They are not the munafiqun; the hypocrites that outwardly claim to be Muslim but inwardly conceal disbelief and seek to undermine the Muslim community. The hypocrites are considered worse than the non-Muslim enemies. The Quran has a whole sura about them, Al-Munafiqun, Chapter 63.

The trapped Muslims of Malaysia are nowhere close to being as vile and sleazy as that.

On the contrary, they are pleasant, conscientious, ordinary folk who had the misfortune of a misalignment of their actual beliefs with their assigned beliefs or falling in love with a Muslim and converting to the religion of Islam to marry one.

From my index finger in the wind gauge of my consultations, 98% are the latter.

In Malaysia, a non-Muslim and a Muslim cannot be married because no law enables it. In fact, if you live in Selangor like I do, section 10 of the Islamic Family Law (State of Selangor) Enactment 2003 explicitly prohibits it. All states have a similar provision in their Islamic Family Law enactments.

Before I continue, let me be clear that the conversion to the religion of Islam I discuss is from a legal, administrative and official dimension, not of actual belief. This is a crucial distinction.

In Malaysia, for a non-Muslim to marry a Muslim, either the non-Muslim converts or the Muslim renounces officially.

To appreciate why this is so, let’s first consider the provisions concerning conversions to Islam. Section 107 of the Administration of Religion of Islam (State of Selangor) Enactment 2003 (‘ARISS’) sets out what is required to convert to Islam.

(1) The following requirements shall be complied with for a valid conversion of a person to the religion of Islam:

(a) the person must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith;

(b) at the time of uttering the two clauses of the Affirmation of Faith the person must be aware that they mean “I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad S.A.W. is the Messenger of Allah”; and

(c) the utterance must be made of the person’s own free will.

(2) A person who is incapable of speech may, for the purpose of fulfilling the requirement of paragraph (1)(a), utter the two clauses of the Affirmation of Faith by means of signs that convey the meaning specified in paragraph (1)(b).

Section 107, Adminstration of Religion of Islam (State of Selangor) Enactment 2003

The only external manifestation of the conversion is the utterance of the Affirmation of Faith in reasonably intelligible Arabic: section 107(1)(a) ARISS. The other two conditions – awareness of the Affirmation of faith and made from their own free will – are internal states: section 107(1)(b) and (c) ARISS. Although others cannot perceive these two conditions, they can be verified using standard forms.

Therefore, as long as the forms are executed, and the Affirmation of Faith recited, you fulfil the requirements of section 107 ARISS to be a Muslim. Conversion to Islam is a simple administrative procedure. It does not take more than thirty seconds to utter the Affirmation of Faith and another few minutes to fill in and sign the forms.

Because converting to be a Muslim is short and simple, what commonly happens is non-Muslims convert to the religion of Islam to enable marriage to a Muslim. This is far easier, quicker and certain compared to a Muslim renouncing his faith, which I discuss at length here.

What is the reality of this conversion? It is a legal and administrative one, not a personal spiritual one. As for the couple, they are likely to be clear about this and have an understanding between them that the conversion is a formality to be complied with for them to get married.

Let’s get real: Non-Muslims are not going to suddenly believe in Islam simply because they are in love with a Muslim. To believe that is to conflate love for someone with faith in a higher being. They both involve love but of a different nature. One does not genuinely change faith overnight unless some arresting, deeply moving or traumatic event causes it. Love for another person is a deeply moving force and is the most common reason for formal religious conversion.

What happens after the affirmation? You are a Muslim. Section 108 ARISS statutorily determines when the moment of conversion occurs:

A person is converted to the religion of Islam and becomes a Muslim as soon as he finished uttering the two clauses of the Affirmation of Faith provided that the requirements of section 107 are fulfilled; and that person shall thereupon be referred to as a muallaf.

