Articles & Judgments Selected Judgments Lina Joy Case: Dissenting Judgment of Justice Richard Malanjum 
| Lina Joy Case: Dissenting Judgment of Justice Richard Malanjum |
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| Wednesday, 30 May 2007 10:17pm | |
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DALAM MAHKAMAH PERSEKUTUAN MALAYSIA DISSENTING JUDGMENT
1. I had the privilege of deliberating with their Lordships the learned Chief Justice and Mr. Justice Dato’ Alauddin, FCJ on the draft judgment for this appeal. 2. With the greatest respect I am unable to concur with them
on the final decision of this appeal. Hence, it is thus my task to express my
views and reasons on what I think should be the outcome of this appeal. 4. It is therefore my view that when considering an issue of constitutional importance it is vital to bear in mind that all other interests and feelings, personal or otherwise, should give way and assume only a secondary role if at all. The wise words of Salleh Abas LP in Che Omar bin Che Soh v PP [1988] 2 MLJ 55 are thus worthy of recall when he said this at page 57:
5. I would also say that the appeal before us is indeed not easy to resolve for it involves issues of critical importance in the hearts and minds of the people in this country. Cursory handling may result in unnecessary anxieties to the general public. Thus, intensive discussions and research works had to be done with great patience and sincerity before any conclusion could be made. 6. In order to understand the real issues at hand I think it is necessary to state and understand the important chronological facts of this appeal. Background Facts 7. It is common ground that the Appellant is a Malay woman born on 8th January 1964. She was brought up as Muslim by her family and her given name is Azalina binti Jailani. 8. On 21 February 1997 she applied to the National Registration Department (NRD) (the first application) to change her name to Lina Lelani. The reason she gave in her statutory declaration to support the application was that she had renounced Islam for Christianity and that she intended to marry a Christian. 9. Her application for name change was rejected by the NRD without any reason being given on 11 August 1997. 10. However, she made a second application for name change but this time to Lina Joy on 15 March 1999 (second application). In accordance with sub-regulation (1) of reg. 14 of the National Regulations 1990 (the Regulations), she again submitted a statutory declaration and stated that the reason for name change was her conversion to Christianity. 11. According to her, she received no reply and when she went to enquire about her second application in July 1999 she was told by an officer at the NRD office in Petaling Jaya that since her identity card did not state her religion, to avoid any difficulty in processing her application she should not mention conversion as the reason for name change. 12. The Appellant asserted that at that time it was not known to the Appellant then nor was she informed by NRD that the Regulations would shortly be amended and that her change of name alone would be insufficient for her purposes. The amendment that was introduced shortly was to make it a requirement that in the Identity Cards of Muslims the religion must be stated. In her Affidavit in support of her Originating Summons in the High Court the Appellant asserted that it was a “trick” or “muslihat” by NRD and the Appellant was aggrieved over this. 13. Such advice led the Appellant to submit a further statutory
declaration on 2.8.1999. In the new statutory declaration there
was no mention that the reason for the change of name was
due to conversion of religion but stated her reason for change
of name as a matter of mere choice. The Appellant resubmitted
the application dated 15.3.1999 with a new statutory declaration
sworn on 2.8.1999. 15. The application by the Appellant for replacement identity card was rejected. The form as processed by NRD carried a departmental entry by unnamed officer who wrote thus:
16. On the notation it was later explained by the Director General of NRD in this manner:
17. Consequently, her replacement identity card stated her religion as Islam although the name change to Lina Joy was effected. Her original name of Azalina binti Jailani was also stated on the reverse side of the replacement identity card. This was also as a result of the amendments introduced vide P.U.(A)70/2000. 18. The Appellant then made a third application on 3.1.2000 (third application) to NRD office in Petaling Jaya. She applied to remove the word “Islam” and her original name from her replacement identity card. She tendered a statutory application to support her application. The counter clerk however refused to accept her application on the ground that it was incomplete without an order of the Syariah Court to the effect that she had renounced Islam. The Director General attempted to deny that the application was rejected at the counter. However the Court of Appeal accepted the version of the Appellant. 