Lina Joy, The Decision (Counsel’s Explanation)
Posted by: Raja Petra
Islam has been the law of the Malay Peninsula since 1136, ever since the Hindu Sultan of Kedah, Merong Maha Wangsa converted to Islam and assumed the Muslim name of Sultan Muzaffar Shah. Before Merdeka in 1957, Islam was the official religion of all the Malay states. What the Constitution did was to state that Islam becomes “the religion of the Federation”, by virtue of Article 3 (1) of the Federal Constitution.
The British in their treaties with the Malay rulers had never interfered with the Rulers’ sovereignty over Muslim matters and Malay custom. The British came to the Malay Peninsula via Penang in 1786 and had gradually introduced their laws – mostly commercial laws. But they have not encroached upon Islamic laws. (In fact, when a British Resident (James Birch) in the 19th century tried to interfere with the powers of the Sultan over Muslim matters in Perak, the Resident was killed.)
Please understand that in the Lina Joy case the Federal Court does not say that Lina Joy cannot leave Islam. The Court merely says: Lina will have to go to a Syariah court if she wants to leave the Religion of Islam – this is a requirement of Article 121 (1A) of the Constitution. She can do this in her place of domicile – i.e. the state where she permanently resides. If she resides in Wilayah Persekutuan, then she has to go the Syariah High Court in Kuala Lumpur to make her application.
The right to profess and practise one’s religion in Article 11 (1) of the Constitution is interpreted differently for Muslims and non-Muslims for the simple reason that Islam is not only a faith but also a law. The Muslims have their own family laws (personal laws).
The right of equality in Article 8 of the Constitution is subject to personal law. When Lina wanted the word “Islam” to be deleted, she was to all intents and purposes asking the National Registration Department (NRD) to accept her statement on her legal (religious) status. This the NRD could not do. That is why they wanted her to acquire a declaration from the Syariah court. On the other hand if a non-Muslim wants to change his name to reflect his new religion (a non-Islamic religion) in the NRD records (not in the IC) the NRD cannot refuse; that would be illegal under the law.
The only communities that have their own personal laws in Malaysia are the Muslims of Peninsula Malaysia, and Bumiputras of Sabah & Sarawak (this expression includes Muslims). Other non-Muslims in Malaysia have no personal laws; they share the civil laws on family matters – these laws are based on English law. Examples are the Law Reform (Marriage and Divorce) Act, the Wills Act, the Distribution Act, the Guardianship of Infants Act. For Muslims, they have their own body of laws, even if some are still uncodified in Malaysia.
Whether a person such as Lina will succeed or not in the Syariah court will depend on the grounds that she gives to the Court i.e. she will have to state why she is leaving the religion. Although Wilayah Persekutuan does not have specific provisions in the Islamic Administration Act on how to leave the religion, it does not mean that the Court cannot go through the body of Muslim jurisprudence in order resolve her problem.
In the state of Negeri Sembilan, there are special provisions for Muslims to leave Islam. The Court may impose counseling on the would-be apostate for a certain period until the Court is able to satisfy itself that there is no hope for the applicant to return to Islam. Once the court declares that she is an apostate, she cannot be charged for any offence which other Muslims are subject to. If she is charged, she can raise her defence under Article 11 (1) of the Constitution. If she was originally a Malay, she will lose this status by virtue of Article 160 of the Constitution.
Negeri Sembilan has recorded the highest number of applications to leave Islam. Of the 89 applications made between 1984 and 2003, 16 applications were allowed, 29 applications were dismissed and 39 postponed. In 2005, there were 5 successful applications; in 2006 (until August) there were 3 successful applications. This is based on a study carried out by two legal scholars; their article was published in a journal of the University of London early this year.
The application by a person to leave Islam is a civil suit/proceeding and not a criminal proceeding. No one will be charged under Islamic criminal law for making such an application. Federal Court judge Justice Malanjun (a Kadazan Christian from Sabah) is misled for saying in the Lina Joy case that a person will incriminate himself and can be charged for a criminal offence if he applies to leave Islam in a Syariah court.
Under the Malaysian Constitution, Syariah courts cannot impose punishments on convicted offenders beyond 3 years in jail, a RM 5,000/- fine or 6 strokes of the cane. (Lawyers call this the 3-5-6 rule.) Caning is Islam is humane – it is akin to caning in school – quite unlike the cane punishment imposed in Malaysian criminal courts – the latter is regarded by human rights advocates as torture.
As to the fact that some states have enacted Islamic laws making apostasy a crime, these laws are seldom enforced. State Islamic criminal laws that are enforced are often those relating to deviant teachings, adultery, sodomy, eating in public during the fasting month, etc. But they are subject to the 3-5-6 rule.