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Damian S. L. Yeo & L. C. Goh (DSLY)
No. 2007, Lorong Sidang Omar, off Jalan Penghulu Abbas, Bukit Baru, Hang Tuah Jaya, 75100 Melaka

Tel : 06-2347011
& 06-2347012
Fax: 06-2347022

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Wednesday, May 30, 2007

Judgment of Lina Joy at a glance...taken from Malaysiakini

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.

12 comments:

Guardian said...

No suprises here,this is the expected result when you have muslim judges delivering judgment on anything pertaining to Islam, they have to deliver their verdict based on their own
Muslim conscience..in short, they can't go against their own religous convictions. My prayers are with Lina.

samp said...

My wife has a few friends who married to foreigners. Two of them plan to go back to their husband's country of origin (one from New Zealand and another from Sweden) once their kids reach the schooling age.

The reason? Because those countries treat their citizens fairly, as long as you hold their citizenship, your kids get free education up to university level, no privileges, no quota to certain group of people and kids all get chance to compete fairly in their country.

One more reason, no restrictions in your businesses, conversation contents, job applications, home purchasing plans, studies, etc - as long as you are the citizen!

Well, every time after talking to them, I felt very down. I am the citizen of this country, but why I couldn't get as the same as other citizen get in their country?

My kids have no equal chance to get into a university due to the quota system (although some says that we are implementing meritocracy system but I don't think so), I don't get 15% off for the house that I am purchasing, there are certain businesses that are not meant for me in my own motherland.

My wife and I plan to emigrate after we have got enough money (and some of my friends are also planning to do so), but is emigration a good choice?

I suddenly remember of an article in a Chinese newspaper many months ago, written by a disappointed university applicant who scored flying colors in her exam but didn't get admitted to any university in this land, one of her sentences read like this "I love my country, but does my country love me?"

yoy said...

Malaysia is be a Taliban state! Teaching kids to kill people, preaching hates and angers, chasing away investors with their seditious, racist, insensitive, incendiary, extremist utterances, unfair to non-malays.

Enough is enough!

To all the people out there, Please vote for a change! Vote the opposition! Vote the DAP!

reek said...

Malaysia is definitely going the way of Fiji and Burma in due course.

No willingness to open up politically and culturally, no urgency to excel and no hunger pang on the part of malays, Malaysia I reckon may take many generations to wear out like Burmese, who is very much the same as the malay genetically and culturally.

"As these public institutions are essentially malays, they also bring shame and dishonor to own race."

Much as I would like to refrain from saying this but it is a fact that the malays are viewed in poor light (to put it mildly) by the general non-malay population.

The behavior of their political masters and the civil servants gives credence to this view.

How sad, the race that claims to own this land, the race that claims to be defenders of its religion, is contributing immensely to its degeneration and eventual destruction.

The malays are viewed in a poor light not only by the non-malays but by the malays themselves.

And this is a fact. See how cocky and arrogant the moron from Jerai is. He talks as if he owns the Malaysia country when in fact he is just a water boy running errands for his Umno masters.

Most of them cannot argue their points and when push comes to shove would draw their parang or keris for effect. How naive.

Good luck all Malaysians!

coolooc said...

That is why malay is the most arrogant, corrupted, racist and terrorist race in the world. To the world population, malay is only a minority. And yet, still keep on talking about Islam, Muslim, Syariah law. Shame on you.

ruyom said...

You do the right thing emigrate and I think you will never regret.

The trouble with the management of this country is that they always do not know what they want. It has been put in a kind of a trial and error method of management for so long with the one man said something and the rest just echoed.

We can't afford to dilly daddy the whole game, as the precious time for our kids development is limited.

I faced the same dilemma fifteen years ago when the confusion attained to its peak. The Bahasa Melayu was greatly emphasized in all subjects (I have no grudge with national language), 3M (which I still don't know what it is), and the cruel system of quota, practically telling that your kids stood very slim chance to enter university if you were not born as a malay.

Faced with the situation, I had no choice but to throw away my high fly corporate job and emigrated with my family of three kids to Australia.

Eleven years later, when my children were fully qualified as professionals of whom one is a medical doctor, our Malaysia clever leader started to say that "Actually English is very important, and let us start with English again from primary one for science and mathematics subjects next year."