19. That is where the position of the Appellant in her quest to change her name completely and drop the reference to her original religion in the identity card came to a standstill. Proceedings In The Courts Below 20. By way of Originating Summons the Appellant decided to seek relief in the High Court praying, inter alia, for several declaratory orders against the Majlis Agama Islam Wilayah Perseketuan (Majlis) and the Government of Malaysia in respect of her right to freedom of religion, the constitutionality of section 2 of the Administration of Islamic law (Federal Territories) 1993, the applicability of Syariah Enactments to her who professed the religion of Christianity and the constitutionality of the state and federal legislations that forbade conversion out of Islam. 21. In addition she sought for an order that her name be entered in the Registry Book as having converted out of Islam. The Appellant had joined the Majlis and sought the said declaratory orders because she said that she entertained fear that action would be taken against her by the religious authorities. 22. The Respondents filed a striking out application. However, the learned High Court Judge heard Originating Summons itself and dismissed it completely without granting any of the remedies the Appellant sought. She appealed. 23. In the Court of Appeal, the parties by consent narrowed down the issues and the relief sought for significantly. The constitutional issues were abandoned and the appeal focused purely on an issue of administrative law, that is, whether the Director General of NRD correctly exercised the discretion vested in him under the law. 24. With the consent of the Court of Appeal, the Director General was added as a respondent. The questions that were posed to the Court of Appeal stated as follows:-
25. However these questions were subsequently summarized thus:
26. By majority the Court of Appeal answered the summarized question in the affirmative. Proceeding Before This Court 27. Arising from the answer by majority of the Court of Appeal the Appellant sought for leave to appeal to this Court. 28. On 13th April, 2006 after hearing the respective submissions of counsel for the parties leave to appeal was granted on three questions for consideration by this Court. The questions are:
29. When hearing of the appeal proper began learned counsel for
the parties herein initially agreed to approach the matter purely
from the administrative law aspect. However, upon being
allowed to express their views during the hearing proper
learned counsel for the various interested non-governmental
bodies appearing on watching brief raised some constitutional
issues which the Appellant and Respondents agreed to skip
earlier on. Hence, in fairness to the Appellant and Respondents 30. I propose to deal with the first two Questions together and deal with the third Question separately. Questions 1 and 2: 31. These Questions appear to be substantially an administrative law issue. However beneath it lurks fundamental constitutional issues involving fundamental liberties and in the context of the constitutional arrangement in Malaysia the division of powers between the State and Federal authorities. Fundamental Legal Principles 32. I therefore begin by restating some well-entrenched legal principles which may seem obvious to many yet often overlooked. 33. Article 3 (1) of the Constitution placed Islam to a special position in this country. However, Article 3(4) clearly provides that nothing in the Article derogates from any other provision of the Constitution thereby implying that Article 3(1) was never intended to override any right, privilege or power explicitly conferred by the Constitution. (See: Che Omar bin Che Soh v PP [supra]). Indeed this is in consonant with Article 4 of the Constitution which places beyond doubt that the Constitution is the supreme law of this country. Article 4 thereof is abundantly clear. It follows that to be valid all laws whether federal or state legislations of any kind and whether they are pre or post Merdeka must be in conformity with the provisions of the Constitution including those dealing with fundamental liberties. (See: Surinder Singh Kanda v Govt. of the Federation of Malaya (1962) 28 MLJ 169; Aminah v Supt. Of Prisons (1968) 1 MLJ 92; City Council of George Town v Govt. of Penang [1967] 1 MLJ 169; Nordin Salleh v Dewan Undangan Kelantan [1992] 1 MLJ 697). 34. Legislative bodies, whether Parliament and State Assemblies do not therefore have independent and sovereign legislative power merely on the basis of the Legislative Lists in Schedule 9 of the Constitution. In fact such legislative powers are derived from the Constitution itself. Hence, one is not wrong to say that the Legislative Lists are subordinate to the fundamental liberties provisions enshrined in the Constitution. (See: PP v Mohamed Ismail [1984] 2 MLJ 219). 