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wanzafran: Lina Joy, The Decision (Counsel's Explanation)

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  • Y.W.Loke
    http://www.wanzafran.com/2007/lina-joy-the-decision-counsels-explanation/ Lina Joy, The Decision (Counsel s Explanation) Date: June 2nd, 2007 I received some
    Message 1 of 1 , Jun 2, 2007

      Lina Joy, The Decision (Counsel's Explanation)
      Date: June 2nd, 2007

      I received some questions in my previous post, which discussed the Lina Joy
      case. This is the reply by counsel for the respondent. Please note that you
      are welcome to ask more questions, which will be forwarded to the respective
      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) was wrong 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.


      Lina Joy, The Decision
      Date: May 30th, 2007

      I left for the Palace of Justice in Putraya early this morning, around 7AM.

      The decision for the landmark case of Lina Joy v Majlis Agama Islam was to
      be handed out today, and I definitely wanted to observe the proceedings.

      The atmosphere there at the Palace of Justice, as expected, was tense. Local
      and international reporters/journalists swarmed the building.

      As I had arrived early, I managed to grab for myself a seat in the public
      gallery of the courtroom, and so eagerly awaited the presence of the
      judges - who certainly took their time before coming out. (Court sessions
      usually start at 9AM; today's session however started only around 10:30AM.)

      But at least what came of the judgment made it worth having to wait all of
      10 months for it.

      (And surprisingly, the delivery of judgments was accomplished using two
      languages: The Chief Justice delivered his judgment in Bahasa Melayu, while
      the Chief Judge of Sabah and Sarawak, in English. This method of delivery, I
      heard, is unprecedented.)

      Implications Of The Case

      For those who do not want to pore through endless paragraphs of legalese in
      the (to-be-released) judgment itself, I will summarize for you the two major
      implications of this case:

      1. The acknowledgment of the Syariah Court's jurisdictional powers.

      That, by virtue of Article 121 (1A) of the Constitution, any Muslims who
      choose to leave the religion (in other words, choose to apostatize) must now
      seek legal/official affirmation of their leaving the religion through the
      Syariah court, and not the civil court.

      And if any further disputes are to be had, then, for so long that those
      persons concerned are acknowledged by the law as Muslims, their avenue for
      redress must and can only be the Syariah court.

      2. The 'necessary implication' approach now applies.

      It must be mentioned that Islam is the only major religion in the world with
      specific jurisprudence on leaving the religion (hereafter referred to as
      apostasy). And it just so happens that, in Malaysia, only some states
      possess legislation related to apostasy.

      The necessary implication (wider jurisdiction) approach states this: that,
      when a state has laws governing one's entrance into a religion, it can be
      similarly implied that there are laws governing his leaving the religion

      Therefore, because this law (of apostasy) is inferred and implied to be in
      existence, one must, in wanting to commit apostasy, follow the procedures
      put in place by his religion.

      In Malaysia, only the Syariah court has specific jurisdiction over its
      Muslim citizens, by virtue of Article 121 (1A) of the Constitution. Thus,
      those who wish to apostatize must follow the procedures of the Syariah court
      before they may acquire their legal status as non-Muslims.

      On The Judgment

      The Chief Justice touched on issues of administrative law, and Article 11
      and 121 (1A), and dismissed the appeal (i.e. he was in favour of the

      His learned brother, Chief Judge of Sabah and Sarawak, gave a dissenting
      judgement and allowed the appeal (i.e. he was in favour of the appellant).

      The remaining Federal Court judge merely concurred with what the Chief
      Justice had said before.
      Oh, and a bit on Article 11 of the Constitution, which mentions, "Every
      person has the right to profess and practice his religion and, subject to
      Clause (4), to propagate it".

      The Chief Justice had this to say about it: ".such freedom is not absolute."


      This case, to put it in another way, upholds the dignity of Islam; it does
      this by not allowing people to treat Islam like an open door, i.e. by being
      able to enter and leave it as they so please.

      By virtue of the majority judgment, the wider jurisdiction (implied)
      approach set out in Soon Singh v Pertubuhan Kebajikan Islam Malaysia
      (PERKIM) Kedah [1999] is strengthened. Also, since it is the civil court
      that is according (much-deserved) recognition to the Syariah court (as a
      court exercising jurisdiction over Islamic matters, especially that of
      apostasy) this time around, moreover in a landmark case such as this, it
      sets off a nice precedent for future cases to follow.

      I am happy that the Majlis Agama emerged victorious, for all of the above

      I'd love to write more on this matter, but I'm very tired right now. I will
      continue later.
      Now, one other interesting thing: I am in touch with and have personal
      access to some of the counsel for the respondent (i.e. the Majlis). If
      anyone would like further details on this case, or have questions about it,
      please post your thoughts in the Comments section, and I will deliver it to
      them (the counsels) and post their reply here.

