The right guaranteed by Article 11 grants every person the freedom to choose, affirm, practise and profess the religion of his/her choice. This freedom of belief is (and must be) an unqualified freedom fully protected by the law. Any law that prevents or in substance curtails the exercise of this freedom must be struck down as being inconsistent with the Federal Constitution, and as being incongruous with such a fundamental freedom. Further, the religion that a person in fact professes must be the religion that that person states he or she professes; since there can be no evidential difficulty in ascertaining this in the case of a living person. Asserting this right, and upholding it, in no way undermines the position of any religion under the Federal Constitution and is consistent with the position of Islam under Article 3.
The Federal Constitution is, and must remain in law, supreme. In the event of any inconsistency or conflict between the provisions of State Enactments and of the Federal Constitution, the latter must prevail. The majority decision in the Lina Joy case pronounced yesterday runs counter to this position. In this decision, the express provisions of the Federal Constitution were made to give way to an interpretation of some form of implied jurisdiction of the Syariah Courts. It further clothed the National Registration Department with powers beyond that which was expressly provided for under the relevant legislation.
The implied jurisdiction approach runs contrary to the legal position that State law must confer on the Syariah Court express jurisdiction to deal with any matters stated in the State List. The majority decision has implied such jurisdiction in the absence of statutory provisions to that effect, which in any event must accord with the Federal Constitution in order to be valid. In short the majority of the Federal Court has also proceeded to “legislate”, (which the Courts are not permitted to do) and in a manner inconsistent with the Federal Constitution.
We support the minority judgment of Justice Dato’ Richard Malanjum HMP, who stated that,
“jurisdiction must be express and not implied. The doctrine of implied powers must be limited to those matters that are necessary for the performance of a legal grant. And in the matters of fundamental rights there must be as far as possible be express authorization for curtailment or violation of fundamental freedoms. No court or authority should be easily allowed to have implied powers to curtail rights constitutionally granted.” (emphasis ours)
We must further heed the warning of the learned Judge that “… to rely on implied power as a source of jurisdiction would set an unhealthy trend.”
The Judgment further noted that it was unreasonable “to expect the Appellant to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law”. Little comfort is drawn from cases of those who wish to leave or change religion, who have faced criminal sanctions and most recently the case of Revathi in Malacca who was deprived of her liberty and access to her husband and minor child.
It is important that this minority Judgment be given careful consideration.
We are mindful that issues relating to religion will inevitably draw emotive responses. However in a multi-religious society like ours, Malaysians must be prepared to confront these issues maturely and dispassionately, and within the framework of our Federal Constitution as the supreme law of the land.
Finally, we would commend the approach of the late Tun Mohamed Suffian in such cases where he said,
“In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.” (The Constitution of Malaysia – Further Perspectives and Developments).
Ambiga Sreenevasan
President
Malaysian Bar
31 May 2007
_____________________________________________________________________________
This letter is issued on behalf of All Women’s Action Society (AWAM), Sisters in Islam (SIS), Women’s Aid Organisation (WAO), Women’s Centre for Change (WCC) and Women’s Development Collective (WDC), five women’s groups that held a watching brief in Lina Joy’s case.
We are disappointed with the Federal Court majority decision dismissing Lina Joy’s appeal. The decision disregards the right of a person to profess and practise the religion of her choice as enshrined in Article 11 of our Constitution, and renders illusory this Constitutionally-guaranteed fundamental liberty.
We are deeply concerned about the implications of this judgment for individuals, such as Lina Joy, who no longer profess Islam. Despite the clear guarantee to freedom of religion in our Constitution, the court’s judgment would require them to seek consent from religious authorities regarding the very private matter of their personal faith, before their choice of religion is recognized in civil law. Compelling such individuals to do so is unfair as it forces them to incriminate themselves and risk criminal prosecution in those states where renunciation of Islam is a religious offence.
