Lina Joy's apostasy case Freedom of religion as enshrined in Article 11 should not be interpreted in isolation from the larger context of the role of Islam in the formation of the country's Constitution, the Federal Court was told today.

Article 11 should not be interpreted along the lines of the constitutions of such countries as the United States, United Kingdom or India, which are predominantly secular, said Sulaiman Abdullah, who is representing the Federal Territory Religious Council (MAIWP).

Malaysia's Federal Constitution is "sui generis (of its own kind) and totally unique", said Sulaiman in his submissions to justices Ahmad Fairuz Sheikh Abdul Halim, Alauddin Sheriff and Richard Malanjum.

"No assistance can be derived from the provisions relating to religion found in an expressly secular constitution such as India or from constitutional cases in Australia and Canada, or elsewhere in the Commonwealth," he told the three-member panel in the country's highest court.

Sulaiman was submitting at the hearing of an appeal by Christian convert Lina Joy, who had successfully applied in 1998 to change her name but failed to have the entry 'Islam' deleted from her all-important identity card.

The National Registration Department (NRD) had declined to change her religious status, stating that it had no jurisdiction to do so without proper advice from the syariah court or other Islamic religious authority.

Arguing that the NRD was right and entitled to require such a "certificate, declaration or order", Sulaiman said Muslims could not enter and leave Islam as freely as the adherents of other religions.

History of Islamic laws

Having recounted the development of Islamic laws and the syariah court system before it was halted by the arrival of and colonisation by the Portuguese and British, Sulaiman noted that Islam had been granted by the Constitution certain powers to govern the affairs of Muslims.

In 1988, the development of the Islamic court system culminated in the formal separation of jurisdictions of the civil and syariah courts by the inclusion of Article 121 (1A) of the Constitution.

Muslim affairs, he said, included the issues of conversion and apostasy of members of the Muslim community. He cited, among others, List II of the 9th Schedule of the Federal Constitution and the Administration of Islamic Law (Federal Territories) Act 1994 to support his argument..

"In the case of a Muslim who wishes to renounce or leave the religion of Islam, his other rights and obligations as a Muslim will also be affected," said Sulaiman.

He added that unlike the other religions in the country, conversions and apostasy had direct and "institutional implications" which necessitate the role of such Islamic authorities as MAIWP and the syariah courts to determine what would otherwise be considered "personal."

Sulaiman also mentioned zakat (obligatory income tax) and inheritance as examples of matters that are directly affected by a person's conversion or apostasy.

"Therefore, the appellant as a Muslim at all material times who purportedly wished to leave or renounce the religion of Islam must resolve the issue of renunciation of Islam with the authorities, which protect and preserve the affairs and interests of Muslims first and foremost, before raising the issue of constitution with this honourable court," he said.

Appellant's own folly

Addressing the arguments of groups that insisted on Joy's right to be declared an adherent of the religion of her choice, Sulaiman said the "deprivation of the appellant's rights was not the issue".

"It is the appellant's own folly for not having pursued her remedies in the forum (syariah court) ordained by the Federal Constitution all this while," he said.

"The Federal Constitution is unique in according parallel status between the syariah courts and the civil courts," said Sulaiman further in reference to Article 121 (1A).

"When an issue of this nature arises for adjudication, it follows that the only adjudicating body to determine such issues is the syariah court," he added.

Later, Pawancheek Merican, who was holding a watching brief for the Association of Muslim Lawyers, said Islam was "not just a question of faith", but entails a "system of rules and laws that have to be taken into consideration".

Though there is admittedly a growing debate "between modernist and conservative" scholars on the issue of apostasy, the forum of that debate should be in the syariah courts, not the civil court, argued Pawancheek.

Three key issues

Joy, an ethnic Malay, was originally known as Azlina Jailani but changed her name when she converted in 1998.

The National Registration Department granted a card with her new name a year later but refused to remove her religion, stated as Islam, saying it needed permission from a syariah court.

Her attempt to quash and overturn this administrative decision at the High Court failed when the court on April 18, 2001 ruled that she could not renounce Islam and the issue should be decided by the Syariah Court.

She then took the matter to the Court of Appeal which upheld the lower court's decision in a majority 2-1 decision.

The three main issues on which the Federal Court has to decide are:

  • if the NRD is legally entitled to impose as a requirement a certificate or a declaration or an order from the Syariah Court before deleting the entry of 'Islam' form the applicants (Joy's) identity card;

  • if the NRD has correctly construed its powers under the National Registration Regulations 1990 to impose the above requirement when it is not expressly provided for in the regulations and;

  • whether the landmark case Soon Singh vs Perkim Kedah - which declared that the civil courts will retain their jurisdiction unless an express jurisdiction is conferred to Syariah Court - was rightly decided.

The hearing continues tomorrow.