[75] I shall begin in explaining the reasons for my decision as follows. [76] First, the appellant referred substantially to Rosliza and Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 to support her case. It should be explained these cases are different in one material aspect from the appellant’s case. These cases do not involve decisions already pronounced by the Syariah Courts as in our present case. This is significant as it involved two separate jurisdictions of the Syariah Courts and Civil Courts. [77] Rosliza decided that if one is never a Muslim in the first place then the challenge to establish the same should be heard before the Civil Courts. This is termed as an ab initio case. On the other hand, if someone is already a Muslim but wanted to leave that position, then only the Syariah Courts will have the jurisdiction to determine the case. This is called an apostacy case. [78] Indira Ghandi is not in substance about conversion of the children in that case as Muslim but about the legality of the administrative action taken by the Registrar of Muallaf in the exercise of his statutory powers. In Indra Ghandi too, the mother challenged the children conversion as she never consented to the same. There was no such challenge by the appellant’s father while he was alive against the appellant’s conversion in our case. [79] It is accepted by all parties that the appellant went to the Syariah Courts (both the Kuala Lumpur Syariah High Court and the Kuala Lumpur Syariah Court of Appeal) before going to the Civil Courts (HC and COA). At the Shariah Courts she pursued for a declaration she is no longer a Muslim. Also important is the fact that she went to the Syariah Courts at the age of twenty-seven. The significance of the Syariah High Court and its decision are relevant in several ways. [80] Utmost is the fact that the appellant agreed without restrain the Syariah High Court had the requisite jurisdiction to make the finding and come to a decision in respect of her challenge with regard to her status. She had willingly entrusted the Syariah Courts to determine the truth of her case. By filing her case at the Syariah High Court, she had conscientiously and with full capacity, considering her age at that time, accepted the jurisdiction of the same and submitted herself to that court. [81] Second, for this court to note what actually did the appellant request for at the Syariah High Court and what was the decision of the same. The grounds of judgment of the Syariah High Court is an exhibit in the appellant’s OS which we had the liberty to examine. However, it ought to be made clear, I am not attempting to review the decision of the Syariah High Court in any manner as I am fully aware I am not seised with the jurisdiction to do that. Having said that, I am also aware there are expressed views that say Syariah Courts are inferior courts, thus making it possible at least by deduction to review its decisions. I respectfully depart from those opinions as I would show in due course other case law authorities that do not find Syariah Courts as being inferior. [82] I would merely state what was requested by the appellant at the Syariah High Court and the decision of the same. This in turn would assist in understanding that decision having regard to the recognition of that court under our Federal Constitution. It could not be disputed and should always be acknowledged that the Syariah High Court is a competent court under our own Federal Constitution, the supreme law in the country. Its decision commands the greatest respect and should accordingly be binding against all parties rightly coming under its jurisdiction. In this regard, Article 74(2) of the Federal Constitution, reads as follows: Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List. [83] The State List mentioned above in turn provides that the States have the power to establish Syariah Courts which shall have jurisdiction over persons professing the religion of Islam on matters enumerated. [84] It is also crucial to note there is also no authority to say that when a Syariah Court has heard the case, considered the submissions made and pronounced its decision, a Civil Court can subsequently hear, consider and come to a decision different from a Syariah Court. The case could not be relitigated by the Civil Courts, in this instance by the HC and COA. The majority at the COA says the decision of a Syariah Court in the context of this case could not be unravel. In this regard Article 121(1A) of the Federal Constitution reads: The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. [85] Clause (1) above refers to Civil Courts. It should also be obvious the Syariah Courts have jurisdiction to determine the very issue brought by the appellant there i.e. she is no longer a Muslim. In addition, Rosliza pointed out the Syariah Courts have the jurisdiction for apostacy cases. The appellant’s case before the Syariah Courts was indeed also an apostacy case as the appellant wanted to be declared no longer a Muslim. [86] Reading Article 121(1A) above with the State List in the Ninth Schedule of Federal Constitution, the Syariah courts have jurisdiction over persons professing the religion of Islam in respect of any matters stipulated therein and include Islamic law and personal and family law of persons professing the religion of Islam. [87] In the Syariah High Court, as indicated earlier the appellant requested from that court a declaration that she was no longer a Muslim. [88] I also accept Indira Gandhi is quite explicit in explaining the jurisdiction of the Syariah Court vis-a-vis Article 121(1A) of the Federal Constitution when it approvingly quoted Andrew Harding. This is said as follows: [86] Thus the amendment inserting cl. (1A) in art. 121 does not oust the jurisdiction