With the fall of another politician, the Baku of Bahasa also disappeared. I do not know where 3M is nowadays!

I consider myself very lucky that I could jump out from this black box in time. Today, with God blessing and the dynamism of Australia's economy, three of my children and their partners are doing exceedingly well.

With the present situation of unemployable graduates in the country, I think my children are very lucky that they do not waste their precious time. But to be fair to the current Malaysia PM, there seems to have a slight improvement now and we hope there is a light in the end of the tunnel.

What said about the meritocracy and transparency in education and employment in Australia is very true. My children face a fair competition, and have equal opportunity to compete in university places and employments.

Son, a medical doctor faced no competition as demand exceeded supply. Daughter, a medical staff faced twelve competitors and she won and got the job, and the last, son, a master degree holder in economics and finance faced 150 competitors and he won and got the job.

All jobs interviews are conducted in a transparent manner and those who fail have a chance to appeal to a tribunal, if they find there is a suspicion of nepotism or other back door entry.

Don't worry too much about the words like 'patriotism' and 'traitor'. They are the words used by the politicians with a different agenda.

I worked honestly for the corporate and paid high income tax (at top few percent of the country average), and they practically told you right in the face that your children could not get into the university no matter how hard you tried.

What choice do you have? Go somewhere you and your kids have a fair chance!

At the end of the day, one fine day you heard the minister got caught in the Australian Airport carrying undeclared millions in bags of which the purpose was to scour for properties in Australia, minister son's multimillion mansion in Canada was put up for sale after the intrusion of thieves, etc. Do you think they are really patriotic?

If we really feel better that we must serve, we might as well consider ourselves as global citizens. There are so many charity/volunteers organizations, borderless doctors in Australia that one can join, for example go and help the tsunami victims.

(Two million ringgit are good enough in smaller cities but might be a bit difficult in big city like Sydney. On the whole, one million for the purchase of my own house and one million for my working capital, and it is an added advantage that I have a skill as a engineer.)

With money and skill, Australia welcomes you as the country is in great shortage of skilled manpower with the present robust economy.

Best luck to you all!

honyang said...

Discrimination in the private sector is everywhere. Even the Chinese businessman who is just starting gets discriminated against more established ones, unless he has a mentor to back him up.

As for career interviews, it is best to get a recommendation first. If I am using my own money, it is my right to choose whom I want - even to the extent of discrimination. Why would I want to hire someone that I cannot have lunch with, work with or converse with?

The BN government on the other hand is discriminating against the non-malays not with the malay money, but with probably the Chinese money as the latter pay the bulk of income tax collected in the country. That we are against.

aston said...

Prices of raw materials are rising, steel, solvent, plastic, etc, etc. Productivity is low, managers are quick in spending and slow in earning. Collection is slow and economy is sluggish. Interest rising and overall margin is down.

With employees especially the field personnel carrying company laptops surfing the net for songs and chatting with friends with hours stolen from the office. Children are chalking up more digits on cell-phone bill coupled with their increasing pocket money spent at coffee café for more talks.

Things are not looking good. Older generation like us have to work harder to support such phenomena.

Our academics must avoid corrupting habits of mind which finds reprehensible: Nothing in my view is more reprehensible than those habits of mind in the intellectual that induce avoidance, that characteristic turning away from a difficult and principled position which you know to be the right one, but which you decide not to take……….

Yes, in Malaysia we have cultivated a habit/mentality of 'avoid'.

We avoid work (seminars, privileges, meetings, committees, etc, etc, so we can skip from work),

we avoid taking prompt and appropriate action (waiting for inspiration to make simple decisions, setting up of commission this and commission that, and even avoid implementing recommendations tabled),

we avoid looking ourselves in the mirror and eventually we become ugly Malaysians,

we avoid going through the learning curve to hone our skills (sub-sub-sub out the jobs so we can be rent seekers and the guys whom we sub to, can also be a sub rent seekers),

we avoid confrontation and debate (OSA, ISA, etc, etc),

we avoid competition (special quota, special assistance, NEP, negotiated contract, etc, etc),

we also avoid being criticized for we are quick to penalized, with this we short ourselves from learning from mistakes and our weaknesses so necessary, for our improvement and progress in life.

I am a firm believer in psycho-cybernetics. I am not sure if the local media give any highlights to story like that which is much needed in our schools and universities to inspire and motivate the young to appreciate self reliance.