We are troubled that the decision will also have the effect of denying Lina Joy, and others in a similar position, various basic women’s rights, therefore infringing their human rights. These include the right to marry a partner of their choice and to choose their country of domicile, as they would have to leave Malaysia should they wish to marry non-Muslims. Their reproductive rights are also affected in that they are denied the right to bear children within a legitimate marriage. All these rights are enshrined in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Malaysia ratified in 1995.
We are, however, heartened by the dissenting judgment of Justice Richard Malanjum, which raised several critical points that warrant serious consideration.
Article 4 of the Constitution states categorically that the Constitution is the supreme law of Malaysia. According to Justice Malanjum, the supremacy of our Constitution means that all laws as well as “administrative, departmental and executive discretions, policies and decisions” must conform to the Constitution.
Furthermore, as stated by Justice Malanjum, the civil courts must not abdicate their constitutional function by declining jurisdiction on matters that involve Constitutional issues and fundamental rights just by invoking Article 121(1A) of the Constitution, which states that the civil courts have no jurisdiction over matters within the Syariah Courts’ jurisdiction. Only the civil courts can adjudicate constitutional issues that implicate fundamental liberties.
We also agree with Justice Malanjum, whose judgment begins with the view that where issues of constitutional importance are concerned, “all other interests and feelings, personal or otherwise, should give way and assume only a secondary role if at all”.
In any event, fundamental rights guaranteed under our Constitution cannot be removed merely by submitting individuals to the jurisdiction granted to the Syariah courts under Article 121(1A).
The divide in our society over the issue of freedom of religion has grown due to the lack of public space for discussion and for alternative viewpoints to be expressed on this matter. The issue remains unresolved because the constitutional and legal arguments raised by the dissenting judgment do not appear to have been addressed by the majority judgment. We believe that the judgments approving the National Registration Department (NRD)’s requirement for Lina Joy to provide a certificate from the Syariah Court may open doors for abuse by allowing other agencies to impose discriminatory requirements that are not provided for in their regulations.
We believe that the Federal Constitution protects every person’s right to freedom of religion in a way that acknowledges the person’s right to harmoniously practise her personal beliefs within our society. The denial of this right constitutes a violation of the right to equality and non-discrimination enshrined in Article 8 of our Constitution.
We urge that opportunities for open discussion be provided so that Malaysians can collectively seek just and durable solutions to the issues that impede our efforts to build national unity.
Finally, we call on the government to take urgent steps to ensure that all Constitutionally-guaranteed fundamental liberties, including the freedom of personal faith, are upheld and given effect in practice.
________________________________________________________________________________
A letter to Malaysiakini copied to me
Why Lina Joy Decision Is Tragic
I beg to differ with Nathaniel Tan’s (http://www.malaysiakini.com/letters/67989) downplaying of the significance of the decision in the Lina Joy case. Without resorting to hysterics or polemics the Federal Court’s decision is a tragedy when viewed from at least five perspectives.
First and foremost it is a personal tragedy for Lina Joy, who after going through what I can only imagine has been an immense struggle is still without a remedy.
Second, it is a tragedy for those who believe that there are certain rules to be followed when amending our Constitution. Nowhere in our Constitution does it currently state that Shariah courts are empowered to decide on the matter of a person’s faith, Muslim or otherwise. One cannot fault her but if Lina Joy decides to seek a remedy in a Shariah court then the jurisdiction of the Shariah courts will have effectively been expanded without the need for a Constitutional amendment! Through its deference the Federal Court has conferred jurisdiction to the Shariah Court. Implicit in this is a question involving the Separation of Powers doctrine. Specifically, is the Federal Court in a position to be conferring jurisdiction in this matter to the Shariah courts? Admittedly Parliament has done little to resolve these issues. However, the question remains as to what the jurisdiction of Shariah courts will allowed to extend to next?
