If we’re going to understand the real controversy, we have to be clear what is not the controversy. In other words, we must weed out any red herrings. We must be clear what Lina’s issues were. We must not allow ourselves to be confused by claims from certain quarters.
Remember that it 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.
What you need to know is that Lina did not ask the civil High Court to confirm that she had renounced Islam.
If you look at the reported judgment of the High Court, at page 246, you will see that 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.
Please be clear about this.
Lina did not ask the civil High Court to confirm her status as a non-Muslim.
Why?
Unlike the earlier cases of Dalip Kaur and Ng Wan Chan ( I will discuss these cases in the next post ), and the later cases of Moorthy and Anthony Rayappan which involved disputes between relatives of a deceased and the Islamic religious authorities as to the religious status of the deceased and hence who should have custody of the body for burial purposes, Lina’s case involved a living person who had declared her religion.
In Dalip Kaur, Ng Wan Chan, Moorthy and Anthony Rayappan, the dead could not answer the question ‘ Muslim or non-Muslim?’. The dispute in those cases had to be resolved in court. You will see later that in Dalip Kaur and Ng Wan Chan, those disputes were in fact resolved by the civil High Court.
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 no 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.
Yet, if you look at 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.
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.
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 is not only informative, it 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, however, has also made certain assumptions and premised thereon, recommendations which, in my view, suggest that she 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?
The People's Parliament 
Libra
June 19, 2007
Zainah is a smart lady and when writing for the NST, she cannot afford to appear one sided or she will be given the boot.
In attempting to “balance” her article, Zainah , tripped and fell.
Funny, when arguing on religious issues, even intelligent people put forth convoluted logic. So she slipped.
Good that you are trying to lift her up.
I have no doubts that Zainah meant well.
BobSam
June 20, 2007
You are a breath of fresh air.
I guess it is your training but also the ability to focus on the exact issue rather than the “noise” or fluff.
CONGRATULATIONS! Enjoy reading ur comments. Pity by being so outspoken, the powers-to-be will never think of graduating u to a judge. WHICH will be Malaysia’s loss.
Kind words, Bob. Thank you.
Given the present state of the judiciary, appointment thereto is no longer seen as an honour by many in the legal profession.
But please continue doing what u r doing.
What I’m doing requires the participation of others. How about it, Bob?
Wendy
October 4, 2007
Yes, continue what you are doing best and i believe you have alot of supporters. The recent interview with our Minister with regards to Lina Joy case, what crap is that when he mentioned that joining a club there are rules. First of all, there weren’t any rules laid out when joining the club????????????
Sad to say, we do not have quality leaders that are accountable for their mistakes. Always looking for a scape goat.