It is sad that the local media often splash and spin stories on mediocre achievements. In today global world, superb achievements by citizenry from other countries are readily available especially over the Internet.

Excessive rewards and blowing of the horn over mediocre achievement continue to flood the minds of our young into believing that, in Malaysia mediocre achievement is good enough and we are exempted from the higher standards from the rest of the world.

I am not sure how many Malaysians have emerged from their background of poverty to succeed in this world. One thing for sure, these people do not use poverty as an excuse not to put in an honest day hard work.

vesewe said...

In Japan people commit hara-kiri if they have erred. Here Malaysia we have half past six ministers pointing fingers at each other. See the big difference? Our ministers here their skin is thicker than Kobe beef.

fargoman said...

Yes, it is a problem to Malaysia. The Big Brain Drain.

Sure, opportunities are plentiful, but not for everyone. Until and unless there is a level-playing field, many non-resident Malaysians will be reluctant to return.

Based on the recent intention of the government to attract Malaysian experts from abroad to return home, it is obvious there has been a brain drain, which has been detrimental to the economy of Malaysia.

I doubt very much if the government can succeed in reversing this trend if they do not remove the policies, which caused the emigration in the first place.

In short, we are a divided country living in harmony along racial and religious divides. Is this the multi-racial society we are proud to present to the world?

Immigration and emigration are part of the dynamics of an evolving society. People will continue to migrate from time to time. Look at the positive side of it all. Who knows I or my children might emigrate to China! It is a nice place after all.

You have a larger issue in going to a foreign land for your children to find their identity and place. You choose to look to the future, so seize it and take responsibility.

Like any building, we are works in progress. Without the strong foundation of where we came from, there will always be questions as to where we are going.

tim said...

Folks, please tell me how do you best manage a country whereby - the majority community who rule, can't competitive on equal footing with other countrymen, and fear to end up as working for very competitive - the other minority!

(Australia/Singapore/USA etc, don't have these scenario, as the community who call the shot is also the majority community.)

Our government complains of brain drain, but do we actually do something to lure all these professionals back?

It is sad to see that we have the greatest minds around the world. One would be proud to see that we have great Malaysian minds in almost every field, for example in dentistry, medicine, physics etc, and yet where did they end up?

They ended up in the developed world, helping the developed countries to become better day by day.

It would be more logical to try to attract these great minds back from other countries than to continue employing health professionals from foreign countries like Bangladesh, Pakistan, that would not be dedicated in their work in the end, because of the poor system here.

But building a world-class university in a third world nation is unheard of, with the exception of large nations of China/India. Simply, a third world Malaysia software does not nurture a first class world-class university.

Will this country ever change? Unfortunately, I doubt it.

We have a daughter who is currently studying oversea. My wife and I have been trying to tell her to stay there and get a PR and not come back.

Even though the white man's land is not wholly a bed of roses, we know we will be treated more fairly and the system is much more transparent than what we have here.

It is a heavy heart that we have to make this decision for our daughter but deep down inside, we know it is better for her and her next generation. We are already near the final lap of our careers and life, and the political situation here has little impact on us.

Our children have a whole new horizon ahead of them. It is their future……….do they have one here?

Malaysia will always be here. It is a nice place to holiday - you want to live a compromised life you can return to work. But you want to be yourself then go wherever you please. We all wish you well.

Believe me, the government too wishes that you don't come back to quell the Chinese professional numbers. So they remain obliged to make your life miserable. All this talk about brain drain……….come on, you doesn't really buy the government's feigned attempt to show concern, do you!

So, be wise, stay outside. Come back to get yourself rejuvenated with Malaysian food, and culture, as often as you can and stick your fingers up to the government too.

But just remember if you are not prepared to compromise principles……….just stay out!

Just be practical. One anesthetist told me, your perception will change when you have kids and a wife to worry about.

Damian Yeo Shen Li said...

It is definitely unfortunate. There are two things in my mind (1) The issues relating Lina Joy's application to delete the word 'ISLAM' in her ic and (2) issue of Administrative laws which bloggers should read Richard Malanjum's decision.

It affects government and administrative function to directly intervene government departments with they whims and fancy. If they don't like they can do what they want. In this case it involve the NRD department.

That is why I would say is the decision is UNFORTUNATE