Third, it is a tragedy for all Malaysians because this decision fetters a fundamental right of all Malaysians. Article 11 unequivocally guarantees a right to freedom of religion for all citizens of Malaysia. It is a right, not a privilege. Why is Lina Joy’s access to this right being fettered by the requirement of a certificate? Certificates and similar documentation are meant to be evidentiary in nature but in this case who is in a better position to adduce the evidence but the woman herself? What more can a Shariah court add when she has been a self-confessed and practicing Christian for so many years?Here a policy or ‘floodgates’ argument (i.e. Muslims will leave Islam in droves) may be employed but my question for all Malaysians is this: which other fundamental freedoms can the floodgates argument arrest? Protection against retrospective criminal laws (Article 7)? Perhaps to reduce our high crime rate Parliament should devise new criminal offenses and then we can start charging the people that committed these new offences 10 years ago.
Fourth, it is a further tragedy for all Malaysians because this country that we and our forefathers have all worked so hard to build and promote is increasingly being labelled as intolerant and backwards in the eyes of the world. If we are not more conscious of how others perceive us, we will be left behind.
Fifth, it is a tragedy for Islam and Muslims in general who will be further regarded as petty, vindictive and illogical.
So you see, one needn’t be emotional to realise the multifaceted, catastrophic and utterly depressing implications of the Lina Joy decision.
The People's Parliament 
nat
June 1, 2007
bro,
thank you for your reactions. with regard to some of your perspectives:
1- i certainly agree that it is a great personal tragedy for lina 😦 😦
2 and 3 – these are interesting points that were very educational to me, and much food for thought. thank you for sharing them.
so much being said about all this for now, so i’ll leave it at that for now…
Haris Ibrahim
June 1, 2007
Nat,
To set the record straight, the matters stated in the last letter were that of someone who wrote to M’kini and cc’d the same to me.
Having said that, I align completely with the views of the writer.
nat
June 1, 2007
ah yes, nik just enlightened me to the fact – sorry and thanks!!
Iqbal Halim
June 1, 2007
The real tragedy here is the status of the Syariah Courts which are deemed inferior and obsolete, and is dismissed and relegated to deal with issues pertaining to marriage, divorce, and conversion. We constantly talk about cultural diversity, religious tolerance, and the whole works on nation building. But where is the respect for Islamic Jurisdiction in this predominantly Muslim society we live in? If I as a Muslim wants Syariah Law imposed on Muslims then why can’t I have it? If non-Muslims want the federal constitution to be upheld in cases pertaining to them so be it. That is their entitlement and Muslims should respect that. If they do not have religious laws to govern and regulate their actions then they can choose to follow the constitution and federal law. A Muslim is Muslim in every facet of life. There is no demarcation or separation between the life now and the hereafter. Hence I believe that self respecting Muslims should steadfastly demand that the Syariah Courts prevail over all other judgments in cases relevant to Muslims.
Haris Ibrahim
June 1, 2007
Iqbal,
You say that if non-Muslims want the FC upheld in cases pertaining to them, so be it.
Are you suggesting that the FC be upheld at the whim and fancy of the citizen? That seems to be the case as in your last sentence, you seem to advocate that in matters involving Muslims, the FC should be displaced by the Syariah.
What then, in a situation that involves a Muslim and a non-Muslim?
Is the application of the FC conditional upon the faith of the particular citizen?
Lina says she is not Muslim and wants the FC to apply to her?
How then?
Iqbal Halim
June 2, 2007
Haris,
Of course a proper legal structure needs to be ordained, taking into account the rights of Non-Muslims pertaining to their respectful legal recourse. I am saying that a separate legal system needs to be in place. One that regulates the Muslims (Sharia) & one for Non-Muslims (Civil Law). Your next question would probably be how?
Iqbal,
No, in fact I was not going to ask you how. I was going to say that the provision of our existing system meets the needs you speak of.
