Lina, Why the controversy? : Who can pass apostasy laws, and how? (2)

 Ng Wan Chan  was decided in the civil High Court. 

Dalip Kaur was decided by the then Supreme Court and subsequent to Ng Wan Chan. 

Both cases raised the same issue : the faith of the deceased at the time of death.

Two important differences between these 2 cases.

First, unlike in Ng Wan Chan, it does not appear from the Dalip Kaur report that in the latter case, a preliminary objection on grounds of jurisdiction was taken.

Second, in Dalip Kaur, the fact of conversion to Islam by the deceased was not in dispute. The question was whether he had renounced Islam before his death. In Ng Wan Chan, the question that confronted the court was whether the deceased  had in fact renounced his earlier faith for Islam.

If you bear the second difference in mind when you consider the 2 reports linked, you will appreciate the difference in the approach taken by the High Court judges in both cases.

Before I get into Dalip Kaur, let me just explain a little bit about how judicial precedent works.

You will remember that when I discussed Ng Wan Chan in the first ‘Who can pass apostasy laws, and how?’ post I mentioned that the judge had dismissed the preliminary objection on the grounds of jurisdiction. I had quoted his pronouncement.

The judge premised this decision on 2 findings, one of law and the other of fact.

First, he said that for the Syariah Court to have jurisdiction in respect of the matter before him, there had to be some written law conferring that jurisdiction on the Syariah Court.

This was the judge’s pronouncement of the law. This was his first finding. 

The judge then found that there was in fact no such law conferring that jurisdiction on the Syariah Court.

This was the judge’s finding of fact. This was the second finding.

The judge’s pronouncement of the law and his finding of fact forms the ‘reason for his decision’. Lawyers call this the ratio decidendi. 

Of this ration decidendi, it is the pronouncement of law that, in my view, is the part of the ratio decidendi that binds the lower courts. It determines the facts that need to be ascertained in order to decide the dispute.  

Judicial pronouncements of the law only bind courts lower in hierarchy than the court making the pronouncement.

Justice Eusoff Chin’s pronouncement of the law in Ng Wan Chan would not be binding on another judge of the High Court or judges of the Court of Appeal or the Federal Court. It would only be persuasive, that is, they may choose to follow or not to follow his pronouncement of the law.

The three Supreme Court judges in Dalip Kaur, which as I pointed earlier was decided later than Ng Wan Chan, were certainly not bound to follow the law as declared by Justice Eusoff Chin.

Imagine if another High Court judge declines to follow Eusoff Chin’s pronouncement of the law and takes a different position. You would have 2 conflicting decisions of the High Court. In such a situation, the lower courts could choose which precedent to follow. The same goes for a situation of where there are conflicting decisions of the Federal Court. Courts lower down can choose between those conflicting decisions.

Where the situation as just described prevails, the state of the law would have reached a point of such confusion and uncertainty as to warrant intervention by the highest court to set things right by declaring what the correct position in law is.

One more little clarification about precedent.

Very often, in the course of delivering his decision, a judge may have occasion to make observations or remarks about what the law ought to be, or about some fact or opinion which, upon further analysis, are found to be not part of the ‘reason for the decision’ or ratio decidendi.

These are matters said in passing or, what lawyers call obiter dicta.

What you need to remember is that obiter dicta are not binding.

I will draw your attention to 2 instances of obiter dicta in Dalip Kaur. One I shall call the ‘Hashim Obiter’ and the other the ‘Yusoff Obiter’, after the judges who made the statements.

Dalip Kaur

The salient facts are precisely laid out in 3 paragraphs at page 81 of the linked report.

Briefly, it was not disputed that the deceased, Gurdev Singh, born into the Sikh faith, had converted to Islam.

He was known to have a Malay-Muslim girlfriend. 

On 3/10/1991, he was found dead.

His mother, Dalip Kaur, claimed that prior to his death, he had renounced Islam by deed poll and been re-baptised in a Sikh temple. She also claimed that prior to his death, his lifestyle was decidedly that of a non-Muslim.

Interestingly, this case proceeded twice in the High Court and twice in the Supreme Court. You will find the narration of this at paragraphs b and c at page 82.

