Syariah court allows Siti Fatimah Tan Abdullah to return to Buddhism

Posted on May 8, 2008

20


The online Star reports today that the Penang Syariah Court has allowed an application by Siti Fatimah Tan Abdullah, previously known as Tan Ean Hung, to renounce Islam and return to her Buddhist faith.

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.

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.

My views remain unchanged.