These are my views on the Federal Constitution, the law and its practice where it relates to apostasy, and my experience conducting such cases in Kuala Lumpur and Putrajaya in the Federal Territories of Malaysia; I do not consider its theological aspects.

In Malaysia, it is said that converting into Islam is like checking into the Hotel California. You can check out anytime you like, but you can never leave. From my experience, that is how many who converted to Islam and want to leave, feel. I know this because I am regularly sought for advice on such matters, have listened to numerous stories, and have been involved with freedom of religion issues over the last few years.

I do not say this by way of boasting or touting this as success. If I had it my way, no one need have to be in a lawyer’s office about matters of faith. That I am regularly sought for such advice is, to me, a cause for tragedy, not one for celebration or ‘business’.

The overwhelming majority of those that seek me out are those that converted to Islam to marry a Muslim man or woman whom they later divorced. If that person is of Chinese, Indian, or Western descent, nine times out of ten I know their story already. It’s just the details that need filling in.

The non-Muslim falls in love with a Muslim and converts to Islam to marry because in Malaysia a Muslim and a non-Muslim cannot legally marry. With limited exceptions which are near impossible to meet, in Malaysia, only Muslims can marry Muslims. The non-Muslim must convert in order to marry the Muslim.

So the non-Muslim converts to Islam by going to a state religious department or an authorized organization by filling in a form and reciting the Kalimah Shahadah (the Islamic declaration of faith) before two witnesses. The convert signs the forms and is issued a conversion card, a Kad Muallaf. Said convert then attends a two-day marriage course.

In the cases that come to me, it is common for the Muslim in such a relationship to be the non-practicing sort if not downright rebellious. Both sides just as often partake in matters forbidden or discouraged by Islam. Or if they didn’t partake in it, they had no issues with it at the time. Religion was not a factor in their relationship. At the time. That is often why the non-Muslim got along so well with the Muslim to the point of marriage in the first place.

The couple may or may not have children. The marriage lasts for X years before ending in divorce. The convert may or may not go on to marry another Muslim. Whatever the case, the convert wants to leave because they never really believed in the faith. They feel the desire to be identified by their real faith or want to marry a non-Muslim, or both. They converted at the time because they saw converting into Islam as an administrative requirement to fulfill in order to marry the Muslim they loved at the time.

Only a small minority of those I have consulted were born Muslim but because of upbringing, circumstance or a natural orientation towards a different belief wished to renounce Islam.

The decision to formally leave Islam is usually not immediate. Very often several if not many years pass before they summon up the courage to seek legal advice.

Despite the variety of circumstances in which they ended up Muslim, they share the same anguish and anxiety at their inability to be formally and legally recognized as non-Muslim. They don’t want to disrespect the religion but they also want to live their lives out authentically. They live in constant anxiety from having to pretend to be Muslim in public as well as the fear of being found out and prosecuted for not being a ‘true’ Muslim. This state of affairs causes them immense misery and distress.

It is when they move past their fear and anxiety and muster their courage do they finally seek legal advice. And even then only a rare few see it through. Perhaps my slow take-up rate is because I do not varnish the facts or candy coat my advice.

The process of an application to renounce Islam in the Wilayah Persekutuan Syariah Courts

The process of an application to renounce Islam in the Wilayah Persekutuan syariah courts is a daunting one for a non-Muslim masquerading as a Muslim unfamiliar with the practice and culture of Islam. Such a person has to file a claim in the syariah high court and cite the Majlis Agama Islam Wilayah Persekutuan (MAIWP) as the defendant.

The claim is served on MAIWP who will file a statement of defence to oppose the application. As a matter of course, MAIWP will apply to the court to have the person go for religious counselling sessions managed and conducted by the Mufti’s Department. The Mufti’s Department is responsible for advising on matters of Islamic law. The person can oppose such an application but it will inevitably be granted. It’s standard practice. A person’s usual reaction is not to challenge this process because they do not want the process to take any longer than it needs to.

The person will have to attend between twelve to fourteen hours of such counselling sessions. After that, a report is prepared which purports to assess the person’s knowledge about Islam. The report also provides a recommendation about what should be done about that person’s ignorance about matters relating to the Islamic faith. The recommendation unsurprisingly is almost always that the person does not understand Islam enough and requires more religious counselling.

