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Wednesday May 30, 2007

Crucial decision in Lina Joy case

By SHAILA KOSHY

KUALA LUMPUR: The Federal Court judgment today on the Lina Joy appeal will be a historic one with legal and social repercussions, whichever way the decision goes.

This decision by the apex court will affect one’s constitutional freedom to choose one’s religion as well as who one can marry, especially for those who want to renounce Islam and for people who convert to Islam but later want to revert to their former religion.

The judgment, which was reserved on July 4 last year, will clarify whether conversion is a religious matter or a constitutional matter.

Lina Joy, 42, who was born to a Malay Muslim couple, became a Christian when she was 26.

The sales assistant has taken her case all the way to the Federal Court because unless the government recognises her conversion, she cannot get married under civil law.

While Lina managed – the second time around – to get the National Registration Department to change her name from Azlina Jailani in 1999, accepting that she had renounced Islam, it refused to remove the word “Islam” from her MyKad.

The NRD said it could not do so without a syariah court order certifying she had renounced Islam.

As long as the word “Islam” remains on her identity card, Lina cannot marry her Christian boyfriend, a cook, under the Law Reform (Marriage and Divorce) Act 1976.

In 2001, she took her case against the NRD director-general, the Government and the Federal Territory Religious Council to the High Court.

She lost – Justice Faiza Tamby Chik held that Malays could not renounce Islam because a Malay was defined in the Constitution as “a person who professes the religion of Islam,” adding it was the syariah court that had the jurisdiction in matters related to apostasy.

Lina appealed to the Court of Appeal and lost again, this time in a majority decision – Justices Abdul Aziz Mohamed and Arifin Zakaria upheld the decision of the NRD but Justice Gopal Sri Ram said it was null and void.

In 2006, she got leave to appeal to the Federal Court and asked the panel comprising Chief Justice Ahmad Fairuz Sheikh Abdul Halim, Chief Judge of Sabah and Sarawak Richard Malanjum and Federal Court Justice Alauddin Mohd Sheriff these questions:

  • WAS the NRD entitled to require a person to produce a certificate or a declaration or an order from the syariah court before deleting “Islam” from his or her identity card;

  • DID the NRD correctly construe its powers under the National Registration Regulations 1990 when it imposed the above requirement, which is not expressly provided for in the regulations?; and

  • WAS the landmark case Soon Singh vs Perkim Kedah – which held that syariah courts have the authority over the civil courts to hear cases of Muslims renouncing Islam – correctly decided?

    While Datuk Cyrus Das appeared for Lina Joy, Senior Federal Counsel Datuk Umi Khaltum Jamid appeared for the NRD director-general and the Government and Sulaiman Abdullah appeared for the religious council.

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