Ketua Pegawai Penguatkuasa Agama & 4 Lagi v Maqsood Ahmad & 38 Lagi (B-01(A)-468-07/2018 dan B-01(A)-513-08/2018)

Content

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: B-01(A)-468-07/2018

Subsection

(1) No person shall, without the permission in writing of the Majlis, erect any building to be used or use or cause to be used any building for purposes which may only be carried on in or by a mosque.

Subsection

(2) Any person who contravene [sic] the provisions of subsection (1) shall be guilty of an offence and shall on conviction be liable to fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding one year or to both.” [12] A plain reading of the provision suggests that Muslims are prohibited, without prior written approval, from erecting buildings with the aim of using them or causing them to be used for religious activities. A contravention of the above provision attracts penal sanctions. [13] Upon the raid, the following events happened:

Subparagraph

(ii) All 39 Respondents (36 of whom are adults and the other 3, minors) were present at the Premises and were arrested, detained and informed of the possibility of prosecution in the Syariah Court; and

Subparagraph

(iii) The 1st Appellant issued the Respondents with Letters of Agreement and Bond (‘Bond’) compelling them to appear before the Syariah court to answer to the charges against them. Note: Not every Respondent is a Malaysian citizen. Some of them are overseas nationals living in Malaysia as UNHCR refugees. The respective nationality and religious statuses of the Respondents will be addressed in the appropriate portion of this judgment. [14] The Appellants informed the Respondents that the raid was conducted in suspected violation of section 97 of the ARIE 2003. The Respondents countered by arguing that they were members of the Ahmadiyya and the Premises were being used for the purposes of their worship. The MAIS responded by issuing the Respondents with the Bond. [15] On 10.7.2014, The Respondents filed an application for judicial review before the High Court of Malaya at Kuala Lumpur in respect of the 12 issuance of the Letters of Agreement and Bond to each of them. On 14.8.2014, leave to apply for judicial review was granted by the High Court at Kuala Lumpur. On 19.5.2015 however, the proceedings were transferred to the High Court of Malaya at Shah Alam. [16] On 29.9.2017, the High Court had transmitted two Constitutional Questions to the Federal Court by way of a special case under section 84 of the Courts of Judicature Act 1964 (‘CJA’). However, on 26.3.2018, the Federal Court remitted the said constitutional reference to the High Court on the view that the High Court was seized of the jurisdiction to determine and dispose them. This the High Court did thereby giving rise to the learned Judge’s Judgment. PROCEEDINGS BEFORE THE HIGH COURT Application for Judicial Review [17] Principally, the two questions (‘Questions’) framed for determination in the application for judicial review are as follows: “Question 1 13 In light of Item 9 (read together with the sub-matter “mosques or any Islamic public places of worship” in Item 1) of the State List in the Federal Constitution and section 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965, whether the Syariah courts in the State of Selangor do not have jurisdiction in respect of the offence in section 97(2) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003. Question 2 If the above question is answered in the negative: in light of ‘Fatwa Tentang Ajaran Ahmadiah/Qadiani’ gazetted as Jil. 51, No. 20, Sel. P.U. 15 on 24-9-1998, ‘Pindaan Fatwa Tentang Ajaran Ahmadiah/Qadiani’ gazetted as Jil. 53, No. 17, Sel. P.U. 36 on 17-8-2000 and Article 11 (read together with item 1 of the State List) of the Federal Constitution, whether the Syariah courts in the State of Selangor do not have jurisdiction over the members of the Ahmadiyya Muslim Jama’at religious group (translated in English as the ‘Ahmadiyya Muslim Community’) including the Applicants).” [18] The Respondents’ application for judicial review sought the following prayers for relief: 14 “(a) A Declaration that pursuant to section 49 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 read together with the Ruling under section 41 of the Administration of Muslim Law Enactment for the State of Selangor dated 11.4.1997 [JPM (U) W.P. 0172/6/1; PN. (PU2) 197] gazetted as P.U. (B) 279 and ‘Fatwa tentang ajaran Ahmadiah/Qadiani di bawah Enakmen Pentadbiran Perundangan Islam 1989’ dated 22.6.1998 [JAI. Sel 8069/2: PU. Sel AGM/0007. Jld 2] gazetted as Sel. P.U. 15 on 24.9.1998 (Vol. 51, No. 2, Addition No. 6), the Appellants have no jurisdiction to investigate and/or to prosecute the Respondents or each of them.

Preamble

In exercise of the powers conferred by section 31(1) and section 32 of the Administration of Islamic Law Enactment 1989 the Mufti for the State of Selangor, after discussions with the Islamic Legal Consultative Committee, confirms and adopts the result of 1975 Law Committee as specified in the Schedule. JADUAL/SCHEDULE

Subparagraph

(ii) Imam Mahadi.

Subparagraph

(iii) Isa Al Masih.

Subparagraph

(iv) Mempunyai mukjizat.

Subparagraph

(vi) Malaikat sebagai pancaindera tuhan.

Subparagraph

(vii) Nabi Isa A.S. telah mati dan kuburnya di Srinagar.

Preamble

In exercise of the powers conferred by subsection 31(1), and section 32 of the Administration of Islamic Law Enactment 1989, the Mufti for the State of Selangor, after discussions with the Islamic Legal Consultative Committee, amends the fatwa published on 24 th of September 1988 by inserting after paragraph 2 in the Schedule the following paragraph; JADUAL/SCHEDULE “2A. Memandangkan mana-mana orang yang telah menganuti ajaran Qadiani telah menjadi murtad (keluar dari Agama Islam), akibatnya dari segi Hukum syara’ dan Undang-Undang Sivil ialah-

Subsection

(1) Upon its publication in the Gazette, a fatwa shall be binding on every Muslim in the State of Selangor as a dictate of his religion and it shall be his religious duty to abide by and uphold the fatwa, unless he is permitted by Hukum Syarak to depart from the fatwa in matters of personal observance.

Subsection

(2) A fatwa shall be recognised by all courts in the State of Selangor of all matters laid down therein.” [27] There is no dispute that the 1998 and 2000 Fatwas have been gazetted. As such, there can be no question that they have the force of law under the auspices of section 49 of the ARIE 2003. In this respect, 24 the decision of this Court in A Child & Ors v Jabatan Pendaftaran Negara & Ors [2017] 4 MLJ 440 is distinguishable. [28] In that case, this Court held that a fatwa is not binding in law until and unless it has the benefit of the legislative process (paragraph 65). The fatwa in that case on the issue of legitimacy of a child was passed by the National Fatwa Committee and as such, fatwas issued by them have no force of law unless such fatwa are adopted in accordance with the laws of the State which chooses to adopt them. It is not disputed that the relevant fatwa by the National Fatwa Committee had not been adopted by the Johore State legislature. The position that fatwas issued by the National Fatwa Committee is not binding unless gazetted by the State has since been affirmed by the Federal Court on appeal in Jabatan Pendaftaran Negara & Ors v A Child & Ors (Majlis Agama Islam Negeri Johor, intervener) [2020] 2 MLJ 277. [29] In the instant case, as indicated earlier, the 1998 and 2000 Fatwas are binding by virtue of section 49 of the ARIE 2003. The Two Fatwas are therefore binding in the State of Selangor. [30] We note too, that neither of the parties, both here and at the Court below challenged the validity and binding force of the Two Fatwas. In 25 effect the Respondents challenged the jurisdiction of the Syariah Courts in respect of the Respondents premised on the Two Fatwas which declared Ahmadiyya to be non-Muslims. Therefore, we proceed on the basis that the validity and binding effect of the Two Fatwas is undisputed. FINDINGS AND DECISION OF THE HIGH COURT [31] The findings and decision of the learned Judge in respect of the Two Questions are as follows: Question 1: The Jurisdiction of the Syariah Courts under Section 97(2) of ARIE 2003 [32] This question forms the crux of Appeal 513. The principal point for discussion regarding Question 1 is who has jurisdiction to adjudicate upon offences under section 97(2) of the ARIE 2003? At the High Court, the Respondents argued that the matter ought to be heard at the Magistrates’ Court and not the Syariah Court. [33] The learned Judge upon considering all the relevant provisions of the Federal Constitution concluded that the Syariah Courts are indeed the proper forum. Principally, Syariah Courts are empowered to try offences 26 under section 97(2) of the ARIE 2003 under Items 1 and 9 of List II of the Ninth Schedule of the Federal Constitution which stipulate as follows: “List II — State List

Subparagraph

(ii) secondly, the 1998 and 2000 Fatwas are of general application on the non-Muslim status of the Ahmadiyya in Selangor and accordingly, the learned Judge erred in law when his Lordship decided that the arrests of the Respondents and the notices issued to them by the 3rd Appellant was unlawful by virtue of them being non-Muslims without first properly considering whether the Respondents are Ahmadiyya or not;

Subparagraph

(iii) thirdly, (an issue not ventilated in the Court below) the learned Judge failed to consider that the Respondents are designated the status of ‘Islam’ in their respective MyKad (identification cards), that is, until a Syariah Court declares 39 them otherwise .(only in respect of the Respondents who are Malaysian citizens) [49] In respect of the first complaint, the Appellants placed great reliance on section 74(2) of the ARIE 2003. We reproduce the section as follows: “Jurisdiction does not extend to non-Muslims

Subsection

(1) No decision of the Syariah Appeal Court, Syariah High Court or Syariah Subordinate Court shall involve the right or the property of a non-Muslim.

