Wong, do yourself a favour and get the hell out of the Syariah Court before it is too late!

Posted on May 18, 2010

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Malaysiakini reports today that one Wong, who in 1999, upon converting to Islam, took the name Faizal Wong Abdullah, has filed an application in the Syariah High Court Kuala Lumpur to renounce Islam.

The report has it that the religious authorities have objected, wanting him to first go for counselling.

The Syariah judge has fixed his application for mention on 2nd June, and directed Wong to get the services of a peguam syarie as the judge wants submissions, preseumably on the matter of Wong having to submit himself to counselling.

Wong does not want to go for counselling.

Wong says he cannot afford a lawyer.

He says he just wants to  be free to practise his faith of birth, Buddhism.

“All I want is to go back to my original religion. I respect Islam and its principles but I have never been able to practise and be a good Muslim. I cannot find peace in Islam, as I was brought up to practise Buddhism…Please help me go back to my faith. As I have told the judge, I do not want to undergo counselling sessions. What is the use of undergoing counselling when I have made up my mind?…I remain unmarried. Hence, my application to renounce Islam does not affect anybody except myself…Since  embracing Islam, I have been sidelined by my family. My two brothers and three sisters have shunned me. I have not been able to go back to celebrate Chinese New Year and my parents have passed away since…Malaysia prides itself on practising freedom of religion. I just want my right to practise  Buddhism. I have been practising Buddhism all this while despite being a Muslim.”, Wong, reportedly in tears outside the court, lamented.

The report also alluded to the case of Siti Fatimah Tan Abdullah who, in May, 2008, was allowed by the Penang’s Syariah Appeal Court to return to Buddhism on the premise that her conversion was not valid. I have blogged about her case previously and will allude to what I had said earlier, shortly.

First, let me tell you about S.

S approached me in the Federal Court around 2004, when I was there for the case of the four apostates.

He was in a similar position as Wong ( converted to Islam and now wanted to formally renounce and return to his old faith ) and wanted me to file an application on his behalf in the civil High Court.

He had filed an application, similar to that of Wong, also in the Kuala Lumpur Syariah High Court and, like Wong, was without legal counsel.

When the matter first came up for hearing before a Syariah judge, the latter inquired of this was really what S wanted. S confirmed that this was so. The judge then asked him to take a ‘cooling off’ period to be sure that this was truly what he wanted.

S said that he figured he could wait the two months and so relented.

Two months later, he was back before the same judge. Again, he was asked if he was sure this was what he wanted. Again, he said that was so. This time the judge suggested a final one-month ‘cooling off’ period and suggested that S think it through carefully. S said he would.

A month later, S was back before the same judge. He inquired if S still wanted to pursue the matter. S said that such was indeed the case. The judge then told S that he could not hear S’s matter and was remitting it to another judge.

Before the new judge, S was asked under what provision of law he had brought his application. S said he did not know. The judge repeated the question. Again, S said he did not know.

The judge dismissed the application.

It pained me to explain to S that given that he filed his application in the Syariah Court which had been dismissed, to now file an application in the civil court would attract the objection of wanting a second bite of the cherry in that, he having turned to the Syariah Court and not got the order sought, was now knocking at the door of the civil court.

I told S that whilst I had abosolutely no doubt that the entire proceedings in the Syariah court was a nullity, given that the Syariah courts only had jurisdiction and he could hardly be categorised as a ‘person professing the religion of Islam’, a pre-condition to appear before the Syariah courts, and the order dismissing his application was not worth the paper it was printed on, so long as our civil courts did not have the courage to declare as such, there was little I could do for him.

Back to the case of Siti Fatimah.

The Star reported that Ong Ka Ting hailed the decision as “…a historic decision. It is a major step for a progressive, multi-racial and multi-cultural Malaysia. It was Siti Fatimah’s right to embrace Islam and likewise, it is also her right to return to her original faith. This is a matter for her to decide and no one else. It is hoped that with this decision, the cases of affected Malaysians would be resolved” .

I had, in a post, criticised OKT’s viewpoint as follows :

“On the one hand, Ka Ting proclaims that this was a matter for Tan alone to decide and no-one else. Yet in the same breath he declares that her having to submit to a judicial process where she could only formally exit Islam upon the ‘yes, go ahead, you may go’ order of the Syariah court, as ‘a major step for a progressive, multi-racial and multi-cultural Malaysia’ . And this decision, he hopes, will provide the solution for the Lina Joys and Revathis! Missing altogether the point that some judge was deciding whether Tan could or could not renounce Islam! This, for Ka Ting and MCA, amounts to “a matter for her to decide and no one else” ?” .

In another post on Siti Fatimah’s case, this is what I said :

“Whilst I’m happy for Tan and hope that this means she can now get on with her life, I hope that this one decision will not result in an avalanche of such like cases being filed in the Syariah Courts throughout the country.

We feel relief for Tan because the court said ‘Yes, you can renounce. You can return to Buddhism’.

What if the court had said ‘No, you may not’?

And believe you me, the court could have said ‘No’.

And that is why, amongst other reasons, this decision cannot be seen as a ‘light at the end of the tunnel’ of the ‘Lina Joy’ type of cases.

Choice of faith and the right to practise the same of a sane adult cannot be made conditional upon another’s prior approval.

That is the full purport of the decision in Tan’s case. Some judicial officer has greenlighted her exit from Islam and her re-entry into Buddhism.

Is this what the Federal Constitution guarantees?

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

That’s what Article 11(1) guarantees all of us.

Including Tan Ean Hung” .

My views expressed in respect of Siti Fatimah’s case remain unchanged.

Wong is at serious reisk of suffering the same fate as S.

There is yet another, more pressing reason why cases such as Wong’s and any other where a non-Muslim is involved must never be taken to the Syariah Courts.

In January 2006, in an interview by theSun, I was asked : There have been some calls for non-Muslims to seek redress through the syariah courts since Kaliammal’s case. Is this one way to resolve the issue?

My reply :

“This call read in conjunction with the submission by the senior federal counsel in Moorthy’s case that even if the widow was left without a remedy, the civil court must refrain from entering upon the dispute as it lacked jurisdiction, is firstly, in my view, untenable in law and secondly and more importantly, a very dangerous suggestion which must be resisted at all costs.

It is legally untenable for non-Muslims to seek redress through the syariah courts because the 9th Schedule of the Federal Constitution confines the jurisdiction of the syariah courts to ‘only over persons professing the religion of Islam’. This jurisdiction cannot be enlarged by submission.

It is also very dangerous because non-Muslim litigants confronted with issues as in the Moorthy case may, out of frustration with the self-inflicted impotence of the civil courts, go to the syariah court for relief. The syariah court may give the relief sought in some cases, and may refuse in others. It is unlikely that jurisdiction is going to be challenged. Any orders obtained in the syariah court, if challenged in the civil court, will probably meet the same fate as in Moorthy’s.

In time, it will be argued that by the doctrine of custom and usage, as Prof De Smith puts it ‘the ultimate grundnorm’ has shifted.

[Editor's note: 'Grundnorm' is a German word that means 'fundamental norm', and is used to denote the fundamental order that forms a legal system's underlying basis].

The push to make this an Islamic state may [then] have been achieved”.

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