FACULTY OF SYARIAH AND LAW

SEMESTER 7 (2015/2016)

LAB 2013

ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA

TLB 18

CASE REVIEW

LINA JOY v MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN & ORS

[2004] 2 MLJ 119

NAME OF STUDENT:

SITI NUR JANNAH BT HASANUDDIN

1122051

NAME OF LECTERUR:

MADAM NAWAL BT SHOLEHUDDIN

FACTS

The plaintiff was a Muslim by birth. Her parents were also Muslims by birth. They were all Malays. She was brought up by her Muslim parents and practised the religion of Islam until she applied to change her name from Azlina Bte Jailani to Lina Lelani, on 21 February 1997, at the National Registration Department (NRD). She intended to marry a person who is Christian.

However, the application was rejected on 15 March 1997. The plaintiff applied again to NRD to change her name from Azlina bte Jailani to Lina Joy and made another application to remove the word ‘Islam’ from the plaintiff’s new identity card. NRD refused her application on the ground that it was incomplete without an order of the Syariah Court to the effect that she had renounced Islam. Lina Joy then sought legal remedies. 

ISSUES

a) Whether the plaintiff freedom to profess a religion of her choice under art 11(1) of the

FC was violated?

b) Whether Article 11(1) should be read in isolation?

c) Whether Syariah Criminal Offences (Federal Territories) Act 1997 and other related

State Enactments were not applicable to the plaintiff who had (purportedly) professed

the religion of Christianity?

d) Whether s.2 of the Administration of Islamic Law (Federal Territories) Act 1993 (‘the

1993 Act’) and other related State Enactments were null and void as they were

inconsistent with art 11(1) of the FC?

HELD & REASON OF JUDGMENT

Dismissing the application:

a) Article 11 of the FC speaks of freedom of religion but this did not mean that the plaintiff was to be given the freedom of choice to profess and practice the religion of her choice. The application of the first part of art 11(1) which provides that every person has the right to profess and practice his religion, is subject to the second part of art 11(1), and also to art 11(4) and art 11(5) of the FC because the issue of change of a person’s religion is directly connected to the rights and obligations of that person as a Muslim and this is an affair of Muslim falling under the first defendant’s jurisdiction provided by art 11(3)(a) of the FC read with s 7(1) of the 1993 Act.

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b) Article 11(1) should not be read in isolation . It must be construed harmoniously with the other relevant provisions on Islam, namely, art 3(1), 12(2), 74(2), 121(1A) and 160 (where a Malay is defined as a person who professes the religion of Islam). The declaration in art 3(1) has the consequence of qualifying a Muslim’s absolute right to murtad in art 11(1) by requiring the compliance to the relevant syariah laws on apostasy enacted pursuant to art 74 List II

c) Since the plaintiff was still a Muslim, art 121(1A) provides that the finality of her decision to convert out of Islam was within the competency of a Syariah Court, and not the civil courts.The plaintiff cannot hide behind the provision of art 11(1) of the FC without first settling the issue of renunciation of her religion (Islam) with the religious authority which has the right to manage its own religious affairs under art 11(3)(a) of the FC

d) There was no inconsistency between art 11(1) and s 2 of the 1993 Act Which it provides the definition of a Muslim. Section 2 of the 1993 Act was enacted pursuant to art 74(2) of the FC. The enabling article 74(2) confers wide jurisdiction to the Federal Government to enact Syariah laws to the same extent as provided in item 1 in the State list (see para 6(e) list 1, Ninth Schedule). Section 2 of the 1993 Act is directly designed for the purpose of implementing Syariah laws on the Muslim and it is not in any way designed to curtail the freedom of religion under art 11(1). From the definition in s 2 of the 1993 Act, the plaintiff is still a Muslim until there is a declaration to the contrary by the Syariah Court

COMMENTARY

Right to religious freedom is clearly provided under art 11(1) of the Federal Constitution. It seems to be applicable to every person. However, the application of the provision thus far is still shrouded on mystery and contradictions, especially when it involves the Muslims right to freedom of religion.

The meaning freedom of religion given to Islam is different from the meaning freedom of religion given to others religion. It has several restrictions which illustrated that religious freedom in Malaysia is not precisely equal. But, this provision still remained in the Federal Constitution because to maintain social stability1.

Even though, the provision regarding freedom of religion is stated as one of the fundamental liberties by UDHR, it should be noted that UDHR declaration is not binding upon Malaysia2. Malaysia has it owns constitution which is Federal constitution. Hence, the provision should be interpreted in a way that generous and harmonious depending on the multi-racial country circumstances.