Subsection

(2) For the avoidance of doubt, it is hereby declared that a Muslim shall at all times be acknowledged and treated as a Muslim unless a declaration has been made by a Syariah Court that he is no longer a Muslim.” [50] The Appellants liken the present case to the decision of the Federal Court in Kamariah Ali & Yang Lain lwn Kerajaan Kelantan & Satu Lagi [2005] 2 ShLR 93 (‘Kamariah Ali’) which inter alia, decided that one cannot be allowed to escape Syariah prosecution simply by declaring that one has renounced the Islamic faith. Basically, the Appellants argue that what the Respondents are attempting to do here is to manoeuvre their way out of Syariah prosecution by claiming to be Ahmadiyya and to 40 thereby denounce their Islamic faith. The learned Judge ought to have applied the presumption in 74(2) of the ARIE 2003. [51] The Appellants also place reliance on the decision of the Federal Court in Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585 (‘Lina Joy’) for the proposition that in cases where a Muslim had subsequently converted out of Islam, the Syariah Courts possesses the jurisdiction to determine the current religious status of the person who had renounced Islam. Thus a self-declaration by a person that he is non-Muslim is insufficient in the eyes of the law, and that until and unless the Syariah Court makes a declaration that he is a non-Muslim, he remains a Muslim in the eyes of the law, and thus section 74 as well as subsection 97(2) would apply to him. [52] This leads us to the Appellants’ second principal argument. The Appellants claim that the 1998 and 2000 Fatwas are only of general application and only serve to state that the Ahmadiyya belief is not Islam and any professors are not to be considered Muslims. What the Respondents must do, according to the Appellants, is to first apply to the Syariah Court for an order that they are not Muslims. A renunciation of Islam issued by the Syariah Court is a prerequisite to determine that the Respondents were not Muslims. They cannot place reliance simpliciter 41 on the existence of those Two Fatwas lest any person who claims to have left Islam may simply renounce their faith by claiming they are Ahmadiyya in order to escape Syariah prosecution. [53] On these points, the learned Judge distinguished the pronouncement of the Federal Court in Kamariah Ali (supra) on the grounds that Kamariah Ali (supra) deals with a Muslim’s renunciation of faith by unilateral declaration by way off a Statutory Declaration, which is ineffective until and unless the same is confirmed by a Syariah Court. In the instant case, the issue is not one of unilateral renunciation but rather the legal effect of “excommunication”, pursuant to the two Fatwas. The learned Judge expressed the following view (at paragraph 77): “… Now, if the members of the Jama’at have been declared as non-Muslims by virtue of the two Fatwas, why is there a necessity for any member of the Jama’at to further apply to the Syariah Court for a declaration that they are not Muslims. The Applicants state that there are approximately 5,000 members of the Jama’at in Malaysia. It would be ridiculous to require all 5,000 members to apply to the Syariah Court to be declared as members of the Jama’at or as non-Muslims and also for their progenies, when they are born, to also make such an application. The absurd nature of this suggestion becomes even more apparent when considering that some of the applicants are foreigners. 42 Should every foreigner who professes to be an Ahmadi be also required to make an application to the Shariah Court after he enters the country if he intends to participate in the religious rituals and prayers of the Jama’at. Surely not. When the religious authorities have by law excommunicated a sect from the state recognised mainstream or dominant orthodox Islam, then by implication all members of that sect would not be members of the state sanctioned mainstream orthodox Islam, ie Ahlul Sunnah Wa Jamaah.” [54] However, as we see it, the first two points of contention can be conflated into the third point. What significance can be derived from the documentary identification of the religious status of the Respondents, be it a MyKad, passport or some other document? The argument here is that in the case of the local Respondents, they have the designation ‘Islam’ as their religion in their MyKad. This raises issues relevant to the primary question in this appeal as to “who is a person professing the Religion of Islam”. [55] According to the Appellants, this identity issue stems from the affidavit by an officer of the 3rd Appellant, one Nurhelmi bin Ikhsan, who in an affidavit in reply deposed as follows in Appeal Record, B2(3) at page 540 at paragraph 16 (translated into English) reproduced below: 43 “… I verily state that the arrests of the Applicant [the Respondents] made by the Religious Enforcement Officer is based on his Identification Card which states the religion of Islam as well as a written admission from the Suspect who performed his Friday prayers at the said premises. Verily, at the time the investigation was conducted, they were ‘Malays’ and the Religious Enforcement Officer could not simply ignore said ‘Malay’ features and cease their investigations just like that.” [Emphasis added] [56] The Appellants argued that they had proceeded on the basis of the local Respondents’ MyKad which had designated their religion as ‘Islam’. As such, they ought to have been given the opportunity to first investigate whether the Respondents are indeed Ahmadiyya and that the learned Judge had exceeded his jurisdiction by deciding the status of the Ahmadiyya on his own accord, without prior evaluation of the evidence to determine such status. The Respondents’ Arguments [57] Learned counsel for the Respondents did an admirable job reflected in the depth of his research, in taking us through the history of the Ahmadiyya in Malaysia. But as we have stated at the outset, we are not 44 here to adjudicate upon their religious status from a spiritual perspective. On an examination of the facts and circumstances in evidence, we merely have to be satisfied that the Respondents themselves are genuine Ahmadiyya in their own belief. To address this issue, we will only focus on the legal arguments. [58] Mr Aston Paiva, learned counsel for the Respondents, based the gist of his submission on Article 11 of the Federal Constitution which guarantees freedom of religion. He put forward the argument that the Syariah investigation and prosecution process was abused to curtail the Ahmadiyya’s rights to practise their religion which right was, despite the Two Fatwas, recognised when prior to their issuance, the Ahmadiyya were designated lands enabling them a place to freely practise their faith. [59] Learned counsel for the Respondents then took us through the legislative history of the ARIE 2003 to illustrate how fatwas are in ‘pith and substance’ rulings enabling the State, with specific reference to the legislative entry allowing for the “determination of matters of Islamic law and doctrine and Malay custom” in Item 1 of List II, to excommunicate persons from what is seen as the mainstream Islamic faith. 45 [60] Considering that the Ahmadiyya have been excommunicated vide the 1998 and 2000 Fatwas, counsel for the Respondents argues that in the first place, the Ahmadiyya are not Muslims and thus, the presumption in section 74(2) of the ARIE 2003 ought not to apply to them. He argued, a fortiori, the fact of excommunication means that the Syariah Courts can have no jurisdiction over them. [61] On the issue in respect of the religious identity stated in the MyKad, his submissions are threefold:

Subparagraph

(ii) The National President of the Ahmadi Jama’at filed an affidavit stating that the Respondents are of the Ahmadiyya community which affidavit also remains unrebutted by the Appellants; and

