Showing posts with label Haris Ibrahim. Show all posts
Showing posts with label Haris Ibrahim. Show all posts

Wednesday, June 25, 2008

The Lina Joy Case -- An 'Easy' Version

Beware Muslims, had they won the Lina Joy case, Islam will cease to exists as we know it. I wrote this article a while ago, to answer a certain request made by a representative from The Brunei Times. Unfortunately, my article succeeded not in getting through the editor's filter. But instead of scrapping it, I'm posting it here, so that anyone interested in the facts of the case may access an abridged version of it. And most importantly, you would be able to understand what grave implications the case would have had in store for the rest of us Muslims had it been decided in Lina Joy's favour. (The implications of the case also happen to be something few people are aware of.)


I used very simple English and tried my best not to use any legal terms, so this should be a very accessible article. If anyone has any questions, feel free to ask, and I'll try my best to answer them. (I have direct access to the PPI lawyers, so if you have any questions of legal nature that I am unable to answer myself I will immediately forward it to them.)


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I think it better to grab than lose your attention, hence I will explain using layman's terms and refrain from bombarding you with legalese while I go about explaining the Lina Joy case.



Lina Joy, born 'Azlina Jailani', claimed to have embraced Christianity at the age of 26.


Over the years she has expressed her desire to enter into a legal marriage and have a child. However, she could not do this for the laws of Malaysia forbid inter-religious marriages.To this effect she then sought legal recognition of her faith from the National Registration Department (NRD), by applying for the removal of the word 'Islam' from her identity card. The NRD, thinking itself unfit to take religious affairs into its hands (being only an administrative body), insisted that she first produce a declaration from the Syariah court that acknowledged her renunciation of Islam, and went on to reject her application when she could not do so.


Lina refused to visit the Syariah court. She also claimed that it had become unfit to hear her matter, by virtue of her having left the Islamic faith. Thus began the legal battle that would span nearly a decade.


Lina Joy's claims were founded upon two grounds:



* 1) Whether the NRD had acted properly in rejecting her application, and
* 2) Her insistence that the provisions of Article 11 of the Constitution gave her the complete freedom to profess any religion of her choosing.


The respondents (the Majlis Agama Islam, the Government of Malaysia, and the NRD) based their claims upon these grounds:

* 1) Article 160 of the Constitution, which states that a Malay must be of none other than the Islamic faith - i.e. He or she must be Muslim, and
* 2) As the issue of apostasy falls under the category of Islamic matters and doctrine, the only means of recourse, as provided for by Article 121 (1A) of the Constitution, would be available to her only through the Syariah court.

The High Court dismissed Lina Joy's claims on the grounds that it had no jurisdiction to hear her matter. She appealed to the Court of Appeal, on the grounds of administrative law, but did not succeed there. She then appealed to the Federal Court.



The Federal Court's decision was handed down on the 30th of May 2007, with the majority judgment ruling in favour of dismissing Lina Joy's appeal. (One judge dissented.) In essence, the majority judgement came to these conclusions:


* 1) For a Muslim, his religious rights and duties prior to his conversion remains unchanged until he gets a declaration from the Syariah Court saying that he is no longer a Muslim.
* 2) Article 11 (1) does not give rise to absolute freedom of religion.
* 3) The right to profess and practice a religion is subject to the principles and practice of that religion.



Mention must also be made of the two languages employed to deliver the decision -- Bahasa Malaysia (by the Chief Justice) and English (Chief Judge of Sabah and Sarawak). (This has resulted in the dissenting judgment enjoying more immediate coverage than the former. )


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The multi-religious composition of Malaysia explains why there has been so much interest from the public since the very beginning.


For brevity's sake, perspective on this case could be said as coming from two camps: In the first, the Muslims, who feel enraged that Lina Joy has attempted to circumvent the jurisdiction of the Syariah court and hold that it amounts to an act of condescension towards the current dual-legal system in practice. In the second, the non-Muslims
and a small group of Malays (whose members fancy themselves 'liberal' Muslims), who endeavour to support Lina Joy's cause for it would champion issues such as human rights and fundamental liberties, which are dear to them.


I certainly beg to differ with the opinions of some who claim that at the heart of the Lina Joy case lies a dispute on religious freedom. I am inclined to offer this correction to them: that the case of Lina Joy has all along been concerned with the question as to which court has jurisdiction to try cases of apostasy involving Muslims, and that the issue of freedom of religion was auxiliary to this.


I must bring to light the fact that Lina Joy is not restricted from leaving the religion if she wishes for that. The decision affirms this contention of mine and makes lucid the fact that she needs to apply to visit the Syariah court to obtain a formal declaration to that effect, subject of course to the limits of jurisprudence.


Why then have some groups stretched the truth to fit their claims that the Lina Joy case amounts to obstructing altogether their right to freedom of religion? There has been much ado about this, especially on the Internet. (That's not taking into account their other interesting claims; for example, that the Lina Joy case has been decided unfairly
and has thus caused devastating implications to be wrought upon the citizens of this country.)


Unbeknownst to the masses, even ghastlier implications would have come to manifest had Lina Joy's appeal succeeded. I beg you to consider these, for instance:



* 1) The nullification of a vast array of laws - Abdul Hamid CAJ (as he then was) in Kamariah bte Ali v Kerajaan Negeri Kelantan, Malaysia opined that in allowing Article 11 to be construed so liberally would entail making invalid entire bodies of Islamic law; e.g. Zakat laws, marriage laws, et cetera. (In short, all Islamic laws would be rendered null and void.)

* 2) The coming to existence of a constitutional paradox - Article 160 of the Constitution states that a Malay must be a Muslim; thus, if a Malay person declares himself a non-Muslim, what race would he (legally) belong to then? As he cannot satisfy the constitutional criteria of a Malay, he would lose not only his Malay status but his Bumiputra privileges as well.

* 3) The diminution of the powers of the Syariah court - Not only would our Islamic court would be deprived of its right to adjudicate on matters of apostasy involving Muslims, said right would then be conferred to the civil court, whose judicial members are comprised of Muslims and non-Muslims trained in the intricacies of civil laws but not Islamic laws.

* 4) Of inheritance rights - Seeing as to the fact that Muslims and non-Muslims are governed by different inheritance laws, and the fact that non-Muslims cannot inherit from Muslims, one can easily imagine then the gory court battles that would emerge from disputes on inheritance.

* 5) The impossibility of religious enforcement - Consider perhaps, a man eating eating in public in the fasting month of Ramadhan who, when arrested by religious officers, professes to having left the Islamic faith. The religious officers would be unable to perform their duties if so.


One need not look more than twice at the above list to understand that it is the Muslims, comprising roughly 60% of the country's population, who would be adversely affected the most. (Article written by Mr Wan Zafran)

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