Paragraph b narrates that in round 1 in the High Court, Justice Hamid Mohamad ( now in the Federal Court and the same judge who delivered the unanimous decision of the Federal Court last year in Meor Atiqulrahman, the turban case ) considered and rejected the mother’s evidence that Gurdev had renounced Islam. More specifically, the judge found as a fact that the deed poll by which Gurdev had purportedly renounced Islam was not genuine.

What you must note is that the High Court judge had ‘heard the case on its merits’.

Paragraph b also narrates that the mother then appealed to the Supreme Court. This was the first appeal. At this appeal, parties agreed that the case be remitted back to the High Court so that questions relating to the issue could be put to the Fatwa Committee for an opinion. 

Paragraph c narrates what happened in round 2 in the High Court. It confirms that the case went back to the High Court and questions were remitted to the Fatwa Committee which gave its opinion in response to those questions. Mr. Karpal Singh, who represented the mother, it seems, wanted the whole case re-opened. What this means is that he wanted a fresh ‘hearing on the merits’ again. The High Court judge did not allow this,  considered the opinion of the Fatwa Committee and then reaffirmed his earlier decision.

The mother appealed again. This was round 2 in the Supreme Court. The linked report is the decision of the Supreme Court in respect of round 2.  

At paragraph b on page 83 you will find the summary of the 2 issues that Mr. Karpal took on the appeal.

Those 2 issues were :

1. the correctness of the judge’s refusal to re-open the case with a fresh hearing on the merits; and
2. the correctness of the judge’s finding that the deed poll was not genuine.

The appeal plainly went to the question of the correctness of the decision of the High Court on the merits of the case. It had nothing to do with any question of jurisdiction. Whether Justice Hamid Mohamad had the jurisdiction to decide the case in the High Court on its merits or whether it should be decided by the Syariah Court was not in issue. 

This is an important point to remember.

The 3 judges of the Supreme Court were unanimous in dismissing the mother’s appeal. Two written grounds of judgment were delivered. One is that of Justice Hashim Yeop Sani for himself and Justice Harun Hashim ( the majority judgment )and the other by Justice Mohd Yusoff ( the minority judgment ). 

Majority judgment 

The majority judgment runs from pages 81 to 84.

At the tail-end of paragraph b at page 83, Justice Hashim states the issue of fact that needed to be ascertained in the High Court, premised on the relevant opinion of the Fatwa Committee on the position of Syaria on this issue. The judge put it this way :

‘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)’

You will note that this relates very much to the second issue taken by Mr. Karpal.

At paragraph a at page 84, Justice Hashim states the reasons why the majority were not with Mr. Karpal on the first issue. 

From paragraphs b to g on page 84, you will find the reasons given by the majority as to why they were not with Mr. Karpal on the second issue.

In other words, the reasons for the decision, or ratio decidendi, of the majority, are to be found on page 84.

Their reason is simply this : Mr. Karpal had not demonstrated that the trial judge had made an error in deciding the case. In short, they upheld the decision of the High Court judge on its merits.

Remember that the ratio decidendi of the majority is to be found at page 84.

At page 83, Justice Hasim made some observations. These are obiter dicta. They were not relevant to the ultimate decision of the majority.

At paragraph c, the judge refers to the Kedah Enactment. This was because the state Islamic law that pertained to the case was that of Kedah.

At paragraph e, Justice Hashim observes that there are no provisions in the Kedah enactment for ‘converts to leave Islam’.

At paragraphs g and h, Justice Hashim then advocates as follows :

‘We are of the view that clear provisions should be incorporated in 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 Court 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.’

This is obiter dicta. It is a judge’s view as to how the law can, in his view, be improved. It is not a statement of the law.

This is the Hashim Obiter.

I understand the Hashim Obiter to mean that states should pass law to put in place either a procedure to renounce or some administrative register by which apostates might be registered so that there is some certainty as to a person’s faith without having to litigate on such issues.

I will return to the Hashim Obiter when I finally look at the question, ‘who can pass laws on apostasy?’ 

