the question is whether the subject, who was a newborn at the time of
conversion, had legal ability under the legislation that applied to her. Since she is a
non-Muslim, the law that applied to her just before her conversion was civil law.
The High Court's finding that the subject, despite being under the age of 18, had
the capacity to select her own faith as long as it is voluntary, will go against Article
12(4). The Supreme Court judges added that, in the wider interests of the nation,
no infant shall have the automatic right to receive instruction relating to any other
religion than his own without the permission of the parent or guardian. Thus, the
newborn's right to religious rituals is asserted on her behalf by the parent or
guardian until she reaches the age of majority, which is 18 years old. To conclude,
the judges held that a person under the age of 18 lacks the freedom to declare and
practise their religion as required by Article 11 of the Federal Constitution. In the
case of non-Muslims, the minor's religion is normally chosen by the parent or
guardian.

Hence, the conversion of religion by a person under the
age of 18 years old without parental consent is null and
void as it violates Article 12(4), and the guardian of a
non-Muslim child has the right to choose various matters
that may affect their child’s life, including their religion.
To conclude, freedom of religion is limited when the
person is still a minor and their religious practices are
subjected to their parents' choice.

How to apply ?

Syarifah Nooraffyzza Wan Hosen v Director of Jabatan
Agama Islam Sarawak & Ors, [2018] 2 MLJ 354

In this case, according to article 121(1A) and the
List-II of the Ninth Schedule of the Federal

Constitution, it was clear that apostasy falls under the Islam matters, hence the Syariah Court
has the jurisdiction in regard to this matter and not the High Court. This is because Syariah
courts and Civil courts formed two separate legal systems whereby the Syariah court and not
the High court had the exclusive jurisdiction to deal with the issue of conversion out of Islam.
Thus, for Syarifah to change her national registration from Islam to Christian at the National
Registration Malaysia, she must have the letter from the court that officially renounced her as
Christian. However, in order to receive that letter, she should go to the Syariah court and not the
High court as it falls under the Syariah court’s jurisdiction. Even if Section 68 and 69 of the
Majlis Islam Sarawak Ordinance 2001 did not provide for the conversion in or out of Islam but
provided only for conversion into the religion of Islam, it is still in line with the logic of the
Syariah Court, which has been given jurisdiction to adjudicate matters relating to the
conversion to Islam and by necessary implication, also jurisdiction to adjudicate matters
relating to the exit of a Muslim from Islam or apostasy. While Article 11(1) provides for freedom
of religion and does not explicitly forbid apostasy, based on Article 11(4), there is a limitation on
freedom to practise religion, as long as it is controlled and restricted under the law. Concerning
the enforcement of fundamental liberties guaranteed under the Federal Constitution with
freedom of religion under Article 11 of the Federal Constitution and therefore could not be in
any way regarded as vexatious or frivolous. Apostates having to go through the Syariah Court
system in order to convert is not an infringement of the individual’s constitutional right because
if a person professes and practices Islam, it would mean that he must comply with Islamic law
which has prescribed the way to embrace Islam and converting out of Islam.

To conclude, Syarifah’s act to change her national
registration from Islam to Christian was dismissed
because her decision to go to the High court to ask
for the approval letter of changing her religion was
wrong as apostasy falls under the Islamic matters,
hence it falls under the Syariah court’s jurisdiction.
Syariah court will be the one that has the authority
or power to do so. Therefore, the court's decision to
not allow the conversion of religion matter to be
discussed in the High Court is not contrary to the
Federal Constitution.

REFERENCES

Ahmad, S. (2004). A view on infant conversions to Islam. CIVIL-SYARIAH
CONFLICT. https://m.aliran.com/archives/monthly/2004b/9e.html
Muslims’ Right to Freedom of Religion in Malaysia: Piercing through the
confusion and contradictions [2007] 7 MLJ cxxvi
Shad Saleem Faruqui. (2019). Our Constitution. Sweet & Maxwell Asia.

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