PEX COURT UPHOLDS SUPREMACY OF SHARIA FOR MUSLIMS

On Wednesday 30 May 2007, a three-judge Federal Court panel ruled by a 2-1 majority in the case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan and 2 Ors that only an Islamic Shariah Court has the authority to confirm a Muslim's apostasy and authorise the removal the word 'Islam' from the religion category on their government identity card.

The ruling was based on the 1988 amendment to Malaysia's Constitution which dictates that once a person is legally recognised as a Muslim all their religious legal issues are to be dealt with by the Sharia courts, not the civil courts.

The 1988 constitutional amendment, Article 121 (1A), states that civil courts have no jurisdiction on any matter which falls within the jurisdiction of the Syariah (Sharia, Islamic Law) courts. This amendment was introduced to resolve the conflicts between decisions of civil and syariah courts. The intention of the parliament was to oust the jurisdiction of the civil courts from hearing any matter which is within the purview of the Syariah courts. Before the enactment of clause 1A, decisions of the Syariah courts could be reviewed by the High Courts. According to the then Prime Minister, Dr Mahathir, Muslims were not happy with civil courts overriding the decisions of syariah courts.

The question then arose: does apostasy (conversion out of Islam) fall within the jurisdiction of the Syariah Courts? This question was put to the courts in1999 in the case of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah (1999) 1 MLJ 489. The Singapore Law Review reports: "The Federal Court considered whether the Syariah Courts' jurisdiction could be implied from other provisions in statutes relating to Syariah Courts. The appellant in this case was a Sikh and he converted to Islam when he was a minor. Upon reaching 21 years old, he renounced Islam and executed deed poll declaring that he was a Sikh. Before the High Court, he sought for a declaration that he was no longer a Muslim.

Respondent contended that the High Court had no jurisdiction since the matter came under the Syariah Court's jurisdiction. The High Court agreed with Respondent and dismissed the application. On appeal, the Federal Court pointed out that all State Enactments and Federal Territories Act contain express provisions vesting the Syariah Courts with jurisdiction to deal with conversion to Islam. Relying on Craies on Statute Law 7th edition page 112, Albon v Pyke (1842) 4 M & G 421,424, Bennion's Statutory Interpretation 2nd Edition page 362, the Federal Court held that: 'when jurisdiction is expressly conferred on the Syariah Courts to adjudicate on matters relating to conversion to Islam … it is logical that matters concerning conversion out of Islam (apostasy) could be read as necessarily implied in and falling within the jurisdiction of the Syariah Courts.'" (Link 1)

In other words the court ruled that if the matter of conversion into Islam falls under the jurisdiction of the Sharia courts, then it is "logical" and may be "implied" that conversion out of Islam also falls under the jurisdiction of the Sharia courts.This ruling was widely viewed as flawed. Not only is it inconsistent with the law that states that if you are leaving a non-Muslim religion for Islam, then the Syariah Court (not the religion you are leaving) has jurisdiction, it is also a violation of the fundamental right of religious liberty which maintains that no third party should have jurisdiction over a person's faith.

Another outcome of this case was the government's decision to make it mandatory that all Muslims have "Islam" on their identity card.

The case of Lina Joy (a Malay convert to Christianity) v Majlis Agama Islam Wilayah Persekutuan and 2 Ors hinged on a decision by the National Registration Department (NRD) to refuse Lina Joy's request to remove the word "Islam" from her identity card. In October 1999 the NRD had consented to changing Lina's name on her card from Azlina Jailani to Lina Joy. However when her new card was issued under the new regulations which came into force on 1 October 1999, it had her birth religion "Islam" on it, even though Lina had stated on her application form that she is a Christian. (Source: Justice Richard Malanjum's Judgment.)

The NRD contested that Lina needed a Syariah court order certifying her renunciation of Islam before it could make the change. In 2001 Lina filed a suit against the NRD Director-General, the government and the Federal Territory Religious Council.

After losing at both the High Court and Court of Appeal, the matter finally came to the Federal Court with these three questions:

1) 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;

2) 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;

3) 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?

The Star reported on 31 May 2007: "Chief Justice Ahmad Fairuz Sheikh Abdul Halim has ruled that the National Registration Department had reasonably required Lina Joy to get a certificate of apostasy from the Syariah Court.

This would allow the court to proceed to make a deletion (of the word 'Islam') from her identity card.

"The top judge also ruled that since the Syariah Court had the jurisdiction over cases involving conversion to Islam, it should, by implication, have the power to decide on apostasy matters.

"'I do not see any defect in the 1999 Federal Court judgment in the case of Soon Singh (which decided on the same grounds and which led to the provision for Muslims to state their religion in their identity card).

"'To say that she is not under the jurisdiction of the Syariah Court – because she no longer professes Islam – is not appropriate,' said Ahmad Fairuz in his 41-page judgment. He added that the way one leaves a religion is set by the religion itself.

"'No one is stopping her from marrying. She is merely required to fulfil certain obligations, for the Islamic authorities to confirm her apostasy, before she embraces Christianity.

"'In other words, one cannot embrace or leave a religion according to one's whims and fancies.'" (Link 2)

According to Associated Press writer Eileen Ng, "Judge Richard Malanjum, the only non-Muslim on the panel, sided with Joy, saying it was 'unreasonable' to ask her to turn to the Shariah Court because she could face criminal prosecution there. Apostasy is a crime punishable by fines and jail sentences.

Offenders are often sent to prison-like rehabilitation centres." (Link 3)

The judgments can be found at the website of the Malaysian Bar:

http://www.malaysianbar.org.my/component/option,com_docman/task,cat_view/gid,380/Itemid,120/