A crucial turning point in Malaysia's culture war!I was hoping that the court will decide in favor of freedom instead of intolerance, but the headline on Malaysiakini "No Joy for Lina" indicates the "Death of religious tolerance in Malaysia", and "Once a Muslim, Always a Muslim" ?In what has been dubbed a blow to Malaysia's religious freedom, the country's highest court today denied an appeal by Christian convert Lina Joy to make her switch from Islam recognized by law. A multi-ethnic state comprised largely of Muslim Malays, Christian and Buddhist Chinese, and Hindu and Sikh Indians, Malaysia has long prided itself on its diversity of faiths. To safeguard this religious heterogeneity, the country's constitution sets out a dual-track legal system in which Muslims are bound by Shari'a law for issues such as marriage, property and death, while members of other faiths follow civil law., writes Hannah Beech, TIME.
But the parallel system has occasionally faced snags. Joy is a Malay originally known as Azlina Jailani, and by Malaysian law her ethnicity automatically makes her a Muslim subject to Shari'a law. In order to make her 1990 conversion to Christianity legal, she needed permission from the Shari'a courts, which consider a renunciation of Islam a major offense. But, since she is still classified as a Muslim by the state, Joy was not allowed to have her case heard by the civil courts. Her six-year-long campaign to convince the civil system to legalize her conversion failed, prompting her appeal to the Federal Court, after the Court of Appeal rejected her claim in September 2005.On Wednesday, the Court announced that it had no jurisdiction over the case since it was under the purview of Shari'a law, effectively punting on any attempt to clear up the gray space that exists between Malaysia's two legal systems. The ruling was greeted by shouts of "God is great" from many in the assembled crowd outside the Palace of Justice in Kuala Lumpur. More secular observers were far less jubilant. "I see this case not just as a question of religious preference but one of a potential dismantling of Malaysia's democracy, which is based on a multi-ethnic, multi-religious state," warned Malik Imtiaz Sarwar, a member of Joy's legal team, before the verdict was announced. "I fear the political process in Malaysia is overtaking the legal process."The Joy verdict, which will likely become a precedent for several other pending conversion cases, is seen by many in Malaysia as evidence of how religious politics are cleaving the nation, with a creeping Islamization undermining the rights of both non-Muslims and more moderate adherents to Islam. Last November, at a party conference for the Muslim-dominated United Malays National Organization ruling party, one delegate vowed he would be willing to "bathe in blood" to defend his ethnicity — and, by extension, his religion. In several Malaysian states, forsaking Islam is a crime punishable by prison time.Earlier this week, Malaysian Prime Minister Abdullah Ahmad Badawi, who in December acknowledged that race relations in his homeland were "fragile," hosted the World Islamic Economic Forum in Kuala Lumpur. In an era where Islam is so often partnered with extremism and autocratic governance, Malaysia was held up at the annual conference as a model of a moderate Muslim nation committed to safeguarding the rights of its diverse population. But the Federal Court's verdict on Joy's case, which represented her last legal recourse, may undercut that reputation. After all, what is religious freedom if a 42-year-old Malay woman isn't allowed to follow the faith of her choosing?