Once the report is served, the court will fix trial dates. Often just like the civil courts, a witness statement is prepared setting out how they came to convert into Islam, the reasons why they wished to leave and specific denials of the tenets of the Islamic faith. They will take the syariah court oath and then confirm the witness as their evidence.

The defendant’s syariah lawyer will cross-examine the person about their faith and often simply establish that the person validly converted according to law. There may or may not be re-examination.

If there are other witnesses they will go through the same process. Once their examination is completed, the defendant will call their witnesses. It is usually the counsellor that prepared the religious counselling report and the officer that conducted the conversion. They will go through the same process of examination as the person’s witnesses.

Just like a civil trial, after examination of the defendant’s witnesses is concluded, written submissions are directed by the court and then prepared, filed and exchanged between the lawyers.

The high court then decides the case. If the person wins then I would like to meet this person. Hello, pleased to meet you. I have some questions for you, if I may. Teh tarik on me. Because in my short experience at the syariah bar, I have not had any such applications granted. I have no personal knowledge of any such applications being granted either. Maybe I just haven’t done enough.

The application is not only dismissed but the court often further orders the person to go for further religious counselling classes and through a repentance process. No time period is stipulated how long the person is supposed to undertake these classes and processes. The Mufti’s Department is ordered to prepare suitable religious counselling classes for the person to attend.

A person dissatisfied with the syariah high court’s decision may appeal against it within fourteen days to the syariah court of appeal. Just like a civil appeal to the court of appeal, a notice of appeal is filed and served on MAIWP. A record of appeal is prepared, filed and served.

Case management dates are fixed to keep track and ensure the case moves along. Written submissions are directed, prepared, filed and exchanged. A decision date is fixed. On said date, the decision is delivered. In my time thus far, rarely have I had to argue anything substantive orally thus far, either at the high court or appellate level.

If the appeal is allowed then I’d like to meet you too. But if the appeal is dismissed as my clients’ have been then the only avenue left is to judicially review the syariah courts’ orders in the civil High Court.

Taking it up to the civil courts

If there are demonstrable grounds of illegality, irrationality or procedural impropriety, or whatever mix, then the civil courts are entitled if not obliged to intervene and set aside the syariah courts’ orders: see the Federal Court decision of Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 3 CLJ 145. But this process is not a straightforward one either.

Judicial review is a two-stage process.

First permission to judicial review must first be obtained from the High Court. If that is refused that decision can be appealed to the Court of Appeal. If there are appropriate questions of law then a further appeal to the Federal Court. If the person’s appeal is finally allowed in the Federal Court, all it means is that that means the person is given permission to judicial review.

The case is then sent back down to the High Court to be heard on the merits of the judicial review application. If leave were given, that whole appeal process would be avoided. If the High Court grants the judicial review all well and good. If not, it is to the Court of Appeal and again to the Federal Court if there are appropriate questions of law.

That in a nutshell is the entire process and potential pathways for a person that wishes to formally renounce Islam.

That is what they have to do to reconcile the schism between their de facto identity (identity in fact) and de jure identity (identity in law). That is what such a convert has to go through simply to be legally recognized as not a Muslim, especially if the courts refuse them at every turn. That is the huge amount of time, money, effort, emotional investment, and mental fortitude a convert has to spend simply to be legally recognized again as a non-Muslim again.

But even then, there is no guarantee they will get the release they seek. Often they don’t.

It is clear how the syariah courts decide such cases. It remains to be seen whether the civil courts adopt the same reasoning and thinking as the syariah courts post-Lina Joy v MAIWP [2007] 4 MLJ 585.

Lina Joy is a famous case. She was born into a Muslim family. Her given name was Azalina binti Jailani. She decided to convert to Christianity because she wanted to marry a Christian man. She applied to change her name on her identity card (IC) with the national registration department(NRD). She was successful.

However, due to regulations that came into force and applied retrospectively which required the word ‘Islam’ to be printed on IC cards of Muslims, her IC was returned with her new name together with the word ‘Islam’ printed on it. That defeated the point of the name change. She applied to have the word removed but was rejected by the NRD. She challenged the regulations and their constitutionality in court. She eventually lost in the Federal Court. It ruled the regulations were constitutional. It also ruled the syariah courts had exclusive jurisdiction in determining whether a person was a Muslim or not.

So she had to go there.