Historically this was common practice during the reign of the Islamic Capliphate, and one that was very successful. Islamic justice towards non-Muslims is multifaceted. Islam gives them the right to go before their own courts; it also guarantees them equality in seeking justice with Muslims, if they choose to present their case in an Islamic court.
God says:
“So, if they come to you, (O Muhammad), judge between them, or turn away from them. And if you turn away from them – never will they harm you at all. And if you judge, judge between them with justice. Indeed, Allah loves those who act justly.” (Quran 5:42)
Islamic Law has always ensured the comfort and protection of Non-Muslims. Islamic Law requires military duty from able Muslims but non-Muslims are exempt from it, even though it is of benefit to Muslims and non-Muslims alike. In return for these two exemptions, non-Muslim citizens pay a nominal tax known as jizya.
Sir Thomas Arnold wrote, ‘The jizya was so light that it did not constitute a burden on them, especially when we observe that it exempted them from compulsory military service that was an obligation for their fellow citizens, the Muslims.’
The absence of this structure and the ignorant attitudes my Islamic scholars and leaders in choosing to uphold Islamic edicts at their whims and fancies are at the core of this wave of confusion and apparent bias against Non-Muslim’s rights and welfare. Leaders use Islam as a means of political leverage to appease the Muslim majority by appearing competent on Islamic issues, when really all they are doing is choosing what benefits them and discarding other important aspects of Islam. This dilution of Islam comprising of the government’s failure to take Islam in its entirety, and fusing secularism with Islamic jurisprudence, led by the Ulama’ (In this case Ulama’ Batil: Those afraid to speak up) on their payroll has insidiously led to the Re-branding and ‘accepted’ form of Islam: Islam Hadhari. This ‘brand’ of Islam will only perpetuate the confusion amongst Malaysians and breed more misleading judicial outcomes.
Examples are in abundance but I think I have layed down the crux of my argument that the Sharia is NOT oppressive and does not only result in maimed limbs and injustice against Non-Muslims.
Iqbal,
There is nothing to dispute here as much of what you’ve written here is to be found in the numerous books available on history.
God’s sharia is not oppressive and does not work any injustice against anyone, Muslim or non-Muslim. I cannot say the same about that which some authorities contrive and try to pass off as God’s sharia.
You have however, not addressed the matters I posed to you earlier.
johnleemk
June 2, 2007
I think that the legal issues here are not as clearcut as many people have been trying to present it. The Federal Court basically abdicated its right to adjudicate anything to do with Islam, and this is constitutionally defensible. The fact that its practical effect is contradictory with Article 11 is a mere side-effect.
Sorry, John. Cannot agree with you. Firstly, its not a right conferred on the Federal Court to adjudicate. If it has jurisdiction, it cannot abdicate. That would be indefensible.p>
If its abdication ( to use your word ) occasions a contradiction of Article 11, surely this cannot be categorised as a ‘mere side-effect’.
In other words, the interpretation chosen by the judges (which is a perfectly acceptable one because the constitution does not adequately clarify the jurisdictional bounds of civil and religious courts) has the unintended consequence of making the constitution internally inconsistent.
If we want Article 11 to be given effect, then, the only recourse is to Parliament to amend the Constitution and end the ridiculous equal footing of religious and civil law.
Again, John, I cannot agree with you. There is no constitutional ambiguity in the demarkation of jurisdiction between the civil and syariah courts, nor is there an internal inconsistency in the constitution in this regard. If you say otherwise, please point out the ambiguity. Article 121(1A) is painfully plain in its meaning taking nothing away or adding to the law as it was previously. The problem arises where in, in the course of interpretation, the interpreters interpolate.
No, the solution is not to amend the Constitution. It lies in correcting the vision or mission of the interpreter.p>
missus
June 2, 2007
Is the sub-text of this lina joy case this?: Oh, these poor Malays, they can’t choose their faith and must remain Muslim. We should help them. Change the Constitution so they can have a choice.
