Do Malaysians who no longer identify as Muslims have any recourse beyond subjecting themselves to the Shariah system that only recognises adherents of Islam?
With the recent furore over the disruptions of a Taoist funeral and a Hindu wedding by state religious authorities claiming that Muslims were involved, renewed attention has been focused on non―Muslims wishing to dispute official records of their Muslim identity. In Malaysia, Muslims are governed by both the civil laws and Shariah laws, with the former applicable universally while the latter only has jurisdiction over Muslims. But the parallel court systems suggest a legal limbo for Malaysians who do not identify themselves as Muslims but wish to remove the status from their records.
In a recent interview, the Department of Syariah Judiciary Malaysia (JKSM) says that only the Shariah courts are empowered to decide on the religious status of a Malaysian ― including on those who are officially Muslim but claim to be non―Muslims.
JKSM cited the Federal Constitution’s Article 121 (1A) and decisions by the country’s highest court, which it said mean that the civil courts should not decide on a Malaysian’s religious status when it involves Islam.
“It is clear to us the court that has sole power and jurisdiction to decide on issues of determination of status of religion falls squarely within the Shariah court jurisdiction,” the department that oversees Shariah courts and legislation told The Malay Mail Online.
Article 121 (1A) states that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”, but the proper interpretation of this clause and the scope that it covers remains under debate.
“Now it is settled law that the civil court in the case of Soon Singh a/l Bakar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor has clearly said that the civil courts do not have jurisdiction,” JKSM said, saying that the Federal Court judge Tun Mohamed Dzaiddin had in that case interpreted Article 121 (1A) as including matters on the “determination of the religion of Islam”.
In the case of Lina Joy who was born as Azlina Jailani, the Malay Muslim who converted to Christianity had applied to change her religious status at the National Registration Department (NRD) but was turned down after the apex court ruled the amendment to be subject to the Shariah court’s approval.
JKSM also listed seven states ― Negri Sembilan, Selangor, Pahang, Penang, Johor, Perak and Terengganu ― with state laws clearly stating the Shariah courts’ jurisdiction over declarations that one is no longer a Muslim.
For other states and the Federal Territories, JKSM pointed to the Soon Singh judgment and a broadly―worded clause in their state laws on “matters where the jurisdiction has been determined by any written laws” as granting the Shariah court’s jurisdiction over such declarations.
Turning to Shariah courts an admittance of Muslim status?
Despite the apparent clarity of the matter, those who are Muslim only on paper regularly choose to bring their cases to the civil courts instead, expressing reluctance to appear before the Islamic legal system.
Jagir Singh, the president of interfaith group Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST), had previously said that the act of going to the Shariah court for a person claiming to be non―Muslim would be akin to admitting and recognising that one was a Muslim.
According to List II in the Federal Constitution’s Ninth Schedule, Shariah courts only have jurisdiction over Muslims. Despite the seeming jurisdictional clash, JKSM pointed out that the civil courts' refusal to rule on a person’s religious status means the practical solution for those disputing their Muslim identity would be to go to the Shariah courts.
"The Shariah court judges, they are not inhumane, if they can see you are not Muslim at all, there's no point for us to call you a Muslim if you never practise it,” JKSM said, also saying there are the usual “checks and balance” with unsuccessful applicants having the right to appeal.
The success rate of such applications can be seen in statistics provided by Islamic Affairs Minister Datuk Seri Jamil Khir Baharom in 2011, when he said that only 135 out of 686 applicants in the 2000―2010 period managed to get the Shariah courts to change their religious status.
For all cases where individuals apply to declare that one is no longer a Muslim, JKSM said the Shariah courts will weigh all applications based on “merit” and on the “evidence” produced before the court.
"For that matter, court will take into consideration for example, statements or reports, certificates given by religious department, by JPN, NRD or even the civil court,” it said. But ultimately the Shariah court will be the final arbiter on such applications, as it is not “bound” by decisions by the civil courts on a person’s bid to change their Muslim identity, JKSM said.
The Shariah courts are also not bound by any statement from state Islamic religious departments when ruling on a person’s religious status, it said.