Lina Joy: Some More Views?

Taking time to read and think over the following press statements from NECF and Bar Council....


National Evangelical Christian Fellowship Malaysia's Response to the Lina Joy Judgement

NECF Malaysia is gravely disappointed by and dissatisfied with the Federal Court’s dismissal of Lina Joy’s appeal.

First of all, the Federal Court’s decision does not uphold the constitutional safeguard of freedom of religion. It is a person’s fundamental right to profess a religion of her own choice free from compulsion or interference by the state or its institutions. Freedom of religion under the Federal Constitution can only be restrained where a person acts contrary to any general law affecting public order, public health or morality. Therefore, it defies all logic that Lina Joy’s freedom to profess and exercise a faith of her own choice can be subject to administrative barrier in the NRD refusing to effect a change to her religious status except upon the order of the Syariah Court. The foundational principle of supremacy of the Constitution over all other laws must be upheld.

NECF Malaysia is also deeply dismayed that the majority decision of the highest court has failed to bring about resolution to the present interfaith issues. By insisting that a person who no longer professes the religion of Islam but has embraced another religion to seek an order of the Syariah Court is equivalent to insisting that a muallaf who has attained the age of majority is obliged to seek the clearance of the religious leaders or authority of his former religion. Mutual respect and tolerance surely cannot be fostered without due regard to the principle of reciprocity.

In affirming the decision of the Court of Appeal, the Federal Court has perpetuated a most unfair and untenable position for Lina Joy and others in a similar dilemma. They now cannot enjoy the full rights as citizens as they are trapped in a religion which they no longer profess and are unable to lawfully marry, have children and live in accordance with the values, precepts and practices of the religion of their choice.

Finally, NECF Malaysia is extremely concerned that the Lina Joy case demonstrates the highest civil court retreating in the face of the relentless onslaught on their position as the third institution in a democratic system of government. In the hierarchy of the judiciary, the Federal Court is vested the judicial power of the Federation.

In this case, the judiciary has unfortunately failed to play its most important role of being both the guardians and interpreters of our Constitution. As an institution above the fray of politics, it is the only institution that can neutrally and without partisan considerations decide the serious issues raised in the Lina Joy case. It is constrained only by true and loyal allegiance to the rule of law and the supremacy of the Constitution, the twin pillars of our Rukunegara.

In the civil court’s abdicating its judicial power in religious matters on the basis of Article 121 (IA) of the Constitution, the Federal Court is placing undue stress and strain on the government to legislate or amend related laws when the due exercise of its judicial power as interpreter of the Constitution would have brought about a fair and just resolution to the issues.

While the country has undergone a significant shift towards “islamization” since the 1980s, the proclamation of Malaysia as an Islamic country in 2001, though a political expediency, has had considerable psychological impact and further polarized Malaysian citizens of different ethnic and religious backgrounds. Religious vigilantism has been heightened among not only the religious ones, but also the bureaucrats. Administrative actions whether in policies or laws are being implemented without scrupulous regard to the requirements of the policies or laws but with the imposition of syariah rules and requirements. For example, non-Muslim police women are to wear Muslim headscarves for the annual parade. The happenings in recent years are indeed grave concerns. Among others, there are religious authorities breaking up families in the name of religion, the custody tussles between a non-Muslim parent and a Muslim parent, and public morality based on the principles of a particular religion.

The Christian community acknowledges the special position of Islam as the State religion for ceremonial purposes, and recognizes the application of Islamic family laws to those professing the religion of Islam in areas outlined in the Federal Constitution. We uphold the sanctity of the Malaysian Constitution as the supreme law of the land, and it is our hope that the Prime Minister, who has publicly declared to be the Prime Minister of all Malaysians, would fulfil his promises to establish a clean, just, harmonious and prosperous nation.

The decision of the Federal Court sets a landmark example of making legal judgement based on religious sentiment and thus inadvertently disregarding the fundamental right of an individual to profess and practice the religion of his or her choice. In the light of this, NECF Malaysia urges all Christian leaders to encourage their congregations to set aside time, both corporately and privately, to pray for our nation as a whole, in the next few weeks and months. Let us bring to God these matters of extreme gravity and urgency, and humbly ask Him to intervene so that truth, righteousness and godliness will prevail in our land.

The very basic structure of our nation, our institutions, our Constitution and the Rukunegara must remain the solid rock on which Malaysia will continue to prosper and stand tall among the community of nations, and on which all Malaysians strive and thrive together as a multiracial, multicultural and multi-religious society. Let us, the concerned citizens of Malaysia, exercise our rights to make a good decision at the right place and at the right platform.

Issued on 1 June 2007



Bar Council: Federal Constitution must remain supreme

The right guaranteed by Article 11 grants every person the freedom to choose, affirm, practise and profess the religion of his/her choice. This freedom of belief is (and must be) an unqualified freedom fully protected by the law. Any law that prevents or in substance curtails the exercise of this freedom must be struck down as being inconsistent with the Federal Constitution, and as being incongruous with such a fundamental freedom. Further, the religion that a person in fact professes must be the religion that that person states he or she professes; since there can be no evidential difficulty in ascertaining this in the case of a living person. Asserting this right, and upholding it, in no way undermines the position of any religion under the Federal Constitution and is consistent with the position of Islam under Article 3.

The Federal Constitution is, and must remain in law, supreme. In the event of any inconsistency or conflict between the provisions of State Enactments and of the Federal Constitution, the latter must prevail. The majority decision in the Lina Joy case pronounced yesterday runs counter to this position. In this decision, the express provisions of the Federal Constitution were made to give way to an interpretation of some form of implied jurisdiction of the Syariah Courts. It further clothed the National Registration Department with powers beyond that which was expressly provided for under the relevant legislation.

The implied jurisdiction approach runs contrary to the legal position that State law must confer on the Syariah Court express jurisdiction to deal with any matters stated in the State List. The majority decision has implied such jurisdiction in the absence of statutory provisions to that effect, which in any event must accord with the Federal Constitution in order to be valid. In short the majority of the Federal Court has also proceeded to “legislate”, (which the Courts are not permitted to do) and in a manner inconsistent with the Federal Constitution.

We support the minority judgment of Justice Dato’ Richard Malanjum HMP, who stated that,
“jurisdiction must be express and not implied. The doctrine of implied powers must be limited to those 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 be express authorization for curtailment or violation of fundamental freedoms. No court or authority should be easily allowed to have implied powers to curtail rights constitutionally granted.” (emphasis ours)
We must further heed the warning of the learned Judge that “… to rely on implied power as a source of jurisdiction would set an unhealthy trend.”

The Judgment further noted that it was unreasonable “to expect the Appellant to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law”. Little comfort is drawn from cases of those who wish to leave or change religion, who have faced criminal sanctions and most recently the case of Revathi in Malacca who was deprived of her liberty and access to her husband and minor child.

It is important that this minority Judgment be given careful consideration.

We are mindful that issues relating to religion will inevitably draw emotive responses. However in a multi-religious society like ours, Malaysians must be prepared to confront these issues maturely and dispassionately, and within the framework of our Federal Constitution as the supreme law of the land.

Finally, we would commend the approach of the late Tun Mohamed Suffian in such cases where he said,
“In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.” (The Constitution of Malaysia - Further Perspectives and Developments).

Ambiga Sreenevasan
President
Malaysian Bar
31 May 2007