      Comments - Lina Joy, The Decision

      1 Keen
      May 30th, 2007 / 8:24 pm

      Is that to say, that this will set a precedent for future cases regarding
      apostasy and, does that mean that Islam is more of a once you're in you're
      in and there will be no turning back? I'd ask so what happens to Lina Joy,
      but I should start trawling news sites to actually find out for myself.

      * With regards to your first question, yes.

      As to the second, no. If you enter Islam, you may leave. However, if you
      wish to do so, you must go through the Syariah Courts. The Syariah court is
      the proper forum for this, and only it has the power to declare you as a
      non-Muslim. The reason is this: The Syariah court, other than making
      inquiries into why one wants to leave the religion, wants to help its
      adherents; for example, by providing counselling services if one is confused
      with the religion, monetary help if one is impoverished or in poverty, help
      if one is being abused (e.g. abused wives), and so on and so forth. If the
      Syariah court is truly unable to assist you in any way, only then will you
      be allowed to leave the religion.

      And it has been done before; for example, in the state of Negeri Sembilan.
      (It must be mentioned that that state has specific laws on apostasy.)

      2 fariz
      May 31st, 2007 / 11:11 am

      Alhamdulillah, this case going to be our landmark case. But , Zaf , i
      confused with the report made by Berita Harian yesterday. They reported that
      Lina Joy can still married with her Christian boyfriend. As far as we know
      Malaysia does not allowed inter religious marriage. erm..

      * To put it simply, this case decides that she must go to the Syariah Court
      if she still desires legal recognition of her non-Muslim status. Whether she
      wants to go to the Syariah Court or not, is solely her choice.

      And the fact, that she cannot marry her non-Muslim partner while she is
      (legally) a Muslim, still stands.

      3 adriene
      May 31st, 2007 / 11:32 pm

      But Lina Joy did not treat Islam as an open door.

      I myself would agree with you that it's not right for anyone to do that for
      any religion, because religion should have its due reverence.

      in the case of Lina Joy, she was born into a Malay family which in Malaysia
      means Muslim family. thus, she did not get the chance to make her personal
      choice to become a Muslim in the first place.

      it is wrong to use Lina Joy's case as an example of a person who "treat
      Islam like an open door, i.e. by being able to enter and leave it as they so
      please." because Lina Joy did no such thing.

      She only chose to convert to another religion in her adulthood, at age 26.
      as far as has been reported, this is the one and only time in which she has
      wanted to convert out of any religion.

      You seem to know more about syariah law than I do. You wrote: "In Malaysia,
      only the Syariah court has specific jurisdiction over its Muslim citizens,
      by virtue of Article 121 (1A) of the Constitution. Thus, those who wish to
      apostatize must follow the procedures of the Syariah court before they may
      acquire their legal status as non-Muslims."

      Could you please share your knowledge, for my friendly enlightenment, in
      what possible situation can a Muslim in Malaysia choose to renounce Islam or
      convert to another religion? Might you know if such a case has ever
      happened? What court rulings have been made in such cases, so far?


      * I agree with you on the basis that reverence for religion is of utmost

      In this case, Lina Joy was born a Muslim (and is legally one). And, as I
      have mentioned before, Islam has specific laws on apostasy, while other
      religions do not. Therefore, reverence for the religion of Islam simply
      means that when wanting to leave it she must go through the procedures that
      have already been laid out by the religion. (This is unlike in other
      religions, where merely professing one's disbelief in his faith is
      sufficient to constitute apostasy.)

      Consequently, if she did not want to be seen as disrespecting the religion
      and treating it 'like an open door', she should have gone to the Syariah
      court to obtain a formal declaration of her non-Muslim status then.

      But instead, she urged the National Registration Department to acknowledge
      her status (even when they had already explained to her that they were
      powerless to do so until she obtained permission from the Syariah court
      first.) She even chose a confrontational method, albeit a legal one, to
      oppose the powers of the Syariah court in handling matters of apostasy
      involving the religion of Islam. (This thus explains why immense public
      sentiment, especially from Muslims, was attached to this case.)

      (Further explanation from the counsel can be read here.)

      4 dotdot
      June 1st, 2007 / 12:13 am

      So what happens next? Will the Syariah Court now summon her to face charges
      of apostasy? Issue a warrant of of arrest if she refuses? Or does the
      Islamic court waits for her to submit voluntarily?

      As a Muslim I'm relieved with this ruling. But I wish to know how difficult
      will the Syariah court make it for this apostate to leave the religion. To
      me, if a Muslim no longer wants to be part of the ummah, well let him or her
      go. Why bother.

      * (You may read the answer by counsel in this post.)