of the civil courts nor does it confer judicial power on the Syariah courts. More importantly, Parliament does not have the power to make any constitutional amendment to give such an effect; it would be invalid, if not downright repugnant, to the notion of judicial power inherent in the basic structure of the Constitution. The purport and effect of art. 121(1A) is eloquently explained by Harding (supra) as follows: The amendment does not purport to oust the jurisdiction of the High Court to review decisions of the Syariah Courts. It merely says, in effect, that the ordinary courts cannot exercise the Syariah Court's jurisdiction, a position which it should be noted, applies to any inferior jurisdiction; it is indeed a cardinal principle of judicial review that the court cannot substitute its decision for that of the inferior jurisdiction whose decision is reviewed. It does not therefore seem possible that the Syariah Courts, by this small amendment, have been converted into a totally separate legal system... As things stand the civil courts exercise the power of judicial review and this is of course part of the judicial power. Nothing in clause 1A attempts to interfere with this proposition... For these reasons it seems that clause 1A was enacted for the avoidance of doubt. It seeks to ensure that decisions made within jurisdiction by the Syariah Courts are not reversed by the civil courts. The qualification 'made within jurisdiction' is important; the ordinary courts can still decide whether a given decision is within jurisdiction, just as they can with any inferior court. In this sense the primacy of the civil courts has not been disturbed. (emphasis added) [Emphasis added] [89] The words in bold are important. First, in the context of the operation of Article 121(1A) of the Federal Constitution and following Indira Gandhi as above, as pointed out, Civil Courts could not exercise a Syariah Court’s jurisdiction. In the context of our case, Civil Courts could not exercise jurisdiction of the Syariah Courts for apostacy cases as the same is already ruled by Rosliza to be within the purview of the Syariah Court’s jurisdiction. As explained, in our present case, at the Syariah High Court the appellant requested a declaration she is no longer a Muslim. This is therefore an apostacy case. [90] Second, the words in bold indicate, a Civil Court could not substitute its own decision in replacement of a Syariah Court’s decision. In our case the Syariah High Court had decided the appellant is still a Muslim and confirmed by the Syariah Court of Appeal. What the HC in turn did was in effect a reversal of the Syariah Courts’ decisions. The HC as mentioned reversed that decision of the Syariah Courts by granting the declaration the appellant is not a person professing the religion of Islam. Indeed, the HC had substituted the Syariah High Court’s decision with its own decision. [91] Third, the words in bold above indicate that clause 1A of Article 121 of the Federal Constitution was enacted for the avoidance of doubt. As stated, it seeks to ensure that decisions made within jurisdiction by the Syariah Courts are not reversed by the Civil Courts. [92] Thus, the HC erred not only when in effect it had reversed the Syariah Courts’ decisions, both Syariah High Court and Syariah Court of Appeal, with respect it also erred when it assumed the jurisdiction of the Syariah Courts. [93] It is also relevant to note that the appellant in her pleadings at the Syariah High Court did not at all raise the issue that her conversion to Islam was invalid. In fact, in paragraph 11 of statement of claim, she stated that she became a Muslim even though she was allowed by her mother to practise the Hindu religion and had visited her father’s family who were Hindus. In paragraph 19.1 of the same, she clearly requested a declaration she was no longer a Muslim, not that she was never a Muslim. [94] By that request for such declaration, it should be obvious she accepted that she is a Muslim, the very least until the time that declaration is granted, if it is ever allowed. By her own stance too, it proves that she acknowledged that she is a Muslim, only wanting to be declared she is no longer the same, subsequent to being one. It is material to note this because it will be explained in due course that this is actually related to the issue of jurisdiction - whether the Syariah Courts or the Civil Courts have the jurisdiction to grant or deny such declaration. [95] The HC found that the appellant in the OS asserted that she did not profess the religion of Islam. Meaning the OS filed at the HC involved the issue whether she was never a Muslim from the very beginning and not a case where she had in one point in time became a Muslim and now wants to leave the religion i.e. apostacy case. In this regard this was what was stated by the HC: The mere fact that she had practised fasting, praying, or had attended religious classes in school, or had attended Islam religious ceremonials while staying with her Muslim-convert mother and step-father, those experiences or exposures to the Islam religion could not equate to the plaintiff having professed and practised the religion of Islam. [96] First, asserting is one thing but the truth is another. One may assert but the assertion might not be true. In the context of the present case, that assertion needs to be evaluated against the findings already made by the Syariah Courts. After all, the appellant sought the Syariah Courts first, as arbitrator to decide the merits of her case and in the course to also determine the truth of all the assertions supporting her case. [97] More important than this is what was stated in Rosliza and this I consider is one of the salient directions given in that case by the Federal Court which