Outside the courtroom in Malaysia's administrative capital of Putrajaya, more than 300 Muslims representing as many as 80 Islamic groups gathered to pray for the courts to deny Joy's appeal.Yusri Mohamad, president of the Muslim Youth Movement of Malaysia, welcomed the decision, saying that the court proceedings had been 'an attempt to deconstruct and revamp our current formula, a winning formula' for a peaceful multi-religous society.Lawyers for Joy have declined to say what her next move would be, but Wednesday's court remains the last legal avenue for her.'The outcome of this case has shown that we have a constitutional guarantee of freedom which cannot be enforced because our civil courts have no jurisdiction over religious matters,' said Leonard Teoh, a lawyer representing the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism.'The only avenue now is for us to take a political approach. We will approach the political leaders,' said Teoh.'People like Lina Joy should not be trapped in any religion.' It was reported in Malaysiakini that Muslim groups nationwide have been told to be adequately prepared for the much-anticipated Federal Court decision on the Lina Joy case .Mosques, surau, and non-governmental organisations have been urged to holdspecial prayers so that the judgement is "in favour of Islam".PAS Federal Territory Youth chief Kamaruzaman Mohamad strongly urged all parties to remain calm and warned against any attempts to provoke or raise tensions over the issue."The aim is not to antagonise any party or to create tensions. Any mistakecommitted by Muslims present (at the Federal Court tomorrow) will be used todenigrate the image of Islam and that of Muslims in Malaysia," he said in astatement."It is also not impossible that certain parties will seek to provoke orcreate tensions for that same objective."He urged those who able to attend court to do so, as a demonstration oftheir concern "for the future of Islam in this country".Meanwhile, The ruling threatens to further polarize Malaysian society between non-Muslims who feel that their constitutional right to religious freedom is being eroded, and Muslims who believe that civil courts have no right to meddle in Islamic affairs.
"You can't at whim and fancy convert from one religion to another," Federal Court Chief Justice Ahmad Fairuz Sheikh Abdul Halim said in delivering judgment in the case, which has stirred religious tensions in the mainly Muslim nation.He said the civil court had no jurisdiction in the case and that it should be dealt with by the country's Islamic courts."The issue of apostasy is related to Islamic law, so it's under the sharia court. The civil court cannot intervene."About 200 mostly young Muslims welcomed the ruling outside the domed courthouse with shouts of "Allah-o-Akbar" (God is great), but Christians and non-Muslim politicians were dismayed."I think it's a major blow," opposition politician Lim Kit Siang said. "It casts a large shadow on civil liberties and the constitutional rights of Malaysians."Malaysia's Council of Churches was saddened."We still go by the possibility that the constitution allows any citizen of the country to exercise his or her right to choose a religion and practice it," council secretary Rev. Hermen Shastri said outside the court."I don't think this decision is going to stop an individual from exercising that right for whatever reason.
S Sharmila, a human rights lawyer and secretary-general of the National Human Rights Society, described Wednesday's ruling as a "very regressive interpretation of the constitution as a living document" and "backward step" for Malaysia.
"If there is any hope left, it is in the resounding dissenting judgement which is based on facts, law and logic," she told Al Jazeera shortly after the ruling was made.
"It is a very bold decision that signals a clear and unequivocal dissent which preserves the fundamental principle to choose one's faith based on the constitutional right of all Malaysians being equal before the law."
She said Malanjum held that the NRD policy was unconstitutional and should be struck downFierce debate
The case has triggered fierce debate
in a country where just over half the 27 million population are Muslims with a sizeable number of Buddhists, Christians and Hindus.
According to the latest US state department data on Malaysia, ethnic Malays – who are Muslims by law - make up about half the population but are officially grouped together as Bumiputera, or sons of the soil, with indigenous groups who make up 11 per cent of the population, not all of whom are Muslims.
Joy, her fiance and her lawyers have all received death threats, and streets protests have been held by Muslim groups including the Islam-based PAS opposition party.
Wednesday's ruling is seen as a landmark that will set the precedent for other cases where former Muslims have applied for legal recognition of their conversion to other faiths, several of which are pending in court.
Sa'adiah Din, a sharia lawyer in Kuala Lumpur, said Wednesday's court decision had determined that the country's civil courts do not have jurisdiction over Malaysian Muslims wishing to renounce their faith.
"The crux of this case is whether the apex court is going to uphold the apex law of Malaysia which is the [federal] constitution that guarantees the freedom of religion," she said before the ruling.
In July last year, the government in effect banned all public discussions on religious freedom amid simmering tensions between Muslim groups and rights activists.
The talks had been organised by a coalition called Article 11, named after the clause in the constitution which guarantees freedom of religion for all Malaysians.
Ivy Josiah, the executive director of Women's Aid Organisation (WAO), said the choice of life partners was an issue close to women's hearts.
"The fact that she wants to be a mother and her biological clock is ticking away is terribly unfair to her or anyone else," she said.