      5 caliibre (Richard Townsend)
      June 1st, 2007 / 7:14 pm

      Sorry, Wan Zafran. I don't think anyone is born a Muslim, Christian, Hindu,
      or anything else. The poor innocents are just born and then indoctrinated
      purely on the basis of the accident of the place of their birth and the
      racial or religious mix of their parents. Also if Islam needs a civil court
      decision to, as you state 'uphold the dignity of Islam' we are all in more
      trouble than I originally thought. Perhaps "dotdot" says it all when he/she
      states. "As a Muslim I'm relieved with this ruling". hmm so much insecurity!
      Sad really


      * First of all, I am offended with your calling those of us who are born
      into religions (any of which) as being 'poor' in status, and of our then
      coming into possession of a religion (by virtue of our environment) as an
      'accident'. But what would you understand?

      I have visited your website and have seen what viewpoints you hold with
      regards to religion, and I am, frankly speaking, amused. I speak truly when
      I say your ideas shall never bear fruit. (And neither is your calling-off of
      religious indoctrination a revolutionary one, to be looked upon with awe for
      its originality, either.)

      Secondly, Islam did not even require protection from the civil court on
      these kind of matters in the first place. The supremacy of the religion has
      already been enshrined and given protection in many parts of the Malaysian
      Constitution and laws; what the civil court has done is to merely affirm
      that Islam, as a religion (and as a way of life, which includes its many
      laws), possesses an elevated status above all other religions in this
      country, and it has also acknowledged the supremacy of the Syariah court in
      Islamic matters (which includes apostasy).

      And, please, do not compare our religion with others, when you have little
      to no knowledge of Islam, or our pride in being able to call ourselves
      Muslims. Unlike what you would care to think, this is not a matter of
      'insecurity' for us. We simply do not wish for anyone to leave our religion,
      because 1) they had not enough time or guidance to be able to enjoy its
      beauty, and 2) we are saddened, as these apostates would also be deprived of
      a proper place in the Hereafter.

      That is to say, we care for our brothers and sisters with greater fervour
      than members of other religions, that we do not want to see any of us leave.
      And this, I believe, is an admirable trait; not one to be condemned by those
      who know little of what Islam is all about, especially those from other
      religions who remain apathetic whenever any of their kind leaves for another

      Lastly, unless you know of the intricacies of Malaysian law, and the
      intrinsic difficulties one must face in its interpretation for the pursuit
      of justice, do not bother arguing with me, especially since you're doing so
      merely on the basis of sentiments - which has little to no value, unless you
      can apply it from a legal perspective.

      6 Wan Zafran
      June 2nd, 2007 / 2:29 am

      (I'm including this comment, which I left on another site, for archival
      purposes. Here's a very, very abridged version of the facts of the case.)

      Lina Joy wanted to have her non-Muslim status officially and legally
      recognized. So she tried forcing the National Registration Department (up to
      three times) to remove the word 'Islam' from her identity card. The NRD
      refused her applications, and demanded some form of declaration (as to her
      non-Muslim status) from the Syariah court first before they would accede to
      her request.

      If she wished to leave the religion officially, she could have just gone to
      the Syariah court then. But no, she did not do this. Instead, she claimed,
      that by virtue of her being a non-Muslim, the Syariah court (which exercises
      jurisdiction over Muslims) was not fit to hear her dispute with the NRD, and
      so chose to bring it to the civil courts (with the Majlis appearing as a
      defendant later on).

      (But now that this case has been decided, it is established that what the
      NRD did had been correct in procedure.)

      Lina Joy's own counsel asked for the case to be narrowed down so that it
      could fall only under the heading of administrative law, which is a branch
      of law under the jurisdiction ('handling') of the civil court. But when the
      case ascended to the higher courts, the scope of laws it touched widened,
      thence touching upon constitutional areas.

      The grave implications of what she was pursuing, had she won, would affect
      the Muslims, of whom the majority are Malays, as a whole. Some of the bad
      things that would have taken place: constitutional paradoxes, a weakened
      Syariah court and Islamic administration system, a chaotic state of
      conflicting laws, and so on and so forth.

      It must not be forgotten that she is a Malay. Being one, she is thence
      subject to personal laws, which in this case would be Islamic law. (Please
      read my post in detail.)

      And what she's asking for would not affect only her; it would affect every
      Muslim in the country due to the constitutional nature her appeal is based
      on. That is why it is not merely a simple issue of 'letting her go'; rather
      it's one where the choice of 'letting her go' must be compared with how it
      would simultaneously and adversely affect the rest of the country.

      7 Wan Zafran
      June 2nd, 2007 / 2:35 am

      For those who would like to argue, ask questions, but do not imply things.

      You are not a judge, and I doubt you have the experience, wisdom and
      long-term vision that they possess and had utilized (in deciding that the
      outcome of this case should have been this way), either.

      You probably do not understand the inherent difficulties that are present in
      the interpretation of the Constitution. And, unless you are capable of that
      most difficult task, which scholars take pains to write about, and members
      of the legal fraternity and the judiciary argue at great lengths for in the
      pursuit of justice, it is not fair for you to simply assume that injustice
      had been meted out.

      Especially if you weigh your scale from only one side - that of Lina Joy's -
      without considering the other.
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