Comments from other legal minds

I mention Lina Joy because in thinking about sending non-Muslims to the syariah courts to obtain a declaration they are no longer a Muslim and seeing what happens for myself I cannot help recall what Justice Michael Kirby said in his Griffith Lecture 2007 titled ‘Fundamental Human Rights and Religious Apostasy’ which was an eloquent and intense analysis of the Federal Court decision of Lina Joy v MAIWP [2007] 4 MLJ 585. I reproduce the relevant portions of his speech below:

The practical impediments: Secondly, if Lina Joy were now to apply to a Syariah court for a declaration of apostasy she would face a number of impediments. Islamic principles discourage Muslims supporting or facilitating renunciations of the Islamic faith by other Muslims. Thus, it would be difficult for Lina Joy to find a lawyer, specialising in Syariah law, who would be willing to represent her in such a case. She might therefore have to represent herself. Moreover, Syariah judges might also find themselves breaching Islamic law if they granted declarations permitting Muslims to leave the religion. The legal representatives of Lina Joy have stated that:

“In reality, the prospects of obtaining an apostatisation order is illusory given the general belief that apostatisation is a sin and the Muslim community has an obligation to prevent its adherents from falling into sin.”

It follows that obtaining an apostasy order from a Syariah court is no mere formality in Malaysia. In a sense, it is akin to the King’s “great matter” when King Henry VIII in England sought to secure a divorce from Queen Katherine. For many at the time this was seen as impossible because contrary to God’s will, revealed in scripture. Appealing to religious people to be complicit in the divorce imposed unreasonable burdens on their consciences. Some (like Sir Thomas More) were willing to pay for refusal with their lives. The only resolution was the intercession of secular State power, manifested in an Act of Parliament.

The Griffith Lecture 2007, Queensland Conservatorium, Griffith University, Friday, 16 November 2007

I can understand that for a syariah court judge granting a declaration that someone is no longer a Muslim makes them feel somehow responsible for that person leaving Islam. I can empathize that for them, having to grant such an order is a distasteful thing to them that weighs heavily on their conscience and so are reluctant to do so. After all, they are a syariah judge of a syariah court. It does not look appropriate for their court to be regularly giving out such orders.

I completely get it. Honestly, I feel sorry and sad for the syariah judges forced to do what they are loathed to do. Personally and without reference to law, I think the syariah judges should be relieved of that burden and obligation that torments them. The question I often wonder at is whether Muslim civil court judges feel the same way as Kirby described of the Muslim syariah court judges.

It remains to be seen whether the distinction the likes of Tun Salleh Abas LP, Wan Suleiman SCJ, George Seah SCJ, Hashim Yeop Sani SCJ and Syed Agil Barakbah SCJ drew as expressed in Che Omar bin Che Soh v PP [1988] 2 MLJ 55 remains:

We thank counsel for the efforts in making researches into the subject, which enabled them to put the submissions before us. We are particularly impressed in view of the fact they ere not Muslims. However, we 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. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.

The proper Constitutional position

In Malaysia, it takes less than a minute to enter Islam but a chunk of lifetime and money to leave it.

Such a person is denied legal recognition of their de facto faith (faith in fact) despite the guarantee of freedom of religion in the Federal Constitution, which reads as follows:

Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.

Article 11(1) of the Federal Constitution

Can the square be circled?

It may surprise some to know that the process I described earlier was not always the legal position. A growing number of lawyers and academics have been saying the present system was a result of a misreading of an important Supreme Court decision called Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Ors [1991] 1 CLJ (Rep) 77. The misreading happened in a subsequent Federal Court case of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489 and the error was continually perpetuated.

I credit my friend Aston Paiva with sharing that insight with me many years back in his early practice. He wrote an unpublished essay that made the point. I regret he did not publish it. For an account of how it happened from the standpoint of legal precedent, read Kuek Chee Ying and Tay Eng Siang’s excellent paper When Obiter Dictum and Minority View Become Ratio Decidendi.

What I am saying here is not original but my attempt to summarize their arguments as cogently and coherently as possible, and sprinkle some of my own. I will discuss Dalip Kaur first then Soon Singh.

In Dalip Kaur, a mother applied for a declaration that her deceased son was not a Muslim or had renounced Islam when he died. She wanted an order for custody of his remains. The High Court rejected the mother’s evidence, which went against the grain of official documentary evidence. It dismissed her claim. She appealed to the Supreme Court. (Aside: Back then there was no Court of Appeal, an appeal from High Court went straight up to the Supreme Court)

The Supreme Court sent the case back down to the High Court. This time by consent, certain questions of Islamic law were referred to the fatwa committee for determination. After receiving the fatwa committee’s reply, the court reconsidered the evidence with reference to the fatwa. It dismissed the claim again. The mother appealed to the Supreme Court again. She lost.

