CASE REVIEW

ISLAMIC CRIMINAL LAW

Course Code: SHAS 2358
Semester 1, 2023/2024
Section :3
Lecturer : DR MAJDAH BINTI ZAWAWI

Group Members Matric Number

AIMAN HAKIM BIN MOHD AZMI 2214825

CASE REVIEW
Kamariah Ali & Yang Lain lwn Kerajaan Negeri Kelantan & Satu Lagi [2004]3 CLJ 409

Facts:
The case challenged the limits of Malaysian Sharia law, where a group of former
Muslims convicted of apostasy by the Kelantan Syariah Court sought their release through
habeas corpus. After their claims were dismissed by the Kelantan High Court, they appealed
to the Federal Court, raising two key arguments: firstly, that the Syariah Court lacked
jurisdiction since they were no longer Muslims, and secondly, that the state's enactment
granting the court exclusive authority over apostasy cases was unconstitutional. This
landmark case promises to test the boundaries of religious and secular law in Malaysia, with
the appellants seeking freedom while defending their right to renounce Islam, while the state
upholds its interpretation of Sharia and its application to all former Muslims.

Issues:
1. Jurisdiction of the Syariah Court: Could the Syariah Court adjudicate in apostasy
cases involving individuals who claimed to have left Islam?
2. Constitutionality of Section 102(1): Did Section 102(1) of the Kelantan Shariah
Enactment 1994 violate the appellants' fundamental rights guaranteed by the Federal
Constitution, specifically Article 11 (freedom of religion)?
Held:
The Federal Court ruled that the Syariah Court did not have jurisdiction in this case.
Since the appellants claimed they were no longer Muslims, the issue of apostasy fell outside
the Syariah Court's purview. It belonged to the civil courts to determine their religious status.
The Court did not rule on the constitutionality of Section 102(1) directly. However, it stated
that the section must be interpreted in conformity with Article 11 of the Federal Constitution.
This implied that if the Syariah Court had jurisdiction, it would have to consider the
appellants' claims of leaving Islam before making any determination on apostasy.
CASE REVIEW
Minister v. Jamaluddin Othman [1989] 1 MLJ 369

Facts:
The respondent was detained according to an order which was made under Section
8(1) of the Internal Security Act 1960. Pursuant to the affidavit of the Minister of Home
Affairs. He was satisfied that the detention of the respondent was compulsory with the view
to preventing him from acting in a manner prejudicial to the security of Malaysia. This
conclusion was apparently arrived at after receiving a report and information relating to the
‘conduct and activities’ of the respondent.

Issues:
Whether detention grounds inconsistent with Article 11 and outside purview of
Internal Security Act 1960

Held: Allowing the application,

The freedom to profess and practise one’s religion as guaranteed by Article 11 of the
Federal Constitution, has to be given effect to but was itself subject to prejudice or threaten
the security of the country.
Under art 149 of the Constitution, any provision in the Internal Security Act designed
against action prejudicial to national security is declared valid notwithstanding that it is
inconsistent with any provision of arts 5, 9 or 10 of the Constitution. It is therefore clear that
any provision in the Act which is inconsistent with the provision of art 11 of the Constitution
shall not be valid.
Although under s 8(1) of the Internal Security Act the Minister may detain a person
with a view to preventing that person from 'acting in any manner' prejudicial to the security
of Malaysia, the Minister has no power to deprive a person of his right to profess and practise
his religion which is guaranteed under art 11 of the Constitution. The grounds as stated in the
detention order are outside the scope of art 149 of the Constitution. Consequently, the order
of detention upon the grounds inconsistent with art 11 of the Constitution is outside the
purview of the Act and therefore not valid.
Comparison of Judgement in both cases
In the case of Minister for Home Affairs, Malaysia & Anor v Jamaluddin bin Othman
[1989], the Supreme Court protected religious practice under Article 11, finding the Minister
overstepped his power by detaining someone for proselytizing Christianity to Muslims. The
judge deemed the Minister's attempt to limit religious freedom through detention
unconstitutional. They argued that such actions directly conflict with Article 11 of the
Constitution, which guarantees this fundamental right. Therefore, any detention order issued
by the Minister based on restricting religious practice would be considered invalid. In simpler
terms, the judge blocked the Minister's power to curtail religious freedom through detention,
affirming its protection under the Constitution.

However, in the Kamariah Ali & Yang Lain lwn Kerajaan Negeri Kelantan & Satu
Lagi [2004] case presents a different perspective. Here, the court upheld the Syariah Court's
jurisdiction in dealing with apostasy even though the offense occurred while the individual
was still Muslim. The crucial difference lies in the article invoked: Jamaluddin relied on
Article 11's protection of religious freedom, while Kamariah did not, and the offense itself
fell under Shariah law.

While seemingly contrasting, both cases highlight the ongoing tension between
individual religious liberties particularly when intertwined with Shariah law's jurisdiction.
The High Court needs to navigate these complexities in future cases and determine the
rightful balance between these competing interests. Article 121(1A) ensures clear judicial
boundaries between Civil and Syariah Courts. In this case, despite the appellants declaring
apostasy in 1998, their subsequent offense in 2000 should have been tried in the Syariah
Court. This distinction rests on the understanding that the offense occurred while they were
still considered Muslim under the law. So, despite their later change in religious status, the
initial offense falls under the Syariah Court's jurisdiction.
Position of the two crimes in Islamic law and in Malaysia

Due to Malaysia's distinct legal system, which combines civil law with Sharia law,
Muslim personal concerns are complex. Sharia law is important in family and personal
matters because the country is predominantly Muslim, however each state has its own
interpretation and execution of the law. This becomes more interesting when one considers
apostasy, which is considered an extremely serious crime in many Muslim-majority nations
under Islamic law. While Article 74(2) gives individual states the authority to implement
Sharia rules pertaining to apostasy and rebellion, these state-level jurisdictions differ greatly
in terms of the legal provisions and possible penalties. This complex patchwork of laws
pertaining to apostasy highlights the dynamic and complex interplay between Malaysian
national legal systems and religious law.