Subparagraph

(iii) According to regulation 24(1) of the National Registration Regulations 1990 (“NRR 1990”) the burden to prove the contents of MyKad lies on the person alleging the truth thereof. The Appellants, who alleged that the Respondents are ‘Islam’ 46 have not adduced any evidence to show that the Respondents are indeed not Ahmadiyya. [62] Learned counsel for the Respondents further argued that the change to the NRR 1990 to include ‘Islam’ in the MyKad was made via a retrospective amendment without prior consultation with the Ahmadiyya community. Thus, it would be unfair to place reliance on the Respondent’s status as ‘Islam’ in their MyKad for the purposes of Syariah investigation and prosecution. [63] Learned counsel for the Respondents then merged his arguments with the freedom of religion point, arguing that there are no constitutionally permitted grounds except those in Articles 11(4) and 11(5) of the Federal Constitution to restrict freedom of religion. The Ahmadiyya therefore ought not to be punished for professing their faith. [64] Learned counsel for the Respondents also makes two other points. Firstly, that it would contravene Article 8 of the Federal Constitution to discriminate between local Ahmadiyya and their non-citizen counterparts solely on the basis of the MyKad (something which only the locals possess). All the more, he argues, Article 11 of the Federal Constitution applies to all persons regardless of their nationality. 47 [65] The other point he makes is essentially the same as the learned High Court Judge’s reasoning i.e. it would be absurd to suggest that about 5,000 Ahmadiyya be expected to apply to the Syariah Courts to enable the removal from their MyKad their religious designation of ‘Islam’. [66] For the foregoing reasons, the Respondents argue that we ought to uphold the decision of the learned High Judge in respect of Appeal 468. OUR DECISION The Status of Islam in Malaysia Jurisdiction of the Syariah Courts [67] In order to appreciate the issues raised in these appeals in their historical and legal context, it is necessary to set the stage by an examination of the status of Islam in Malaysia within the constitutional and legal framework. It is beyond dispute that ours is a dual legal system. On the one side, we have the civil courts vested with the powers of judicial review. [68] On the other side, we have the Syariah Courts which according to the Federal Constitution, are creatures of State law. The breadth of their 48 power is strictly confined to the limits in Item 1 of List II of the Ninth Schedule of the Federal Constitution. [69] History has laid witness to numerous conflicts of jurisdiction between the civil and Syariah Courts. This conflict was borne of our colonial past. It has been well documented that prior to the arrival of the colonialists in Malaya, the lex loci was largely Islamic law and Malay custom headed by the respective Rulers of the Malay States. [70] On this point, the renowned author RH Hickling in ‘Malaysian Law – An Introduction to the Concept of Law in Malaysia’ (Pelanduk Publications, 2001), at pages 108-109 and 130, noted that Islamic law was by and large the lex loci prior to the arrival of the British: “To some extent the principles of Muslim law came into Malaysia in the 15th century, with such codes as the Undang-Undang Melaka, with some aspects of the Muslim marriage law, the law of sale, and certain aspects of legal procedure were reduced to writing. Such laws as the Malacca code were hybrid texts, varied in origin, often diffuse in purpose and probably uncertain in their operation: but they reflect that desire for certainty which is at the root of most legal systems. As with other early legal systems, the Malacca code fell back upon the working of God through the operation of 49 providence, in order to determine those disputes in which, for example, the contradictory oaths of the parties offered no hope of certainty. … With the arrival of the British in Penang in 1786, English law of a sort arrived in Malaysia. The fact that the lex loci of Penang was at the time of cession the law of a Malay-Muslim state, the state of Kedah was conveniently overlooked: as, indeed, was the fact, a few years later, that Dutch law was the law of Malacca prior to the arrival of the British.” [Emphasis added] [71] When the British arrived to peninsular Malaya, they recognised the status of Islamic law and Malay custom as the lex loci before allowing their own law to creep in. Sir Benson Maxwell R observed as far back as in 1858 in Regina v Willans (1858) 3 Ky 16, at page 21 as follows: “When an inhabited or conquered country is ceded, the new sovereign impliedly undertakes to administer the existing laws among his new subjects, until he changes them, but it does not follow that when the country is a desert, he is to be presumed to undertake that he will enforce the laws of the former Sovereign when settlers shall afterwards arrive. Another objection to the continuance of the former law would arise in this 50 case, from the nature of Mohametan law, which is the law of Quedah… I think, in asserting that “a system of law which according to its own principles, can only be administered by Mohametan Judges and Mohametan arbitrators, upon the testimony of Mohametan witnesses, is not a system which can devolve ipso jure, and without express acceptance, upon a Government and people of a different faith”. It seems to me impossible to hold that any Christian country could be presumed to adopt or tolerate such a system as its lex loci.” [Emphasis added] [72] The framers of our Constitution themselves noted in the Reid Commission Report 1957 at paragraph 169, as follows: “We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision were inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims. In the memorandum submitted by the Alliance it was stated the religion of Malaysia shall be Islam. The observance of this principle shall not impose any 51 disability on non-Muslim nationals professing and practising their own religions and shall not imply that the State is not a secular State. There is nothing in the draft Constitution to affect the continuance of the present position in the States with regard to recognition of Islam or to prevent the recognition of Islam in the Federation by legislation or otherwise in any respect which does not prejudice the civil rights of individual non-Muslims.” [Emphasis added] [73] The net result was that upon Independence, a dual legal system – one civil and the other Syariah – was established. However, that is not to say that the two systems are of equal status. For one, Article 160(2) of the Federal Constitution expressly excludes Syariah law from the definition of “law”. The reliance on Syariah, as gathered from Item 1 of List II is strictly limited to personal law and matters incidental to the regulation of the Islamic religion. [74] Two other provisions are relevant. The first is Article 3 of the Federal Constitution which stipulates that Islam is the official religion of the State. The other is the limitation to Article 11(1) in Articles 11(4) and 11(5) which we will come back to in due course. 52 [75] The status of Syariah law in relation to secular law was addressed in the celebrated judgment of Salleh Abbas LP in the case of Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55. In that case, the accused was sentenced to death. He challenged his death sentence alleging it to be against the injunctions of Islam and that he being a Muslim, could not be sentenced to the same. The Supreme Court had occasion to consider the legal effect of Article 3 of the Federal Constitution. The judgment of Salleh Abas LP on the status of Islam in Malaysia is as follows: “Thus, all laws including administration of Islamic laws had to receive this validity through a secular fiat…Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only. (See MB Hooker, Islamic Law in South-east Asia, 1984) In our view, it is this sense of dichotomy that the framers of the Constitution understood the meaning of the word ‘Islam’ in the context of Art.3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from 53 making such provision, art. 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter. … It is the contention of Mr. Ramdas Tikamdas that because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles and Mr. Mura Raju, in addition, submitted that, because Syariah law is the existing law at the time of Merdeka, any law of general application in this country must conform to Syariah law. Needless to say that this submission, in our view, will be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act which provides for the reception of English common law in this country… [W]e have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. [Emphasis added] [76] It is crystal clear therefore that within the larger framework of our Federal Constitution and legal history, Syariah jurisdiction was always intended to be limited and exclusive. Despite this clear demarcation of jurisdictions, there has been conflicts between the two systems which have been well documented by the renowned late Tan Sri Datuk Professor 54 Ahmad Ibrahim in his Article ‘The Amendment to Article 121 of the Federal Constitution: Its Effect on Administration of Islamic Law’ [1989] 2 MLJ xvii. [77] In the abovementioned article, the late Professor documented certain cases one of which is Myriam v Arif [1971] 1 MLJ 265. In that case the Kathi had adjudicated upon a couples’ divorce and the custody of their children. The woman subsequently married someone else and applied to the High Court for a new custody arrangement. The High Court relied on section 45(6) of the Selangor Administration of Muslim Law Act (sic) 1952 to find that it had jurisdiction to hear the matter and proceeded to issue a new custody arrangement. By doing so, the High Court had essentially adjudicated upon matters falling within the jurisdiction of the Syariah Courts. It is for this reason that the late Professor became the ‘prime mover’ behind the insertion of Article 121(1A) of the Federal Constitution. See generally the judgment of the Federal Court in: Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101, at paragraph 50. [78] Article 121(1A) of the Federal Constitution reads: 55 “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” [79] By virtue of the amendment, the Syariah Courts were perpetually granted exclusive jurisdiction over all matters related to Syariah as defined in Item I, List II of the Ninth Schedule of the Federal Constitution. Thus, at least on paper, solved was the legal conundrum of civil courts exercising Syariah jurisdiction. [80] The purpose behind our lengthy exegesis above is to cement the point of the peculiar situation in Malaysia. It is a historical fact that Islamic law and Malay custom were largely the law of the land prior to the arrival of the British. In arriving at the best solution for an independent State, the framers of our Constitution deemed it necessary to include the Syariah system into our now largely secular regime. Taking the above cumulatively, it is apparent that the net result of the decades of legislative and judicial developments have shaped the respective jurisdictions of our civil and Syariah Courts. Thus, these legal developments, as will become more apparent later in this judgment, affect the freedom of religion of Muslims in Malaysia. 56 [81] The overall effect of the historical legal development is this. Our Syariah Courts have exclusive jurisdiction over all matters which fall under Item 1 of List II of the Federal Constitution. The decisions in the Courts demonstrate that Courts strive, as far as possible to strike a pragmatic and acceptable balance between the jurisdiction of civil and Syariah Courts. [82] For one, the respective legislative entries in the said Item 1 must be given the widest possible meaning. This is from the pronouncements of the Federal Court in Sulaiman Takrib (supra) and Fathul Bari (supra). This method of interpretation ensures that the subject-matters upon which the Syariah Courts can adjudicate cannot be interpreted so pedantically so as to render the entire system redundant. [83] Yet, at the same time, the reach of the Syariah Courts’ jurisdiction is strictly confined to persons ‘professing the religion of Islam’. In the result, only – and we hasten to add – only if a person ‘professes the religion of Islam’ can the Syariah Courts have jurisdiction over him. And, it is only when the Syariah Courts become cloaked with such jurisdiction can one even begin to consider the widest possible construction to be afforded to the respective legislative entries determining the breadth of the Syariah Courts’ adjudicative powers over said persons. To illustrate the point, we refer to the Sulaiman Takrib (supra) and Fathul Bari (supra) cases. It 57 would have served no useful purpose to determine whether the phrase ‘precepts of Islam’ was broad enough to encompass certain offences if the offender was not even a Muslim to begin with. We refer to the judgment of Abdul Hamid Mohamad, CJ in the Federal Court case of Sulaiman Takrib (supra), where after examination of amongst others, Articles 3, 74 and 75 of the Federal Constitution and the Ninth Schedule, in particular, List II, His Lordship stated as follows (at paras. 21 and 22): “[21] List II enumerates matters that the State Legislature may make laws. Item I is the relevant one. It is very lengthy. To avoid confusion, I shall only reproduce the material parts for the determination of this appeal: …Islamic law…, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts ,which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except as in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom. 58 [22] At this juncture, I would only like to emphasise four points arising from this item. First, the State Legislature may create offences and punishment of offences:

Subsection

(1) Every person has the right to profess and practise his religion and, subject to clause (4), to propagate it. …

Subsection

(3) Every religious group has the right-

Subsection

(4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.” [86] This right to freedom of religion is sacrosanct, and distinct from other fundamental liberties for several reasons. For one, Article 11(1) unlike 60 say Articles 9 and 10, applies to every ‘person’ as opposed to every ‘citizen’. Further, Article 11 does not have a “derogation clause” (using the term loosely) similar to those contained in the phrase “save in accordance with law” common to Articles 5 and 13. Even Article 8(1) is subject to limits based on the reasonable classification test first propounded by the Federal Court in Mohamed Sidin v Public Prosecutor [1967] 1 MLJ 106 read together with the express permissible exceptions enumerated in that Article permitting discrimination in certain situations. [87] Indeed, even in international human rights law, the freedom of religion is generally considered a non-derogable right. Just to emphasise our point, the Human Rights Committee observed in respect of Article 18 of the International Covenant on Civil and Political Rights (‘ICCPR’) in General Comment No. 22 as follows, at paragraph 1: “The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18.1 is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. The Committee draws the attention of States parties to the 61 fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4.2 of the Covenant.” [Emphasis added] [88] The same applies in Malaysia. So sacrosanct is the right that even Article 150(6A) of the Federal Constitution prohibits Parliament from making laws which seek to curtail the freedom of religion even during times of emergency. The said Article reads: “Clause (5) shall not extend the powers of Parliament with respect to any matter of Islamic law or the custom of the Malays, or with respect to any matter of native law or customs in the State of Sabah or Sarawak; nor shall Clause (6) validate any provision inconsistent with the provisions of this Constitution relating to any such matter or relating to religion, citizenship, or language.” [89] The only restrictions the Federal Constitution authorises in respect of the freedom of religion is in Articles 11(4) and 11(5). The former permits the Federal and State Legislatures (as the case may be) to prohibit the propagation of any religious doctrine other than Islam to persons 62 professing that religion. This again, is unique to our legal and political history which we highlighted earlier. Abdul Hamid Mohamad, CJ (as he then was) in the case of Sulaiman Takrib (supra) had examined the jurisdiction of the State Legislature under List II of the State List of the Ninth Schedule to the Federal Constitution and stated as follows (at para. 24): “… the State Legislature may make law for the control of propagating doctrines and beliefs among persons professing the religion of Islam. So, any argument that any law that seeks to control the propagation of doctrines and beliefs among persons professing the religion of Islam is unconstitutional because it is inconsistent with Article 11 (freedom of religion) or any other provision is doomed to fail from the start.” [90] Article 11(5) in turn prohibits any act contrary to any general law relating to public order, public health or public morality which may be done in the name of religion. [91] An example of the effect of Article 11(5) is the decision in Halimatussaadiah v Public Service Commission, Malaysia & Anor [1992] 1 MLJ 513 where the High Court effectively upheld the prohibition (issued in a circular) on a female public servant from wearing any attire covering a female public servant’s face when on duty. The facts of the 63 case were that the plaintiff was working as a clerk at the State Legal Adviser’s office in Ipoh. The plaintiff had been dressed in a purdah (face veil) which completely covered her face except for her eyes. The plaintiff had refused to comply with the circular on the ground that as a Muslim, she is required to cover her face. The High Court held that while Article 11 is intended to protect absolutely the religious beliefs of a person, but in exercising religious practices, Article 11(5) also clearly forbids any act which may lead to public disorder, affect public health or public morality. The High Court held the prohibition in the circular was justified on the grounds that the Office of the State Legal Adviser where the plaintiff was employed as a clerk deals with files relating to government secrets and thus for security reasons there is an obvious need to identify a person in such employment. [92] Within the general framework of our Federal Constitution the right of freedom of religion operates differently between Muslims and non-Muslims. The first reason is a religious one i.e. the one relating to the regulation of apostasy. The second reason, and the one more pertinent to us, is the fact that the narrowly constructed jurisdiction of the Syariah Court is dependent on the religion of the subject. 64 [93] It is our observation that while Article 11(1) guarantees the twin freedoms to ‘profess and practise’ one’s religion, the jurisdiction of the Syariah Court per Item I of List II is curiously crafted in such a way so as to apply to those ‘professing the religion of Islam’. It seems that the words “practise” or “practising” were deliberately left out. [94] We think there is a fundamental difference in the two provisions. While one may profess a certain faith, he or she may not necessarily practise it. Based on this difference in language, it is apparent to us that the framers of our Constitution expressly intended to apply a separate regime to Muslims on the basis of what Muslims themselves profess irrespective of whether such belief is demonstrated by practice. [95] In other words, when the legal question of Islamic status is at play, it bears not only spiritual connotations. The effect is also legal. Whether they choose it or not, Muslims are governed by a whole catena of personal laws spanning the spectrum of marriage, divorce, guardianship of infants, inheritance and so on. They also become subject to specific offences to which non-Muslims are not. A simple change in belief bears therefore not only spiritual consequences as one might expect of freedom of religion, but for our purposes, also carries specific legal implications. 65 [96] For one, Article 160(2) defines a ‘Malay’ to mean, among others, any person who ‘professes the religion of Islam’, habitually speaks the Malay language and conforms to Malay custom. The effect of being ‘Malay’ also carries legal implications such as being conferred the special position under Article 153 of the Federal Constitution. This very fact is also emphasised in the 2000 Fatwa. [97] With that, we will now examine what the phrase ‘persons professing the religion of Islam’ may mean in relation to the Respondents. Persons ‘Professing the Religion of Islam’ and the Jurisdiction of the Syariah Courts over the Respondents [98] While the Reid Commission and Item 1 of List II of the Federal Constitution note that Syariah law shall apply to ‘persons professing the religion of Islam’, neither of those two documents define what that phrase means. It is here the Appellants place reliance on section 74(2) of the ARIE 2003 to presume that the Respondents are Muslims until and unless declared otherwise by a Syariah Court. [99] With respect, we think that this approach and the authorities cited do not assist them in that argument. First is the decision of the Federal Court in Kamariah Ali (supra). In that case, the accused persons were charged 66 and convicted under section 69 of the Council of Islamic Religion and Malay Custom, Kelantan, Enactment 1966 for committing acts that contravened the principles of Syariah and were sentenced to two years in prison. On appeal to the Syariah Appeal Court, the court affirmed the conviction but their sentences were substituted with another: releasing them on bail and good behaviour bond for a period of three to five years each which also required them to report to the relevant religious authority once a month to indicate their repentance. [100] Thereafter however, the accused persons purported to make statutory declarations renouncing Islam. The Syarie Prosecutor then moved the Syariah Court to convict them for failing to abide by the Syariah Appeal Court’s order to repent. For this they were convicted and sentenced to three years’ imprisonment. The accused persons then applied for a writ of habeas corpus on the grounds that they were no longer Muslims and they were not subject to the jurisdiction of the Syariah Court. The accused persons essentially argued that without such jurisdiction, the Syariah Court had no basis to imprison them. [101] The issue of renunciation of Islam arises, in particular in cases where a person declares his intention to convert out of Islam, and in cases like Lina Joy (supra), consequentially to have the designation ‘Islam’ 67 deleted from his MyKad. In effect this would render him an apostate. The question then arises whether by such declaration, he remains subject to the jurisdiction of the Syariah Courts. [102] In this respect the civil Courts appear to make a distinction between conversions out of Islam by those who were Muslims by original faith and those who were non-Muslims by original faith. In the former, premised on their original faith, they were subject to the jurisdiction of the Syariah Courts and require a renunciation in the Syariah Court to confirm their non-Muslim status. As for the latter, it is on the premise that they were non-Muslims to begin with and therefore not subject to the jurisdiction of the Syariah Courts, that no such renunciation of Islam was required for any supposed renunciation of their Islamic ‘faith’. [103] The habeas corpus application in Kamariah Ali (supra) eventually found its way to the Federal Court, which held that in the particular circumstances of the case, a renunciation of Islam in the Syariah Court was required to release the appellants from the jurisdiction of the Syariah Court. Ahmad Fairuz CJ opined as follows, at paragraphs 26-27 and 37: “It is clear from the above contentions, the issue to be decided is whether the appellants still professed the religion of Islam when they were charged in the Shariah High Court on the ground that they had failed to abide by 68 the order of the Shariah Appeal Court for repentance. In accordance with the ninth schedule List II – State List, of the Federal Constitution, the Shariah Court has jurisdiction only over persons professing the religion of Islam. The phrase ‘a person professing the religion of Islam’ if read literally would mean that the appellants, after having declared the renunciation of the religion of Islam, are no longer professing the religion of Islam and hence they do not come within the jurisdiction of the Shariah Court. The question here is whether the literal interpretation ought to be used? … To make a statutory declaration declaring that they no longer profess the religion of Islam does not by itself release the appellants from the offence that lie before the Shariah Court. By adopting the purposive approach, this court is of the view that the material time to determine whether the appellants were professing the religion of Islam, is, at the material time when the appellants were committing the offence under the Council of Islamic Religion and Malay Custom, Kelantan ,Enactment .Therefore, although the appellants had declared to be apostate in 1998, they were appropriately brought before the Shariah Court in 2000 because it involves an offence committed by the appellants when they were still professing the religion of Islam. If this approach is not adopted, Muslims who 69 are charged in the Shariah Court can easily raise the defence that they are no longer professing the religion of Islam and henceforth do not come within the jurisdiction of the Shariah Court. This, will in turn effect the administration of Islamic law in Malaysia and the laws of other religions.” [Emphasis added] [104] The learned Judge distinguished the above decision on the view that it concerned the unilateral renunciation by persons who were in the first place Muslims by way of statutory declaration (see: paragraph 72 of the judgment). In the present case however, the Court below held that the Ahmadiyya are not in the first place Muslims by virtue of the 1998 and 2000 fatwas. [105] We agree with the learned Judge to the extent his Lordship held that Ahmadiyya are not – legally speaking – Muslims. For clarity, the Syariah Court’s jurisdiction is circumscribed by law. Thus, when the Two Fatwas legally and bindingly declare that Ahmadiyya shall not be considered Muslims, the Syariah Courts are, by that declaration, dispossessed of jurisdiction over such persons. [106] Kamariah Ali (supra) stemmed from Terengganu. The provision in question there was section 102(2) of the Council of the Religion of 70 Islam and Malay Custom, Kelantan Enactment 1994 which is principally the same as section 74(2) of the ARIE 2003. The accused persons were Muslims to begin with, and so, it was only logical to presume that they remained Muslims until and unless they lawfully renounced Islam before the Syariah Court. [107] The present appeal is closer in point to the decision of Mustapha Hussain J. in Abdul Rahim (supra). In that case, the High Court prohibited the Kadi from pursuing prosecution against the accused who was clearly of the Ahmadiyya community. The Appellants seek to distinguish this decision on the grounds that Abdul Rahim (supra) was decided before the 1998 and 2000 fatwas were promulgated. With respect, we see no merit in that argument. [108] For the sake of completeness, we reproduce section 74(1) of the ARIE 2003 along with its shoulder note: “Jurisdiction does not extend to non-Muslims