1 Andrew Harding, Law, Government and the Constitution inMalaysia, supra n.6, p. 2022 Section 4(4) of the Human Rights Commission Act 1999 clearly provides that the application of any external laws must be filtered through the Federal Constitution.

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Besides that, the courts emphasized that 'A person as long as he or she is Malay and by definition under art 160(2) is, a Malay person cannot renounce his or her religion at all'. A Malay under art 160(2) remains in the Islamic faith until his or her dying days. The said Malay cannot renounce his or her religion through a deed poll and seek a declaration by virtue of art 11 of the Malaysian Constitution on freedom of religion as art 11 does not provide freedom of choice of religion. Even if one is non-Malay and embraces Islam and becomes a Muslim convert (Mualaf) and later decides to leave the Islamic faith, he or she is still required to report and see the relevant State Islamic authority who will decide on her renunciation of Islam’.

This quotes speaks about Islam is the main dominant religion in Malaysia. Islam has a special position in Malaysia. It grants every person the freedom to profess and practise his religion. However, in respect of an act of conversion out of Islam, it must be subject to the relevant Shariah laws to be determined by the Shariah courts.

Freedom of religion under art 11(1) must be read with art 3(1) which places Islam in a special position as the main dominant religion of the Federation, with the Federation duty bound to protect, defend and promote Islam.

“Taking such stand would elevate the fear that those who born and taught as Muslims but willfully or unintentionally disregard the practice of Islam, will declare themselves as non-Muslims for purpose of avoiding punishment under the Islamic laws”3. It means that the Chief Justice took into account the public interest in reaching his conclusion, in particular the Muslim society. If the Court permits Muslim to convert out of Islam at his/her own wishes and fancies, the Muslim society would be in chaos”.

In the circumstance above, consideration of public interests override individual interest, i.e. Lina Joy’s right to convert out of Islam merely by her own declaration within going through the process prescribed under the Islamic laws. This decision is in line with the Islamic law (siyasah syariyyah) principle under maslahah amah or saddu zarai’ or da’rul mafasid muqaddam ‘ala jalbil masalih, which means avoiding harm is more important than taking the benefit.

As was adjudicated in the High Court, the Court of Appeal and the Federal Court, the case of Lina Joy is primarily administrative in nature. It essentially deals with the question of conversion procedure - whether or not a Muslim has to obtain a decree from the Syariah Court confirming ones apostasy.

In my opinion, the law is simple and straightforward. There is no need to complicate matters by manipulating the issues to the extent of threatening national unity. If one is not happy with any decision of any subordinate Syariah Court, then one may appeal. But some seem to already admit defeat without even trying, i.e., where Lina Joy did not even refer to Syariah court. It can be said as an excuse to avoid the Islamic criminal sanction as apostasy is a crime under several states.

3 Ahmad Fairuz FCJ, (2007) 4 MLJ 585

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It should be noted that some of the academician belief that, we have to honour the life given by Allah to Lina Joy and grant her the freedom to practice her faith. It is stipulated in the Quran, "To you your religion, and to me my religion4’ and "Let there be no compulsion in religion5”.

They further spelt out that freedom of faith means not only freedom to choose a faith, but also freedom to change one's faith. While Islam regards apostasy a grave sin, but that is between God and the respective individual. When it is a matter of simple apostasy, i.e., merely changing one's faith without any aggression or treason against an Islamic State or Muslims, the principle of freedom of faith in Islam requires that such apostate must be allowed to exercise their God-given freedom.

This view can be rebutted by administration of Islamic law in Malaysia. When it comes to matters pertaining to Islamic law, they must be referred to the Syariah Court as it is the main body entrusted with administering justice according to the confines of Islam. Conversion out of Islam is part of Islamic law, and therefore the Syariah Court is the only proper platform to resolve the issue. It is hard to believe that some people simply refuse to deal with the Syariah Court assuming that justice will be denied.

Whereas some of activists belief that the ruling against Joy could strengthen non-Muslims' fears that they are discriminated against in Muslim-majority Malaysia, which has substantial Christian, Buddhist and Hindu minorities. In fact, some of them even labelled the judge as biased in the verdict.

This cannot be denied that the case gives negative impact to the non-Muslim practising in Malaysia. As from the layman perspective, when a person reverts to Islam, latter become a Malay and profess Islam, there is no turning point as they view that Islam denied the right to apostasy which unlike other religion.

As a conclusion, Lina joy’s case is the first case in Malaysia that makes a clear and bold statement about the position of Islam and the right to freedom of religion. Art 11(1) gives a person the right to profess a religion of his choice but if a Muslim wishes to convert out of Islam only the Shariah Court is competent to determine the matter.

4 Quran : 106:65 Quran: 2:256

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