35. Just as any legislation or any part thereof will be struck down if it fails to conform with any of the provisions of the Constitution so too with administrative, departmental and executive discretions, policies and decisions. In other words they too must not infringe any of the provisions of the Constitution. (See: PP v Su Liang Yu [1978] 2 MLJ 79; Madhavan Nair v PP [1975] 264). In addition, administrative, departmental and executive discretions, policies and decisions must also be within the ambit of the enabling legislations otherwise they too will be struck down for being ultra vires the legislations. (See: Ghazali v PP [1964] 30 MLJ 159). Of course it goes without saying that the enabling legislation must also be in conformity with the provisions of the Constitution. (See: PP v Mohamed Ismail [supra]). 36. In order to supervise and monitor the exercise of administrative, departmental or executive discretions our courts have followed with modifications where necessary the legal principles pronounced by the courts in other common law jurisdictions. For instance, to be valid administrative, departmental or executive discretions must not suffer any of the three categories of legal infirmities, namely, illegality, irrationality and procedural impropriety. (See: CCSU v. Minister for the Civil Service [1984] 3 All ER 935; Persatuan Aliran Kesederaran Negara v Minister of Home Affairs [1988] 1 MLJ 442). 37. Indeed check on the exercise of administrative, departmental or executive discretions in this country is critical otherwise the acclaimed observance to the rule of law will just be a hollowed statement. A clear caution and advice on the danger was given by none other than his Lordship Raja Azlan Shah CJ (as His Majesty then was) in Pengarah Tanah Dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 where his Lordship said this at page 148:
38. It is thus with the salutary caution and advice by His Majesty in mind that I proceed to consider the thorny and sensitive legal problems presented to this Court for judicial determination in the form of Questions 1 and 2. The Scope Of Regulations 4 And 14 Of The National Registration Regulations 1990 And Their Implementation 39. The relevant portions of Regulation 4 of the National Registration Regulations 1990 as amended reads:
40. For Regulation 14 of the National Registration Regulations 1990 the un-amended version is relevant and it reads:
41. Thus, Regulation 4(c) stipulates, inter alia, when any person applies for a replacement identity card the Registration officer has to be supplied with the particulars stated therein and ‘such other particulars as the registration officer may generally or in any particular case consider necessary for the purpose of identification…’ and ‘produce such documentary evidence as the registration officer may consider necessary to support the accuracy of any particulars submitted.’ 42. Besides supplying the required particulars under Regulation 4 a person applying for change of name is also required under Regulation 14 to furnish a statutory declaration declaring ‘to the effect that he has absolutely renounced and abandoned the use of his former name and in lieu thereof has assumed a new name and the reason for such change of name’. 43. Having considered therefore Regulations 4 and 14 in their entirety vis-ŕ-vis the adopted policy or the requirement imposed by NRD and having the Constitution in the forefront of my mind and having considered the submissions of learned counsel for the parties and those allowed by this Court to address, I think some pertinent conclusions can be derived in relation to the two Questions. 44. First, relevant in considering the foregoing Regulations is Article 8 (1) of the Constitution which proclaims that ‘all persons are equal before the law and entitled to the equal protection of the law’. Simply put it means that it requires all persons in like circumstances should be treated alike. It applies to both legislative powers and administrative discretion as well as to substantive and procedural rights and duties. (See: Lachmandas v State of Bombay [1952] SCR 710). And Article 8(2) prohibits any form of discrimination against citizens unless expressly authorized by the Constitution itself on the ground only of religion, race, descent or place of birth or gender in any law... In other words all forms of discrimination are forbidden unless it is explicitly permitted by the Constitution and that classification of people is permitted provided it is reasonable classification and not based on constitutionally forbidden grounds or on arbitrary or irrational differences. Hence, classification must be based on intelligible differentia which distinguishes those that are grouped together from the others that are left out. (See: Datuk Haji Harun Idris v PP [1977] 2 MLJ 155; Pathumma v State of Kerala A [1978] SC 771). Only Article 8(5) provides that Article 8 does not invalidate or prohibit any provision regulating personal law which generally means domestic relations, family matters, succession, marriage, divorce and so forth. With respect the registration and identity card regulations are not provisions governing