is binding on the HC. Rosliza found: [108] ……Whether it is an ab initio case or a renunciation case will require a careful examination of the factual matrix of the case. [98] With respect, the HC erred in not fully grasping the effect of the above stated requirement in Rosliza as the HC basically took the assertion of the appellant that she did not profess the religion of Islam. This is done without really scrutinising the whole facts of the case. The HC erred in not appreciating the declaration requested by the appellant at the Syariah High Court that she is no longer a Muslim well ahead before going to the Civil Courts. There is also no real appreciation as to the reasons why the Syariah Courts found the appellant is still a Muslim. The grounds of judgment of the HC also does not indicate that the HC had addressed the competency of the Syariah Courts in giving its decisions and the recognition of the same in our Federal Constitution. [99] The above finding by the HC is also in direct contrast to what was found by the Syariah Courts. Her experiences and exposures as noted by the HC above, were instead found by the Syariah Courts as evidence she accepted the faith and practice of Islam, indicating she is still a Muslim as opposed to the declaration she requested at the Syariah High Court that she no longer holds that faith. It is not without significance this was decided by the Syariah High Court after full trial with witnesses called. [100] Again, I should not determine the correctness of the reasons for the Syariah Courts in arriving at the conclusion she is still a Muslim. How the merits of the case were assessed and evaluated and how the Syariah Courts decided the case is entirely in the hands of that courts. In this regard, in view of the recognition of the Syariah Courts in our Federal Constitution, how the judges at the Syariah Courts came to their conclusions is entirely their prerogative having regard to different jurisprudence between Islamic law and Civil law in the administration and systems of the two courts. After all, as decided by the Supreme Court in Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 whether a person had renounced Islam as the religion before his death was to be decided by the Syariah Court. In other words, this case apart from Rosliza had decided for apostacy cases, the jurisdiction lies in the Syariah Court. [101] It should always be appreciated that the Syariah Courts had denied the appellant the declaration she is no longer a Muslim well before the HC pronounced and gave the declaration that she is not a person professing the religion of Islam. [102] The HC also found that the OS filed by the appellant did not infringe on the principle of res judicata as what were decided at the Syariah Courts (both the Syariah High Court and Syariah Court of Appeal) had been nullified by Rosliza as the Syariah Courts could not decide on what is referred to as “ab initio” cases. What this amounts to fundamentally as seen from that finding of the HC is that it would not matter that the Syariah Courts had decided the case first. The Civil Courts could always come subsequently to override or nullify that decisions by the Syariah Courts. Although there can be no doubt that the Federal Court case of Rosliza is an important decision, with respect, I could not agree that simply with the advent of Rosliza, that decisions of the Syariah Courts could be nullified (the word used by the HC), overturned or just in any manner not having effect, considering the factual matrix of this case. [103] First, my reason for saying this is that decisions of the Syariah Courts must be recognised and respected consistent with our own Federal Constitution that do recognise the hierarchy, role and function of the Syariah Courts. In fact, the Civil Courts have long acknowledged this. This is illustrated by the cases decided by the former Federal Court Justice Mohd Zawawi Salleh and former Chief Justice of Malaysia Abdul Hamid Mohamed when they were at the Court of Appeal. The first case is Syarifah Nooraffyzza Wan Hosen v Director of Jabatan Agama Islam Sarawak & Ors [2018] 3 CLJ 620 where it is said: [25] We are of the view that Syariah courts and civil courts form two separate legal system. We agree with the view expressed by Salbiah Ahmed in her article entitled: "Islam in Malaysia: Constitutional and Human Rights Perspectives ", Muslim World Journal of Human Rights 2, No. 1 (2005), when she asserts that: State Syariah Courts are not Courts inferior to the Federal Courts as the term "inferior court" is understood in terms of appeal and judicial review by superior courts over inferior courts. The State Syariah Courts are in a separate hierarchy to that of the federal civil courts. There is no right of appeal from the State Syariah courts to the federal civil courts. There is no power of judicial review by the federal high court over the State Syariah Courts. [104] The second case is Kamariah Ali lwn. Kerajaan Negeri Kelantan, Malaysia Dan Satu Lagi Dan Rayuan Yang Lain [2002] 3 CLJ 766 where it is explained as follows: ... bukanlah dalam bidang kuasa Mahkamah ini untuk mengkaji semula keputusan-keputusan mahkamah syariah yang terletak dalam sistem berlainan itu. Mahkamah ini mesti menerima Mahkamah Tinggi Syariah itu telahpun membuat keputusan fakta itu, mengikut hukum syarak dan mahkamah ini tidak berkuasa campur tangan dalam keputusan itu dan menggubahnya, membatalkannya, mengisytiharkan ia tidak sah atau tidak menghiraukan dan membebaskan perayu-perayu.... [105] Although this case was appealed to the Federal Court, the same had affirmed the decision of the Court of Appeal. (Federal Court – [2004] 3 CLJ 409). [106] Further, another Federal Court case to note with regard to the standing of the Syariah Courts is the case of