A sad ruling for freedom of religion in Malaysia

It’s no joy for Lina. It’s also no joy for Ms Chan, no joy for Ms Wong, no joy for all Malaysians who cherish freedom of religion. My deep sympathy with Lina and all others who were affected by the sad ruling. Where can you go if you cannot get justice from the highest courts in our land?

No joy for Lina

May 30, 07 11:18am Malaysiakini 
Lina Joy’s long wait for her conversion to Christianity to be recognised by law is over – the Federal Court ruled today that she remains a Muslim and her religious status will not be removed from her identity card.Delivering the judgment to a packed gallery this morning in Putrajaya, Chief Justice Ahmad Fairuz Sheikh Abdul Halim ruled that jurisdiction remains with the Syariah court.The chief justice stated that he concurred with the majority decision – Justice Alauddin Mohd Sheriff who was the last to read his judgment agreed with Ahmad Fairuz’s findings.

Justice Richard Malanjun gave a dissenting judgment.

The case hinged on a decision by the National Registration Department not to remove the word ‘Islam’ from Lina’s MyKad.

The department said it needed a syariah court order certifying her renouncement from Islam before it could make the change.

The three questions

Following this, Lina filed a suit against the NRD director-general, the government and the Federal Territory Religious Council in 2001.

After losing at both the High Court and Court of Appeal, the matter finally came to the Federal Court with these three questions:

1. Was the NRD entitled to require a person to produce a certificate or a declaration or an order from the syariah court before deleting “Islam” from his or her identity card;

2. Did the NRD correctly construe its powers under the National Registration Regulations 1990 when it imposed the above requirement, which is not expressly provided for in the regulations?; and

3. Was the landmark case Soon Singh vs Perkim Kedah – which held that syariah courts have the authority over the civil courts to hear cases of Muslims renouncing Islam – correctly decided?

Delivering the much-awaited judgment today, Ahmad Fairuz and Alauddin answered in the positive to all these three questions.

Richard however disagreed, stating that the NRD had no statutory duty to decide on apostasy.

Ahmad Fairuz said the NRD, which is in charge of issuing identity cards, had the right to demand that a syariah court certify Lina’s conversion.

“On the question that the National Registration Department has the right to demand a certification from the Islamic court that confirms the appellant’s renunciation of Islam, my answer is that NRD has the right,” he said.

“The appeal has been rejected with cause,” he added.

Shouts of Allahuakbar

A large section of the 300-strong crowd waiting outside recited the tahlil or read the Quran while waiting for the decision.

When the news reached them, they shouted Allahuakbar – their reaction resounded through the Palace of Justice.

Born to Malay parents, Joy, 43, whose Muslim name was Azlina Jailani, converted to Christianity in 1998.

[Full report to follow]

14 Responses to “A sad ruling for freedom of religion in Malaysia”

  1. ronnieliutiankhiew Says:

    Muslim groups brace for Lina Joy decision
    May 29, 07 1:54pm

    Muslim groups nationwide have been told to be adequately prepared for the much-anticipated Federal Court decision on the Lina Joy case tomorrow.

    Mosques, surau, and non-governmental organisations have been urged to hold special prayers so that the judgement is “in favour of Islam”.

    In making the call this morning, though, PAS Federal Territory Youth chief Kamaruzaman Mohamad strongly urged all parties to remain calm and warned against any attempts to provoke or raise tensions over the issue.

    “The aim is not to antagonise any party or to create tensions. Any mistake committed by Muslims present (at the Federal Court tomorrow) will be used to denigrate the image of Islam and that of Muslims in Malaysia,” he said in a statement.

    “It is also not impossible that certain parties will seek to provoke or create tensions for that same objective.”

    He urged those who able to attend court to do so, as a demonstration of their concern “for the future of Islam in this country”.

    Joy, 43, whose Muslim name was Azlina Jailani, converted to Christianity in 1998. She successfully applied that year to change her name, but the National Registration Department refused to remove her religion, stated as Islam, until the state religious authorities agreed to this.

    The decision to be delivered by the highest court is seen as determining the state of religious freedom as well as the extent of the jurisdiction of Syariah courts under Malaysia’s parallel judicial system.

    Meanwhile, the PAS-linked group Forkad and the Pembela coalition – both set up to counter the emerging cases of apostasy among Muslims – also issued guidelines for those attending court.

    Every effort must be made for calm and civility and to co-perate with and abide by the instructions of the security and police personnel on duty, they said in a separate statement.