Minority judgment

You will see in later posts that the Yusoff Obiter has become the launch pad for the present-day ‘judicial cliff jumping’. 

As you read through this part of the judgment, keep in mind these thoughts :

1. the appeal was not on the issue of jurisdiction; and
2. the 2 issues arising from a ‘hearing of the case on its merits’ raised by Mr. Karpal.

The minority judgment can be found at pages 84 to 86 of the linked report. 

At paragraph h at page 84, Justice Mohd Yusoff correctly identifies the issue as being whether the deceased had renounced Islam. He then confirms that he too would dismiss the appeal but for different reasons. 

As you read his judgment, you must now look out for a ratio decidendi different from that of the majority judgment which appears at page 84.

At page 85, you will find that the judge cursorily notes the evidence considered in the High Court, considers some treatise on apostasy, considers Ng Wan Chan and then looks at the approach taken by Justice Hamid Mohamad in coming to the latter’s findings.

From the last paragraph on page 85 through to the first paragraph at page 86, Justice Mohd Yusoff states 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 by eminent jurists who are properly qualified in the field of Islamic jurisprudence. In this view 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’.

He concludes with ‘The only forum qualified to do so is the Syariah Court’ in relation to his opening ‘The present question’.

Look again at the two issues raised in the appeal and ask yourself which of those two were adressed by this conclusion as to the qualified forum.

Neither?

Then this is obiter dicta.

This is the Yusoff Obiter.

Please make an effort to remember the Yusoff Obiter.

More importantly, had Justice Mohd Yusoff confused himself along the way and begun to carve out a jurisdictional issue when there was none? 

It would seem so if you look at what he said at paragraph c on page 86.

‘The amendment to Article 121 of the Federal Constitution which came into effect on 10 June 1988 and the provision of the new Article 121(1A) has taken away the jurisdiction of the High Court in respect of any matter within the jurisdiction of the Syariah Courts and this is such a matter which the Syariah Court has to determine‘.

Remember the Hashim Obiter? That there was no provision in the Kedah Islamic law enactment that made provision for apostasy?

How, then, was Justice Yusoff now saying that this matter was for the Syariah Court to determine?

Or was he merely stating what he thought the law should be?

If so, another obiter dicta. If not, he plainly got the law wrong.

At f and g on the last page, the judge refers to an excerpt from the opinion of the Fatwa Comittee and then concludes at h : 

‘For these reasons I would also dismiss this appeal with costs’.

His reasons do appear to be jurisdictional. However, if so, it would follow that he should have allowed the appeal on the grounds that the civil High Court had no jurisdiction.

Justice Hamid Mohamad, who decided Dalip Kaur in the High Court, had occasion to criticise the Yusoff Obiter in the case of Lim Chan Seng. At paragraphs c and d at page 248, Justice Hamid first quotes the Yusoff Obiter in full and then at paragraph a on page 249, he states as follows :

‘Jika Mahkamah Sivil tidak mempunyai bidangkuasa rayuan itu tidak sepatutnya ditolak atas meritnya. Jika Mahkamah Sivil tidak mempunyai bidangkuasa, maka rayuan itu patut ditolak terus atas alasan Mahkamah Tinggi tidak mempunyai bidangkuasa membicarakannya. Saya bersetuju sepenuhnya dengan pandangan Hakim yang arif itu bahawa forum yang layak untuk memutuskan persoalan dalam kes itu adalah Mahkamah Syariah. Saya juga bersetuju sepenuhnya bahawa Perkara 121(lA) telah mengeluarkan dari bidangkuasa Mahkamah Sivil perkara-perkara yang termasuk di bawah bidangkuasa Mahkamah Syariah. Tetapi, soalnya adakah perkara ini termasuk di bawah bidangkuasa Mahkamah Syariah? Sudahkah Badan Perundangan Negeri membuat undang-undang memberi bidangkuasa mengenai perkara ini kepada Mahkamah Syariah? Perkara 121 (1A) bukan memberi bidangkuasa kepada Mahkamah Syariah secara automatic. Badan Perundangan Negeri perlu terlebih dahulu membuat undang-undang memberi bidangkuasa dalam sesuatu perkara kepada Mahkamah Syariah. Setelah itu dibuat barulah perkara itu terkeluar dari bidangkuasa Mahkamah Sivil’.

