This article demonstrates how the current view that only the Syariah Court has the jurisdiction to rule on the status on those who had renounced Islam began with a misreading of a minority view in an earlier Supreme Court’s judgment in Dalip Kaur and treating it as setting a binding precedent. The non-binding minority view subsequently turned into ratio decidendi when the Federal Court in Soon Singh case approved the High Court’s judgment which ‘followed’ the minority view instead of the ratio of the majority judgment in Dalip Kaur.
Confusion between ratio decidendi (“the reason for the decision” which has legal binding effect) and orbiter dictum (“an incidental, by the way statement” which has only persuasive value) also arose in cases relating to religious freedom in Malaysia.
I refer readers to the careful analysis by Kuek Chee Ying & Tay Eng Siang in “When Orbiter Dictum and Minority View Become Ratio Decidendi” published in the Malayan Law Journal (2015) volume 3, pages lxxxii-xcvi Continue reading “Why Recent Court Judgments Which Restrict Religious Freedom May be Questioned.”