Implications of the Federal Court decision in the Lina Joy's case
1. Azlina Binti Jailani was baptized into the Christian faith on May 11, 1998. She wanted a change of name to reflect her new status.
2. For this purpose, she applied to the National Registration Department ("NRD") to change her name in her identity card ("ID") to Lina Joy. On October 20, 1999, she succeeded in that. The real objective however failed. This was because the NRD whilst allowing the change of name inserted "Islam" as her religion in the ID.
3. In January 2000, Lina applied to the NRD for deletion of "Islam" in her ID. Her application was rejected by the NRD. They insisted that she must first produce a certificate or order from the Islamic Religious Authority or the Syariah Court, certifying that she was no longer a Muslim ("the apostatisation order"). The NRD officers acted on a departmental policy. No such requirement exists in the National Registration Regulations ("the NRD Regulations").
4. Lina challenged the NRD's policy in court. She contended firstly that there was no such requirement in the NRD Regulations. Secondly, the NRD's policy is unconstitutional.
The Federal Court decision
5. On May 30, 2007, the Federal Court by a majority of 2 to 1 rejected Lina's appeal. It sanctioned the NRD's policy.
6. The majority judgment held:-
"Islam is not only a gathering of dogmas and rituals but it is also a complete way of life which covers all human activities, private or public, legislation, politic, economic; social, customs, moral or judicial. A perusal on Article 11(1), 74(2) and item 1 in list 2 of Schedule 9 of the Federal Constitution, it is evident that Islam covers inter alia the Islamic law. Therefore, as submitted by the learned counsel from the Malaysian Muslim Lawyers Association who are watching brief, if a Muslim wishes to leave the religion of Islam, he actually uses his right under the context of the Syariah law which has its own jurisprudence on the issue of apostasy. If a person professes and practices Islam, it would definitely mean that he must comply with the Islamic law which has prescribed the way to embrace Islam and converting out of Islam."
In short, the majority judgment held that a Muslim who wishes to renounce Islam must go to the Syariah Court and obtained an apostatisation order.
7. Leaving aside the correctness of the majority decision, what are the realities that a Muslim ("the applicant") faces if she approaches the Syariah Court for an apostatisation order?
8. To begin with, such an applicant will be hard pressed to find a lawyer who will represent her. Not any lawyer can appear in the Syariah Court. Only a lawyer who has qualification in Syariah Law and is registered to practice as a Syariah lawyer in a particular state can appear before the Syariah Court of that particular state. There are only a handful of non-muslims with such qualification. Invariably, Muslim Syariah lawyers are reluctant to take up such cases. The applicant will have to fend for herself.
9. The suggestion that a person who wishes to renounce Islam should approach the Syariah Court, an institution created under the Islamic Enactment whose foremost objective is the promotion, advancement and administration of Islamic affairs, is not appealing. In reality, the prospects are intimidating considering that there is a general belief that apostatisation is a sin and the muslim community has an obligation to prevent its adherent from falling into sin. There is a strong abhorrence amongst the muslim community against someone who apostatises.
10. Apostasy is a contentious issue in the muslim world evoking strong passion and emotion. The debate on this issue has been raging over many centuries. Whatever the outcome of that on going controversy, the Islamic Enactments of Sabah, Melaka, Pahang and Kelantan make it clear that apostasy is an offence. This was noted by Malanjum FCJ, the dissenting judge in the Lina Joy case. He said:
"In some states in Malaysia, apostasy is a criminal offence. Hence, to expect the appellant (Lina) to apply for a certificate of apostasy when to do so would likely expose her to a range of offence under Islamic law is in my view unreasonable?"
The learned judge goes on to say:-
"The NRD insistence is unreasonable for it requires an act that is almost impossible to perform."
11. In some states, the Syariah Court is empowered to send the applicant to a 'rehabilitation centre'. When a person is sent to a 'rehabilitation centre', he or she will be separated from their families. The pain of separation requires no elaboration. Revathi who is currently in detention is a case in point. The detention will also inevitably have an adverse effect on the person's employment or livelihood.
12. There is no official statistics of the number of persons who have applied and succeeded in obtaining an apostatisation order under the state Islamic Enactments currently in force.
13. Where the Syariah Courts are empowered under certain state Islamic Enactments to grant an apostatisation order, that power is an adjudicatory one. This means it may refuse to grant such an order. What then is the meaning of the constitutional guarantee under Article 11(1)?
14. The majority judgment of the Federal Court has rendered the constitutional guarantee of freedom of religion in Article 11(1) illusory.
What is at stake?
15. The majority judgment has in effect sanctioned departmental policy of 'Islamic compliance'.
16. In a subtle way it appears to endorse a new thinking emerging over the last few years that propounds the theory that Article 3 (which provides that Islam is the religion of the Federation) overrides all other provisions of the Constitution including Article 11. This is the revisionist theory. With the majority judgment, it has now gained a foot hold if not a strong hold in our constitutional jurisprudence. It calls for an approach to look at the Constitution from an Islamic basis, away from what is labelled as the "outmoded British approach". This is contrary to the Constitution and our constitutional history.