"The court obviously did not uphold human rights principles based on the federal constitution, especially on the question of whether we recognise that one has the freedom to choose one's religion and partner."
Josiah said many people, particularly non-Muslims, were concerned that Malaysia was slipping into an unconstitutional situation.DISSENTING RULINGThe three-judge appeal bench ruled 2-1 against Joy. The dissenting judge, the only non-Muslim on the bench, said the department responsible for issuing identity cards should have complied with Joy's request to remove "Islam" from her card.He accused the National Registration Department of abusing its powers. "In my view, this is tantamount to unequal treatment under the law. She is entitled to an IC where the word Islam does not appear," dissenting judge Richard Malanjum said.Malaysia's Muslim Youth Movement welcomed the ruling, which asserted the overriding jurisdiction of the Islamic or sharia courts in cases centering on a Muslim's faith."We hope that we have seen the last of such attempts," said the movement's president, Yusri Mohamad. "We invite anyone who feels that they are aggrieved or victimized within the current system to choose other, less confrontational and controversial attempts towards change and reform."In practice, sharia courts do not allow Muslims to formally renounce Islam, preferring to send apostates to counseling and, ultimately, fining or jailing them if they do not desist.They often end up in legal limbo, unable to register their new religious affiliations or legally marry non-Muslims. Many keep silent about their choice or emigrate.Lina Joy, 43, was born Azlina Jailani and was brought up as a Muslim, but at the age of 26 decided to become a Christian. She wants to marry her Christian boyfriend, a cook, but she cannot do so while her identity card declares her to me Muslim.In 1999, the registration department allowed her to change the name in her identity card to Lina Joy but the entry for her religion remained "Islam."Malaysia, like neighboring Indonesia, practices a moderate brand of Islam, but Muslims account for only a bare majority of Malaysia's population and are very sensitive to any perceived threats to Islam's special status as the official religion.Malaysia has been under Islamic influence since the 15th century, but big waves of Chinese and Indian immigrants over the last 150 years has dramatically changed its racial and religious make-up. Now, about 40 percent of Malaysians are non-Muslim.
While Lina managed – the second time around – to get the National Registration Department to change her name from Azlina Jailani in 1999, accepting that she had renounced Islam, it refused to remove the word “Islam” from her MyKad. The NRD said it could not do so without a syariah court order certifying she had renounced Islam. As long as the word “Islam” remains on her identity card, Lina cannot marry her Christian boyfriend, a cook, under the Law Reform (Marriage and Divorce) Act 1976. In 2001, she took her case against the NRD director-general, the Government and the Federal Territory Religious Council to the High Court. She lost – Justice Faiza Tamby Chik held that Malays could not renounce Islam because a Malay was defined in the Constitution as “a person who professes the religion of Islam,” adding it was the syariah court that had the jurisdiction in matters related to apostasy. Lina appealed to the Court of Appeal and lost again, this time in a majority decision – Justices Abdul Aziz Mohamed and Arifin Zakaria upheld the decision of the NRD but Justice Gopal Sri Ram said it was null and void. In 2006, she got leave to appeal to the Federal Court and asked the panel comprising Chief Justice Ahmad Fairuz Sheikh Abdul Halim, Chief Judge of Sabah and Sarawak Richard Malanjum and Federal Court Justice Alauddin Mohd Sheriff these questions:
# WAS the NRD entitled to require a person to produce a certificate or a declaration or an order from the syariah court before deleting “Islam” from his or her identity card; While Datuk Cyrus Das appeared for Lina Joy, Senior Federal Counsel Datuk Umi Khaltum Jamid appeared for the NRD director-general and the Government and Sulaiman Abdullah appeared for the religious council.
# DID the NRD correctly construe its powers under the National Registration Regulations 1990 when it imposed the above requirement, which is not expressly provided for in the regulations?; and
# WAS the landmark case Soon Singh vs Perkim Kedah – which held that syariah courts have the authority over the civil courts to hear cases of Muslims renouncing Islam – correctly decided?
Labels: Lina Joy, Religion