CASE OF THE WEEK

This was an appeal against the decision of the High Court striking out the appellant's originating summons (`OS') for declaratory relief under O. 18 r. 19 Rules of the High Court 1980 (`RHC') on the ground that the suit came within the exclusive jurisdiction of the Syariah High Court, and therefore triable by that court. The appellant, a Hindu by birth, had purportedly converted to Islam in 1989 when she was seven years old, when the second respondent, then an official of the Muslim Welfare Society Malaysia (`PERKIM'), together with officials of the third respondent Majlis Agama Islam Negeri Pulau Pinang, brought her before a Kadi in Penang and had her renounce her Hindu faith and embrace Islam. It was not disputed that the appellant's conversion was effected without the consent of her parents, notwithstanding that the latter had themselves converted to Islam from Hinduism some six years earlier. It was the learned High Court judge's view, in declining jurisdiction, that the subject-matter of the appellant's action was essentially an action to renounce her Islamic faith, such that her application came squarely within the provisions of s. 61(3)(b)(x) of the Administration of Islamic Religion (State of Penang) Enactment 2004 (`the Enactment') and the jurisdiction of the Penang Syariah High Court. Before the learned justices of appeal herein, the appellant argued that her OS ought to be heard by a civil High Court, as she was never a Muslim in the first place. It was the appellant's further contention that she had been made to renounce her Hindu faith and embrace Islam in an unconstitutional and unlawful manner, and that the conversion, done without her parental consent and at a time when she did not understand what the process of conversion was all about, violated s. 117 of the Enactment and arts. 11(1) and 12(4) of the Federal Constitution. The respondents regurgitated that the appellant was already a Muslim at the time of her conversion in 1989 as her father upon his conversion to Islam in 1983 had signed an affirmation stating that he had embraced Islam together with his five children. They maintained that the High Court was right in declining jurisdiction and treating the subject-matter of the appellant's complaint as concerning Islamic law.

Held (allowing appeal; ordering OS to be tried before civil High Court)

Per Hishamudin Mohd Yunus JCA delivering the judgment of the court:

(1) A civil High Court must be extremely cautious and slow in declining jurisdiction and in coming to the conclusion that the subject-matter of an action before it falls within the exclusive jurisdiction of the Syariah Courts, particularly so in cases involving the fundamental rights of the subjects. (para 34)

(2) The legal burden here is on the respondents to satisfy the court that the subject-matter of the action is such that it comes exclusively within the jurisdiction of the Syariah High Court of Penang. On the facts, the respondents have not discharged this burden. (paras 12 & 13)

(3) It is not the law that a subject-matter of a claim or complaint automatically ceases to be within the jurisdiction of the civil courts just because it has an Islamic law element in it. This is not the intention of art. 121(1A) of the Federal Constitution. The correct position in law is that, only if the subject-matter of the action is exclusively within the jurisdiction of the Syariah Courts would the subject-matter, by virtue of art. 121(1A), fall outside the jurisdiction of the civil courts. (paras 14 & 15)

(4) For the Syariah High Court of Penang to have jurisdiction by virtue of s. 61(3)(b)(x) of the Enactment, two prerequisites must be satisfied, namely, that all parties to the action are Muslims and the declaration sought by the claimant must be that he is no longer a Muslim. However, from the nature of the declaration sought, and the averments in her supporting affidavit, the appellant is clearly not claiming to be a Muslim, and neither is she renouncing the Islamic faith. This is not a case of the appellant claiming being a Muslim and now wanting to renounce her Islamic faith. What the appellant is contending is that she never was a Muslim in the first place. She was a Hindu by birth but had been made, in an unconstitutional and unlawful manner, to renounce her Hindu faith and to embrace Islam by the wrongful actions of the respondents. (paras 18 & 23)

(5) Although the striking out applications are not purely based on limb (a) of O. 18 r. 19(1) of the RHC, and hence reliance on the supporting affidavits by the respondents are permissible, nevertheless, in determining whether or not the subject-matter of the action comes within the exclusive jurisdiction of the Syariah High Court, the court hearing the striking out applications must give due consideration to the nature of the relief sought and the content of the appellant's supporting affidavits for the originating summons. The court must not at this stage embark on an in-depth evaluation of the conflicting affidavits of both sides and then endeavour to make findings of facts or of mixed law and facts, and thereafter make a determination as to whether or not the subject-matters falls within the exclusive jurisdiction of the Syariah High Court, as what the learned High Court judge had done in the present case. Besides muddling the issue, that would not be the correct approach. (para 26)