The reasons why are important to understand.

Three Supreme Court judges heard the appeal. Although they came to the same decision to dismiss the appeal, the reasoning diverged. Both reasonings are incredibly significant. So it is necessary to consider them in detail.

There were two lines of reasoning.

The majority reasoning comprised of Hashim Yeop A Sani CJ and Harun Hashim SCJ (who concurred). They held the appeal hinged on two issues, of which only one is important for this essay.

The first issue was whether the judge was correct when he found as a fact the deed poll the deceased son made prior to his death was genuine or not. The second issue was whether the judge’s exercise of discretion to dismiss the case again was correct. I will not deal with this.

On the first issue, the court held: The deed poll is crucial to determine whether the deceased died a Muslim. The relevant part of the fatwa on this point states in effect that if a Muslim executes a deed poll renouncing Islam he becomes a “murtad” (apostate): see [1991] 1 CLJ (Rep) 83 at paragraphs b – c. The significance of this is that the execution of a deed poll suffices to make one an apostate.

The majority of judges pointed out that although there were provisions in the Perak Enactment (the Administration of Muslim Law Enactment 1965) for someone converting into Islam, there weren’t any corresponding provisions for a convert to leave Islam. They did point out there formerly was a provision to that effect which was repealed in 1975. It read as follows:

146(2) Semua orang Islam ada-lah terikat dengan Undang-undang ini, dan sa-kira-nya mana – mana orang Islam keluar daripada Ugama Islam maka hendaklah ia menyatakan kepada Mahkamah akan keputusannya itu dan Mahkamah itu hendak-lah mengistiharkan perkara itu.

[Translation: All Muslims are bound by this these laws, and if any Muslim leaves Islam then they must declare their decision to the Court and the Court is obliged to make a declaration to that effect.]

Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Ors [1991] 1 CLJ (Rep) 77 [1991] 1 CLJ (Rep) 83 at paragraphs e – f

The majority went on to advise the following:

We are of the view that clear provisions should be incorporated into all the State Enactments to avoid difficulties of interpretation by the civil Courts. … If there are clear provisions in the State Enactment the task of the civil Courts is made easier when it is asked to make a declaration relating to the status of a person whether such person is or is not a Muslim under the Enactment. A clear provision can for example be in the form of a provision imposing obligation on the relevant authority to keep and maintain a register of converts who have executed a deed poll renouncing Islam.

Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Ors [1991] 1 CLJ (Rep) 77 [1991] 1 CLJ (Rep) 83 at paragraphs f – h

The implication of this was the majority recognized that determining whether a person professed to be a Muslim or not was a matter within the civil court’s jurisdiction. If the civil court needed assistance on an Islamic legal issue, it could obtain it from the fatwa committee. After considering it and applying it to the evidence, it could go on to decide the issue, as was endorsed in Dalip Kaur.

The minority reasoning was that apostasy was a matter that needed to be dealt with by the syariah courts. Mohamed Yusoff SCJ who took this view gave his reason for saying so as follows:

The present question, in my view, cannot be determined by a simple application of facts as has been found by the learned Judicial Commissioner on the basis of veracity and relevancy of evidence according to civil law. Such a serious issue would, to my mind, need consideration of eminent jurists who are properly qualified in the field of Islamic jurisprudence.

In this it is imperative that the determination of the question in issue requires substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the Syariah Court.

Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Ors [1991] 1 CLJ (Rep) 85 at paragraph i – 86 at paragraph a.

The implication of this was that a person seeking a declaration over themselves or others had to be undertaken in the syariah courts. With respect, Mohamed Yusof SCJ’s reason is wanting.

Ironically, if his Lordship wanted ‘substantial consideration of the Islamic law by relevant jurists qualified to do so‘, the fatwa committee was more appropriate compared to a syariah judge.

Where Islamic law is concerned, the Mufti ranks second highest in a state. The highest is the Sultan or Agong, whom the Mufti advises on matters of Islamic law.

