Subscribe in a reader | Subscribe by Email Federal Court rejects Lina's appeal in a majority decision
By CHELSEA L.Y. NG and RAPHAEL WONG
Lina unhappy with decision
KUALA LUMPUR: Lina Joy is extremely unhappy with the Federal Court judgment.
“I am disappointed that the Federal Court is not able to vindicate a simple but important fundamental right that exists in all persons; namely, the right to believe in the religion of one's choice and equally important, the right to marry a person of one's choice and to raise a family in the Malaysia context.
“The Federal Court has not only denied me that right but to all Malaysians who value fundamental freedoms,” she told The Star, through her solicitor Benjamin Dawson.
“I am hoping that my case would have made a difference to the development of constitutional issues in the plight of many others.”
Asked whether she would leave Malaysia for good, Lina, who is believed to be overseas at present, said: “It would extremely difficult to exercise freedom of conscience in the present environment.”
Lina, 42, was born Azlina Jailani to Malay parents. She was brought up as a Muslim but at the age of 36 became a Christian.
In 1999, she managed to change the name in her identity card to Lina Joy but the National Registration Department retained her religion in the card as Islam.
On April 23, 2001, the High Court refused to decide on her application to renounce Islam as her religion on grounds that the issue should be decided by the Syariah Court. It also dismissed her application for an order to direct the department to drop the word “Islam” from her identity card.
On Sept 19, 2005, the Court of Appeal, in a majority decision, also rejected her appeal.
PUTRAJAYA: Illegal and unreasonable. This was how Justice Richard Malanjum described the insistence of the National Registration Department (NRD) for Lina Joy to obtain a certificate of apostasy from the Federal Territory Syariah Court or any Islamic authority.
The Chief Judge of Sabah and Sarawak said that under applicable law, the Syariah Court in the Federal Territory has no statutory power to adjudicate on the issue of apostasy.
“The (NRD) insistence is unreasonable for it requires an act that is almost impossible to perform,” he said.
Justice Malanjum alleged that NRD’s unreasonableness would have consequential effects in some states where apostasy is a criminal offence.
“Hence, to expect the appellant (Lina) 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.”
Disagreeing with the Court of Appeal’s majority judgment, he said it completely disregarded the fact that Lina had made several applications for a change of name. Therefore, it should be regarded as a continuing act.
He said to confine the matter to Lina’s third application was completely ignoring her dealings with the NRD.
He agreed with submissions by Lina’s counsel that if the NRD had correctly acted on her choice of religion for a replacement identity card (in October 1999) instead of rejecting it on the grounds she had not produced a certificate of apostasy, there would have been no necessity for the last application to correct the particulars as regards to entry of “religion.”
Others reasons stated by Justice Malanjum include:
> NRD’s implementation of its policy has a bearing on Lina’s fundamental constitution right to freedom of religion under Article 11 of the Federal Constitution.
> NRD director-general was wrong in stating that apostasy was exclusively within the realm of the Syariah Court as apostasy involves complex questions of constitutional importance.
CJ: NRD’s requirement is reasonable
PUTRAJAYA: Chief Justice Ahmad Fairuz Sheikh Abdul Halim has ruled that the National Registration Department had reasonably required Lina Joy to get a certificate of apostasy from the Syariah Court.
This would allow the court to proceed to make a deletion (of the word ‘Islam’) from her identity card.
The top judge also ruled that since the Syariah Court had the jurisdiction over cases involving conversion to Islam, it should, by implication, have the power to decide on apostasy matters.
“I do not see any defect in the 1999 Federal Court judgement in the case of Soon Singh (which decided on the same grounds and which led to the provision for Muslims to state their religion in their identity card).
“To say that she is not under the jurisdiction of the Syariah Court ? because she no longer professes Islam ? is not appropriate,” said Ahmad Fairuz in his 41-page judgment.
He added that the way one leaves a religion is set by the religion itself.
“No one is stopping her from marrying. She is merely required to fulfil certain obligations, for the Islamic authorities to confirm her apostasy, before she embraces Christianity.
“In other words, one cannot embrace or leave a religion according to one’s whims and fancies.”
He said a mere statutory declaration that one has renounced Islam is not sufficient to remove the word “Islam” from a Muslim person’s identity card..
“This is because apostasy is an issue dealing with Islamic laws.
“Therefore, the NRD has adopted the policy that requires verification by the religious authorities or the Syariah Court before the department can delete the word.
“Therefore, I agree with the Court of Appeal’s majority judgment that the NRD’s policy is completely reasonable,” said Ahmad Fairuz.
Mixed reaction to court decision
KUALA LUMPUR: Some Muslim groups welcomed the Lina Joy verdict saying that justice has been served, while non-Muslims groups expressed their disappointment saying it contradicted a person’s constitutional right to the freedom of religion.
Applauding the decision, the Muslim Organisations in Defence of Islam (Pembela) believed it came as a relief for the majority of the Muslims and non-Muslims alike.
“The decision should not be perceived as a victory for Muslims and a loss for non-Muslims in Malaysia.
“Instead it should be seen as a rejection of segments to radically revamp the current formula built on mutual understanding and social realities of the Malaysian society,” Abim president Yusri Mohamad said on behalf of Pembela in a statement.
Pembela is a loose coalition of Malaysian Muslim NGOs concerned with various issues relating to the position of Islam in the country.
Dr Chandra Muzaffar, International Movement for a Just World president, called for reforms of the Syariah laws.
“The Quran does not prohibit a person from or punish a person for leaving the religion. The crux of the problems is the unwillingness of the Syariah Courts to entertain applications of the Lina Joy type.
“We need to come up with a more progressive approach from the Syariah Courts. It needs a totally different mindset on the way we look at and understand Islam,” he said.
However, CFM Christian Federation of Malaysia (CFM) chairman Bishop Paul Tan Chee Ing said it had now become more pressing for the Government and lawmakers to revisit the relevant legislation and to reinstate the jurisdiction of the Civil Courts so that equal protection of the rights to choose and express one’s religion is accorded to all Malaysians as enshrined by Article 11.