Subsection

(1) No decision of the Syariah Appeal Court, Syariah High Court or Syariah Subordinate Court shall involve the right or the property of a non-Muslim.” 71 [109] In our view, the above provision is merely a restatement of a trite principle of law that a Syariah Court has no jurisdiction over non-Muslims. This position has consistently been upheld by our apex Court in at least two judgments. See: Latifah (supra) at paragraph 50 and Indira Gandhi (supra) at paragraph 75. [110] Thus, in general terms, the presumption in section 74(2) of the ARIE 2003 has no application to the Ahmadiyya in the State of Selangor because following the 1953 trial before HRH the Sultan of Selangor and the subsequently gazetted 1998 and 2000 fatwas, an Ahmadiyya in the State of Selangor is not considered a Muslim. [111] We are fortified in our view by the judgment of the Federal Court in Soon Singh a/l Bakar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489. At pages 501-502, Dzaiddin FCJ (as he then was) opined as follows: “With respect to conversion out of Islam, only some State Enactments contain express provisions on the matter. For example, the Administration of the Religion of Islam and the Malay Custom of Pahang Enactment 1982 under Part VI states that where any person who has embraced the religion of Islam in accordance with 72 the Part, apostasises from the religion, he shall report to the court of a kadi of his decision and the Yang di-Pertua shall register it. Before his decision is reported and registered, he shall be presumed to be still a Muslim. The Negeri Sembilan Administration of Islamic Law Enactment 1991 s 90(3) provides that a Muslim, or a saudara baru who has converted to Islam and later decides to renounce the same shall report the said decision to the Registrar of Saudara Baru, who shall register the said decision in the prescribed form. Before the said decision is reported and registered, he shall still be treated as a Muslim. The Kelantan Enactment No 4 of 1994, s 102 also provides that no person who has confessed that he is a Muslim by religion may declare that he is no longer a Muslim until a court has given its approval to that effect. Before the court gives its approval, the person shall be presumed to be a Muslim and any matter which is connected with the Religion of lslam shall be applied to him... It is quite clear to us that the legislative purpose of the State Enactments and the Act is to provide a law concerning the enforcement and administration of Islamic law, the constitution and organization of the syariah courts and related matters. Therefore, when jurisdiction is expressly conferred on the syariah courts to adjudicate on matters relating to conversion to Islam, in our opinion, it is logical that 73 matters concerning conversion out of Islam (apostasy) could be read as necessarily implied in and falling within the jurisdiction of the syariah courts. One reason we can think of is that the determination of a Muslim convert's conversion out of Islam involves inquiring into the validity of his purported renunciation of Islam under Islamic law in accordance with hukum syarak (Dalip Kaur). As in the case of conversion to Islam, certain requirements must be complied with under hukum syarak for a conversion out of Islam to be valid, which only the syariah courts are the experts and appropriate to adjudicate. In short, it does seem inevitable that since matters on conversion to Islam come under the jurisdiction of the syariah courts, by implication conversion out of Islam should also fall under the jurisdiction of the same courts.” [Emphasis added] [112] At the risk of repetition, the position herein is different from the one in Kamariah Ali (supra) where the accused persons there were originally Muslims. Their subsequent unilateral renunciation of the faith would therefore be invalid until and unless by order of the Syariah Courts. Till then, they were presumed by law to remain Muslims. 74 [113] From the above, it therefore follows that the learned Judge of the Court below was correct in law to find generally that members of the Ahmadiyya community are not subject to the jurisdiction of the Syariah Courts. His Lordship simply followed the judgment of Mustapha Hussain J in Abdul Rahim (supra) who held that the applicant therein being an Ahmadiyya, could not be a Muslim and on that basis the learned Judge granted the prohibition order effectively injuncting any form of Syariah prosecution against the applicant in that case. We are therefore minded to affirm the High Court’s decision to that extent. [114] The Appellants’ argument is that the decision in Abdul Rahim (supra) ought not to be followed on the grounds that it was decided before the insertion of the present sections 61 and 74(2) of the ARIE 2003. With respect, as stated earlier, we are unpersuaded because the reasoning runs afoul of the grain of Kamariah Ali (supra) and Soon Singh (supra) and their rationale as to why these presumptions exist. The 1998 and 2000 Fatwas already make the point that Ahmadiyya are in general not legally Muslims and as such, being of such status, the Syariah Courts cannot have jurisdiction over them. [115] In a generic case, it cannot be said that an Ahmadiyya may be presumed to be a Muslim by virtue of section 74(2) of the ARIE but at the 75 same time be considered a non-Muslims under the 1998 and 2000 Fatwas. The two positions are contradictory to each other. In any event, this was not why section 74(2) was enacted. In our reading of Ahmad Fairuz FCJ’s judgment in Kamariah Ali (supra), the purpose of the provision is to prevent actual Muslims from renouncing the Islamic faith to avoid Syariah prosecution. We do not think that such a provision can extend to presume a non-Muslims like the generic Ahmadiyya is a Muslim when in actual fact the law of the State of Selangor says he is not. [116] To overcome the problem that a Muslim might no longer be Muslim in faith, the presumption in section 74(2) of the ARIE 2003 operates to presume that such a person, remains a person ‘professing the religion of Islam’. As we said before, this is because Islam is not only a religion, but also carries legal ramifications. It also determines whether one is constitutionally a Malay or not and a fortiori whether such a person is entitled to the special position under Article 153 of the Federal Constitution. [117] To clarify, if a person was born and raised as an Ahmadiyya, then his original religion is the Ahmadiyya religion. Because the Two Fatwas declare that his faith is not Islam, then in the State of Selangor, an Ahmadiyya is a non-Muslim just as a Christian or a Hindu is a non-Muslim. 76 If however, a person is born and raised as a Muslim (whether he chooses to practise his beliefs or not), he is in law a person ‘professing the religion of Islam’. Should he change his religion from Islam to Ahmadiyya, just as if he were to attempt to renounce Islam for any other faith, he cannot in law do so unless by order of the Syariah Court as prescribed by the relevant State law. Thus, any renunciation of the Islamic faith is within the jurisdiction of the Syariah Courts. (See for example: Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 and Lina Joy (supra). In Soon Singh (supra), the Federal Court held that the jurisdiction of the Syariah Court to deal with conversion out of Islam, although not expressly provided for in some State Enactments, can be read into those Enactments by implication. [118] For the foregoing reasons, we find ourselves unable to agree with the Appellants on their argument in respect of section 74(2) of the ARIE

