Lina, Why the controversy? : Challenging idiotic laws

Posted on July 3, 2007



Efforts have been made to challenge the ‘multi-defined Muslim’ and the ‘Muslim attempting to unlove his wife’ laws.

Lina challenged  section 2 of the Administration of Islam (Federal Territory) Act, 1993 in the High Court. Look at roman numeral (ii) at page 246 of the reported judgment.

Kamariah Ali and 3 others challenged the ‘multi-defined Muslim’ and the ‘Muslim attempting to unlove his wife’ provisions in the Kelantan 1994 enactment through the Kota Bharu High Court. You will find the challenge to the ‘multi-defined Muslim’ provision narrated at e on page 165.

The ‘Muslim attempting to unlove his wife’ provision in the Kelantan 1994 enactment can be more clearly seen in the reported decision of the Court of Appeal in respect of the appeal by Kamariah and the 3 others against the decision of the Kota Bharu High Court. This is at page 772 from paragraphs f to h.

Section 102(1) is the start of the nightmare.

It provides that one who has been confirmed a Muslim may not state that he or she is not a Muslim until the Syariah Court has confirmed this.

You will see immediately that this is a blatant violation of the freedom of speech and expression guaranteed under Article 10 (1) (a).

Section 102(2) is the millstone round the neck. The person referred to in section 102(1) is, pending confirmation by the Syariah court,  now deemed a Muslim and all matters relating to Islam shall be applicable to him.

Let’s look at the effect of section 102(1) and (2) on Kamariah.

She affirmed a statutory affidavit in August, 1998 to the effect that she had voluntarily and of her own free will and choosing renounced Islam.

Let me observe again that no one can know better than Kamariah herself what her faith is. Using the language of the constitution, she is not a person professing the religion of Islam. Constitutionally, she has no locus to go before the Syariah Court and the Syriah court, in turn, has no jurisdiction over her.

Yet section 102(1) provides that she is not permitted to state that she is not Muslim until the Syariah Court has confirmed this. Section 102(2) now requires that, pending such judicial confirmation, Kamariah must perform the Muslim prayer, fast and pay the tithe, amongtst other things.

Section 102(1) and (2) literally turns the Constitution on its head by requiring a person who does not profess the religion of Islam to go before the Syariah Court and seek a confirmation of that court as to her renunciation. This it does by deeming her to be a Muslim in law, disregardign what she in fact professes.

Section 102 (3) is the plainest of evidence that the Kelantan state legislative assembly then was constituted by morons.

It provides that if a Muslim deliberately, by word or deed, attempts to leave Islam, he or she may be ordered to be detained at a rehabilitation centre for up to 36 months for rehabilitation. 

Quite obviously the ‘Muslim’ in section 102(3) is the ‘deemed Muslim’ or the ‘Muslim in law’ and not a ‘person who professes the religion of Islam’.

What the scheme of section 102 does is prevent an apostate ( aka a person who has renounced Islam aka a person who has given up Islam as his religion aka a murtad aka a person who is not a person professing the religion of Islam ) from stating he is not a Muslim, deeming such a person a Muslim and then holding such a person as still in Islam but attempting to get out.  

Like Lina, Kamariah and the 3 others were not going to put up with these idiotic laws.

The constitutionality of the ‘multi-defined Muslim’ and the ‘Muslim attempting to unlove his wife’ provisions were challenged in the High Court.

You will recall that in Ng Wan Chan, the High Court confirmed that in the absence of any written law conferring jurisdiction on the Syariah Court to determine whether a deceased was Muslim or not, jurisdiction to determine the matter vested with the civil High Court. The Supreme Court in Dalip Kaur confirmed the same.

I have contended in the ‘who can pass apostasy laws, and how? (3)‘  post that no legislative body in the country has the authority or the competence to pass any laws on apostasy.

Lina, Kamariah and the 3 others lost their case in the High Court. Lina in KL. Kamariah and the 3 others in Kota Bharu.

In both cases, Senior Federal Counsel appearing in Lina’s case and the state legal advisor appearing in Kamariah’s case for the religious authorities raised the same preliminary objection that was taken up in Ng Wan Chan : that the civil court had no jurisdiction to determine whether the applicant was or was not Muslim and that this matter was within the jurisdiction of the Syariah Court.

In Lina’s case, the written law had not changed between the time that Ng Wan Chan and Dalip Kaur were decided and when Lina’s case came up for hearing.

In the case of Kamariah and the 3 others, the ‘Muslim attempting to unlove his wife’ provision in the Kelantan 1994 Enactment was argued by the state legal advisor as having given the Syariah Court jurisdiction. The argument for Kamariah and the 3 other was, amongst others, that this provision was unconstitutional.

Both Lina and Kamariah and the 3 others lost their cases in the High Court based on the preliminary objection taken.

What became of the law as declared in Ng Wan Chan and Dalip Kaur?

How was the juridiction of the civil High Court as declared in Ng Wan Chan displaced?

 Had there been a change in the written law and, if not, then what had changed?

Before I try to answer these questions, let me share with you a few other decisions of our courts by judges who held true to their oath of office, which decisions in more recent times have been unceremoniously buried in dust.