    “Pembela advises all members of the public to distance themselves from any ‘wild’ or provocative acts or messages from irresponsible parties in connection to the announcement of the decision on Azlina Jailani,” said chairperson Yusri Mohamad.

  2. Chee Yong Says:

    I am not a happy camper. Where is freedom of religion enshrined in the Constitution?This is another good reason to vote the BN out. I am so so fed up with this pariah way of BN governing the country. Talk without substance and their acedemic qualification is nothing to shout about. To those Chinese and Indians still voting for BN, I believe u r a shame to your future generation. Its your sins but your future generations r paying the price. Look at this now? What you all waiting for? Especially to the Indians. Vote MIC out!!

  3. leechin Says:

    Here goes another disappointing decision from our judiciary, or should i say another “expected” decision.

    To say that is is expected because i always have doubt that they will open the floodgate and allow the Malays to leave the religion, it is not easy now, and it will be more taxing in years to come.

    Freedom to Religion – it seems a dream so far fetched to us Malaysian, sad, but that’s the reality!

    We have a Federal Constitution which is the supreme authority of the land, however the apex court of this land refused to uphold our Federal Consitution.

    What is more worrying is that the decision of Lina Joy further confirms that “supremacy” of the Syariah Court, I fear for Subashini and many other non-muslims, who might have no legal redress, once caught in a dispute involving a Muslim.

    Lina Joy decision, is indeed disappointing.

  4. d Says:

    I urge all Christians in Malaysia to pray for Ms Lina!

  5. Siddique Says:

    A big clap to malaysia’s court for making the decision for lina’s case. The question here now; why must Lina feel uncomfortable going to Syariah Law to change her status of religion?

  6. ronnieliutiankhiew Says:

    Lina Joy judgment at a glance

    Soon Li Tsin – Malaysiakini
    May 30, 07 5:58pm

    The atmosphere was tense in the Federal Court in Putrajaya today, with more than 80 people packed in the public gallery and 300 people milling outside the building.

    Some had been waiting outside the courthouse as early as 7am while the three judges only appeared at about 10.40am to deliver their judgments.

    The majority judgment was first read out in Malay by Chief Justice Ahmad Fairuz Sheikh Abdul Halim who ruled that jurisdiction remained with the Syariah Court and the appeal was dismissed with costs.

    He was then followed by Justice Richard Malanjum who delivered his 57-paged dissenting judgment to the relief of Lina Joy’s counsel.

    Thirty minutes later, Justice Alauddin Mohd Sheriff (left) briefly said he concurred with Ahmad Fairuz and Lina’s fate was sealed. The crowd soon broke into murmurs before adjournment was called.

    Below are the three questions that were raised before the Federal Court, together with the majority and dissenting views given by the judges of the apex court.

    1. Was the National Registration Department entitled to require a person to produce a certificate or a declaration or an order from the Syariah Court before deleting ‘Islam’ from his or her identity card?;

    ronliu

    Majority (Ahmad Fairuz):ronliuYes. The NRD had a right to demand a certificate or a declaration or an order from the Syariah Court before deleting ‘Islam’ from his or her identity card to avoid labelling someone non-Muslim erroneously when the person has not exited the religion.

    This is also to prevent indecisive Muslims from exiting the religion just to avoid any punishment under Islamic law.

    The decision to exit Islam is a matter for Islamic law to decide and the NRD needs the Syariah Court’s confirmation whether a person is Muslim or not. After this confirmation procedure, NRD has the discretion to remove the word Islam or not.

    Dissenting (Malanjum):ronliuNo. In Article 8 of the Federal Constitution, all are equal before the law and are entitled to equal protection of the law.

    However, Regulation 4(c)(iva) of the National Registration Regulations 1990 (which states that Muslims need to display their religion on the IC) singled Muslims out for additional procedural burdens which are not connected to personal law.

    The requirement does not apply to non-Muslims hence it tantamount to unequal treatment. It is, in other words, discriminatory and unconstitutional and should be struck down.

    Insistence by NRD for a certificate of apostasy from the Federal Territory Syariah Court or other Islamic authority is not only illegal but unreasonable. This is because under applicable law, the Syariah Court in the Federal Territory has no statutory power to adjudicate on the issue of apostasy. Jurisdiction must come under established law and cannot be assumed.

    2. Did the NRD correctly construe its powers under the National Registration Regulations 1990 when it imposed the above requirement, which is not expressly provided for in the regulations?

