This is mine.
Not a reaction to the judgment, but to some other equally unemotional reactions.
In a Malaysiakini report entitled ‘Don’t court controversy, say Muslim groups’, it was reported, in relation to the Federal Court decision in Lina Joy’s case, that ‘Muslim groups and individuals urged for such issues to be resolved in future without recourse to courts of law and before they reach the level of public controversy’.
Zaid Kamaruddin of JIM is reported to have said that such cases ‘should be addressed primarily through discussions among and between the racial and religious communities’.
Yusri Mohamed of ABIM is reported to have said : “We believe the court procedure is an unhealthy one because such issues should be avoided (at the courts) as all confrontational approaches should be shunned” and then urged anyone who is “aggrieved in any way” with any part of the existing arrangement to “choose other, less confrontational and controversial approach towards change and reform”.
Let me state from the outset that I am in complete agreement. The Lina Joy-like issues should not need to be taken to court and should not reach the level of public controversy as her case did.
This begs the question, why did Lina’s case end up before the courts, and why all the controversy?
Justice Richard Malanjum’s judgment, the full text of which can be downloaded from the Bar website, narrates the relevant facts, beginning at page 4.
On 21/2/1997 Lina applied to the IC department to change her name to Lina Lelani. Her stated reasons: she had embraced Christianity and wished to marry a Christian.
Pause here to note 2 facts and speculate on 1 probability.
Fact 1: at this time the law did not require one’s IC to bear the word ‘Islam’ if one was a Muslim. This was only introduced in late 1999.
Fact 2: as her IC bore a Malay name, the registry of civil marriages would not have allowed Lina to proceed to register a civil marriage, assuming her to be a Muslim.
Probability: if Lina was not planning to settle down, she would not have sought the change in particulars in her IC. We would probably never have known of her.
Let’s continue with the facts.
Her 1997 application to the IC department was rejected on 11/8/1997 without any reason given.
Lina applied again on 15/3/1999, now asking her name to appear as ‘Lina Joy’. Again her stated reason in her statutory declaration was that she had embraced Christianity.
Pause just for a moment and observe that surely, up to now, the approach by Lina has been anything but confrontational. Controversial, perhaps. If she was to have a chance to be married in law and start a family, an application for change of particulars in her IC was absolutely necessary, given the stance of the registry of civil marriages.
Lina claims that in July, 1999, she was told by an IC deparment officer that so as not to complicate her application, she should drop ‘change of religion’ as her reason for her ‘change of name’ application.
To make a long story short, she put in a fresh statutory declaration in August, 1999 stating the requested change of name was simply one of choice.
On 22/10/1999, Lina was informed by the IC department that her application had been approved and that she should make application for her new IC. What the department did not inform Lina was that a change in the regulations in relation to particulars to appear in the ICs of Muslims was underway. ‘Islam’ would appear on the face of such ICs.
Lina applied for her new IC on 25/10/1999. The new iC issued to Lina bore her new name on the front of the card. On the reverse side, her original name appeared. Also, on the front side, the word ‘Islam’ was imprinted.
Pause just to note that the change of name did not help Lina’s hope of having a civil registry marriage approved, given the word ‘Islam’ now imprinted on her IC.
Lina now applied again on 3/1/2000 to the IC department to remove the word ‘Islam’ from her new IC. She was told that she would have to produce an order of the Syariah Court confirming that she had renounced Islam.
Pause and observe: this woman was in and out of the IC department for almost 3 years, in the hope that she could get on with her life. Was she confrontational? I think she demonstrated a level of patience few of us are capable of.
Without recourse to courts of law? Court procedure is an unhealthy one?
Zaid and Yusri, please be fair. Who directed her to have recourse to the courts of law, with procedure that is unhealthy? Who told her that her non-confrontational series of applications were insufficient?
It was not of her own choosing. It was forced upon her.
Ah, but the IC department said the Syariah Court, not the civil.
Is that how we must understand it, then? It’s confrontational and controversial if its in the civil courts; not so if its in the Syariah Courts?
Two problems to this, though. 1 legal, the other practical.
Lawyers know that the jurisdiction of the Syariah Courts is constitutionally limited to persons ‘professing’ the religion of Islam’. Commonsense and case-law will tell you that no-one knows the religion professed by A better than A himself, barring mental deficiencies. Lina says she professes the Christian faith. She produced a certificate of baptism.
You may contend that she is ‘legally’ still Muslim without a Syariah Court order. Without conceding to the correctness of such a contention, you must surely agree that that is not the same as she being a person ‘professing’ the religion of Islam.
