Federal Court rejects appeal in apostasy case

The Federal Court this morning dismissed an appeal by four individuals who had renounced Islam in 1998, for a declaration that they have absolute right and freedom to practise the religion of their choice.

The four - Daud Mamat, 62, Kamariah Ali, 51, her husband, Mohamad Ya, 57 (now deceased) and Mad Yacob Ismail, 62 - had also wanted the court to declare that the Syariah Court had no jurisdiction over them in view of the fact that they had renounced Islam.

They also sought a habeas corpus for release from the Pengkalan Chepa prison in Kelantan where they were jailed for three years, after being convicted of contempt of court in November 2000. (They were released in November 2002 after serving two-thirds of the sentence.)

A deputy registrar of the Federal Court read out the written judgment this morning on what is widely considered to be a landmark case. The court had reserved judgment on Nov 13 last year.

Chief Justice Ahmad Fairuz Sheikh Abdul Halim and Justices Pajan Singh Gill, Rahmah Hussain and Richard Malanjum unanimously dismissed all three issues raised in the appeal. The fifth member of the original bench, Justice Mohd Noor Ahmad, had retired on May 19.

Appellants disappointed

In an immediate reaction outside the courtroom, the appellants’ lawyer Haris Mohamed Ibrahim expressed disappointment with the decision.

“It is shocking that the court has failed to clarify the law on renunciation of religion ... the law remains uncertain as it stands. In light of this, we will have to file other cases which are awaiting similar judicial direction,” he said.

Haris said he would have to discuss the next move with his clients, “since their religious status is now unclear”.

The three appellants said they were shocked but would not change their mind about renouncing Islam.

“I’m disappointed with the judgment but am undeterred by it. I will continue the struggle for freedom to practise the religion of my choice,” Daud said.

Fellow appellant Mad Yacob said he was saddened by the court’s decision.

“They have failed to grant us our right. The three of us don’t want to practise Islam any more. I will have to discuss with my lawyer as to what alternatives are open to us ... if there is a higher authority from which we can seek redress,” he said.

Kamariah, who was married to Mohamad Ya, could not bring herself to say anything, but had tears in her eyes.

Grounds of judgment

In the judgment, the court decided that the act of making a statutory declaration that the appellants had renounced Islam voluntarily “does not exempt them from charges being brought against them in a Syariah Court”.

Taken in this context, the court said the matter should have been decided at the time that they were being charged for apostasy.

“Although they had made such a declaration in 1998, they were still liable to be brought before the Syariah Court in 2000 because they were being tried for an offence committed while they were still Muslims,” the judgment said.

It noted that, if this context is not applied, then Muslims being charged for Syariah offences would freely rely on the defence that they are no longer Muslims and that they therefore do not fall under the jurisdiction of the Syariah Court.

Such a situation would affect the administration of Islamic law in Malaysia and perhaps even of other religions, it said.

“From these observations, it is clear that the question or issues raised by the appellants on their right to renounce Islam is not relevant,” it said.

The court said it agreed with Lord Bridge’s judgment in Ainsbury v Millington (1987) that it is a feature of the judicial system that the courts “decide on disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved”.

It cited another authority that “there is no necessity or purpose for this court to answer the questions posed regardless of the fact that leave to appeal has in fact been granted at an earlier hearing”.

“Based on the facts before the court, we unanimously find that the three questions do not need to be answered although leave to appeal had been granted earlier (on Nov 5, 2002) by this court. Therefore, the appeal is dismissed with costs,” it added.