Judicial review required as Shariah court dismissal of woman’s apostasy bid ‘unreasonable, appeals court says | Malay Mail

PUTRAJAYA, July 24 — The lawyer representing a Malaysian woman who lost her bid to formally leave Islam to embrace Confucianism and Buddhism said the Shariah Court’s decision was the result of irrationality and procedural impropriety.

This day was initially fixed for the Court of Appeal’s hearing on the High Court’s June 2022 decision to deny his leave for judicial review of the Shariah Court’s decision on his apostasy bid.

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Lawyer Fahri Azzat, who represented the appellant, said the subject of the appeal was not apostasy from the Islamic faith, but the legality and validity of the Shariah Court in arriving at its decision to reject the bid of his client who no longer recognized as a Muslim.

“The appellant wants to initiate a judicial review of the Shariah court’s decision because there are elements of irrationality.

“This is not an application for apostasy from Islam and the learned High Court judge erred and misunderstood it,” he told the three-member bench headed by Court of Appeal judge Datuk Hajjah Azizah Nawawi sitting with Datuk See Mee Chun and Datuk Azizul Azmi Adnan.

The Shariah Court in 2020 rejected the woman’s application to renounce Islam on the grounds that the court cannot violate Islamic law and should not be considered aiding a Muslim in an act of apostasy.

Emphasizing the importance of judicial review to his client, Fahri said the options his client has will be greatly affected if the appeals court does not rule in their favor.

“This is very important for him. If he loses his case, I have to tell him that there is no religious freedom here and he has to leave (this country).

“If we can’t get in the door and argue the substance of his claims, what remedy is left to him?

“I am begging here for a chance and for her to have a chance to be heard. Please she cannot lose like this, not even with a hint of leave,” he said.

For suits filed through judicial review applications, leave or permission must first be obtained from the court before the suit can be heard.

In March 2022, the woman applied for judicial review in the civil High Court, naming the four respondents as the Shariah Court of Appeal, the Shariah High Court, the Federal Territories Islamic Religious Council (MAIWP) and the Malaysian government.

Senior federal counsel Ahmad Hanir Hambaly argued that cases involving apostasy from Islam are clearly within the jurisdiction of the Shariah Court and decisions made within are not amenable to judicial review.

This, he said, is expressly provided under Article 121(1A) of the Federal Constitution where the provision deals with civil courts having no jurisdiction over shariah matters.

“The main contention of the appellant is that the civil court can judicially review the decisions of the shariah courts.

“If that is the case, I have to say this, then all decisions made in the shariah court will be subject to judicial review.

“This includes alimony cases between ex-spouses, child custody disputes and it will be discrimination against Muslims,” ​​he said.

After hearing submissions from the parties, the Court of Appeal fixed August 28 for the decision.

What happened in his case

“A’s” father converted to Islam to marry his mother, and “A’s” religious status is Muslim because he was born when both parents were Muslim.

He was raised by his Muslim mother after the couple separated, but “A” never practiced Islam because his parents did not practice it and his mother did not force Islam on him.

“A” did not have the opportunity to legally decide on his own faith as a child, and later began professing Confucianism and Buddhism as his religion, and in August 2018 filed an application at the Syariah High Court in Kuala Lumpur seeking declarations that he was never a Muslim or alternatively no longer a Muslim or an apostate and an order that he not be required to attend any counseling sessions related to Islam.

In the Syariah High Court, “A” said that he had not recited the Syahadah or the declaration of faith required to embrace Islam and that he did not believe in the teachings of Islam, insisting that he was registered as a Muslim due to the operation of the law through his birth to his Muslim parents and not because of his personal beliefs.

“A” also asserted that he claims Confucianism and Buddhism as his religion and that he has lived a Buddhist life for a long time and regularly attends Buddhist festivals, adding that he visits Buddhist temples every year for prayers and to prepare for reincarnation on the journey to attaining nirvana.

Insisting that he regularly eats pork and alcohol which are forbidden under Islam but not under Buddhism, “A” also told the Shariah High Court that he sought the declaration to renounce Islam in order to demonstrate his actual faith and to prevent the image of Islam from being tarnished by his actions as he did not intend to do so by pretending to be a Muslim.

But before hearing “A’s” application, the Syariah High Court in December 2018 ordered him to first attend 12 “belief” or faith counseling sessions about Islam during a six-month period from January to June 2019.

As “A” did not want to spend more time challenging counseling sessions before this trial, he took leave from his job abroad to travel to Malaysia to attend 12 sessions in January 2019, while his mother and her friend also testified in the Syariah High Court about “A’s” Buddhist faith.

The Syariah High Court on July 27, 2020 dismissed “A’s” bid to be declared a non-Muslim and ordered him to undergo “istibah” or repentance and types of Islam and more belief counseling

“A” appealed in August 2020 to the Syariah Court of Appeal in Kuala Lumpur, which on December 8, 2021 rejected his appeal.

He then filed this suit in the High Civil Court and then sought permission for a judicial review of the Syariah Court’s decision in March 2022.

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