This is the legal difficulty with the direction to get a Syariah Court order.
The practical difficulty was alluded to by Justice Richard Malanjum, at paragraph 70 on page 41 of his written judgment when he pointedly observed: “In some states in Malaysia, apostasy is an offence. Hence, to expect the Appeallant (Lina) to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law is in my view unreasonable for it means the Appellant (Lina) is made to self-incriminate”.
To illustrate the practical point further.
We all recall the Nyonya Tahir case and how it was hailed as the solution to this recurring problem of ‘Muslim or not’.
We forget that in the Nonya Tahir case, the issue was whether to bury the dead as a Muslim or not, and not as to the religious status of a living person.
Siti Fatimah ( better known internationally now as Revathi ) also overlooked the significance of the Nonya Tahir case. She applied to the Syariah Court in Malacca for a declaration as to her religious status.
The order of the Syariah Court: detention at the rehabilitation centre in Ulu Yam.
Is this the less confrontational and controversial approach that is advocated?
Next post – why all the controversy?
The People's Parliament 
Libra
June 2, 2007
Well said friend. You have demolished both Zaid and Yusri by 10 to 0. You have proved the hollowness of their arguments.
Anyway, if I am not being emotional, I would say Islamic elements ( the two judges, Jim, Abim, etc) have encroached into the rights of a Christian – plain and simple.
LJ is a Christian on her own free will and they are saying she isn’t.
Why should a baptized Christian go to an Islamic Court for redress when it has no jurisdiction whatsoever over her.
Libra,
I did not embark on a demolition exercise.
I am asking Zaid, Yusri and everyone else to see the situation of Lina and the other like cases for what they are.
yh
June 2, 2007
I am no legal expert but the reasoning by the Chief Justice does not seem too reasonable to me. His decision, as I read what is reported, is based more on his personal religious conviction. I guess that is a worrying precedent as it may impair the rights of the citizens currently confer under the constitution.
yh,
His Lordship’s judgment is presently being critically studied. My thoughts on this in due course.
Tan Ban Cheng
June 2, 2007
A very calmly reasoned piece that effectively rebutted, if any such rebuttal is at all deserved, the comments of Jim and Abim.
As the doctors observe my medical condition, I continue reading The Decline and Fall of the Roman Empire by Edward Gibbon.
The Roman Empire fell for many reasons. It was later mirrored by the Holy Roman Empire, which was neither holy, nor Roman nor an empire.
My question: Where are we going? Quo vadis?
Assuming that a mistake has been made, can the Malaysian system self-correct? Is it robust enough to self-correct?
And will the exercise be a glorious one?
Ban Cheng,
I harbour little doubt that it is seriously flawed. Whether it is mistaken remains to be seen.
You will pardon my saying that the real question is how much do the Malaysian polity want this flaw corrected? Are they robust enough to demand its correction?
That, too, remains to be seen.
Avtaran
June 2, 2007
Can anyone explain to me why is it that many Malays feel threatened when one of them wants to leave Islam? Including the Chief Justice.
When a fellow member of my faith leaves to embrace another faith I say all the best.
When a fellow member of my faith leaves I ask why? Let’s look at ourselves and our shortcomings that lead him/her to leave the faith in the first place.
When a fellow member of my faith leaves I remember my ancestors too converted from another faith to my present one.
And I conclude what is the big deal in the end.
But that is just me. Because I do not believe my religion is superior to another faith. To me all faiths will lead to the same destination.
I have come across some Muslims and Christians who think their respective faith is the ‘right one’. Why?
No one can prove one why or another which faith is the ‘right one’. That is why we call it faith.
We must all reflect and think what are we all doing. Especially the Chief Justice. When we take a oath we must adhere to it. That is sacred.
Red
June 3, 2007
The chaps at JIM and ABIM made themselves sound reasonable persons, with the intellectual ammunition provided in large part by Fairuz.
Case 1: because religious freedom is no longer absolute, let’s not take such cases to court anymore; you are likely to lose than to win.
Case 2: there are Syariah/Islamic procedures for Lina Joy type cases and, unwilling to follow them, she therefore unnecessarily stirred controversy (even Haris uses the word) and acted irreverent to Islam.
Case 3: Joy was irreverent to Islam – the reported phrase from the Malay translation was, “whim and fancy” – so that when the case ended up in the Federal Court, she was considered confrontational.
The sum of these arguments is in effect: (a) it is Joy’s fault and (b) the case made an existing bad situation worse.