Section 108, Adminstration of Religion of Islam (State of Selangor) Enactment 2003

According to section 108, ARISS, the moment the vibrations of the last syllable of the Affirmation of Faith fade from the convert’s lips, he is a muallaf. In being labelled as such, a convert is deliberately distinguished from those who were ‘born’ Muslim.

Why there should be such a distinction? I don’t know. A Muslim is a Muslim irrespective of when they profess the religion. The worthiness of a Muslim comes from the good they do, not when they convert or from being a Muslim per se. There are many examples in Malaysia of loathsome people who claim to be Muslim.

What is the consequence of conversion? That is provided by section 113 ARISS, which provides:

(1) A person who has converted to the religion of Islam and has been registered in the Register of Muallafs shall, for the purposes of any Federal or State law, and for all time, be treated as a Muslim.

(2) A person whose conversion to the religion of Islam has been registered under any law of any State shall, for all purposes in the State of Selangor and for the purposes of implementing the provisions of any law in the State of Selangor, be treated as a Muslim.

Section 113, Adminstration of Religion of Islam (State of Selangor) Enactment 2003

Section 113(1) ARISS provides that any person who converts to the religion of Islam, once registered in the Register of Muallafs, shall for all time be treated as a Muslim. ‘For all time’ means forever. According to this provision, there is no turning back once a person converts to become Muslim. I will leave the discussion about the constitutional validity of this provision vis-a-vis Article 11(1) of the Federal Constitution for some other time or case except to say that section 113(1) ARISS appears to conflict with Article 11(1).

What is clear and consistent from my consultations with those who want to renounce the religion of Islam is nobody apprises them about the consequences of conversion when they convert. Nobody tells them they will remain Muslim for life. The only other provision that imposes a condition for life is a penal provision for a serious criminal offence.

Nobody tells a convert it is not just an official change in religion that a convert has to contend with. Nobody tells them about the potential communal estrangement and disapproval from their original community and wariness and alienation from their adopted community a convert is subjected to: see Chinese Muslims in Malaysia: History and Development by Rosey Wang Ma (Southeast Asia Research Paper No. 62 July 2003). Nobody tells the would-be muallafs how difficult, if not insurmountable, it will be for them to renounce Islam if the marriage does not work out. Nobody tells them that the government, the authorities and the courts will not aid them in renouncing their official Muslim identity.

But to be fair to those converting for marriage, I am sure they did not convert and marry with the expectation of divorcing and attempting to change their official religious status within a few years. At the point of courtship and marriage, they thought they would be with their chosen spouse for life. Those risks probably appeared low through rose-tinted glasses.

That is why they were willing to take the risk of conversion. If the marriage lasts, the need to renounce the religion of Islam does not become an issue. Renunciation only becomes an issue when the marriage ends in divorce.

The reality in Malaysia is officially converting to the religion of Islam takes less than 30 seconds, but you can never officially renounce it. Let me explain.

In Malaysia, the courts have decided that a Muslim who wishes to renounce the religion of Islam must go to the Syariah court to obtain a declaration to that effect before they can officially change the status on their national identity card. This is the primary reason the renouncing convert wishes to obtain a Syariah court order – to remove the word ‘Islam’ from the national identity card. As a result, matters of renunciation are a Syariah court problem, not the superior courts.

Now, when a person applies to renounce the religion of Islam in the Syariah court, it takes an adjudicatory instead of an administrative approach to the renunciation. It conducts a trial. The applicant is expected to bring proof through witnesses and documents that he doesn’t believe in Islam anymore, believes in another religion, or both. The State religious department that must be cited as a Defendant will oppose the application. They will bring witnesses to show the conversion process was complied with, valid and therefore binding. Their argument is simply this: since the conversion was valid, the applicant cannot leave Islam. Whatever he says now does not invalidate his belief in Islam. Nothing can.

