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LINA JOY v MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN & ORS FEDERAL COURT

FACTS & COURT DECISION A Malay woman, known as Azalina binti Jailani, applied to the National Registration Department (NRD) to change her name, first to Lina Lelani, then to Lina Joy. Reasons for doing so were she had renounced Islam for Christianity and she intended to marry a Christian. She made 2 attempts to change her name at the NRD since 1997. Ultimately, in October 1999, her application for change of name was approved but her replaced identity card (IC) states that her religion as Islam. Lina Joy made an application to NRD office to remove the statement “Islam” and her original name from her replacement IC. 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.

CONSTITUTIONAL ISSUES 1) Whether NRD is entitled in law to impose as a requirement for deleting the entry of Islam in Lina Joy’s IC that she produce a certificate or a declaration or an order from the Syariah court that she has apotigazed? 2) Whether NRD has correctly construed its power under the National Registration Regulations 1990, in particular reg. 4 and 14, to impose the requirement as stated above when it is not expressly provided for in the Regulations? 3) Whether Soon Singh was rightly decided when it adopted the implied jurisdiction theory propounded in Md Hakim Lee v. Majlis Agama [1997] 3 CLJ Supp 419 in preference to Ng Wan Chan v Majlis Agama (No.2) [1991] 3 MLJ 487 and Lim Chan Seng v Pengarah Jabatan Agama Islam [1996] 3 CLJ 231, which declared that unless an express jurisdiction is conferred on the Syariah Court, the civil courts will retain their jurisdiction.

GROUND OF JUDGEMENT 1) NRD is entitled Ahmad Fairuz FCJ warned that if NRD accepts one’s declaration that he or she has converted out from the religion of Islam, then NRD could run the risk of wrongfully certify a person as non-Muslim who in fact, according to the Islamic laws, he or she is still a Muslim. “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 nonMuslims for purpose of avoiding punishment under the Islamic laws”, said his Lordship. His Lordship was cautious of not to create any chaos in the Muslim society. As such, in his Lordship’s opinion, NRD has made a correct decision that mere statutory declaration by the applicant is not adequate to remove the statement “Islam” from a Muslim’s IC. This is because matter of converting out of the religion of Islam is a matter related to Islamic laws. If the Court rules that the decision made by NRD is unreasonable, this would mean that the Court wants the NRD to accept the facts that under Islamic laws, a Muslim can be regarded as converted out of Islam and is no longer a Muslim when he/she says that he/she has been converted out. When questions arises as to whether such decision would contradict with the notion of freedom of religion as enshrined under Article 11(1) of the Federal Constitution, the Chief Justice did not think so. His Lordship viewed that Article 11 requires Muslim to abide with the practice and rules of Islam, in particular when it comes to the issue of converting out of Islam. The manner in which a person desires to convert out of a religion shall follow the practice, rules and requirements as prescribed by that religion. Only when all requirements for converting out of Islam are followed and the relevant authorities under the Islamic laws have certified the apostasy, Lina Joy is considered a non-Muslim, or a Christian in her case. In other words, a person is prohibited from embracing and converting out of a religion at his/her own wishes. When he/she embraces a religion, common sense will require he/she performs all practices and abide with all rules of that religion. The dissenting judge, Richard Malanjum FJ gave a different reasoning and decision. His Lordship referred to Article 8(2) of the Federal Constitution that prohibits any form of discrimination against citizens unless expressly authorized by the Constitution itself on the ground only on religion, race, descent or place of birth or gender in any law. Henceforth, regulation 4(c)(iva) of the National Registration Regulations 1990 that singled out Muslims to

state his/her religion in IC is an additional procedural burdens and impediments which are not connected to personal laws. Such requirement is not applicable to non-Muslim and therefore, is a differential treatment for Muslim. In his Lordship’s view, it is tantamount to an unequal treatment under the law and has infringed Article 8(1) of the Constitution which proclaimed that “all persons are equal before the law and entitled to the equal protection of the law.” For this reason alone, his Lordship would grant relief sought by Lina Joy. 2) NRC is right Richard Malanjum FJ opined that the NRD had acted beyond the requirements stated in the National Registration Regulations 1990. NRD should consider Lina Joy’s application within the context of the said regulations and should not bring in any extraneous factor. Lina Joy has made a statutory declaration that she had never professed or practiced Islam since birth. In fact, she has embraced Christian and she produced a baptismal certificate to support her declaration. NRD was only empowered to call for such documentary evidence that it considered “necessary to support the accuracy of any particulars submitted”, which is “Kristian” in this case, and Lina Joy has fulfilled such requirement. As such, in his Lordship’s opinion, an order from the Syariah Court does nothing to support the accuracy of Lina Joy’s particular that she is a Christian. His Lordship reminded NRD that it is not the function of NRD to ensure that Lina Joy has properly apostatized. Such matter should be left to the relevant authorities to take up any necessary action. Neither is it the statutory duty of NRD to ensure that a person has properly renounced the Islamic faith in accordance with the requirements by the Islamic authorities. As such, his Lordship held that the decision made by the NRD to request order or certificate of apostasy from the Syariah Court is legally irrelevant, and has acted ultra vires its power under the regulations, besides being irrational and unreasonable and breach of natural justice. The Chief Justice being a Muslim approached the apostasy issue on the ground that, “Islam is not only a collective of dogmas and rituals but also is a complete way of life that consists of all areas of human activities, private or public, legal, politic, economy, social, culture, moral or judiciary. And if examines art. 11(1), 74(2) and item 1 of List 2 of Ninth Schedule, it is clear that Islam comprises, among other, Islamic laws. As such,… if a Muslim wishes to convert out of Islam, he/she should in fact use his/her rights in the context of syariah laws, which has its own jurisprudence on issue of apostasy. If he/she embraced and practiced Islam, certainly it means that he/she has to abide with the Islamic law which has

prescribed the way he/she embraced Islam and also the manner in which he/she convert out of Islam. This is the meaning of embracing and practicing Islam.” In addition, 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, 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.The observation made by the Chief Justice which is first, the issue on conversion of religion is directly related to rights and obligations of Lina Joy as a Muslim before the conversion is made. Second, Article 11(1) should not be interpreted as giving right of freedom without limit. Thirdly, the right to embrace and practice a religion should subject to the principles and practices of that religion.

3) Soon Singh case is rightly decided. Ahmad Fairuz FCJ delivered the majority judgment (with Alauddin Mohd Sheriff FJ concurred) and Richard Malanjum FJ dissenting. Dr. Cyrus Das, counsel for Lina Joy, submitted that Soon Singh case was wrongly decided. The case stated that the Syariah Court’s jurisdiction derived from the State List described in Ninth Schedule of the Constitution, it does not need to be expressly granted by an Act of Legislatives. According to Dr. Cyrus Das, this is in contradiction with the cardinal principle of legislations or rules enacted have to be gazette before the laws come into effect. The effect of Soon Singh case is that laws is assumed to be in existence even though the matter which the laws purported prescribed is just being listed in item 1, State List of Ninth Schedule and the legislators has yet to make laws with respect to the matter. Soon Singh case fails to differentiate between the power to make law on a subject matter and the law enactment itself. The entries in the list are merely heads or fields of legislation, which demarcate the area over which the appropriate legislature can operates. Ahmad Fairuz FCJ did not agree with Dr Cyrus Das’ submission, citing the only reason that since Syariah Court has been clearly given the jurisdiction to adjudge matters relating to embracing Islam, it is only logic and by necessary implication, the Syariah Court has jurisdiction to adjudge matters on conversion out of Islam or apostasy[14] . As such, civil courts should not interfere with cases concerning apostasy.

However, Richard Malanjum FJ disagreed with the Chief Justice’s reasoning. His Lordship referred to 2 eminent judges, first: Hashim Yeop Sani CJ’s view in Dalip Kau case as follow:“The new cl. (1A) of art.121 of the Constitution effective from 10 June 1988 has taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the syariah courts. But that clause does not take away the jurisdiction of the civil court to interpret any written laws of the States enacted for the administration of Muslim law. If there are clear provisions in the State Enactment, the task of the civil court is made easier when it is asked to make a declaration relating to the status of a person whether such person is or is not a Muslim under the Enactment. A clear provision can, for example, be in the form of a provision imposing obligation on the relevant authority to keep and maintain a register of converts who have executed a deed poll renouncing Islam.” And second, Harun Hashim SCJ in Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib as follow:“I am therefore of the opinion that when there is a challenge to jurisdiction, as here, the correct approach is to firstly see whether syariah court has jurisdiction and not whether the state legislature has power to enact the law conferring jurisdiction on the syariah court.” Richard Malanjum FJ concluded that “the doctrine of implied power must be limited to those matters that are incidental to a power already conferred or matters that are necessary for the performance of a legal grant. And in the matters of fundamental rights, there must be as far as possible express authorization for curtailment or violation of fundamental freedoms. No court of authority should be easily allowed to have implied powers to curtail rights constitutionally granted.”

LEGAL PRINCIPLE...