Subashini Rajasingam v. Saravanan Thangathoray [2007] 7 CLJ 584 where the following is said: [23] Both civil and Syariah courts are creatures of statutes such as the FC, the Acts of Parliament and the State Enactments. These two courts are administered separately and they are independent of each other. Although the Syariah courts are state courts they are not lower in status than the civil courts. I would say, they are of equal standing under the FC. This recognition of the Syariah courts was largely due to Art. 121(1A) of the FC which excludes the jurisdiction of the civil courts on any matter within the jurisdiction of the Syariah courts. [Emphasis Added] [107] In the present case before us, it could not be disputed that the Syariah Courts pronounced its decisions well before the HC, not to mention the COA. And the Syariah Courts had the jurisdiction to determine the matter in view of Rosliza as this is an apostacy case. It must be an apostacy case as the appellant requested a declaration she is no longer a Muslim at the Syariah Courts. [108] Second, the Syariah Courts decided that the appellant is still a Muslim before she filed her OS at the HC that granted the declaration that she is not a person professing the religion of Islam. And in this regard, was the HC in a position to grant the declaration? I have explained earlier the position of the HC and the Syariah Courts in relation to their respective jurisdictions and how the former should not encroach on the turf of the latter, so to speak. But there is another added reason why I am of the view the HC should not or not in a position to grant the declaration. And this relates to the different facts in Indira Gandhi which is relied by the appellant herself. Indira Gandhi could not be much assistance to the appellant. First because Indira Gandhi does not involve decisions already pronounced by the Syariah Courts, both at the trial stage and the appellate level. Equally important is that the subject matter of judicial review is the issuance of certificates of conversions by the Registrar of Muallafs under the Administration of the Religion of Islam (Perak). In Indira Gandhi the wife received certificates of conversion showing that the Registrar of Muallaf (‘the registrar’) had registered the children as Muslims. The wife then filed an application for judicial review challenging the decision of the registrar on the grounds that the registrar had acted in breach of the procedure set out in ss 96 and 106 of the Administration of the Religion of Islam (Perak) Enactment 2004 (‘the Perak Enactment’) and that the certificates issues were void. The wife sought, inter alia, an order of certiorari to quash the certificates and alternatively a declaration that the certificates were null and void. Thus, the crux of the matter in Indira Gandhi, concerns application for judicial review and for an order of certiorari against the issuance of the certificates. It is stated in Indira Gandhi, the issue in it concerned the validity of the certificates of conversion issued by the registrar in respect of the children’s conversion to Islam. In Indira Gandhi it was not disputed that the Registrar of Muallafs was exercising a statutory function as a public authority under the Perak Enactment in issuing the said certificates. The jurisdiction to review the actions of public authorities, and the interpretation of the relevant state or federal legislation as well as the Federal Constitution, would according to Indra Gandhi lie squarely within the jurisdiction of the Civil Courts. Indira Gandhi found this jurisdiction could not be excluded from the civil courts and conferred upon the Syariah Courts by virtue of art 121(1A) of the FC. Thus, that is how Art 121(1A) of the Federal Constitution in Indira Gandhi found the jurisdiction of the Civil Courts. It certainly could not be applicable in our case. [109] In fact, in Indira Gandhi it is stated that the determination of the appeals in that case did not involve the interpretation of any Islamic personal law or principles. This is different with the decisions of the Syariah Courts in our case. In our case the Syariah Courts had used Islamic law (Hukum Syarak) and Islamic principles to determine she is still a Muslim. Under that circumstance, I certainly could not ignore this fact as the appellant herself as alluded to the reasons of that courts in her affidavit. Besides, by alluding to the same, there could not be a dispute that the Syariah Courts deliberated and made its findings before pronouncing its decisions. [110] To add to the above, the ensuing is also relevant. This would also show the marked difference between Indira Gandhi and our case. It is stated in Indira Gandhi that the subject matter of the wife’s application was not concerned with the status of her children as Muslim converts or with the questions of Islamic personal law and practice but rather with the more basic questions of the legality and constitutionality of administrative action taken by the Registrar in the exercise of his statutory powers. In Indira Gandhi it was found this is the pith of the question at hand and it was also clear that clause (1A) of Article 121 of Federal Constitution did not prevent civil courts from continuing to exercise jurisdiction in determining matters under federal law, notwithstanding the conversion of a party to Islam. [111] This is of course different from our present case where the appellant requested a declaration from the Syariah Courts she is no longer a Muslim and as pointed out, this is the jurisdiction of the Syariah Courts. [112] Further, in fact, in Indira Gandhi, the Federal Court mentioned and acknowledged the relevant provision in that case conferred jurisdiction to the Syariah Courts to issue a declaration that a person is “no