(6) The correct approach is for the court to examine the exact nature of the relief sought and the supporting affidavit of the appellant's OS and ask itself: assuming the facts alleged therein are true, and considering the exact nature of the relief sought, would not the matter fall exclusively within the jurisdiction of the Syariah High Court? If the answer is "Yes", then and only then the matter falls outside the jurisdiction of the civil courts. However, if the answer is in the negative, the court must dismiss the striking out applications. (para 26)

(7) Assuming that the facts as averred in the appellant's supporting affidavit for the OS herein were true, it is clear that the "conversion" of the plaintiff in 1989, done while she was a minor, born of Hindu parents, of the Hindu faith, without her parents' consent, and without her understanding what the conversion process was all about, would be violations of her as well as her parents' constitutional rights enshrined in arts. 11(1) and 12(4) of the Federal Constitutions. It is clearly within the jurisdiction of the civil High Court to determine as to whether or not there have been infringements of arts. 11(1) and 12(4) by the officials of PERKIM and the Penang Islamic Religious Authority. Moreover, arts. 11(1) and 12(4) relate to fundamental liberties and enforcement of fundamental liberties under the Federal Constitution is a matter vested solely within the jurisdiction of the civil High Courts. (paras 27-29)

(8) The allegation that the appellant was a Muslim since 1983 when her parents had embraced Islam only constituted the respondents' position. That position was disputed by the appellant who questioned why, if indeed she was already a Muslim, there was a need for her in the affirmation in 1989 to renounce her Hindu faith and to embrace Islam. In any case, these are contentious matters that should not be dealt with too deeply by the court at the striking out applications stage. These are matters that must be determined at the trial proper.

[Matter ordered to proceed to trial before High Court with advice that OS be converted to writ action.]

Case(s) referred to:

Abd Malek Hussin v. Borhan Hj Daud & Ors [2008] 1 CLJ 264 HC (refd)

Abdul Ghani Haroon v. Ketua Polis Negara & Another Application (No 3) [2001] 2 CLJ 709 HC (refd)

Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 SC (refd)

Dato' Kadar Shah Tun Sulaiman v. Datin Fauziah Haron [2008] 4 CLJ 504 HC (refd)

Kamariah Ali & Satu Lagi lwn. Majlis Agama Islam dan Adat Melayu Terengganu & Yang Lain [2006] 2 CLJ 168 HC (refd)

Lim Yoke Khoon lwn. Pendaftar Muallaf, Majlis Agama Islam Selangor & Yang Lain [2006] 4 CLJ 513 HC (refd)

Lina Joy lwn. Majlis Agama Islam Wilayah Persekutuan & Yang Lain [2007] 3 CLJ 557 FC (refd)

Soon Singh Bikar Singh v. Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Anor [1999] 2 CLJ 5 FC (refd)

Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1999] 1 CLJ 481 CA (refd)

Legislation referred to:

Administration of the Religion of Islam (State of Penang) Enactment 2004, ss. 61(3)(b)(x), 117

Courts of Judicature Act 1964, s. 25(2)

Federal Constitution, arts. 11(1), 12(4), 121(1A)

Guardianship of Infants Act 1961, s. 5(1)

Rules of the High Court 1980, O. 18 r. 19(1)

Counsel:

For the appellant - Gooi Hsiao Leung; M/s Gooi & Assocs

For the first respondent - Mathias Chang; M/s Suhaimi Khor Zulkifli & Chang

For the second respondent - Tuan Zubaidah Tuan Muda (Zati Farahiyah Halim with her); M/s Nik Saghir & Ismail

For the third & fourth respondents - Hairuddin Othman (Noor Asyimah Ramli with him); M/s Noor Asyimah & Assocs

[Appeal from High Court, Pulau Pinang; Originating Summons No: 24-2014-2009]

Reported by Wan Sharif Ahmad