In the latter, the fundamental and irrevocable entitlement to freedom of religion that was previously an illusion is now given judicial confirmation. After this, many government departments will be, whenever it affects Muslims, free to create policy or administrative law nearly almost at will, without caring for constitutional restraint. In practical effect, for Lina Joy, all Malays and all Muslims, get that Syariah certificate if you want out.
All the arguments against Cases 1 to 3 are adequately given by Malanjum, so let’s not go into them.
Now, if the case had gone the other way, the response from JIM and ABIM would be predictably different. How different? Very, and it will be as different as your imagination allows. The 200-300 “demonstrators” outside the Palace may even lynch and burn, and JIM and ABIM will have this to say: the case was anti-Islam but we will fight it with out blood. No talking then.
The imperative in this narrative so far is to say this: Reason serves the Will. The Will of ABIM and JIM is to subject Malays and Muslims to Islamic law, first and last. And now Fairuz has literally flung open the door for them to farther advance, with the help of departments like NRD, an entire body of law independent of and outside the Constitution.
So, pray tell, what is there to talk about? What is there to talk about between the likes of the Catholic Church, Anwar Ibrahim, on the one hand, and ABIM, JIM, JAIS and all their Islamist buddies on the other? What and on what basis do you negotiate over a document that you say is supreme?
The truth of the matter is this: the Constitution is flawed from the beginning. JIM, ABIM and the likes are not alone to want to exploit it; many more others – a part of the silent majority Malays – are like lawyers, department officers, teachers and so on savvy with words but the intent, the motivation, is seldom sincere. Rather it is to advance an agenda, and all know what that is.
Say what you will about “no compulsion in Islam”, and so on. But for every verse you cite about the humanism in the Quran, the likes of JIM and ABIM can cite two, three, four or five even to point out that which is obligatory and compulsory of Muslim conduct and the duties of the ummah. That includes, whipping, chopping hands and slicing throats. There is a Muslim lawyer, for example, who thinks whipping under Islam is humane; that Joy got what is coming for her. Again, Reason serves the Will.
In the way you sometimes argue that the Quran is fair to life, you also argue that if the secular supremacy of the Constitution were to be asserted, then the same life problems would be minimised. All that is very kind of you, Haris. But face it the Constitution is a part – a very big part – of current Malaysian problems. This means that saving the Constitution is not the solution, for it is only as good as the people who interpreted it. Fairuz is an example.
Red,
Saving the constitution must of necessity include identifying the interpreters who are not being quite so honest and then doing the necessary to put the interpretation and application of the Constitution beyond them. Tall order, I know, but this must, of necessity come within the equation of ‘saving the Constitution’. Please see my closing chapter in my article ‘Islam-as I say-tion.
The Lina Joy case was made out – by Anwar Ibrahim, JIM, ABIM, the Catholic organisations, and so on – to be a problem between Muslims and non-Muslims. Nonsense. If that assertion were to be true, think again.
To answer the assertion, consider what Lina Joy wants? Simply this: to be left alone. Everything in Malaysia is designed to put her in her place and she has to unravel each and every part on the way in order to be left alone, that is, to be a Christian if she wishes, to marry whoever she desires, and so on. Every bit of this wish is personal, and none of it is the business of JIM or ABIM or NRD. Yet, the NRD, the government of Malaysia, the judges, Syariah, and now even the Constitution are made to put her down, to get in her way. But why? Why this cruelty?
It is not the conversion. This is because if she was Chinese and wanted to be Christian, nobody will give a damn. If she was Indian and wanted to be Muslim, nobody will dare stop her. The answer is this: she is Malay.
Not quite true. I have other clients, Chinese and Indian, who are going throught the same nightmare.
In other words, the Lina Joy case is a Malay problem waiting to happen. This is because of Islam’s Constitutional position, because of the Malay definition, because of the Constitution, and because of Anwar Ibrahim, PAS, Umno and the ilk of them who had filled the country, schools and all the government departments the past two decades with so much religion we now swim in it; and this includes the Constitution.
It is rare any country in the world, exceptions being Pakistan, Iran – the Islamic republics – that treats a citizen in the manner Malaysia has treated Lina Joy. And for what? She will endanger the Malay race? Get a life….
She is Malay and an entire Malay apparatus and all the constitutionally sanctioned institutions have been lined up to make sure she breaks no ranks. Poor woman. She might have suspected but not to the degree this whole thing has unravelled. But, notice one thing: who especially helps her: Malanjum. After all said and done, the judge, being Christian and Sabahan, is the only thing left standing between her and the tyranny imposed on her.
Malays have been perpetually putting themselves in contra distance to economic achievements by the Chinese, to intellectual achievements by the west, and now to piety measures provided by seventh centuryh Arabs. In another way of saying, they are not having a backbone to be who they are without worrying about who are the others.