Subparagraph

(ii) The freedom of religion applicable to non-Muslims does not apply with equal force to Muslims. This is because being a Muslim confers one a legal status and changes the entire regime of personal law applicable to them. It also allows the State to enact offences specifically catered to Muslims under Item 1 of List II of the Ninth Schedule. This is supported by the difference in language in Item 1 which is relatively more narrowly worded to include all those ‘professing’ the religion of Islam whereas Article 11(1) uses the more liberal phrase ‘profess and practise’. 78

Subparagraph

(iii) Therefore, the term Islam for all intents and purposes inasmuch as it is a religious belief, is also a legal label demarcating between those who can and cannot seek recourse in and be tried (as the case may be) before the Syariah Courts. Section 74(2) of the ARIE 2003 and all related legislation of other States exist to presume that a person originally a Muslim is presumed to be a Muslim until and unless he seeks an order of the Syariah Court stating otherwise.

Subparagraph

(iv) If a person is born and raised as a Muslim (whether he chooses to practise his beliefs or not), he is in law a person ‘professing the religion of Islam’. Should he change his religion from Islam to Ahmadiyya, just as if he were to attempt to renounce Islam for any other faith, he cannot do so unless by order of the Syariah Court as prescribed by the relevant State law. Thus, any renunciation of the Islamic faith is within the jurisdiction of the Syariah Courts.

Subparagraph

(vi) The 1998 and 2000 fatwas essentially removed the legal status of the Ahmadiyya community as persons ‘professing the religion of Islam’. Having lost that label, they cannot therefore be taken as persons or a class of persons being subject to the exclusive jurisdiction of the Syariah Courts prescribed in Item 1, List II of the Ninth Schedule of the Federal Constitution. MyKad and Whether the Religious Identity “Islam” is conclusive evidence of a Person ‘Professing the Religion of Islam’ [120] With that, the only question remaining before us is whether the Respondents herein are indeed Ahmadiyya by original faith or were Muslims by original faith but had subsequently converted from Islam to Ahmadiyya. This issue, we hasten to add is pertinent to the Malaysian Respondents because of their Malaysian identification cards and the Federal Court decisions of amongst others, Lina Joy (supra), Kamariah Ali (supra) and Soon Singh (supra) as discussed earlier. The 80 Appellants placed reliance on the word ‘Islam’ on the face of (at least some) of the Respondents’ MyKad. This leads to the larger question: are MyKads to be deemed as conclusive evidence of a person’s religious identity? [121] During the course of our research, we found at least one article addressing this subject to the point. It is Abdul Majid et. al, ‘Apostasy in Islam and Identity Cards in Malaysia’ (2015) 44 Comm. L. World Rev. 298 (‘the Article’). There, the authors provide a lengthy exposition on the history of the MyKad or the National Registration Identity Card (‘NRIC’) the relevant portions of which we adopt in this judgment. [122] The main law governing MyKad is the National Registration Act 1959 (‘NRA 1959’) and its ensuing subsidiary regulation i.e. the NRR

Subsection

(1) The burden of proving the truth of the contents of any written application for registration under these Regulations, or the contents of an identity card, shall be on the applicant, or on the person to whom such identity has been issued, or on any other person alleging the truth of such contents.