Although they do not articulate it, section 113 ARISS (and its equivalent) informs that line of submission. The Syariah court then goes through the motion of considering written submissions by the applicant and the State religious department. It will dismiss the application because (i) it cannot make such an order or (ii) claiming there was not enough evidence to prove the applicant did not believe in Islam or believed in other religions. It will completely ignore or wilfully blind itself to whatever the applicant declares, professes or states under oath. The Syariah courts will also order the applicant to undergo further educational classes about Islam and Akidah counselling sessions. The order will not state how many or how long these classes and sessions should go on.

The reality that the courts do not want to acknowledge or face up to is the Syariah courts and its judges are unwilling to declare someone no longer a Muslim and will do everything in their power not to grant such an order. The Syariah judges have deep religious, emotional and psychological resistance to making such a declaration. Although I disagree with their sentiment, it is one I understand and empathise with.

In any event, it is not the Syariah courts that precipitated the present state of affairs; it was the superior courts. That responsibility was thrust upon them. The current legal situation with regard to renouncing Islam in the Syariah courts began with the Supreme Court decision of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Negara (PERKIM) Kedah & Anor [1999] 1 MLJ 489, which decided that. Soon Singh’s position was subsequently repeatedly affirmed and confirmed by a series of subsequent Federal Court cases. I critically considered this case here.

What happens when the applicant’s application is dismissed or rejected by the Syariah High Court and their appeal to the Syariah Appellate Court is dismissed?

I contend all the applicant has left is judicial review available. Judicial review is a process that enables an applicant to review the decision of an inferior statutory court or government authority before the courts. The decision is reviewed to ensure that it is not illegal, procedurally improper, irrational or disproportionate to the policy goal sought to be achieved. Any decision or act by an inferior statutory court or government authority can be judicially reviewed.

A Syariah court is an inferior statutory tribunal.

So, the civil High Courts, the Court of Appeal and the Federal Court are established by the constitution itself. But, that is not the case with the syariah courts. A syariah court in a State is established or comes into being only when the Legislature of the State makes law to establish it, pursuant to the power given to them by item 1 of the State List. In fact, the position of the syariah courts, in this respect, is similar to the sessions courts and the magistrates’ courts. In respect of the last two mentioned courts, which the constitution call “inferior courts”, art. 121(1) merely says, omitting the relevant parts:

‘121(1) There shall be …. such inferior courts as may be provided by federal law …’

Paragraph [33], Latifah Mat Zain v Rosmawati Sharibun & Anor [2007] 5 CLJ 253, per Abdul Hamid Mohamad FCJ

As has been illustrated, civil and Syariah courts are distinct in nature and status: the former established under the Federal Constitution and vested with inherent judicial powers; whereas the latter are creatures of State legislation under the State List, and akin to inferior tribunal.

Paragraph [74], Indira Gandhi Mutho v Pengarah Jabatan AGama Islam Perak & Ors and Other Appeals [2018] 3 CLJ 145, per Zainun Ali FCJ

Since the Syariah court is an inferior statutory tribunal, it is subject to judicial review.

[35] While constitutional judicial review essentially concerns the invalidity of legislative and/or executive conduct to the extent that they are in excess of constitutionally permissible limits, statutory judicial review encompasses all other forms of judicial review that are not constitutional judicial review. It covers a wide spectrum of actions which include but is not limited to actions challenging executive orders, decisions and/or discretions; the decisions of inferior tribunals for example the Industrial Court; whether any subsidiary legislation is invalid on the grounds that it is ultra vires the parent statute, and so on. The list is inexhaustive.

SIS Forum (Malaysia) v Kerajaan Negeri Selangor, Majlis Agama Islam Selangor (Intervener) [2022] 3 CLJ 399, FC, per Tengku Mainun Tuan Mat CJ

Another reason a Syariah court lacks jurisdiction is that it has no legal or actual competency to interpret the Federal Constitution or deal with legal issues involving Federal Constitution provisions. The fundamental liberty of freedom of religion is constitutional because it is a right in Article 11(1) of the Federal Constitution. A Syariah court has no legal or actual competency to interpret Article 11(1).