longer a Muslim”, a matter directly in point with our present case. The Federal Court went further to state that in cases such as this where a declaration is requested that a person is no longer a Muslim, this is where a person renounced his Islamic faith and hence the Syariah Courts have jurisdiction. This is also directly in point with our present case as the Syariah Courts should have the jurisdiction to decide on renunciation case as I had explained earlier. After all, this has also been decided by Rosliza. To reinforced the point, Indira Gandhi also clearly explained that because of marked differences in the establishment and constitution of the Civil and Syariah Courts, the two courts operate on a different footing altogether. [113] Thus, there can be no cogent argument that the Syariah Courts without justification applied Islamic principles involving “hukum syarak” in advance of the Civil Courts in deciding the matter. [114] Third, she went to the Syariah Courts first before coming to the HC and as explained she acknowledged her Muslim status at the Syariah Courts, only wanting to be declared no longer a Muslim after becoming one. After all, that was precisely the declaration she requested at the Syariah High Court. [115] I should also state, with respect, I could not agree that solely because Rosliza is now decided as it is, it would then be reason enough to displace the decisions of the two Syariah Courts in this case. However, I should make it clear that I am not at all suggesting that the principles established by Rosliza do not apply. Apart from other declarations requested in Rosliza which are not in point with our case, Rosliza also involved a prayer which is similar to the case before us i.e. a declaration that a person is not professing the religion of Islam. In fact, I am saying that Rosliza is also applicable here in our case as this is a renunciation case (apostacy case) looking at the factual matrix of the present case. Thus, the Syariah Courts have the jurisdiction to determine on the issue whether she is still a Muslim or not. [116] Was there an attempt by the appellant to escape the clutch of jurisdiction of the Syariah Courts when she argued her case before us? There was. She said when she went to the Shariah Courts, Rosliza had not been decided. She submitted there was no decision then for apostacy case one needs to go to the Syariah Court and for ab initio case one can seek the Civil Court. Had she known that, she would have gone to the Civil Court. With the greatest respect, I find this submission a bit feeble. [117] This is because of the answer that can be given to the following question. What was her case in the Syariah Courts before she approached the Civil Courts? Her case in the Syariah Courts was that she was no longer a Muslim. That was precisely the declaration she requested there. Her case was that she was a Muslim before but should now be declared no longer a Muslim. That is now better known as apostacy case and as pointed out by Rosliza, that is under the jurisdiction of the Syariah Courts. [118] Further, crucially at the Syariah High Court the appellant also did not ask for a declaration she was never a Muslim or she is not a person professing the religion of Islam. And she could have done so because as she herself submitted, Rosliza had not been decided when she went to the Syariah Courts. Meaning she was not in a position then to know that for apostacy case the filing should be at the Syariah Court and for ab initio case it should be at the Civil Court. However, despite not knowing, she did not apply at the Syariah Courts for a declaration she was never a Muslim or she is not a person professing the religion of Islam. [119] And what did the Syariah Courts decide? The Syariah Courts decided she was still a Muslim. Can the Syariah Courts decide so? Yes, it can as the Shariah Courts are competent courts under our own Federal Constitution and it gave its reasons as explained earlier in this judgment. [120] It must also be stressed, she was not acting alone either in the Syariah Courts or the Civil Courts. She was ably assisted by counsels at all courts and levels who must be presumed to know what they were doing. [121] I am of the view and I agree with the majority at the COA that the issue on jurisdiction alone without further elaboration on other issues would mean the appeals by the appellant before us must be dismissed. [122] However, for completeness other issues raised by the appellant would be addressed in this judgment. First is the issue of the certificate of conversion being invalid according to the appellant. This is so as the certificate was issued pursuant to the 1989 Enactment but this written law which concerned conversion to Islam in Part VIII only came into force on 1 September 1991 (via Sel. P.U. 58/1991). This was plainly a date which was subsequent to the conversion date of the appellant on 17 May 1991. The applicable law governing conversion at the material time was in fact the 1952 Enactment, referred to earlier and s. 146 stipulates as follows: No person shall be converted to the Muslim religion otherwise than in accordance with the provisions of this enactment or any rules made thereunder. [123] S. 147 of the 1952 Enactment in turn reads as follows: No person who has not attained the age of puberty shall be converted to the Muslim religion. [124] Looking and confining oneself to the provisions of the written law shown above, as the certificate was issued pursuant to a written law which has not come into force at the date of conversion, that certificate could not be valid and as the relevant written law applicable then prohibits the conversion of a person not attaining the age of puberty, the conversion of the appellant when she was below five also could not be