Subsection

(2) Where any person claims that he is an exempted person the burden of proving such fact shall lie upon him.” 84 [128] The learned authors of the Article and the Respondents take the position that given the express exclusion of a presumption of identity via Regulation 24, a MyKad cannot be indicative of a person’s religious identity. The learned authors of the Article went to the extent of arguing that the decision of the Court of Appeal in de Souza (supra) was per incuriam by its failure to consider the said Regulation 24 which stipulates that a MyKad is not presumptive of one’s identity. [129] In support of the proposition that a MyKad is indicative of religious identity, the Appellants placed reliance on the decision of the Federal Court in Lina Joy (supra). The facts were briefly these. The Appellant was a Malay woman who went by the name Azalina binti Jailani. She applied to the National Registration Department (‘NRD’) to substitute that name with ‘Lina Joy’ and to remove her status as ‘Islam’. Paragraphs 32- 35 of the judgment of Ahmad Fairuz CJ explain the administrative details of the NRR 1990 which was retrospectively amended vide P.U.(A) 70/2000 with effect from 1 October 1999: “On 22 October 1999, NRD wrote to her saying that her application for name change from ‘Azlina binti Jailani’ to ‘Lina Joy’ was approved and she was asked to apply for a new replacement identity card. This she did on 25 October 1999. However, by the time she applied for the 85 replacement card the appellant asserted that unknown to her, the Regulations had been amended (vide P.U.(A)70/2000) which came into force retrospectively on 1 October 1999) to require that the identity card should state the particular of religion for Muslims. Anyway, in the application form which asked her to state her religion the appellant stated her religion to be Christianity. The application by the appellant for replacement identity card was rejected. The form as processed by NRD carried a departmental entry by unnamed officer who wrote thus: “Arahan En. Rahim agama pemohon dikekalkan kepada Islam (Translation: “Mr. Rahim instructed that the religion of the applicant be retained as Islam”).” On the notation it was later explained by the Director General of NRD in this manner: “This notation was made because the information contained in the National Registration Department’s record showed that the Applicant is a Muslim and the Applicant had not forwarded any documentation from the Syariah Court nor any Islamic Authority concerned to prove her statement that she had renounced her Islamic faith.” 86 Consequently, her replacement identity card stated her religion as Islam although the name change to Lina Joy was effected. Her original name of Azalina binti Jailani was also stated on the reverse side of the replacement identity card. This was also as a result of the amendments introduced vide P.U. (A) 70/2000.” [Emphasis added] [130] The majority of the Federal Court in Lina Joy (supra) held that the NRD was correct to require the appellant in that case to first obtain an order of the Syariah Court indicating her renunciation of Islam before they could remove her status as ‘Islam’. We note here two important points made in that case to wit, that it was undisputed that the appellant was of the Malay race and her original religion had always been Islam. Thus, the appellant was subject to the jurisdiction of the Syariah Courts of the relevant State. In respect of the argument that the Syariah courts no longer have jurisdiction over a Muslim who had converted out of Islam, the majority of the Federal Court held that the conversion out of Islam is necessarily in accordance with the principles and tenets of Islam, and a matter within the jurisdiction of the Syariah Courts. This was also the position taken in the cases of Soon Singh (supra) and Dalip Kaur (supra). Thus, the majority of the Federal Court in Lina Joy (supra) held that the NRD was correct to require the appellant to provide a certificate 87 of renunciation from a Syariah Court before the religious status of ‘Islam’ on the identity card of the Appellant could be deleted. [131] There is another decision which warrants our attention, that is, Azmi bin Mohamad Azam v Director of Jabatan Agama Islam Sarawak & Ors [2016] 6 CLJ 562 (‘Azmi’). The facts were as follows. The applicant had left the religion of Islam and embraced Christianity. According to the applicant, the choice of Islam was decided for him when he was ten years old by his parents following their own conversion to Islam but since birth, the applicant was raised and brought up in the Bidayuh Christian community. The applicant had approached the Director-General of National Registration Malaysia’s (‘the third respondent’) office to change his name on his identity card but was informed that a letter of release from Islam (‘the letter’) and a Syariah Court order were required. [132] Accordingly, the applicant applied to the High Court for various reliefs essentially to compel the NRD to change his name from ‘Azmi bin Mohamed Azam Shah @ Rooney’ to ‘Roneey anak Rebit’; and an order of mandamus to compel the NRD to remove the applicant’s religion of Islam in his identity card and/or the records and/or particulars of the applicant’s religion held at the National Registry to that of Christianity. 88 [133] In a consent order entered, the first, second and fourth respondents agreed to issue the letter of no objection to the applicant to renounce Islam. However, the third respondent still insisted on the letter and a court order. The applicant was informed by the Ketua Hakim Syarie of Jabatan Kehakiman Syariah Sarawak that the Syariah Courts in Sarawak do not have the jurisdiction to issue the letter. Premised on the information obtained from the Ketua Hakim Syarie, the applicant argued that the third respondent had no basis to insist on a Syariah Court order to effect the amendment in the applicant’s identity card. [134] Yew Jen Kie J (as she then was) granted the orders the applicant sought and in so doing, held as follows at paragraphs 26-27: “In Lina Joy’s case, supra, the appellant was a Malay woman brought up as a Muslim. She applied for the removal of “Islam” and her name “Azlina bte Jailani” to “Lina Joy” in her replacement identity card, which application was considered incomplete without an order of the Syariah Court stating that she has renounced Islam. It is to be noted that the applicant in the present case is a Bidayuh by race and had been raised and brought up in a Christian Bidayuh community since birth. The choice of Islam religion was decided for 89 him by his parents following their own conversion to Islamic faith as he was ten years old. He has never practised the Islamic faith and has embraced Christianity. He is not challenging the validity of his minor conversion. In exercise of the constitutional religion freedom, he is seeking a declaration that he is a Christian.” [Emphasis added] [135] The decision in Azmi (supra) remains good law. The decision was appealed but subsequently withdrawn. The NRD also abided by the decision, changed the applicants name and removed the word ‘Islam’ from his MyKad. See: Ida Lim, ‘Sarawakian Christian Rooney Rebit finally gets new IC without ‘Islam’’ The MalayMail (10 November2016) at <https://www.malaymail.com/news/malaysia/2016/11/10/sarawakian-christian-roneey-rebit-finally-gets-new-ic-without-islam/1246725>. [136] As we see it, the difference between Lina Joy (supra) and Azmi (supra) is in the original de facto status of the respective applicants. The applicant in Lina Joy (supra) was for all intents and purposes undisputedly a Malay woman who was originally a Muslim. In the Azmi case (supra), the learned High Court Judge was satisfied that the applicant was never raised as a Muslim compounded by the fact that he could prove he was of Bidayuh heritage and had been raised as a 90 Christian. The fact that he was never given the chance to choose his religion once he attained the age of majority as propounded by the Supreme Court in Teoh Eng Huat v The Kadhi of Pasir Mas, Kelantan & Anor [1990] 1 CLJ Rep 277, further amplified the assertion that he was never a Muslim to begin with. [137] With the foregoing authorities in mind, we are of the view a MyKad is not conclusive evidence of religious identity. Just because a MyKad states ‘Islam’ does not ipso facto mean that the given person is to be taken as a person ‘professing the religion of Islam’. Firstly, our reading of Lina Joy (supra) suggests that the Federal Court, strictly considering administrative law, held that the NRD was not incorrect to require an order from the Syariah Courts before removing the word ‘Islam’ from the applicant’s MyKad. The Federal Court did not venture to say that a MyKad was in fact conclusive of her status as a person ‘professing the religion of Islam’. We are fortified in our view by comparing the decision in Lina Joy (supra) to the decision in Azmi (supra). [138] But for the sake of caution, we hasten to add that if a person’s MyKad clearly does not state that he or she is a Muslim, given the unique circumstances adjudicated in Lina Joy (supra), there would be no reason to investigate such a person for a Syariah offence because it is clear that 91 he or she is not a Muslim. However, if his/her MyKad says he/she is ‘Islam’, then that is where the ambiguity lies, because the religious identity as stated in the MyKad is not conclusive proof of what is stated if that fact is disputed. Thus, any person alleging a fact in the MyKad to be true still bears the burden of proving its truth. [139] Next, we find logic in the argument that the plain language of Regulation 24 of the NRR 1990 excludes the application of any presumption of identity. There is at least one comparable decision from Singapore on point. [140] The case of Lim Ying v Hiok Kian Ming Eric [1991] 2 SLR(R) 538, concerned the validity of a marriage between one woman and another woman who had undergone a sex change. The transsexual had persuaded the Singaporean NRD to change the designation of her gender from female to male. This they did. In defending the validity of her gender change, counsel for the transsexual woman argued that the identity card was indicative of her legal status as a male and by that fact the marriage was validly entered into between persons who were respectively male and female. 92 [141] Regulation 11 of the Singapore NRR 1991 is in pari materia with our Regulation 24 of the NRR 1990. VK Rajah JC in rejecting the conclusiveness of particulars on the identity card opined as follows, at paragraphs 51 and 52: “A person issued with an identity card must, under the National Registration Regulations 1991, report a change in his name or other particulars which are to his knowledge incorrect to the nearest registration office and apply for a replacement identity card. Section 11 of the National Registration Act (Cap 201) places the onus of proving the truth of the contents of an identity card on the person to whom the identity card was issued or on any other person alleging the truth of its contents. The particulars on the identity card are not conclusive evidence to establish the sex of a person for purposes of contracting a valid marriage under the Charter. The fact that the sex of the respondent was stated as a male on the identity card does not make her a male in law for purposes of marriage under the Charter.” [Emphasis added] 93 [142] In response to the Lim Ying (supra) decision, the Singapore Parliament amended the Singapore Women’s Charter to expressly render one’s identity card as prima facie proof of one’s sex. MyKad and Federal and State Legislative Powers [143] Further, there is also merit in the Respondents’ point on the separation of legislative powers of the Federal and State legislatures on this matter. The power to provide for national registration is provided in Item 3 of List I of the Ninth Schedule of the Federal Constitution. It is a federal power. For convenience, the said Item reads: “3. Internal security, including — …

Subsection

(1) Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say:

Subsection

(2) No law shall be made in pursuance of paragraph (a) Clause (1) with respect to any matters of Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak and no Bill for a law under that paragraph shall be introduced into either House of Parliament until the Government of any State concerned has been consulted.” [Emphasis added] [147] Given the clear demarcation of legislative powers, the authority to determine whether a person professes Islam is something clearly within the powers of the State Legislature derived collectively from Article 74(2) and Item 1 of List II of the Ninth Schedule respectively of the Federal Constitution. Whether or not the federal promulgated law designates someone a Muslim or otherwise therefore is not conclusive of the religious identity of the person concerned and consequently, the issue has to be determined in reference to the relevant State Enactments. [148] If a MyKad does not actually represent the religious identity of a Muslim person, then the larger pressing concern is how exactly one’s religious identity be determined. In respect of the Malaysian Respondents, the Appellants contention is that during the course of their investigation, they had relied not only on the religious identity as stated in 96 the MyKads of the Malaysian Respondents, but also on the fact that the Malaysian Respondents possessed ‘Malay’ features and thus it was reasonable, without any evidence to the contrary, to assume that the Respondents were Muslims and therefore, subject to the jurisdiction of the Syariah Courts and the enforcement of ARIE 2003. [149] Therein lies the legal quandary. The Malaysian Respondents argue that the NRR 1990 was retrospectively amended and that as a result, the Malaysian Respondents were ascribed the status ‘Islam’ in their MyKad. The issue is compounded by the fact that the status of whether one is ‘Islam’ is determined by the respective State law. Thus, while an Ahmadiyya might be a Muslim in one State, he might be a non-Muslim in another State. Thus far, only the State Enactments of Selangor and Kedah have denounced the Ahmadiyya as non-Muslims. There is, as far as we are aware, no uniformity among the States on this subject. [150] Besides MyKads, there is no other reliable identification, as far as we know, to determine whether a person does or does not professes the religion of Islam. This poses a real problem to the State religious authorities when investigating and subsequently finding that a person is designated as ‘Islam’ in his MyKad. 97 [151] While we have expressed the view that a MyKad is not the determining factor of one’s religious identity, it appears to be the only convenient method of identification as far as law enforcement officers are concerned. Regulation 6 of the NRR 1990 for instance requires a person to carry his MyKad with him at all times. Thus, a MyKad, with security in mind, serves to enable identification of the holder of the MyKad. [152] In respect of Syariah offences in the state of Selangor, sections 78 and 79 respectively establish the offices of the Chief Syarie Prosecutor and the Syariah Prosecutors. The duty of the Chief Syarie Prosecutor is primarily to institute, conduct or discontinue any proceeding for an offence before any Syariah Court. Section 79 establishes the role of Religious Enforcement Officers. Their main duty is to carry out the investigation of offences under this Enactment or under any other written law prescribing offences against the precepts of Islam by “persons professing the religion of Islam”. How is a Religious Enforcement officer to know whether or not a specific person is or is not in that class? Thus, while MyKads are by no means conclusive proof of a person’s religious identity, it therefore remains open to any person with a MyKad designated as ‘Islam’ to proffer proof he is not what MyKad says he is. 98 [153] Now, we understand learned counsel Mr Aston Paiva’s argument that the retrospective amendment to the NRR 1990 was perhaps made without any prior consultation with the Ahmadiyya community with the result that they were erroneously ascribed with the title of ‘Islam’ notwithstanding the 1998 and 2000 fatwas. [154] On the premise that the Ahmadiyya, are non-Muslims to begin with (according to the respective fatwas in Selangor and Kedah), we think the situation presented to us i.e. that the whole Ahmadiyya community would have to apply to the Syariah Courts for an order renouncing their faith so that they can approach the NRD to remove ‘Islam’ does not arise. This is because at least in respect of the Ahmadiyya who are not Muslims by origin, their adherents are in the same position as other non-Muslims like the Hindus, Buddhists and Christians, etc. Their situation is closer to that of the applicant in the Azmi (supra) case. This of course, is only true of persons who are originally Ahmadiyya by faith. As for those who were originally Muslims and may have converted to Ahmadiyya, in line with the authorities of Lina Joy (supra), Dalip Kumar (supra), and Soon Singh (supra), an order of renunciation of Islam by the Syariah Court is required. [155] We are also very wary of the fact that there are fundamental issues at stake here. If the designation ‘Islam’ is not removed from the MyKads 99 of the Malaysian Ahmadiyya, would that mean that each and every time the Ahmadiyya community congregates for prayers, they would have to present proof that they are in fact an Ahmadiyya? It would certainly be in their interest to provide such identification. Otherwise, they may find themselves being subjected to investigation – an act which may be interpreted as religious persecution. What is needed, at the end of the day is clarity on the religious identity of the Ahmadiyya in order to determine whether or not they are subject to the jurisdiction of Syariah law in the respective States. [156] In addition, as things stand, there also lies the equally real and important concern in Kamariah Ali (supra). Could there also be cases where actual born Muslims, or even those who converted to Islam might renounce the faith and claim to be Ahmadiyya in order to escape prosecution under the ARIE 2003 or any other State law? What is the State to do then? Further, considering the Ahmadiyya belief is not considered a part of Islam, the Ahmadiyya are also subject to the prohibition under Article 11(4) of the Federal Constitution from propagating their faith to Muslims. Thus clarity and certainty is required in the religious identity of the Ahmadiyya especially in their religious activities, to avoid a situation whereby they run the risk of contravening Article 11(4). The Ahmadiyya themselves have to ensure that any 100 propagation of their beliefs cannot involve Muslims, but only Non-Muslims, including their own adherents. [157] The affidavit of Nurhelmi bin Ikhsan indicates that the Appellants have always doubted the Ahmadi status of the Respondents. This is distinguished from the facts of Abdul Rahim (supra), where the relevant State religious authority had expressly admitted and accepted that the applicant in that case was an Ahmadi. Here, the Appellants dispute the religious identity of the Respondents. [158] We also note that one of the prayers of the Respondents sought in their application for judicial review is prayer (g) which we reproduced as follows: “(g) In the alternative, an order in the nature of prohibition against the 1st, 2nd and 3rd Appellants and their servants, officers and/or agents from conducting investigations or continuing investigations against the Respondents or each of them if the Respondents or each of them procures proof or evidence to the 1st, 2nd and 4th Appellants that they are followers of the teachings of the Ahmadiah/ Qadiani”. [Emphasis added] 101 [159] Premised on the above prayer, the Respondents themselves had indicated their amenability to be subjected to an investigatory process to prove that they are indeed Ahmadiyya. Thus, in our considered view, the learned Judge should have allowed an investigation into the Respondents’ religious status. With respect, in our view, the learned Judge erred in finding the Religious Enforcement officers had exceeded their jurisdiction simply on the assumption that all the Respondents are indeed Ahmadi without making the distinction as to whether they are of the Ahmadiyyah faith by origin or by conversion from Islam. Equality before the Law Article 8 of the Federal Constitution [160] We will now address the Respondents’ arguments in respect of Article 8 of the Federal Constitution. Article 8 provides, in part, as follows: “Equality

Subsection

(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment 102 to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on any trade, business, profession or employment.” [161] In addressing this issue, we make two observations. Firstly, for reasons stated already, applying Regulation 24 of the NRR 1990, MyKads are not presumptive of identity. It remains open to any person – citizen or not – to produce proof to the Religious Enforcement Officers to contradict the contents of his MyKad. In the case of foreigners, we see no impediment to their right also to produce any credible proof of their identity. At this juncture we note that we are not relying on the MyKad to determine the Malaysian Respondents’ religion. From wherever the Respondents are, it is for them to prove on evidence their religious status as Ahmadiyya. This is to dispel any notion that they may be Ahmadi by renouncing the Islamic faith as opposed to being Ahmadi by original faith. The nature of the evidence would necessarily differ between the foreign and the Malaysian Respondents as the foreign Respondents may refer to their international passports, UNHCR documentation or membership of Ahmadiyya from their home country. Malaysians may refer to their membership of the Jemaat Ahmadiyya in Malaysia or other relevant documentary evidence. 103 [162] The common requirement for both non-Malaysians and Malaysians is that the evidence proffered is credible evidence of the religious status of the respective Respondents. The treatment accorded is the same and thus, there is no discrimination between the Malaysian and non-Malaysian Respondents. The argument that there will be breach of Article 8 is therefore without merit. Who Bears the Burden to Prove That a Person ‘Professes the Religion of Islam’? [163] Having held that the information stated in MyKad is not conclusive in the determination of a person’s religious status as ‘Islam’, the next question is how is such determination to be made? [164] Regulation 4(cc) (v) of the NRR 1990 requires that any person who is required to register under the Regulations shall give the relevant particulars including ‘his religion’. Thus, it is clear that when the NRD registered the religion of the Malaysian Respondents herein, they did so with the benefit of information supplied to them by the said Malaysian Respondents. There may be several anomalies if this is the case. [165] For one, the Malaysian Respondents may have themselves informed the NRD that they are Muslim. If that were the case, their 104 religious status would have been a fact which they themselves were responsible to supply. If they were in a State other than Selangor and Kedah, or any other State which does not excommunicate the Ahmadiyya from the mainstream Islamic faith, then it stands to reason that the Appellants’ assertion that the Respondents are Muslim is correct. [166] But, if the Respondents did indicate that they are Muslim at the time of registration, it could in turn have happened for two separate reasons. Firstly, the applicant of the MyKad may indeed be a Muslim when the MyKad was issued to him, but he currently professes the Ahmadiyya faith as a result of a subsequent conversion. Or secondly, that he was originally an Ahmadiyya and at the time the MyKad was issued to him but nonetheless registered himself as Muslim on the belief that his faith is still a part of Islam. In the former situation, his registration as ‘Islam’ was reflective of what he actually professed at the material time. However, if it was the latter, then the designation of his religious identity as ‘Islam’ would have been a mistake. [167] The Respondent submits that the insertion of Regulation 4(cc)(v) was a retrospective amendment made without according the Ahmadi community the right to be heard. Our analysis indicates that the amendment was made nearly 20 years ago. If this was indeed a mistake, 105 then it would have been in the hands of the relevant Malaysian Respondents to take the necessary remedial steps to correct that mistake and to accept the legal position that their faith is not Islam under the laws of Selangor. That this is possible is apparent in the Azmi case cited earlier. [168] Whatever be the case, it is only logical to conclude that a person’s state of mind and what he ‘professes’ is strictly within his own knowledge. Section 106 of the Evidence Act 1950, in this regard provides as follows: “Burden of proving fact especially within knowledge