or regulating personal law. 45. Regulation 4, in particular sub-regulation 4(c)(iva), has, however, singled out Muslims for additional procedural burdens and impediments which are not connected to personal law. It requires that any registrant or person applying who is a Muslim has to state his or her religion. The requirement does not apply to non-Muslims. There is therefore a differential treatment for Muslims. Hence, in my view this tantamount to unequal treatment under the law and in the absence of any exception found to justify the discrimination the said sub-regulation has infringed Article 8(1) of the Constitution. In other words it is discriminatory and unconstitutional and should therefore be struck down. For this reason alone that the relief sought for by the Appellant should be granted namely, for a declaration that she is entitled to have an NRIC (Identity Card) in which the word ‘Islam’ does not appear. 46. I am also unable to accede to any suggestion that the sub-regulation is covered by Article 8(5) of the Constitution. The Regulation has nothing to do with regulating personal law of a Muslim. 47. Second, Regulations 4 and 14 provide the mechanics by which a person can apply for replacement identity card, that is, the applicant has to supply particulars as stipulated and such other particulars necessary for the purpose of identification and to produce documentary evidence to support the accuracy of any particulars submitted. (Emphasis added). 48. However, in the matter before us it is not in dispute that NRD insisted, based on its policy when there is nothing expressed in the two Regulations, for the production of an apostasy certificate by the Appellant from the Federal Territory Syariah court or some Islamic authority before her third application could be processed. 49. Learned Senior Federal counsel appearing for the 2nd and 3rd Respondents had the same view on the point when it was submitted ‘that para (c)(ix) and (x) of reg 4 empowers the registration officer to call for additional information as well as documentary evidence from the Appellant when she applied to correct her particulars pertaining to the word “Islam” in her IC under reg 14(1)(c). Therefore, there was nothing illegal in the NRD requesting the appellant to produce a certificate and/or order from the Syariah Court or any other relevant Islamic authority.’ 50. Learned Senior Federal counsel also relied on an implied power of NRD officers duly appointed by virtue of the National Registration Act 1959 the authority to enforce certain conditions which they consider reasonably necessary in performing their duties and functions under the National Registration Act 1959 and the regulations made there under. 51. Such submission however can only be sustained if the third
application of the Appellant is considered in isolation for it is
true that in her identity card issued after the second application
the word ‘Islam’ appeared consequent to the amendment 52. The majority judgment of the Court of Appeal agreed with the approach taken by NRD when it said this:
53. With respect, I am unable to agree with the majority judgment of the Court of Appeal and the submission of the learned Senior Federal counsel. I think the minority judgment of the Court of Appeal took the correct approach in the construction of those Regulations when it said this:
54. I would add that NRD overlooked the point that the application of the Appellant should be considered within the context of the requirements of Regulations 4 and 14 only and should not bring in any extraneous factor such as retrieving information from its record. In the form submitted by the Appellant she stated her religion to be Christianity. This fact was known by NRD as early as 21.02.1997. Hence the third application should have been processed and considered only on that basis and to construe the series applications by the Appellant as one continuous episode. And to my mind if the Appellant has satisfied the requirements of Regulations 4 and 14 NRD has no option but to allow her application. It is not the function of NRD to add in further requirements which have not been stipulated in those Regulations. It is also not the function of NRD to ensure that the Appellant has properly apostatized. Such matter should be left to the relevant religious authorities to take up any action deemed necessary or appropriate. NRD has not shown that one of its statutory duties is to ensure that a person has properly renounced the Islamic faith in accordance with the requirements by the Islamic authorities. I would therefore think that in coming to its decision to reject the application of the Appellant on account of non-production of an order or a certificate of apostasy from the Federal Territory Syariah Court or Islamic authorities NRD had asked itself the wrong question and had taken legally irrelevant factor into account and excluded legally relevant factor. 55. Accordingly, I am inclined to agree with the submission of learned counsel for the Appellant that ‘in requiring production of a document that is not provided for nor authorised by the Regulation NRD had acted ultra vires its powers under the Regulations’ and hence acted ‘illegally’ in the context of principle enunciated in CCSU v. Minister for the Civil Service (supra) because it has not understood correctly ‘the law that regulates (its) decision making power’. 56. Lord Diplock in the CCSU case (supra) said this:
57. Third, there is merit in the contention by learned counsel for the Appellant that the insistence by NRD for a certificate of apostasy is not consonant with the requirement of Regulation 4 (c) (x) because ‘the call for proof of renunciation of religion does not fall within the meaning of the words “particulars submitted”. The only “particulars submitted” by the Appellant was her status as a Christian or of her conversion to Christianity…NRD was only empowered to call for such documentary evidence that it considered “necessary to support the accuracy of any particulars submitted”. The relevant “particulars submitted” was that the Appellant was a “Kristian”. Thus the NRD could call for documentary evidence to support the accuracy of that particular (“Kristian”) which the Appellant had submitted. However, the NRD could not call for documentary evidence that the Appellant was or was not a Muslim. This is because the Appellant had not submitted any particular that she was a Muslim.’ 58. The majority judgment of the Court of Appeal circumvented the above contention by holding thus:
59. With respect, the holding in the majority judgment of the Court of Appeal completely disregarded the fact that the Appellant made several applications for a change of name. Surely those applications should be regarded as part of a continuing act on the part of the Appellant. To confine the matter to the third application only is completely ignoring the history of the plight of the Appellant in her dealings with NRD. I am inclined to agree with the submission that ‘if the NRD had correctly acted on the Appellant’s choice of religion for the replacement I.C. in October 1999, and had not rejected it on the ground that she had not produced an apostatisation order, there would have been no necessity for the third application to correct the particulars as regards entry of “religion”’. 60. In fact the ‘compartmentalized approach’ adopted by the majority judgment of the Court of Appeal led it to distinguish the present appeal from the unreported case of Ismail bin Suppiah v Ketua Pengarah Pendaftaran Negara (R–1–24–31 of 1995. In the majority judgment the case of Ismail bin Suppiah was ruled to be only concerned with change of name whereas in the present appeal the central issue relates to removal of the word ‘Islam’ from the identity card of the Appellant. With respect I am unable to agree with the distinction made. Such an approach could only be correct if the history of the present appeal is omitted. Otherwise both cases are premised on the same reason. 61. Fourth, there is justification to say that NRD being the decision-maker
‘had misunderstood the provision under which he had to
act and denied relief to the Appellant. The decision-maker
cannot by misconstruing the provision decide on something that
is not provided for. The decision-maker is confined to the
matters prescribed for in the statute and not to “base their
decision on some matter which is not prescribed for”.’ (See: Anisminic Ltd v Foreign Compensation Tribunal
[1969] 1
All ER 208). I would say that there was an abuse of power on
the part of NRD when it failed to take into consideration a
legally relevant factor, namely the statutory declaration and the
documents submitted by the Appellant, preferring its policy of
requiring a certificate of apostasy from the Federal Territory
Syariah Court which in the first place is not stipulated in the
Regulations 4 and 14 thereby taking legally irrelevant factor into
consideration in making a decision. (See also: R v Inner
London Education Authority ex parte Westminster City
Council [1986] 1 All ER 19; Breen v Amalgamated
Engineering Union [1971] 1 QB 175; Pengarah Tanah Dan
Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn
Bhd [supra]). 63. With respect I would say that the majority judgment erred in considering an issue which should not have been there in the first place, namely affirming the insistence by NRD for a certificate of apostasy when the Appellant had in fact met all the requirements stipulated in Regulations 4 and 14. 64. Further, the conclusion in the majority judgment that the impugned policy adopted by NRD was reasonable within the test of Wednesbury Corporation v Ministry of Housing (1966) 2 QB 275 has unfortunately missed one cardinal principle. The implementation of the policy has a bearing on the Appellant’s fundamental constitutional right to freedom of religion under Article 11 of the Constitution. Being a constitutional issue it must be given priority and independent of any determination of the Wednesbury reasonableness. A perceived reasonable policy could well infringe a constitutional right. Hence, before it can be said that a policy is reasonable within the test of Wednesbury its constitutionality must be first considered. The majority judgment failed to carry out such an exercise before coming to its conclusion on the NRD policy. 