upheld. On both accounts, the appellant’s conversion when she was less than five seems untenable. [125] However, I am of the view as required by Rosliza and explained earlier, there is a need for a careful examination of the factual matrix of the case. First, a careful examination of the matrix of the case would mean noting the life of the appellant at least from the age of puberty until she was twenty-seven when she went to the Syariah High Court and what the same court decided on her religious status. As stated she was found to be still a Muslim for several reasons as follows. [126] The Syariah High Court decided that the appellant is a Muslim as earlier stated, not only because of her conversion but by referring and applying s. 2 of the Administration of Islamic Law (Federal Territories) Act 1993 that includes the facts the appellant’s upbringing was conducted on the basis that she was a Muslim (as stipulated in limb (c) of that provision) and she is a person who is commonly reputed to be a Muslim (as stipulated in limb (e) of the same provision). (Please see the whole provision as narrated earlier). [127] Thus, that certificate of conversion and the fact she converted to Islam before the age of puberty were not matters that should be taken in isolation, devoid of appreciation of her life in general and her upbringing in particular, including the time she attained puberty. That provision of the written law of Administration of Islamic Law (Federal Territories) Act 1993 as stated above goes beyond the issue of the certificate of conversion and the issue of attaining the age of puberty. Thus, this renders the appellant’s argument that the definition of a “Muslim” in that statutory provision could not apply to a non-Muslim person who did not validly convert into Islam otiose. In any event the appellant could not be said to be a non-Muslim person as her own declaration she requested at the Syariah High Court proves otherwise and the determination had been made she is still a Muslim. [128] The Syariah High Court also acknowledged she converted to Islam because of her mother but nonetheless found that the process of her conversion was not irregular. [129] Further, she then had been raised by her mother who converted to Islam and her Muslim step-father until she was seventeen. The court also considered that her mother’s affidavit in the proceedings before the Syariah High Court acknowledged the appellant herself knew she was a Muslim in primary school as the appellant’s teacher had asked the appellant to take the subject “Pendidikan Islam”. Besides the appellant testified at the Syariah High Court that all the while she was raised by her mother and step-father, she had performed Islamic practises including fasting, Islamic way of prayers, attending Islamic classes and programmes including “kenduri”. [130] The Syariah High Court also noted that the appellant said she did not practise Islam but Hinduism until seventeen while staying with her mother and step-father. This is because her mother had given her the freedom to choose her own religion. However, the Syariah Court High Court could not find evidence that she was practising Hinduism while growing-up with them. Her mother even said she never knew when exactly the appellant became a Hindu. In fact, the appellant’s paternal cousin who became her witness said he did not know the appellant’s life (kehidupan) while staying with her mother. He even said he knew the appellant wanted to leave Islam and embrace Hinduism only in 2012 i.e. a year before her case was filed at the Syariah High Court. [131] The Syariah High Court also found that the appellant had the foundational knowledge as a Muslim. She not only could recite the “Kalimah Syahadah” but could explain the meaning of the same. She still understood the teachings of the religion well. [132] The Syariah High Court further found the declaration she sought could not be granted because whether she practise the Islamic way of life or not is not determinative of one’s Islamic status or faith. Not practising the same does not nullified one’s faith for the religion of Islam (Syahadah). More so when she was converted by her own biological mother and had learned Islam at school although not fully practising its teachings. [133] In turn, the Syariah Court of Appeal as indicated earlier, found the appellant’s lifestyle and practice are more on sins and rewards considered under the faith (dosa dan pahala). Even the most serious sins cannot equate to not being a Muslim as long as it does not affect one’s core belief – creed (aqidah). [134] All these are proof that the status of someone being considered a Muslim goes beyond the certificate of conversion and the issue of attaining the age of puberty before conversion. What had happened after attaining puberty, looking and considering the life of that person is also a factor to determine the status of that person (in this case the appellant) as a Muslim. And there can be no dispute (in fact, there is none in this case) that the Syariah High Court and the Syariah Court of Appeal considered these based on the application of Islamic law, a different jurisprudence which I have already stated that I am in no position to review. [135] The appellant also argued the finding of the Syariah Court is also a dangerous proposition that strikes at the heart of Article 11(1) of the Federal Constitution, in respect of freedom of religion. In short, a non-Muslim person can at anytime be legally regarded as a Muslim without her consent. [136] First, when the appellant went to the Syariah High Court, she admitted she was a Muslim. That is proven by the declaration she requested – to be declared no longer a Muslim. Therefore, at the outset there is no issue she was a non-Muslim solely regarded as a