Tuesday, 19 June 2007

Lina Joy Case: Sifting Facts from Fiction



Lina Joy/Azlina Jailani's Baptism Certificate

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by

Haris Ibrahim

Excerpts: Read here for more

(The Lina Joy's case) started out as an application to the IC department for change of IC particulars. IC department directed Lina to get confirmation from the Syariah authorities ( Jabatan Agama Islam or the Syariah Court ) that she was no longer a Muslim.

Instead, Lina went to the civil High Court.

(FACT): Lina did NOT ask the civil High Court to confirm that she had renounced Islam.

(FACT): Lina in effect asked the High Court to:

  • first declare her rights under Article 11 and then

  • to declare that as a consequence of her no longer being Muslim, the Syariah laws did not apply to her.(Re: the judgment of the High Court, at page 246)
  • (FACT): Lina did NOT ask the civil High Court to confirm her status as a non-Muslim.

    Why?

    Lina’s case involved a living person who had declared her religion. Lina did not need a declaration of any court as to her religious status.

    She is alive. She could say ‘Muslim or non-Muslim’. And no one would know better than her.

    She declared herself to be Christian. She exhibited her baptismal certificate.

    In affidavits filed on behalf of the IC department, this documentary evidence has NEVER been disputed.
    (FACT) Yet, THE High Court judgment again, in the second half of page 246 and the first paragraph at page 247, where Justice Faiza refers to the ‘undisputed facts’, NO reference is made to this piece of evidence. The judge does NOT refer to the fact that she has put evidence of her conversion to Christianity before the court.

    (FACT) In the majority judgment of the Court of Appeal and the Federal Court, the veracity or validity of this certificate has NEVER been questioned.
    What has been said again and again is that Lina must get clearance from the Syariah Court to remove the word ‘Islam’ from her IC.

    That she is in fact a Christian is not in controversy.

    Let us be clear about this. This is NOT the controversy.

    Zainah Anwar's Article in New Straits Times


    I felt the need to have clarity on this point after I read an article by Zainah Anwar entitled ‘Mediation the wiser path to take’ that appeared in the News Straits Times on 15/6/2007.

    The article succintly points to the root of this controversy when Zainah concluded that ‘the state apparatus insists on an exit certificate…’.

    This raises the question : what or who make up this ’state apparatus’?

    I will try to spot light the key players within the ’state apparatus’ in the following posts

    Zainah has missed the real issue.

    Assumption 1 :

    This effort at establishing official procedure for Muslims who wish to leave Islam is not meant to thwart freedom of religion, but to mitigate the deep concerns and sensitivity of certain segments of the Muslim community about one of their own wanting to leave that community’.

    Please, Zainah, I appreciate that you mean well in trying to find a way out of this difficult situation we face today.

    However, I do not see HOW we can avoid DENOUNCING the present arrangements for what they are.

  • Is what is happening to Revathi and Kamariah Ali not meant to thwart freedom of religion?

  • Revathi is in detention to ‘mitigate the deep concerns and sensitivity’ of the Muslim community?
  • Please, religious oppression by any other name is still just that. Religious oppression.

    Assumption 2 :

    This procedure is only to establish that the person wants to leave Islam out of his own free will and choice, and not out of coercion, and he has considered all the legal, social and economic implications of that change of faith’.

    So if someone wants to sell his house and buy another in the exercise of his rights under Article 13, or wants to change employment, or leave an association, club or political party for another according to his rights under Article 10:
  • do we also establish a procedure to ascertain that he does so ’of his own free will and choice’?

  • Make sure there’s no coercion involved and he has thought through all the implications?
  • RECOMMENDATION 1,( in relation to the present exit procedure in Negeri Sembilan) :
    It could form a basis for the government, faith groups, the Bar Council and human and women’s rights organisations, to begin to work out an acceptable compromise which will respect a citizen’s right to freedom of conscience, and at the same time assure the Muslim community that all effort has been taken to verify that this was a genuine change of faith’.
  • Work out an acceptable compromise? Of what? The rights guaranteed under Article 11(1)?

  • Who mandated the government, faith groups, Bar Council human rights and women’s rights organisations to ‘work out a compromise’ on the rights guaranteed under the Federal Constitution?

  • To what end?

  • To respect a citizen’s right of freedom of conscience? You respect his right by compromising it?

  • To assure the Muslim community that this was a genuine change of faith? How?Revathi? Kamariah Ali?
  • RECOMMENDATION 2

    ‘While for some, the time period for counselling is too long, this Negri Sembilan provision nevertheless sets a time frame for some certainty in outcome’.
  • If the individual dies during this period of counselling, then what? Muslim or non-Muslim?

  • If the individual does not attend the counselling, then what? Application dismissed?

  • Does the judge have a discretion to dismiss the application? If so, what right is guaranteed under Article 11(1)?

  • The right to apply?
  • RECOMMENDATION 3 :

    Given the divided opinions over civil or syariah jurisdiction, and the lack of confidence in a judicial process, it could be decided that a more neutral civil institution like Suhakam could be the platform for mediation, negotiation or conciliation for applications for a change of religion’.
  • Mediate, negotiate or reconcile what?

  • Take Lina’s case. What do you want to mediate, negotiate or reconcile?
  • It’s undisputed that she is in fact a Christian. This is NOT the controversy.

    The CONTROVERSY is a STATE APPARATUS that DENIES her ALL of her RIGHTS that flow with her exercise of her God-given right to choose her faith, a God-given right aceded to by the Constitution.

    How do you mediate, negotiate or reconcile this? By Suhakam?

    Are you serious?

    1 comment:

    Linken Lim said...

    There's a new group for those who renounce Islam, too bad it's not in Malaysia.
    Read the news

    New group for those who renounce Islam