Azlina represents the last of the group of Malays, truly with a backbone, independent of Islamic Arabism and independent of the mullahs, of the NEP, of the Chinese, of Umno. Like Malanjum, many clear-thinking Chinese, Indians, Kadazandusuns, Ibans – but forget the likes of Tian Chua – will stand with the Azlinas of Malaysia. She is Pak Ali’s true inheritor, and her name henceforth is, Lina Joy.
Haris, you will have to rethink strategies…
You Islam Bashing Muslim
June 3, 2007
Anwar said in his interview that YOU, as to represent the superliberal Muslim like yourself, Malik IMtiaz, SIS, etc, refuse a discussion with the more authoritative and progressive ABIM, MPF, etc.
Elizabeth Wong in her blog said YOU’ll refused in 3 occasion.
Dear You Islam Bashing Muslim,
Forgive me if I firstly observe that your name does indeed sit very nicely with your stance as demonstrated in your comment. Do youself a favour and apply to the IC department to change your name to something a little more pleasant. I am sure they will oblige..
Anwar and Eli. I won’t lose sleep over what either have to say.
Prof Kamar Oiniah said that YOU and YOUR human rights gang stole the dialogue to turn it into an Islam bashing/confrontational affair and turning from a dialogue into legal fight.
Go and read Surah 17 verse 36. Check for yourself. Do not rely on hearsay.
Thus far, 3 has said you lied. I am sure more will surface. As a lawyer, I can suspect that you will start to sue all these people. Do it, please. It shows your confrontational and adversarial attitude.
I do not need encouragement to vindicate my rights through the courts. If I’m so inclined, I will.
I am sure you are going to puke when I call those organisations as authoritative and progressive. Look! Basically YOU are not because you people are not serious practitioner of Islam.
Thank God that God is the best and only relevant judge.
Let me ask the basic: Do keep your 5 times a day? Or one month in a year? Pay yr zakat? Do you consume haram food and beverage, under a non darurat situation?
Do you know the rukun iman, its meaning and responsibilities?
Let me ask you, do you feed the orphans and the wayfarers, do you oppose racial inequality and discrimination in this country, do you fight the oppression occasioned by the indiscriminate destruction of and delayed approval in the construction of houses of worship, do you oppose the oppression of the poor and marginalised, do you endeavour to give the best to your employers in return for the wage that you earn, do you pay a fair salary for those who work for you, do you endeavourt to teach with kind words and wisdom, do you forgive those who do not look forward to the days with God, do you pray for peace for those who have not yet seen the light?
It is ironic that you and Malik claim and is reported all over the world as being a Muslim. But you are fighting for the right of a Muslim or precisely ex Muslim to leave Islam.
Go and read Surah 4 verse 75
Shouldn’t you as Muslim (and responsibility as Muslim) convinced of the religion, be the one to convince her and try to save her soul back to Islam? It shows you are not convince of Islam to convince an apostate to come back.
Convince her to come back the way the likes of you are convincing Revathi? Very Islamic of you.
This responsibility supercede your responsibility as lawyers to your so-call legal principle. Your responsibility to and only God nd God’s way. Your legal principle and so-called humanity cannot over ride your rukun iman, rukun islam, and ehsan. It shd be consistent but not over ride.
Harris, what you are doing is just combing the law and constitution to question every conceivable issue you can attack to meet your anarchic dreams. YOu are no solution but just purveyor of chaos to society.
YOu know the law just to question it. YOu know the quran to comb it for possible loopholes. This is to be made use when you argue with people.
YOu learn the Bible to look for trouble issue. A Muslim can learn somethign from bible but not to also respectful of their followers, although Muslims believe they have deviated from the word of God.
YOu and people like you bring disservice to the first spirit of rukunnegara – kepercayaan kepada tuhan. Ask yourselves do you believe it Allah, the one true god?
Do you?
Harris, forget abt trying to be bring political change. Sort your messy soul first.
Look, the only reason I am allowing this comment through is because I gather you have gone to much trouble to string it all together. Do yourself a favour. Apart from the name change I suggested, if you are going to send in another comment, please let it have some substance, or I will not let it through.
Red
June 3, 2007
Red wrote:
It is not the conversion. This is because if she was Chinese and wanted to be Christian, nobody will give a damn. If she was Indian and wanted to be Muslim, nobody will dare stop her. The answer is this: she is Malay.
Haris reply:
Not quite true. I have other clients, Chinese and Indian, who are going throught the same nightmare.