65. Another aspect of the majority judgment which, with respect, I am inclined to disagree is its holding that the Director General of NRD was right in stating that apostasy is exclusively within the realm of the Syariah Court. In my view apostasy involves complex questions of constitutional importance especially when some States in Malaysia have enacted legislations to criminalize it which in turn raises the question involving federal-state division of legislative powers. It therefore entails consideration of Articles 5(1), 3(4), 11(1), 8(2), 10(1)(a), 10(1)(e), 12(3) and the Ninth Schedule of the Constitution. Since constitutional issues are involved especially on the question of fundamental rights as enshrined in the Constitution it is of critical importance that the civil superior courts should not decline jurisdiction by merely citing Article 121(1A). In my view the said Article only protects the Syariah Court in matters within their jurisdiction which does not include the interpretation of the provisions of the Constitution. Hence when jurisdictional issues arise civil courts are not required to abdicate their constitutional function. Legislations criminalizing apostasy or limiting the scope of the provisions of the fundamental liberties as enshrined in the Constitution are constitutional issues in nature which only the civil courts have jurisdiction to determine. 66. Fifth, it is worthy to note that while a public authority is allowed to adopt departmental policies and to broadcast them to all concerned, it must not allow its policies to override its statutory duty to act in the public interest. A public authority must also have the legal authority when it wishes to impose a substantive or procedural requirement to those who come before it. Administrative powers cannot be utilized to achieve collateral or unauthorized purposes no matter how noble or well-intended these purposes or policies might be. (See: Pyx Granite v Ministry of Housing [1959] 3 All ER 1; Padfield v Minister of Agriculture [1968] 1 All ER 694). 67. The consequence of the approval by the majority judgment of the Court of Appeal to the policy adopted by NRD is to condone the unlawful delegation of authority by NRD to some other third body when it is not sanctioned by the law. (See: Jackson Stanfield v Butterworth (1948) 2 All ER 358; Lavender v Minister of Housing (1970) 3 All ER 871; Isman bin Osman v Govt. of Malaysia [1973] 2 MLJ 143). In fact I think the majority judgment has permitted NRD to extinguish its statutory discretion by a self-imposed fetter. 68. Sixth, by voluntarily abdicating its discretionary power under a federal law to an outside religious body NRD had acted with irrationality in the sense as described in CCSU case (supra). I would say that NRD had unlawfully agreed to act under the dictation of another. It is well accepted in administrative law that a decision maker or body is entitled to consult and seek advice from any source, provided it retains the ultimate authority to make the final decision. It must retain its power to act independently in pursuance of the statutory purpose of the law. (See: De Smith, Judicial Review of Administrative Action, 4th Edition at page 309). Indeed a public authority is obliged to make its own decision and not act on the dictates of another. (See: Bread Manufacturer of New South Wales v Evans (1986) 56 ALJR 89; Commissioner of Police v Gordhandas Banji AIR 1952 SC 16; P Patto v Chief Police Officer, Perak & Ors [1986] 2 MLJ 204). 69. Seventh, in the present appeal the insistence by NRD for a certificate of apostasy from the Federal Territory Syariah Court or any Islamic Authority was not only illegal but unreasonable. This is because under the applicable law, the Syariah Court in the Federal Territory has no statutory power to adjudicate on the issue of apostasy. It is trite law that jurisdiction must come from the law and cannot be assumed. Thus the insistence was unreasonable for it required the performance of an act that was almost impossible to perform. (See: Wednesbury Corporation v Ministry of Housing [supra]; Oriental Insurance Co Ltd & Anor v Minister of Finance [1992] 2 MLJ 776). 70. Another aspect of the unreasonableness of the policy of NRD is in its consequence if followed. In some States in Malaysia apostasy is a criminal offence. Hence, to expect the Appellant to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law is in my view unreasonable for its means the Appellant is made to self-incriminate. 71. Eighth, it is a settled principle in administrative law that a public authority must not act mechanically. It must consider each case on its own merits. It must retain the discretion to depart from its policy whenever public interest so demands. (See: R v Windsor Licensing ex parte Hodes (1983) 2 All ER 551). However in the present appeal it was shown by the Appellant that her repeated applications were rejected across the counter in a mechanical way by giving effect to the extra-legal policy. 