The Perak Shariah committee, as it was then known, was headed by the Mufti. It included not more than four ulamas who were also from the Majlis Agama Islam Perak (MAIP) and four others, not on MAIP but who were learned in Islamic law. So the Shariah committee had nine jurists. A syariah judge sits alone unless on appeal where a panel of three sits. The Shariah committee more closely approximated the ‘relevant jurists qualified to do so’ compared to a judge or a panel of three judges.

The Shariah committee carries out its research, discussion and deliberation before issuing a fatwa. They are not distracted by having to assess facts like a syariah judge. They are focused entirely on the Islamic legal questions put to them. That fulfills the substantial consideration element.

The minority’s rationale for preferring the syariah court, therefore, does not bear up to scrutiny. It seemed to have been made without sufficient or any regard to the provisions relating to the Mufti and the Shariah Committee of the Perak 1965 Enactment.

Furthermore, a syariah judge has to apply a fatwa. In the Federal Territories now, for example, section 34(4) of the Administration of Islamic Law (Federal Territories) Act 1993 provides that ‘a fatwa shall be recognized by all Courts in the Federal Territories as authoritative of all matters laid down therein.’ I do not know for certain whether the Perak 1965 Enactment had an equivalent provision, but I am guessing it would.

Significantly, a fatwa committee’s opinion can be called upon by a civil court to determine matters of Islamic law. Just because it involves a consideration of Islamic law does not mean the syariah courts necessarily have jurisdiction or are more eminent on the matter. A syariah court’s jurisdiction is exclusive to only subjected matters provided by and circumscribed by the Constitution.

Everything else is within the jurisdiction of the High Court. In any event, the High Court is the ultimate arbiter of factual determination (subject to appeal, of course). The determination of one’s constitutional right should be determined by a court born directly from the constitution. That is the High Court. It should not be delegating the factual determination of a person’s constitutional right to a court created by a state enactment with exclusive but limited jurisdiction.

There are other reasons why the majority reasoning should be preferred. First, the appeal was dismissed on the merits. Second, the minority reasoning was thoroughly obiter dicta i.e., extraneous comments. The issue of the High Court’s jurisdiction to hear the matter was not challenged or in issue during the appeal. Thirdly, the fatwa only advised on Islamic law. Its opinion in relation to civil law does not bind the Supreme Court. That is a matter beyond its jurisdiction.

The effect of Dalip Kaur was that in Kedah circa 1991, the law was that if a person required a declaration that they or someone else was not a Muslim, they should go to the civil courts. More importantly, the execution of a deed poll sufficed as proof that someone was no longer a Muslim.

The equivalent of a deed poll these days is a statutory declaration. That means under Dalip Kaur a person who wanted to leave Islam did not have to go through the entire process I described earlier. All they need to do is affirm a statutory declaration, which costs four ringgit and takes less than a minute; as quickly as it is to recite the Kalimah Shahadah. A statutory declaration is a sworn statement that is evidence.

Unfortunately, the subsequent Federal Court in Soon Singh misread the Supreme Court in Dalip Kaur. It endorsed the High Court decisions of Soon Singh and Md Hakim Lee v MAIWP, KL [1998] 1 MLJ 681 which in turn preferred the minority reasoning in Dalip Kaur which was obiter dicta. The Federal Court panel of Soon Singh was Eusoffe Chin CJ, Lamin Mohd Yunus PCA and Mohd Dzaiddin FCJ. A slew of subsequent decisions applied Soon Singh and failed to appreciate Dalip Kaur’s majority reasoning.

In practical terms, that meant a person had to file their case in the syariah courts for a declaration that they were not a Muslim. That is Soon Singh. And that is the position now in the Wilayah Persekutuan, and in other states.

So we now come to the most frequently asked question in relation to renouncing Islam in Malaysia: Can it be done? Theoretically, yes, it can be done.

But I think that’s the wrong question to ask.

The better and more precise question is, How is it to be done?

And to properly answer that question only in relation to the law, leaving aside theology and politics, requires answering another question which is, Will the Federal Court correct the error caused in Soon Singh and reinstate the proper Constitutional position that every person in Malaysia is free to profess the religion of his or her choice?

Thankfully, it is not my place to answer that question.

Note: A big thanks to my friend Shan for the editing, the corrections and the most excellent suggestions for this essay. I am most grateful. I dedicate this essay to him for introducing me to this arena of the law. Needless to say, all defects, shortcomings and errors in this essay are mine alone.