Red’s rebuttal:
Haris, your reply – “not quite true” of what? – steps out of context and also misses the crux of point, which shall be elaborated below. Needless to say, a Chinese Muslim or an Indian Muslim wanting out will be faced with the same constitutional dilemma as Lina Joy had as a Muslim in her previous life. But there is a difference (she was smart, mind you) she is not asking to be declared a Christian or an apostate. Or, had you not noticed?
In Lina Joy, especially, there are added burdens in her “quest” – these are, in the Malay definition, Malay special position, Islam and so on. All of that once thrown together makes her case immensely unique and extraordinarily special to the Malays. And all of that weighs far more heavily than the fact that she is Christian now because, in this respect, nothing could be done about it so long as she refuses to submit herself to extra-Constitutional jurisdictions or demands.
This same point was mentioned, in the previous posting, inter alia: “…the Lina Joy case is a Malay problem…” In another way of say, there are overpowering political, sovereignty, royal, economic, identity and ethnicity elements, all of which are written into the Constitution affecting her “quest”. These elements, both in and outside the Constitution, are not explicit or implicit to the Chinese or the Indian – true or false?
More to the point, Lina Joy, technically, is not asking for reaffirmation of ANY sort of conversion, in or out, one kind or the other. True or false? (The Federal Court addressed conversion as fundamental, as an apriori first cause, and so stepped into a bottomless pithole. In another way of saying, they don’t have to address Clause 121 1(A).) Lina Joy only wants the word, Islam, removed from her identity card and her post-Islamic, adult identity, she asserts by inference, is hers alone to decide, and rightfully so. It is not for the NRD to decide, not the government of Malaysia, not ABIM, not the Syariah court, and – this has to be added – not Hakam.
Haris reply:
Saving the constitution must of necessity include identifying the interpreters who are not being quite so honest and then doing the necessary to put the interpretation and application of the Constitution beyond them.
Red’s rebuttal:
In the Haris reply, saving the Constitution requires two components: (a) “identifying the interpreters”, and (b) “…doing the necessary to put the interpretation … beyond them”. These are not tall orders; these are dreams.
In effect, they suggest attempts at locking in certain, defined fundamental rights, which may include rewriting the constitution. If rewriting, then what is the Constitution to be saved? The original version? And after that, what about “doing the necessary”? Even America’s sacrosanct and untouchable Bill of Rights, now 200 years old, is subject to endless interpretations.
Conclusion:
None of the remarks from Red or the rebuttals are attempts to put down the Haris efforts. Rather, they are to demand that the facts, the problems, be confronted head on and this include calling by their true names the enemies of society and the pain they inflict on others for the pure delight of it. The Constitution is flawed, so say it. And, if true, why save a flawed constitution? Also, failure by judicial and legal officers to correctly identify by name the problem at stake, has irreconcilable damages inflicted on citizen interests. Lina Joy is one such victim.
All this doesn’t infer there is no solution to Malaysian problems, as identified in this blog. But the solution is not constitutional and, this has to be added also, it is not judicial (let’s not waste time and bandwidth on characters like “You Islam Bashing Muslim” – you might as well talk to a goat). Also, since we are at it, Kit Siang had raised a pertinent point; the solution has to be political from now on. Understand what that means. Hence, in this wretched business, consider remedies outside of legalism (Haris specialty) and to consider what they will entail.
Also understand this: A political solution is not in the same league as a constitutional solution. For example, it may require no insertion of a Bill of Rights – which opens you to all sorts of attacks. It will require taking on the likes of Nik Aziz and ABIM, however.
But, from a principled point of view, it demands – in the name of Malaysia and in the memory of Tunku Abdul Rahman – that everybody observes simple decencies, for the Azlinas, the Nonya Tahirs, the Revathis, all of whom cannot help themselves and have limited means, financial or intellectual, to do so. They are the people of Malaysia, not the people of Arabia or Pakistan. The demands are especially to be made for the children of Pak Ali and Chong.
All this is what is meant, in small part, in the last sentence posted earlier: rethink strategies. Please re-read earlier posting.
banjaran
June 4, 2007
Not much I have to contribute here Haris except to leave a note of encouragement that this a very interesting and enlightening blog.
Cheers
Patrick chong
August 31, 2007
A journey of a thousand miles start with a single step.
With the whole government apparatus bend on dividing the bumiputra/non-bumiputra and muslim/non-muslim stratas of malaysian society, it would require a political paradigm shift of herculean proportion to bring about these changes.
I would like to think you have taken the first step.
thomas
June 20, 2009
no human rights….what kind of law is this….