72. Ninth, I would also say that in rejecting the application of the Appellant without giving her a fair hearing and assigning reasons for the decision, NRD had failed to observe the principles of natural justice, a procedural impropriety that could be a basis to nullify any judicial, administrative, departmental or executive decision. (See: J P Berthelsen v Director General Immigration [1987] 1MLJ 134). The need becomes critical when the constitutional right of the Appellant under Article 11(1) is involved, that her legitimate expectations were raised when her name change was allowed, that she had spent many years to try to resolve her problem with NRD including her compliance with an advice given by a staff of NRD and that it was the inclusion of the word ‘Islam’ in her new identity card that led her to seek for judicial review. 73. Tenth, there is also the duty of NRD to act fairly towards the Appellant. In appropriate cases there may be a duty to act fairly prior to the making of delegated legislations. (See: R v Secretary for Health ex parte United States Tobacco International Inc. (1991) 3 WLR 529). In the case of the Appellant there was no challenge to her assertion that at the time she was advised to make the third application she was not informed or given any notice that Regulation 4 would be amended. In my view there is therefore a reasonable suspicion that Regulation 4, although formulated in 2000, was deliberately amended retrospectively to 1.10.1999 in order to target and to prejudice the third application of the Appellant made on 23.10.1999. The duty to act fairly and thus observing the rules of natural justice was not done by NRD. The least that NRD could have done was to notify the Appellant of the impending amendment when advising her to submit the third application as only NRD would have known of the impending amendment which had definite impact to the third application of the Appellant. In my view NRD had failed to comply with one aspect of the rules of natural justice. 74. Thus, for the foregoing reasons my answers to the first two Questions are therefore in the negative. Question 3 75. This third Question is focused on this Court’s decision in Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor (1999) 1 MLJ 489 where this Court was of the opinion that ‘the jurisdiction of the syariah courts to deal with the conversion out of Islam, although not expressly provided in the State Enactments, can be read into them by implication derived from the provisions concerning conversion into Islam. It is a general rule of construction that if the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication and the court may draw inferences or supply the obvious omissions…. altering the jurisdiction of courts of law, which in the words of Tindal CJ in Albon v Pyke (1842) 4 M & G 421 at p 424: ‘the general rule undoubtedly is, that the jurisdiction of the superior courts is not taken away, except by express words or necessary implication’. In the instant case, in our opinion, the general rule of construction applies and the court can have recourse to a construction by implication. Implication may arise from the language used, from the context, or from the application of some external rule. They are of equal force, whatever their derivation (Bennion’s Statutory Interpretation (2nd Ed) p 362). It is quite clear to us that the legislative purpose of the State Enactments and the Act is to provide a law concerning the enforcement and administration of Islamic law, the constitution and organization of the syariah courts and related matters. Therefore, when jurisdiction is expressly conferred on the syariah courts to adjudicate on matters relating to conversion to Islam, in our opinion, it is logical that matters concerning conversion out of Islam (apostasy) could be read as necessarily implied in and falling within the jurisdiction of the syariah courts. One reason we can think of is that the determination of a Muslim convert’s conversion out of Islam involves inquiring into the validity of his purported renunciation of Islam under Islamic law in accordance with hukum syarak (Dalip Kaur). As in the case of conversion to Islam, certain requirements must be complied with under hukum syarak for a conversion out of Islam to be valid, which only the syariah courts are the experts and appropriate to adjudicate. In short, it does seem inevitable that since matters on conversion to Islam come under the jurisdiction of the syariah courts, by implication conversion out of Islam should also fall under the jurisdiction of the same courts.’ 76. But the final conclusion in the above case was preceded by this statement:
77. I am aware that Soon Singh case was also decided by this Court. I also noted that their Lordships in that case were well aware of the views expressed in at least two other cases by the learned Judges of this Court. (See: Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 and Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib [1992] 2 MLJ 793). But their Lordships preferred to follow the reasoning of the High Court in Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur [1998] 1 MLJ 681. 78. In view of the approach taken by their Lordships in Soon Singh case I think there is nothing to prevent this Court hearing this present appeal to reconsider the views expressed in those cases referred to above and the cases in the High Courts. 79. In Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan & Anor (No 2) [1991] 3 MLJ 487 Eusof Chin J (as he then was) who incidentally was also in the panel that decided Soon Singh case said this at page 489: ‘The Federal Constitution, Ninth Schedule List II — State List, specifically gives powers to state legislatures to constitute Muslim courts and when constituted, ‘shall have jurisdiction only over persons professing the Muslim religion and in respect only of any of the matter included in this paragraph’. 80. And in Lim Chan Seng v Pengarah Jabatan Agama Islam Pulau Pinang [1996] 3 CLJ 231 the rned High Court Judge was of the view that Article 121(1A) by itself did not automatically confer jurisdiction on the syariah court, even on matters that fell under the State List of the Ninth Schedule. It was the view of the learned Judge that the state legislature must first act upon the power given it by Articles 74 and 77 of the Constitution and the State List and thus enact laws conferring the jurisdiction. 81. In Dalip Kaur case his Lordship Hashim Yeop A Sani CJ (Malaya) expressed his view thus:
82. His Lordship Harun Hashim SCJ in Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib [supra] at page 800 stated this:
83. The views expressed in the last two cases decided by the apex court of this country came from eminent Judges of our time which should therefore be given the weight they deserved. And I can appreciate the approach adopted by the learned High Court Judges in Ng Wan Chan and Lim Chan Seng. 84. Hence, I am in agreement with those views in that jurisdiction must be express and not implied. The doctrine of implied powers must be limited to those matters that are incidental to a power already conferred or matters that are necessary for the performance of a legal grant. And in the matters of fundamental rights there must be as far as possible be express authorization for curtailment or violation of fundamental freedoms. No court or authority should be easily allowed to have implied powers to curtail rights constitutionally granted. 85. In my view to rely on implied power as a source of jurisdiction would set an unhealthy trend. For instance under List 1, Item 15 Schedule 9 of the Constitution, Parliament is authorized to pass laws relating to ‘social security’. To date no law has been passed governing minimum wages in this country. If the implied jurisdiction doctrine is adopted there is nothing to prevent the Industrial Court from assuming jurisdiction relying on Item 15 and thus adjudicating on matters pertaining to minimum wages. If that were to occur then all that is required will be a list of what Parliament or the State Assembly can enact and that will entitle the courts to have jurisdiction on such matters irrespective of whether there is any specific legislation enacted. 86. I am therefore inclined not to follow the reasoning in Soon Singh case. My answer to Question 3 is therefore in the negative. Other Issues 87. I have indicated earlier on in this Judgment that learned counsel who submitted before us during the hearing were given the opportunity to submit on other issues other then those agreed upon by the Appellant and the Respondents. 88. I have given those points due consideration. However, I am of the view that on the facts and circumstances of this appeal particularly in the manner in which it was argued by the parties earlier on I need not have to make any definite findings on them in order to come to my final conclusion. Perhaps they can be deliberated on another occasion. Conclusion 89. For the reasons that I have given above my answers to the three Questions are all in the negative. Accordingly, I am satisfied that the Appellant has succeeded in establishing the merits of her appeal. I would therefore allow her appeal and grant her the declaration on those terms as she prayed for in that she is entitled to have an NRIC (Identity Card) in which the word ‘Islam’ does not appear. I would therefore direct the Director General to forthwith comply with the terms of the saiddeclaration. Costs to the Appellant here and below.
Signed. Counsel for the Appellant : Dato’ Cyrus Das Solicitors for the
Appellant : Messrs Benjamin Dawson Counsel for the 1st Respondent : Tn. Hj. Sulaiman Abdullah Solicitors for the 1st Respondent : Messrs Zain & Co. Counsel for the 2nd and 3rd Respondent : Dato’ Umi Kalsom Abdul Majid, SFC
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