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http://www.malaysiakini.com/news/67914

No joy for Lina
Soon Li Tsin May 30, 07 11:18am

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 Malanjum 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.

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

'Civil courts can't interfere'

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.

He also said that apostasy was within the powers of the Islamic law and the
syariah courts.

"Civil courts cannot interfere," he said.

"In short, she cannot, at her own whim, simply enter or leave her
religion... She must follow rules."

"The appeal has been rejected with costs," he added.

The dissenting judge Malanjum said the NRD's demand was "discriminatory and
unconstitutional," and it was unreasonable to expect a person to
"self-incriminate" herself before a syariah court.

"In some states in Malaysia, apostasy is a criminality," he said.

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.

Joy, fearing retaliation from Muslim groups, was not present in court.
____

http://www.malaysiakini.com/news/67952

Lina Joy judgment at a glance
Soon Li Tsin 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 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 counsels.

Thirty minutes later, Justice Alauddin Mohd Sheriff (left) briefly said he
concurred with the 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?;

Majority (Ahmad Fairuz):

Yes. 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 also to prevent indecisive Muslims from exiting the religion just to
avoid any punishments under Islamic law.

The decision to exit Islam is a matter for Islamic Law to decide and the NRD
needs the syariah courts' 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):

No. In the Article 8 of the Federal Constitution, all person is 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 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.
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