Click to DOWNLOAD or READ FULL - Judge Richard Malamjum's Dissenting Decision (.pdf file)
Click to DOWNLOAD or READ FULL- Chief Justice Ahmad Fairuz Sheikh Abdul Halim's Majority judgment (.pdf file)
"Worth a Thousand Words"
Courtesy of People's Parliament Blog
Click HERE Articles of the Federal Constitution
This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
All persons are equal before the law and entitled to the equal protection of the law
1. Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.
2. No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
3. Every religious group has the right -
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable purposes; and
(c) to acquire and own property and hold and administer it in accordance with law.
4. State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
5. This Article does not authorize any act contrary to any general law relating to public order, public health or morality.
Read here full article in Malaysiakini and HERE
The irony of this case is that, in the eyes of the law, Azlina Jailani MUST remain a Muslim and her religion cannot be changed in her identity card. Her religious freedom is not to be protected by the Federal Constitution but rather to be determined by the Syariah Court, for the simple reason she has the bad luck or the unfortunate life of being born and raised as a Malay Muslim in this country.
Azlina Jailani, although a Malay Muslim by birth, had made a life-choice for herself to be a Christian and had been a practising one for over a decade. She took the less-travelled long hard road to face her fellow Muslims in the judiciary, to ask to be left alone to chart her spiritual destiny of her own choosing, not one to be imposed upon her by her fellow Muslim brothers and sisters.
In her heart and to her God in prayer, Azlina Jailani is Lina Joy, a Christian, in every sense of the word.
No amount of legal dictum in the Malaysian Civil Courts or the Syariah Court can change that fact of her personal/religious life.
It is HER life, and nobody else's, which Azlina Jailani/Lina Joy chooses to live; NOT a life to be dictated by the decisions of the Chief Justice Ahmad Fairuz Sheikh Abdul Halim or by Justice Alauddin Mohd Sheriff, or for that matter by the National Registration Department or by the muftis or the religious leaders in the Syariah Court.
The sad epilogue to this drama is that there is such a document called a Federal Constitution, to which every Malaysian, irrespective of race, religion and sex looked upon for sanctuary, yet to which the two Muslim judges sitting in the Federal Court in this case seemed to be blind and deaf to.
Malaysia is NOT a country meant for Azlina Jailani, although born a Malay. It is not even a country suitable for any Muslim Malay who wants to have a freedom to believe in a God of his/her chosen religion.
Read Here Racial/Religous Composition of the Judges in the Malaysian Judiciary
The Federal Court ruled today that LINA JOY remains a Muslim and her religious status will NOT be removed from her identity card.
The sitting judges were:
Both Muslim judges ruled AGAINST Lina Joy with the only one remaining NON -muslim judge dissenting.
Chief Justice Ahmad Fairuz Sheikh Abdul Halim (Muslim), Justice Alauddin Mohd Sheriff (Muslim), and Justice Richard Malanjun (NON-Muslim).
A three-judge Federal Court panel ruled by a 2-1 majority that only the Islamic Shariah Court has the power to allow Azlina Jailani, who changed her name to Lina Joy after becoming a Christian, to remove the word "Islam" from the religion category on her government identity card.
Malaysia's Chief Justice Ahmad Fairuz Sheikh Abdul Halim said the panel endorsed past legal judgments stating that the Shariah court -- not the civil legal system -- has the jurisdiction to hear cases of Muslims who want to renounce Islam.
"This appeal is rejected," Ahmad Fairuz said. "Apostasy is a matter linked to Islamic laws. It's under the jurisdiction of the Shariah court. ... Civil courts cannot interfere."
Activists have warned that a ruling against Joy could strengthen non-Muslims' fears that they are discriminated against in Muslim-majority Malaysia, which has substantial Christian, Buddhist and Hindu minorities.
However, conservative Muslims would have considered a ruling for her as an erosion of Islamic values.
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. "In my view, this is tantamount to unequal treatment under the law. She is entitled to an IC where the word Islam does not appear," dissenting judge Richard Malanjum said.
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;
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?
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.
(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(Ahmad Fairuz):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.
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.
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.
"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.
"...if anyone of you out there know Lina Loy.. please tell her to settle down in some country which have real religi(ous) freedom instead of supression and don't bother about her Islam-in-mykad issue anymore... get married there, get a PR /citizenship there, live there, work there, give birth there, to (live) the world from there and be buried there... try not to come back other than visiting your parents, anyway, there's a risk to come back after all... proud to have a Malaysian like you, lady!... you fought a good fight and ran a good race for ALL Malaysians!..."
"...It's ironic that in a majority Muslim country such as Malaysia, it is the Muslims who have the LEAST freedom."