The narration of the brief facts of Lim Chan Seng at page 235 will disclose that this was a case of two converts to Islam who had subsequently renounced their new faith. They sought declarations of the Penang High Court that they had lawfully renounced Islam.

The state Islamic religious authorities raised the preliminary objection on grounds of jurisdiction. The precise wording of the objection can be seen at paragraph g at page 239.

Justice Hamid dismissed the preliminary objection. The linked report is about this objection and the grounds of its dismissal.

At paragraphs f to h at page 241, Justice Hamid sets out the issue before him, and at the same time clears some confusion about Article 121(1A).

‘Apakah kesan peruntukan Perkara 121 (1A) itu? Perkara 121 (1A) bukan memberi bidangkuasa kepada Mahkamah Syariah. Tetapi ia cuma mengatakan jika sesuatu perkara itu terletak dalam bidangkuasa Mahkamah Syariah maka Mahkamah Tinggi dan Mahkamah bawahan (kesemuanya saya akan sebut “Mahkamah Sivil”) tidak mempunyai bidangkuasa mengenainya. Maka untuk mengetahui samada Mahkamah Sivil mempunyai bidangkuasa dalam sesuatu perkara atau tidak, kita kenalah melihat terlebih dahulu samada Mahkamah Syariah mempunyai bidangkuasa mengenainya atau tidak. Kalau Mahkamah Syariah mempunyai bidangkuasa mengenai sesuatu perkara, maka Mahkamah Sivil tidak mempunyai bidangkuasa mengenainya, dan sebaliknya. Bagaimana kita hendak tahu samada Mahkamah Syariah mempunyai bidangkuasa dalam sesuatu perkara atau tidak? Jawabnya, kita kenalah lihat undang-undang Negeri yang berkenaan’.

You will see from this that, like Justice Eusoff Chin in Ng Wan Chan, Justice Hamid here also held that jurisdiction could only vest with the Syariah Court by the provision of some written law.

He then proceeds to examine the Syariah laws of Penang and, at paragraphs b and c at page 259, the judge asks and concludes as follows.

‘Maka, soalnya, sudahkah Badan Perundangan Negeri Pulau Pinang berbuat demikian? Jawabnya tidak. Dalam keadaan itu hanya satu keputusan yang saya boleh buat, iaitu Mahkamah Syariah Pulau Pinang tidak diberi bidangkuasa untuk membicara dan memutuskan perkara ini. Oleh itu bidangkuasa ini tidak terkeluar daripada bidangkuasa Mahkamah Sivil’.

You will see at once that both Justices Eusoff Chin and Hamid Mohamad adopted the same ratio decidendi in dismissing the preliminary objection.

Both held that the Syariah Court could only derive jurisdiction by a written law.

More importantly, both held that the jurisdiction to hear and determine these matters vested with the civil High Court. It could only divest from the civil High Court and vest with the Syariah Court if some written law is passed to confer that jurisdiction with the Syariah Courts.

Even the Hashim Obiter envisages the need for written law to confer jurisdiction on the Syariah Courts.

Remember also, that both Justice Hamid Mohamad in Dalip Kaur in the High Court and Justice Eusoff Chin in Ng Wan Chan heard and determined issues as to whether the deceased was Muslim at the time of death on its merits. Both took note of the position in Islamic law. In Dalip Kaur, in particular, opinion of the Fatwa Committee was sought. In short, there was no impediment to the civil High Court taking note of the relevant Islamic law and applying the same to the relevant facts. 

The Yusoff Obiter, in my view, reflects a judicial mind that got completely distracted from the issues that were before the court by concerns of personal faith rather than the law, with the unfortunate result of a judgment whose ratio decidendi is simply incomprehensible.

For a while, the Yusoff Obiter stood in a class of its own. You will see, in due course, that this uniqueness did not last very long.  

This has ended up far lengthier than I intended. I apologise.

Next : Who can pass apostasy laws, and how?

Posted in: Lina, why the controversy?