Saturday, 2 June 2007

Must Read: A Sober Response to the Muslim Groups on Lina Joy's Case

by

Haris Ibrahim
( People's Parliament Blog. Read Here)

In a Malaysiakini report entitled ‘Don’t court controversy, say Muslim groups’, it was reported, in relation to the Federal Court decision in Lina Joy’s case, that :

‘Muslim groups and individuals urged for such issues to be resolved in future without recourse to courts of law and before they reach the level of public controversy’.
  • Zaid Kamaruddin of JIM is reported to have said that such cases ’should be addressed primarily through discussions among and between the racial and religious communities’.

  • Yusri Mohamed of ABIM is reported to have said : “We believe the court procedure is an unhealthy one because such issues should be avoided (at the courts) as all confrontational approaches should be shunned” and then urged anyone who is “aggrieved in any way” with any part of the existing arrangement to “choose other, less confrontational and controversial approach towards change and reform”.

  • Let me state from the outset that I am in complete agreement.

    The Lina Joy-like issues should NOT need to be taken to court and should NOT reach the level of public controversy as her case did.

    This begs the question.

    Why did Lina’s case end up before the courts, and

    Why all the controversy?

    Justice Richard Malanjum’s judgment, the full text of which can be downloaded from the Bar website, narrates the relevant facts, beginning at page 4.

    On 21/2/1997 Lina applied to the IC department to change her name to Lina Lelani.

    Her stated reasons: she had embraced Christianity and wished to marry a Christian.

    Pause here to note 2 facts and speculate on 1 probability.

    Fact 1: at this time the law did not require one’s IC to bear the word ‘Islam’ if one was a Muslim. This was only introduced in late 1999.

    Fact 2: as her IC bore a Malay name, the registry of civil marriages would not have allowed Lina to proceed to register a civil marriage, assuming her to be a Muslim.

    Probability: if Lina was not planning to settle down, she would not have sought the change in particulars in her IC. We would probably never have known of her.
    Let’s continue with the facts.

    Her 1997 application to the IC department was rejected on 11/8/1997 without any reason given.
    Lina applied again on 15/3/1999, now asking her name to appear as ‘Lina Joy’. Again her stated reason in her statutory declaration was that she had embraced Christianity.

    Pause just for a moment and observe that surely, up to now, the approach by Lina has been anything but confrontational.

    Controversial, perhaps. If she was to have a chance to be married in law and start a family, an application for change of particulars in her IC was absolutely necessary, given the stance of the registry of civil marriages.

    Lina claims that in July, 1999, she was told by an IC deparment officer that so as not to complicate her application, she should drop ‘change of religion’ as her reason for her ‘change of name’ application.

    To make a long story short, she put in a fresh statutory declaration in August, 1999 stating the requested change of name was simply one of choice.
    On 22/10/1999, Lina was informed by the IC department that her application had been approved and that she should make application for her new IC.

    What the department did not inform Lina was that a change in the regulations in relation to particulars to appear in the ICs of Muslims was underway. ‘Islam’ would appear on the face of such ICs.

    Lina applied for her new IC on 25/10/1999. The new iC issued to Lina bore her new name on the front of the card. On the reverse side, her original name appeared. Also, on the front side, the word ‘Islam’ was imprinted.

    Pause just to note that the change of name did not help Lina’s hope of having a civil registry marriage approved, given the word ‘Islam’ now imprinted on her IC.

    Lina now applied again on 3/1/2000 to the IC department to remove the word ‘Islam’ from her new IC. She was told that she would have to produce an order of the Syariah Court confirming that she had renounced Islam.

    Pause and observe:
    This woman was in and out of the IC department for almost 3 years, in the hope that she could get on with her life.
    Was she confrontational?

    I think she demonstrated a level of patience few of us are capable of.

    Without recourse to courts of law?

    Court procedure is an unhealthy one?

    Zaid and Yusri, please be fair.

    • Who directed her to have recourse to the courts of law, with procedure that is unhealthy?

    • Who told her that her non-confrontational series of applications were insufficient?
    It was not of her own choosing. It was forced upon her.

    Ah, but the IC department said the Syariah Court, not the civil.

    Is that how we must understand it, then? It’s confrontational and controversial if its in the civil courts; not so if its in the Syariah Courts?

    Two problems to this, though. 1 legal, 2. practical.

    Legal Problem

    Lawyers know that the jurisdiction of the Syariah Courts is constitutionally limited to persons ‘professing’ the religion of Islam’.

    Commonsense and case-law will tell you that no-one knows the religion professed by A better than A himself, barring mental deficiencies.

    Lina says she professes the Christian faith. She produced a certificate of baptism. You may contend that she is ‘legally’ still Muslim without a Syariah Court order. Without conceding to the correctness of such a contention, you must surely agree that that is NOT the same as she being a person ‘professing’ the religion of Islam.

    This is the legal difficulty with the direction to get a Syariah Court order.

    Practical Problem

    The practical difficulty was alluded to by Justice Richard Malanjum, at paragraph 70 on page 41 of his written judgment when he pointedly observed: “In some states in Malaysia, apostasy is an offence. Hence, to expect the Appeallant (Lina) to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law is in my view unreasonable for it means the Appellant (Lina) is made to self-incriminate”.

    To illustrate the practical point further. We all recall the Nyonya Tahir case and how it was hailed as the solution to this recurring problem of ‘Muslim or not’?

    We forget that in the Nonya Tahir case, the issue was whether to bury the dead as a Muslim or not, and not as to the religious status of a living person.

    Siti Fatimah ( better known internationally now as Revathi ) also overlooked the significance of the Nonya Tahir case.

    She applied to the Syariah Court in Malacca for a declaration as to her religious status. The order of the Syariah Court: detention at the rehabilitation centre in Ulu Yam.

    Is this the less confrontational and controversial approach that is advocated?

    Next post - why all the controversy?

    2 comments:

    Ahmad said...

    Thank you, fellow Malay brother for such a fair analysis and crystal clear writing. As an ordinary layman, in reading the compassionate judgment of the courageous sole dissenting judge Richard, I also came to many of the conclusions you've mentioned. Thank you for reinforcing my conviction.

    Mr. Justice Richard is the only guy with guts and I admire him for his fairness and courage in his judgement.

    I will only respect the government when Justice Richard is selected as a Supreme Court judge and we can have an impartial court.

    Cheeweng said...

    Thank you for your edifying write-up. The heaviness of my heart is lightened somewhat by your fair delivery.

    I attended the "Malaysia after Lina Joy: A Dialogue" organised by the DAP yesterday and felt very uneasy by the emotional outbursts of the audience. I'm not a DAP nor BN supporter. In the past I voted on the notion of check and balance so that Malaysians can live together in peace and prosper together. After attending this dialogue I fear for the worse.

    Those Muslims who feel threatened by their own perceptions can only be solved by their Muslim brothers who can educate them better to be less emotional and more rational. This group of people will not listen to non-Muslims.

    In a way, I'm heartened that because of this Lina Joy case, I came across many enlightened Muslims like you who does feel compassion for those whose faith is different from yours.