Interpretation of the Federal Constitution is a matter for this court, not the syariah court.

Paragraph [76], Latifah Mat Zain v Rosmawati Sharibun & Anor [2007] 5 CLJ 253, per Abdul Hamid Mohamad FCJ

Finally, just because a matter has an Islamic element does not necessarily mean the Syariah court has jurisdiction or the superior court’s jurisdiction is ousted. There is an oft-repeated argument that Article 121(1A) of the Federal Constitution excludes the court’s jurisdiction of judicial review or over Islamic matters. This is as simplistic as it is wrong.

As the above authorities demonstrate, the approach that art. 121(1A) excludes or oust the jurisdiction of civil courts … is flawed. Article 121(1A) does not constitute a blanket exclusion of the jurisdiction of the civil courts whenever a matter relating to Islamic law arises. The inherent judicial power of civil courts in relation to judicial review and question of constitutional or statutory interpretation is not and cannot be removed by the insertion of cl. (1A).

Paragraph [92], Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 3 CLJ 145, per Zainun Ali FCJ

So despite a strong pedigree of Federal Court authorities that establishes (1) Syariah courts are inferior statutory tribunals, (2) Syariah courts can be judicially reviewed, (3) Syariah courts have no jurisdiction over statutory or constitutional interpretation, and (4) Article 121(1A) does not exclude the superior court’s jurisdiction. Based on this, the decision of a Syariah court is subject to judicial review and can be tested for illegality, procedural impropriety, irrationality and disproportionality.

In truth, all this is quite trite. This is Judicial Review 101.

However, when a Syariah decision, particularly involving renunciation of Islam, is filed, the courts claim it has no jurisdiction to judicially review a Syariah court. The Federal Court decisions of Latifah Mat Zain and Indira Gandhi Mutho are routinely ignored by the High Courts and Court of Appeal in deciding such matters. There is a consistent wilful blindness to these decisions. All you have to do to find examples of such cases is Google ‘Syariah court renunciation Malaysia’.

As a result of this, the situation is that Syariah courts will refuse applications to renounce Islam. When the applicant goes to the superior courts, they will similarly be refused on grounds of jurisdiction. Since neither the civil nor Syariah courts dare to officially declare the renouncing applicant as non-Muslim or a follower of some other belief, they are officially trapped with a Muslim identity. Even though they believe otherwise intrinsically, for official purposes, they remain Muslim. Who gains from such a situation?

People who applied to renounce Islam formally but had their applications refused are the Trapped Muslims of Malaysia.

What the Syariah courts, courts and government fail to appreciate is the applicants no longer profess the religion of Islam when they make the application. They have long left or never were one, to begin with. They converted to marry a Muslim but did not grow to embrace it. Their application to renounce is to have their official religious status reflect their actual present beliefs and live their lives. That’s all. They only want to return to their former religion or profess their actual one. They want the record to reflect reality.

But in Malaysia, politics gets in the way, corroding, corrupting and perverting everything. So, we now have records dictating reality instead of records reflecting reality. In Malaysia, you are a Muslim because the records say you are a Muslim, irrespective of your belief. If you change your mind or want to correct that, the authorities are uninterested.

How all this happens amidst the presence of Article 11(1) of the Federal Constitution is beyond me.

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

Article 11(1), Federal Constitution

That is the fate of trapped Muslims in Malaysia: never to have one’s actual beliefs acknowledged after converting to Islam.

What should be done? What can be done?

The first thing is to honestly acknowledge the reality.

We need to acknowledge the suffering that results from a denial of our chosen faith. We need to be honest in acknowledging there are born Muslims and converts who do not believe in the religion of Islam for a diversity of reasons, as there are many who believe and surrender themselves to Islam.

Let’s flip the situation. How would Muslims like it if they were told they were Christians no matter what they declared, professed or shouted from the top of their lungs on top of a building? How would they like it when they declaimed their faith with their hearts, lips and voices only to be told there was insufficient proof? Is this fair? Is this just? Is this oppressive? Is this Islamic?