    Majority: Yes. The Regulation 4(c)(ix) and (x) National Registration Regulations 1990 which states that a registration officer may request for ‘such other particulars […] considered necessary’ and ‘necessary to support the accuracy of any particulars submitted’ can be construed that way.

    The NRD thus was empowered with these administrative provision to deem (Lina’s) statutory declaration as insufficient for her to remove ‘Islam’ from her IC.
    Dissenting: (read with Question 1) No. It is not the function of the NRD to add in further requirement (for Lina to acquire a confirmation certificate from the Syariah Courts) which have not been stipulated in those regulations. It is also not the function of the NRD to ensure that the Lina has properly apostasised.

    Apostasy involves complex questions of constitutional importance especially when some states in Malaysia has enacted legislation to criminalise it. It is of critical importance that the civil superior courts should not decline jurisdiction by merely citing Article 121 (1A) […] legislation criminalising apostasy or limiting the scope of the provisions of the fundamental liberties as enshrined in the Constitution are constitutional issues in nature which only civil courts have jurisdiction to determine.

    3. Was the landmark case Soon Singh vs Perkim Kedah – which held that Syariah Courts have the authority over the civil courts to hear cases of Muslims renouncing Islam – correctly decided?

    Majority: Yes. While, the Federal Court acknowledges that there are no express provisions that Syariah Courts can decide on the issue of apostasy. However, if non-Muslims are converting into Islam, they have to go through the syariah courts.

    Therefore based on the concept necessary implication, if one chooses to exit Islam, (one) must go through the same authorities. I see no flaws in that logic.

    This does not conflict with Article 11 that says every ‘person has a right to profess and practise his religion’. Islam is not just a collection of dogmas and rituals but it is a complete way of life which includes private and public matters as well as law, politics, economy, social, culture, moral and judicial issues.

    In my view relating to Islam, Article 11 cannot be interpreted so widely as to cancel out all laws that a Muslim is required to execute and abide to. This is because Islam has a special position in the Federal Constitution which is different from other religions. Therefore, Article 11 should not be interpreted as an supreme right; and the right to profess and practice a religion is subjected to the religion that governs the individual.

    Dissenting: It is logical that matters concerning apostasy could be read as ‘necessary implied’ in and falling within the jurisdiction of the Syariah Courts. It does seem inevitable that matters on conversion to Islam comes under the jurisdiction of the Syariah Courts because the Syariah Courts are the experts and appropriate to adjudicate.

    However, jurisdiction must be express, not implied. In the matters of fundamental rights there must be as far as possible be express authorisation for curtailment of violation of fundamental freedoms. In my view, to rely on implied power as source of jurisdiction would set an unhealthy trend.

    I am therefore inclined to follow the reasoning of Soon Singh and my answer is therefore in the negative.

    Ahmad Fairuz’s judgment

    Richard Malanjum’s judgment

  7. Chee Yong Says:

    A big thumbs down for the decision. Only radical people accept this kind of decisions. Talk about freedom of religion. Those who r happy with the decision, I feel sorry for your state of mind.

  8. Chee Yong Says:

    I think Msia is a SHAME. Recently I was in India for biz trip, I was told by a local there that Msia has differential treatments for the non Malays. How can someone thousand miles away also has this perspective? I feel so ashamed that this is the state of the country now. And how can I deny when its true. Wake up folks!! Dont vote BN!!

  9. Syed Ilham Says:

    I wish to make this reply to this Chee Yong.
    Please be very careful when you use your words describing Malaysia. Malaysia will never be pariah as you think. All these while the country is in peace because we understand our “do ” and ” dont”. Unless you are damn stupid to understand the way we live here, and how we could sustain our peace and harmony which be able you to grow older as you are now. As we celebrate our 50 th independent , i think we will be very glad to say that those who ” kurang ajar ” and think that Malaysia is no longer suit to them can always at anytime and will be “GET LOST” from our land. You can get lost to USA or Australia which can guarantee you “TOTAL” freedom if only you think you are good enough to be accepted!

  10. abdul razak Says:

    A sad case indeed.But she (now Lina is ) could be recovered if she has sound theological background.I wish i could talk or correspond with her on internet.If I have a chance to do so,that is wonderful.I believe the chance is there.God willing.

    Abdul

  11. JJ Says:

    Shame on Malaysia for this. I don’t need a any book to tell me that forcing your ideals on others is clear evil.

  12. afify Says:

    i think all of you who think malaysia is a freedom country should think back that malay and Islam is 2 important things that play an important role in malaysia today

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