Muslim. [137] Second, there is also no issue she was denied her freedom of religion. She chose Islam as seen by her declaration and as found by the Syariah Court, she is still a Muslim. Third, with respect, the above submission of the appellant trivialises the role, function and duty of the Syariah Courts. The Syariah Courts can indeed determine her status as a Muslim and has already done so. [138] Further, the appellant submitted the majority of the COA ignored Article 12(4), of the Federal Constitution and ss 5 and 11 of the Guardianship of Infants Act 1961, which requires the consent of both parents for the conversion of a minor. This is said by the appellant has been settled by the Federal Court in Indira Gandhi. [139] That may be true in the case of a conversion per se of a minor, pure and simple. But again, as required by Rosliza, the whole factual matrix of this case needs scrutiny. And as pointed out earlier, the issue of conversion alone without appreciating and ignoring her own requested declaration at the Syariah Courts to be declared no longer a Muslim, her upbringing as a Muslim as found by the Syariah High Court and her lifestyles determined by that court indicating she is still a Muslim must all be taken holistically to say this is an apostacy case where the jurisdiction of the Syariah Court is to be invoked as propounded by Rosliza. Further, Indira Gandhi which was cited by the appellant above, as pointed out earlier, differs fundamentally with our present case as Indira Gandhi does not involve a determination already made by two Syariah Courts – Syariah High Court and Syariah Court of Appeal. [140] Should the deliberations and decisions of the Syariah Courts be ignored or set aside, especially considering the declaration requested by the appellant herself – she is no longer a Muslim? In the minds of the Syariah Courts even when the case was filed by the appellant at the ripe-age of twenty-seven, she is a Muslim as seen from the declaration she requested. The Syariah Courts, having heard the case, as explained, were quite elaborate in the grounds given why she was considered still a Muslim. And I am reminded of Rosliza that dictates in a case of apostacy or renunciation of Islam, the matter should be decided by the Syariah Courts. [141] Further, the appellant submitted that the definition of “Muslim” in s. 2 of the Administration of Islamic Law (Federal Territories) Act 1993 must be read in a manner consistent with the Federal Constitution, in particular paragraph 1, List II (State List), Ninth Schedule, which limits the power of the State Legislatures to make Islamic laws only over persons professing the religion of Islam. [142] On this submission, I have already explained, the appellant is found to be still a Muslim by the Syariah Courts. This is found with reasons, as highlighted by the Syariah Courts, no less by the assertion of the appellant herself who wanted a declaration she is no longer a Muslim. Therefore, in relation to the appellant, the definition of “Muslim” in s. 2 of the Administration of Islamic Law (Federal Territories) Act 1993 is indeed consistent with the Federal Constitution, in particular paragraph 1, List II (State List), Ninth Schedule, which limits the power of the State Legislatures to make Islamic laws only over persons professing the religion of Islam. [143] The appellant also referred to the cases Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 CLJ 253, Azmi bin Mohamad Azam @ Roneey v Director of Jabatan Agama Islam Sarawak & Ors [2016] 6 CLJ 562 and Re Mohamed Said Nabi, deceased [1965] 1 MLJ 121 in support of her appeals before us. It should never be forgotten that in all these cases there is one big difference with our present case. These cases do no involve Syariah Courts declaring a person still a Muslim after deliberation and considering the whole facts of the case as seen in the present case before us. [144] The appellant further submitted that limbs (c) and (e) of s. 2 of the Administration of Islamic Law (Federal Territories) Act 1993 as adopted by the Syariah High Court could not apply to a non-Muslim as non-Muslim can only be legally regarded as a Muslim if the said person validly converts into Islam. Again, this submission ignores the fact that the appellant admitted she was a Muslim by the declaration she requested at the Syariah Courts. This submission also side-stepped the fact that the Syariah Courts gave elaborate reasons why she must be considered still a Muslim. The appellant with respect also read more words than required in that statutory provision. The provision simply states who is a Muslim without mentioning anything about conversion when it comes to limbs (c) and (e) (Please see the whole provision as narrated earlier). And as explained earlier, when the Syariah High Court decided the case, conversion was only part of the considerations. Also deliberated were the statutory provision above, the declaration she requested and the upbringing and lifestyles of the appellant for so many years after she gained puberty. In this regard it should be recalled what Tengku Maimun Tuan Mat CJ said in Rosliza as follows: It is only in renunciation cases where one already professes or proclaims to profess the religion of Islam (irrespective of whether they actually practise the faith) with the subsequent decision to change what they profess, that the matter is removed to the jurisdiction of the Syariah Court. [Emphasis Added] [145] The appellant also in referring to Indira Gandhi submitted that despite the appellant initiating proceeding at the Syariah Courts, jurisdiction could not be conferred by agreement if none exists in the first place. Essentially this submission means the appellant admitted she went to the Syariah Courts but it does not matter that the Syariah Courts