As a Malay, Muslim, I ask the people agitating for this, who asked you. Did you ask us? Did I ask you?
Missus
Which part of the constitution have they sought to have changed?
Iqbal Halim
June 2, 2007
Haris,
If you say that most of my arguments can be found in historical texts than you should know the answer to your question “What then, in a situation that involves a Muslim and a non-Muslim?” The Sharia makes clear mention of this relationship, which you can find in numerous books I’m sure.
Iqbal,
You of course are referring to the numerous instances narrated in the hadith accounts where the prophet, presided over disputes between Muslim and non-Muslim.
You will, no doubt, appreciate that the prophet may have been operating under the terms of a peace treaty with the non-Muslims which are completely different from ours, the Federal Constitution. That the prophet entered into such treaties is plainly borne out by the Holy Qur’an. What is also borne out from the Holy Qur’an is that the prophet was commanded by God to abide by the terms of those peace treaties, so long as the non-Muslims kept to their side of the bargain.
Seen in this light, given that the Federal Constitution limits the jurisdiction of the Syariah Courts only to ‘persons professing the religion of Islam’ and the Supreme Court previously in the case of Tan Sung Mooi has confirmed that in a ‘Muslim vs non-Muslim litigation’ situation, the matter must be litigated in the civil courts, I guess it is very much a part of the Syariah that we must honour the terms of our Federal Constitution ‘peace treaty’.
“Is the application of the FC conditional upon the faith of the particular citizen?”
If a Christian, Hindu, Buddhist, etc wants to be judged by Common Law then that’s their choice. If they have their own sets of laws then I’m sure they would want those laws to be implemented. As a Muslim I should be judged by the Sharia & not the FC. This is simply because I’m a Muslim and should be governed in every aspect of my life by the Laws ordained by God.
Again, the Syariah requires Muslims to honour the terms of the Federal Constitution ‘peace treaty’.
Of course God will judge all of us, Muslim or no. And God will judge all of us by His Syariah, Muslim or no. However, in terms of relations between state and citizen, and citizen and citizen, by the terms of our Federal Constitution ‘peace treaty’ the Federal Constitution must prevail. And the Syariah that requires Muslims to abide by the terms of their treaties requires that this cannot be overthrown willy-nilly.
Since God’s Sharia is fair and just, and this is a nation predominantly Muslim, why don’t we build the judicial foundations based on Sharia law and insist that the government stop tinkering with this fusion of Sharia & civil law? Since Sharia is based on the Quran, which in turn propagates freedom of religion as reflected in (2:256)”Let there be no compulsion in religion” is it not reasonable to call for a full and complete implementation of Sharia in this country? Would that not take care of the confusion and double standards against Non-Muslims currently plaguing our society?
Could you point to one aspect of the Federal Constitution ‘peace treaty’, other than Article 153, which offends God’s syariah?
As for Lina, She was a Muslim.
Thank you. The operative word being ‘was’.
By this virtue no matter what Muslims or Non-Muslims say, it is the responsibility of the Muslim community to deter her from being an apostate.
By your own say so, she is already an apostate. There is no more room for deterrence, if indeed, there ever was room for the same.
Hence, she should have been dealt with by the Sharia Courts. I hope she knows what she’s getting herself into by converting.
Dealt with? How? She is no longer a Muslim.
The bible also makes a stand on apostasy: Deuteronomy 13:6-9 “If your very own brother, or your son or daughter, or the wife you love, or your closest friend secretly entices you, saying: Let us go and worship other gods (gods that neither you nor your fathers have known, gods of the peoples around you, whether near or far, from one end of Dthe land to the other, or gods of other religions), do not yield to him or listen to him. Show him no pity.o not spare him or shield him. You must certainly put him to death. Your hand must be the first in putting him to death, and then the hands of all the people.”