"For us, the dissenting judgement is significant," said the group's executive director, Zainah Anwar. "The Federal Court, the apex court of the country, is divided over this issue, as the country is divided on this issue," she said. Read here for more
"Dated July 23rd 2006
As you know, I am an avid watcher of Malaysian affairs. I must confess that lately, Malaysia appears to be failing. Not a day passes by without more events that clearly highlight Malaysia's race-religion fault-line. If things keep going this way, I fear for Malaysia's future.
Today, schools in Singapore celebrate Racial Harmony Day. I can visibly see the joy in the children's faces as they wear their ethnic costumes and have fun together at school.
But in Malaysia - even the right to choose a religion has become a sensitive, national issue. No doubt, there are many in Malaysia who hate my liberal views on Islam, family included.
But I will say what I must say openly. I have come to the conclusion that Malaysia cannot progress any further without first addressing fundamental questions regarding its identity and soul.
I remember the days when we can laugh at Lat's cartoons on everyday Malaysian life. But sadly, the Islamic tide has polarised Malaysians.
Some people ask why I should bother about Malaysian affairs since I am a Singaporean.
May I remind Malaysians that it was Tan Siew Sin who once said that Singapore and Malaysia are Siamese Twins. Should Malaysia go down - it would hurt the region tremendously. Especially Singapore.
Where do you think Malay apostates would head for if Lina Joy loses her case? Singapore of course!
I find the Malaysian Malay to be very under-exposed.
For them, it’s all Islam and the NEP and everything under the sun would sort itself out.
I am sorry to say this - but Islam and the NEP may be the cause of the undoing of the Malaysian Malay.
There is nothing wrong with religion or affirmative action. But, like everything else in life, they must be taken in moderation and with a pinch of salt. A little doubt is good.
Unfortunately in Malaysia, emotions over Islam have overcome reason. What we see today is the result of the NEP and Islamisation policies of the past thirty years or so.
No one owes Malaysian Malays a living.
Let me assure you that should Malaysia fail - the Malaysian Malay will suffer enormously. And rightly so. After all - they have been pampered with all sorts of goodies over the years. They cannot now expect more goodies. Perhaps the day of reckoning for them, is near. Whatever it is, Malaysia had better wake up to the realities around her.
The globalised world of the 21st century has no NEP to offer the Malaysian Malay. And humans cannot live by religion alone.
Dr Syed Alwi
"...Lina Joy’s 10-year battle to be herself as she wanted to be within the confines of the supreme law of the country, the Federal Constitution, has been dashed by the Federal Court’s decision this morning.
The freedom of religion guaranteed by the Federal Constitution under Article 11 comes across as hollow and meaningless.
This decision has totally rendered null and void the freedom of religion guaranteed by the Federal Constitution. Under the circumstances, the Federal Court’s decision has a devastating effect on issues of fairness and justice.
Concerned citizens will rightly wonder whether the judiciary is capable of delivering justice for those who turn to it.
They will be turned away from the judicial system of the country thinking that the judges who are sworn to uphold the Federal Constitution in the course of their duty are not living up to their oath of office.
Lina Joy’s case is something that has to be viewed strictly within the confines of the Constitution without taking into account any other consideration. When other considerations come into play, then justice becomes the victim as is the case in the Lina Joy verdict.
This decision, looked at from another point of view, undermines the judiciary itself. The judiciary cannot be technical in delivering its verdict. Fairness and justice should be part of any judgment and should not be sacrificed on technical grounds.
Where is the compassion for someone who has turned to the judiciary for a solution to free her from her predicament?
Can justice redeem itself? Is there hope for the ordinary person in our judiciary?
It is really troubling when a issue such as this is politicised and blown out of all proportion and pressure is mounted to deny justice..."
".. The fact that there was a minority judgement, a STRONG dissenting judgement, only indicated the need to re-address the issue.
I think that it’s sad to note at this junction, looking at the minority and majority judgement of this court and I say this in respective of the majority view, there is NO clear answer in what she’s suppose to do. .."
The decision also denied Lina’s right of living in this country as Lina’s only option now in pursuing her rights to profess the religion of her choice was to leave the country.
“Malaysia is not honouring the Convention on the Elimination of All Forms of Discrimination Against Women treaty which was ratified in 5th July 1995,” she said.
"... The Federal Court's decision today was a forgone conclusion.
Can you imagine what would have happened had Lina Joy won the appeal and allowed to leave Islam? The judges could have been murdered and the court building burnt down.The entire Muslim community ( I mean the fanatics) could have run amok while killing some innocent people along the way.
I believe the 2-1 decision was a set up to appease the majority and annoy the minority."
"..Lina Joy can live without Islam, but looks like Islam cannot live without Lina Joy. By law you put her in shackles, but in (her) heart?...