Our Constitutional history
17. The Federal Constitution is a product of the Reid Report and the White Paper that followed it.
18. The Reid Report was based on a comprehensive survey of proposals and viewpoints from all relevant sectors of the then Malayan society. It received in total 131 memoranda as proposals and held 118 meetings throughout Malaya. It visited in turn each state to hold discussions with a variety of persons before submitting its Report.
19. Two Supreme Court cases have looked into the pre and post Independence position of Malaysia (see Che Omar bin Che Soh v Public Prosecutor  2 MLJ 55 and Re Susie Teoh's case  2 MLJ 300). In particular in Re Susie Teoh there was recognition of the comprehensive work done by the Reid Report. The Court said:-
"The Malaysian Constitution was not a product of overnight thought but the brainchild of constitutional and administrative experts from UK, Australia, India and West Pakistan, known commonly as the Reid Commission... Prior to the finding of the Commission, there were negotiations, discussion and consensus between the British government, the Malay Rulers and the Alliance party representing various racial and religious groups."
On religion, the Supreme Court specifically reproduced para 169 of the Reid Report which mentions the memoranda of the Alliance Party requesting for the insertion of Islam as the religion of Malaya. Para 169 stated as follows:-
"We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision was inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims. In the memorandum submitted by the Alliance it was stated:
'the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals...."
20. Salleh Abas LP in Che Omar's case concluded that, notwithstanding the history of Islam in Malaya, the framers of the Constitution had intended that Malayan law be secular law. His conclusion is that Article 3 does not make Islam the governing law. His conclusion that it was for ceremonial purposes is evidently taken from the Alliance Party memoranda to the Reid Commission (see the 1962 article by Tun Suffian titled "The Relationship between Islam and the State in Malaya" [The Research Quarterly of Malaysian Sociological Research Institute]; see also Prof Ahmad Ibrahim "The Position of Islam in the Constitution).
21. Salleh Abas LP went on to make this important observation:-
"If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such a provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter."
22. It reflects the observation made by Tun Suffian in his article above:-
"This is in contrast to the position in Pakistan which is constitutionally an "Islamic Republic", not a secular State, and expressly provides in its Constitution that any law enacted which is inconsistent with Muslim law shall be void. No such far-reaching provision has been imported into the Federal Constitution."
23. The revisionists ignore two vital provisions of the Federal Constitution. The first is Article 4 (1) that declares the Constitution as the supreme law of the Federation. The second is Article 3 (4) which carries the non-derogation clause declaring "Nothing in this Article derogates from any other provision of this Constitution". It does not leave much to the imagination that "any other provision of this Constitution" in Article 3 (4) would include Article 11.
24. This observation reflects the assurance given in the Reid Report and the Hamid Dissent. Please note the words used in the Dissent that it "will not impose any disability on non-Muslims" and "will not prevent the state from being a secular State", and further that the provision "is innocuous".
25. The greatness of the Malaysian Constitutional experiment is the constitutional guarantee that every Malaysian citizen regardless of race or religion will be treated equally before the law. Hence, the assurance in Article 8 (1) "all persons are equal before the law and are entitled to equal protection of the law" which, read together with Article 4 (1) on the supremacy of the Constitution, assures all Malaysians that this guarantee prevails and enures to their protection over all tenets from whatever source be they social, religious or cultural.
26. This is the uniqueness and richness of the Malaysian Constitutional experiment that the multi-racial and multi-religious people of Malaysia exist in harmony under the guarantees given by a single common document called the Federal Constitution. The quid pro quo upon which the Federal Constitution was founded is often called the social contract between the multi-racial and multi-religious people of Malaysia. As His Royal Highness Raja Azlan Shah said in December 2003:-
"We then embarked on a journey as a constitutional democracy with the full realization that we were a multi-racial people with different languages, cultures and religion. Our inherent differences had to be accommodated into a constitutional framework that recognized the traditional feature of Malay society, with the Sultanate system at the apex as a distinct feature of the Malaysian Constitution.
Thus there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminster model and built into it the traditional features of Malay society.
... ... ...
It is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm to which all other laws are subject. This essential feature of the Federal Constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever enures to the Malaysian people as a whole for their benefit."
27. The Lina Joy case involves high constitutional issues. Yet, it will be noted that the majority judgment failed crucially to consider the constitutional history of our Constitution, nor referred to Article 3(4) of the Constitution nor deliberated on the state Islamic Enactments criminalising those declaring themselves to be apostate.
28. The majority judgment in the Lina Joy's case treated the apostasy issue as a religious matter simpliciter rather than a constitutional matter. In doing so the guarantee of freedom of religion enshrined under the Constitution was denied and the civil court's jurisdiction removed. The revisionist has been increasingly vocal in demanding more prominence and primacy to be given to the Syariah Court over the Civil court. The ultimate agenda of this demand is a matter of grave concern to non muslims. There is a feeling of disquiet amongst non-muslims that the constitutional "goal post" has been shifted.
29. In closing, it is instructive to quote the words of Ms. Angela Wu, the international director of Becket Fund for Religious Liberty, a body based in Washington. She said, 'Wednesday's ruling is a step towards an Islamic state in which group religious sentiment trumps the most fundamental human right, the right without which other rights are meaningless, the right to follow one's conscience. Let us hope Malaysia can turn back in time'.