heard, deliberated and decided her case as that courts should not have done all that because it has no jurisdiction for ab initio cases. First, this is not an ab initio case because the appellant admitted she was a Muslim by the declaration she requested at the Syariah Courts. Second, the Syariah Courts went through the facts of her case and evaluated the evidence of witnesses to conclude she is still a Muslim. As a consequence, this is not an ab initio case but a renunciation or apostacy case following Rosliza. Therefore, the Syariah Courts had the jurisdiction to decide. The Syariah Courts, both Syariah High Court and Syariah Court of Appeal did not enlarge its jurisdiction to hear, deliberate and decide the case of the appellant. The Syariah Courts also did not act beyond limited jurisdiction as the appellant requested a declaration “she is no longer a Muslim”. That certainly is an apostacy case and not an ab initio case, thus providing jurisdiction for the Syariah Courts. [146] The appellant also submitted that the Syariah High Court’s decision can be attacked in collateral proceeding as it was rendered without jurisdiction. The appellant referred to Eu Finance Berhad v Lim Yoke Foo [1982] 2 MLJ 37, where Abdoolcader J said: The general rule is that where an order is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order can be successfully attacked in collateral proceedings; it can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon — in other words, it is subject to collateral attack. In collateral proceedings the court may declare an act that purports to bind to be non-existent. [147] Regarding the above, I have already explained why the decisions of the Syariah Courts could not be considered a nullity. They were made within jurisdiction. Hence, I respectfully do not think the above case could be much of assistance to the appellant. [148] Further, in support of her case, the appellant submitted that the Syariah Courts are akin to inferior tribunals and cannot be compared with the Civil courts and she referred to the following words of Indira Gandhi: As has been illustrated, civil and syariah courts are distinct in nature and status: the former are established under the Federal Constitution and vested with inherent judicial powers; whereas the latter are creatures of state legislation under the State List, and akin to inferior tribunals.” [149] On the above submission, I have already expressed my view earlier that I disagree that Syariah Courts are inferior courts and I have already referred to case law authorities supporting my view. Both Syariah Courts and Civil Courts are recognised under our Federal Constitution. After all, each state in the country make up the Federation and stand tall in the formation of Malaysia. Their institutions should not come secondary to the ones established under the central administration. [150] I find that the thrust of all of the submissions of the appellant is premised on the alleged fact she is not a Muslim to begin with. I accept her submissions carry cogent weight if she is indeed a non-Muslim. But glaring as it is, her own request for a specific declaration in the court she freely sought i.e. Syariah High Court, without doubt states she wanted to be declared no longer a Muslim. That clearly showed she was a Muslim and the Syariah High Court decided she is still a Muslim. She believed justice lies in the hands of the Syariah Courts but having received its decisions she became unhappy and unable to accept the same and sought another avenue with the hope she will get what she wants. [151] Therefore, based on all the explanations I have given I would decline to answer questions 1, 2 and 3 as those questions did not consider the whole decisions made by the Syariah Courts including when the declaration was given, the issue of conversion was taken only as part of the determination the appellant was still a Muslim. [152] With regard to question 4, I have explained that the order of the Syariah Court is not a nullity. Hence, that question with respect is irrelevant. [153] With regard to question 5, I would answer that in the negative having regard to the different and distinct jurisdictions of the Syariah Courts and Civil Courts. [154] There is no necessity to answer question 6, in view of the explanation I have made with regard to the exclusive jurisdiction of the Syariah Courts under the circumstances of this case. [155] In conclusion, I would say that this is clearly an apostacy or renunciation case where the Syariah Courts have jurisdiction to determine as required by Rosliza. It would indeed be inappropriate, unjust to the system of judicial administration and power of the Syariah Courts and wholly unjustified for the same to be supplanted of its jurisdiction and for the jurisdiction instead to be conferred on the Civil Courts, considering the facts and law that should be applicable in this case. [156] Further, in this case the Syariah Courts had pronounced its decisions after being asked to do so none other by the appellant. It must also not be too difficult to appreciate that Syariah Courts operate under different jurisprudence. What may be not acceptable commonly in the Civil Courts jurisprudence could not be imposed on Islamic Law jurisprudence involving “hukum syarak” and vice versa. After all, as pointed out, our own Federal Constitution do recognise Islamic jurisprudence through the role, function and operation of the Syariah Courts. [157] Therefore, based on all the reasons given, I would respectfully dismiss the appeals and affirm the majority decision of the COA but as this is considered a public interest case, I shall make no order as to costs. Dated: 3 May 2024 - Sgd - (ABU BAKAR BIN JAIS) Judge Federal Court of Malaysia Parties appearing: For the Appellants: