The atmosphere was tense in the Federal Court in Putrajaya today, with more than 80 people packed in the public gallery and 300 people milling outside the building.
Some had been waiting outside the courthouse as early as 7am while the three judges only appeared at about 10.40am deliver their judgments.
The majority judgment was first read out in Malay by Chief Justice Ahmad Fairuz Sheikh Abdul Halim who ruled that jurisdiction remained with the syariah court and the appeal was dismissed with costs.
He was then followed by Justice Richard Malanjum who delivered his 57-paged dissenting judgment to the relief of Lina Joy’s counsels.
Thirty minutes later, Justice Alauddin Mohd Sheriff briefly said he concurred with the Ahmad Fairuz and Lina's fate was sealed. The crowd soon broke into murmurs before adjournment was called.
Below are the three questions that were raised before the Federal Court, together with the majority and dissenting views given by the judges of the apex court.
1. Was the National Registration Department 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?;
Majority (Ahmad Fairuz): Yes. The NRD had a right to demand a certificate or a declaration or an order from the syariah court before deleting “Islam” from his or her identity card to avoid labelling someone non-Muslim erroneously when the person has not exited the religion.
This also to prevent indecisive Muslims from exiting the religion just to avoid any punishments under Islamic law.
The decision to exit Islam is a matter for Islamic Law to decide and the NRD needs the syariah courts’ confirmation whether a person is Muslim or not. After this confirmation procedure, NRD has the discretion to remove the word Islam or not.
Dissenting (Malanjum): No. In the Article 8 of the Federal Constitution, all person is equal before the law and are entitled to equal protection of the law. However, Regulation 4(c)(iva) of the National Registration Regulations 1990 (which states that Muslims need to display their religion on the IC) singled Muslims out for additional procedural burdens which are not connected to personal law.
The requirement does not apply to non-Muslims hence it tantamount to unequal treatment. It is in other words discriminatory and unconstitutional and should be struck down.
Insistence by NRD for a certificate of apostasy from the Federal Territory Syariah Court or other Islamic authority is not only illegal but unreasonable. This is because under applicable law, the syariah court in the Federal Territory has no statutory power to adjudicate on the issue of apostasy. Jurisdiction must come under established law and cannot be assumed.
2. 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?
Majority: Yes. The Regulation 4(c)(ix) and (x) National Registration Regulations 1990 which states that a registration officer may request for ‘such other particulars [...] considered necessary’ and ‘necessary to support the accuracy of any particulars submitted’ can be construed that way.
The NRD thus was empowered with these administrative provision to deem (Lina’s) statutory declaration as insufficient for her to remove “Islam” from her IC.
Dissenting: (read with Question 1) No. It is not the function of the NRD to add in further requirement (for Lina to acquire a confirmation certificate from the syariah courts) which have not been stipulated in those Regulations. It is also not the function of the NRD to ensure that the Lina has properly apostasised.
Apostasy involves complex questions of constitutional importance especially when some states in Malaysia has enacted legislation to criminalise it. It is critical importance that the civil superior courts should not decline jurisdiction by merely citing Article 121 (1A) [...] legislation criminalising apostasy or limiting the scope of the provisions of the fundamental liberties as enshrined in the Constitution are constitutional issues in nature which only civil courts have jurisdiction to determine.
3. 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?
Majority: Yes. While, the Federal Court acknowledges that there are no express provisions that syariah courts can decide on the issue of apostasy. However, if non-Muslims are converting into Islam, they have to go through the syariah courts.
Therefore based on the concept necessary implication, if one chooses to exit Islam, (one) must go through the same authorities. I see no flaws in that logic.
This does not conflict with Article 11 that says every ‘person has a right to profess and practise his religion’. Islam is not just a collection of dogmas and rituals but it is a complete way of life which includes private and public matters as well as law, politics, economy, social, culture, moral and judicial issues.
In my view relating to Islam, Article 11 cannot be interpreted so widely as to cancel out all laws that a Muslim is required to execute and abide to. This is because Islam has a special position in the Federal Constitution which is different from other religions. Therefore, Article 11 should not be interpreted as an supreme right; and the right to profess and practice a religion is subjected to the religion that governs the individual.
Dissenting: It is logical that matters concerning apostasy could be read as ‘necessary implied’ in and falling within the jurisdiction of the syariah courts. It does seem inevitable that matters on conversion to Islam comes under the jurisdiction of the syariah courts because the syariah courts are the experts and appropriate to adjudicate.
However, jurisdiction must be express, not implied. In the matters of fundamental rights there must be as far as possible be express authorisation for curtailment of violation of fundamental freedoms. In my view, to rely on implied power as source of jurisdiction would set an unhealthy trend.
I am therefore inclined to follow the reasoning of Soon Singh and my answer is therefore in the negative.
My CONTACT :
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