O believers! Stand firm for justice as witnesses for Allah even if it is against yourselves, your parents, or close relatives. Be they rich or poor, Allah is best to ensure their interests. So do not let your desires cause you to deviate ˹from justice˺. If you distort the testimony or refuse to give it, then ˹know that˺ Allah is certainly All-Aware of what you do.

Surah An-Nisa: 135

Indeed, Allah commands justice, grace, as well as generosity to close relatives. He forbids indecency, wickedness, and aggression. He instructs you so perhaps you will be mindful.

Surah An-Nahl: 90

And among those We created is a group that guides with the truth and establishes justice accordingly.

Surah Al-A’raf: 181

That’s the situation we have in Malaysia now.

Let us acknowledge that many convert solely for marriage without actually immediately accepting the faith personally and see their conversion as fulfilling an administrative requirement, not a spiritual awakening. These are the sort that should be allowed to leave upon application. They became Muslim to marry, but now that the marriage is over, they wish to leave.

What good is there in keeping them as Muslims against their will? Is that the power of Islam we seek to demonstrate – we can hold people to a religion against their will? Is that the Malaysian glory of Islam?

Let us acknowledge that there are Muslims and non-Muslims who are in love, want to marry each other, spend the rest of their lives together and have no issues with each other having their own beliefs. These incredibly mature couples have immense respect for each other as human beings and seek to love the other as they are instead of changing them. Let us also acknowledge that Malaysia’s official or formal status about something does not always coincide with its reality.

If we acknowledge this reality, they should be accommodated and facilitated instead of made difficult. What should be done for them is what Singapore has done: it allows Muslims and non-Muslims to marry. This was facilitated by the Singaporean Women’s Charter of 1961.

Therefore, a civil marriage at the ROM [Registry of Marriage] could be entered into between a Muslim and a person who is not a Muslim. If there are divorce proceedings, the case would come under the jurisdiction of the Family Justice Courts.

Paragraph 2.73, Muslim Family Law in Singapore, Ahmad Nizam Abbas, Istyana Putri Ibrahim and Maryam Hasanah Rozlan (2022) SAL Academy Publishing

In Singapore, a Muslim who marries a non-Muslim basically makes an election for civil family law to apply and not Syariah law. If an adult Muslim is prepared to make that election and answer Allah for his choices on earth, why should we stop him? Each Muslim is responsible for only their sins, not those of others. So, if there is any sin in such a union, it is for that Muslim to bear it, not the entire Muslim community.

Perhaps if Malaysia permitted marriage between a Muslim and a non-Muslim, it would bring a complete end to people converting to the religion of Islam for marriage. There will be no need for converting for the purpose of marrying anymore unless they really want to. Consequently, the Syariah courts will avoid the heavy burden of hearing such applications, which are mostly comprised of those converting to marriage.

It will avoid putting the Syariah courts in an impossible position.

Dawson and Thiru note that the majority’s reasons support the approach that has developed in Malaysian courts in recent years that art. 3(1) is not subject to any other provisions of the Constitution, including the provision establishing religious freedom. This approach suggests that that Syariah law, at least in some instances, trumps the Constitution. Dawson and Thiru state that “this is tantamount to rewriting the Malaysian Federal Constitution.” Certainly, it creates a Catch 22 problem. Freedom of religion is a guaranteed personal right. Yet according to the majority’s reasoning, it can only be invoked and upheld in Malaysia if the courts of the religion that is rejected are willing to permit the rejection. In Malaysia, in the case of Islam, this ruling places the Syariah courts in an impossible position. For the civil courts and civilian power to uphold the right to change the religion of Islam is one thing. To expect Syariah courts to do so is quite another.

Justice Michael Kirby AC, CMG, Fundamental Human Rights and Religious Apostasy, The Griffith Lecture 2007, Queensland Conservatorium Griffith Uniuversity