"... . What chance did she have when her case would be used as a precedent and as the word had been circulating, ‘if Lina Joy is allowed to leave Islam, then millions of Muslims would follow suit’
Would Malays from all walks of life suddenly convert out of Islam the minute that provision is changed?
...any non-partisan person who is in the process of researching Islam, will conclude that Islam needs these laws to sustain its numbers.
Without these laws, everyone will just leave Islam leaving the clergy with no one to govern! It may not be apparent to these individuals that the Quran itself vehemently opposes such measures.
I guess it all boils down to mentality. The Mufti of Perak didn’t mind using the constitution as it suited to him to define a ‘Malay’ as a ‘Muslim’ but started out saying Islamic law has the apostasy provision. Well, Islamic law also denies creating formulas like ‘Malays equals Muslim’, so why didn’t he have a problem with that, I wonder?
Why use something non-Islamic in nature to augment your argument if it is Islamic law you hope to bring forth?
Mufti Harussani Zakaria was quoted in the very same program saying ‘So when we allow all these things (i.e. apostasy), we are FINISHED. Malaysia is finished’.
It is very sad to me that a religious official of his stature and education can formulate such a deduction. Islam is FINISHED when we allow people to leave it?
Islam is not FINISHED when we scrap this anti-Quranic law, rather Islam takes one step closer towards being originalised, to being the same Islam brought by Prophet Muhammad.
Lina Joy’s tragedy is also the tragedy of the Malay-Muslims of Malaysia.
Today, we have walked another step to joining Firaun of the Quran, the arch-oppressor of humankind. Unless we turn back now, the sea will overwhelm us as it did him. We need to realise our folly now and correct it, before time runs out..."
"... we have definitely two Muslim judges who ruled from their own personal religious feelings instead of (from) the law. They should have recused themselves out of the case.
These two muslim judges feel that they would do injustice to Islam if they ruled for Lina Joy, after all Allah is greater than the Federal Constitution.
So the easy way out of their personal dilemma is to push the buck to the Syariah Court, and ignore totally the Federal Constitution.
...if you are a Malay Muslim, you are Muslim FIRST and a Malay SECOND, and only as citizen of Malaysia under the Federal Constitution, THIRD. That is what the two Muslim judges are saying when they ruled against Lina Joy..."
"....The Joy verdict, which will likely become a precedent for several other pending conversion cases, is seen by many in Malaysia as evidence of how religious politics are cleaving the nation, with a creeping Islamization undermining the rights of both non-Muslims and more moderate adherents to Islam.
Last November, at a party conference for the Muslim-dominated United Malays National Organization ruling party, one delegate vowed he would be willing to "bathe in blood" to defend his ethnicity — and, by extension, his religion.
In an era where Islam is so often partnered with extremism and autocratic governance, Malaysia was held up at the annual conference as a model of a moderate Muslim nation committed to safeguarding the rights of its diverse population.
But the Federal Court's verdict on Joy's case, which represented her last legal recourse, may undercut that reputation.
After all, what is religious freedom if a 42-year-old Malay woman isn't allowed to follow the faith of her choosing?
"... the issue is not about a Muslim leaving Islam, but whether Lina Joy can have her new identity card without the word Islam printed on it.
Lina Joy should just go to the Syariah Court and declare that she has left Islam. With such declaration, Syariah Court MUST issue a certificate to say that she is not a Muslim. Any other decision by the Syariah Court is belittling and undermining Islam itself, as Lina Joy is not a Muslim anyway!
Even if there is a law on apostasy (which Malaysia doesnt have one anyway), the fact remains - that Lina Joy is NOT a Muslim!
... she is a non Muslim, but carrying an IC with Islam as her religion! To me, even Islam doesnt allow this sort of things, and that it should not happen in the first place. I am a Muslim and therefore I have no problem having the word Islam written on my IC.
After all, IC's function is to identify oneself. Therefore, if I am a mufti, I will not defend the word Islam on Lina Joy's IC as she is not a Muslim anymore, instead I will insist that the word Islam should be removed from her IC!.."
"...Lina Joy eats pork and prayed to Jesus. Marimuthu prayed to Lord Krishna and had never gone to a mosque. However, their ICs show their religion as Islam.
Malaysia is proud to have an unique brand of Islam where it is multi-cultural and has different religious sects of Islam - Christian Islam praying to Jesus, Hindu Islam praying to Lord Krisnan, Buddhist Islam or maybe Taoist Islam co-existing in harmony under one religion. At least this is what the ICs say; but other sects like tea pot sect or Al Arqam sect practising other forms of Islam are strictly no-no.
Very soon the world will come to admire Malaysia for its unique brand of Islam not found anywhere in the world. .."