And if ever she decides she made a mistake in embracing Christianity and wants to return to Islam, I will be the first to tell Christians that in this land, the Federal Constitution ‘peace treaty’ is supreme law, and her right under Article 11(1) must override Deuteronomy 13:6-9.
So it is so wrong for us Muslims to feel so passionately about her conversion considering that her new religion feels just as strongly about the issue?
No, it is not wrong to passionately implore her to re-think her position. No, it is not wrong to passionately try and persuade her, by kind words and wisdom, that she should re-consider. It is imperative, though, to remember at all times that faith is an intimately private matter between God and His servant. At the end of all passionate efforts, her decision must be respected, perhaps with a private prayer that God will one day show her the truth.
Out of curiosity, what happens if the powers that be decide to scrap Article 11? It is the word of man at the end of the day. And what if one day parliament decides to outlaw the constitution? What would we be left with?
I was going to say that that would require a 2/3 majority in Parliament and would not be likely and then remembered with our present Parliament all things are possible. If that happens, we would be left with anarchy.
Interested
June 2, 2007
Dear Iqbal,
Just to clarify. Deuteronomy is part of the Old Testament. The ‘other gods’ referred to are idols and the warning is for the Jews not to worship these idols but to stick to Judaism. Christianity is not Judaism.
Iqbal Halim
June 3, 2007
Haris,
I’m not talking only about peace treaties but rather Muslim Caliphates after the Prophet that successfully governed both Muslims & non-Muslims using the Sharia as the law of the land. Why should the FC prevail over the powers of the Sharia? Why do we go to great lengths to protect the FC which can be changed by the powers that be & discard the importance and legitimacy of the Sharia? Is not the Sharia fit to serve its purpose as a binding and superior piece of legislation in our predominantly Muslim society?
Why should the FC prevail over the powers of the Sharia?
Because that is part of the Federal Constitution ‘peace treaty’. And it would offend the Syariah of God and the sunnah of the prophet to not abide by its terms.
Though remotely possible, it still is possible for both Article 11 to be scrapped & parliament to outlaw itself. Then wouldn’t it render whatever you currently stand for futile? And that only the Sharia will stand as it is from God?
johnleemk
June 3, 2007
Article 121 (1A) says: “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”
The question is what lies “within the jurisdiction of the Syariah courts”? Obviously it depends mostly if not entirely on how the civil courts interpret this, because the Constitution does not explicitly state what the Syariah courts have jurisdiction over.
Legally, there is freedom of religion because a Muslim theoretically can apply for a certificate of apostasy from the Syariah courts and thus convert. The practical effect of the Lina Joy decision obviously hampers freedom of religion, but this is only in practical terms; theoretically, conversion is as simple as getting a certificate from the Syariah courts.
The civil courts could have held that the Syariah courts do not have jurisdiction over this. But that is a moot point, because that is not what the civil courts held, and without some objective definition of the Syariah courts’ jurisdiction, there’s no way to definitively say the civil courts have acted unconstitutionally.
John,
I’m going to try to answer this in my next post.
Red
June 3, 2007
Iqbal Halim,
Here is the bottom line: All your pieties are your pieties, what others believe in or not believe in is none of your business. You can also believe in anything you want, even in stones so long as you don’t throw them at others. Get it?
Libra
June 5, 2007
“it is the responsibility of the Muslim community to deter her from being an apostate.”
Then by extension ( since the Umma cares so much for the salvation of Muslim souls), why not also deter our leaders from being corrupt.
Why not deter women leaders from not wearing the tudung.
Why not deter Muslims from dealing with our unIslamic banking system.
Why not deter the government from using the ISA?
If you want to implement Islamic Laws, then do so in toto, not in bits and pieces, when the issues suits you.
If the writer wants two systems of justice, then why not all Muslims, regardless of their crimes – be they murder, rape,stealing, drugs possession etc – all go to the Islamic court and be subject to Islamic laws.
If you need to stone them, do so. If you need to chop off their hands , do so. Hypocrites!!!