COLUMNS

Lina Joy v the Federal Territory Islamic Council and Ors [2007] 3 AMR 693

Trevor Padasian discusses the recent landmark decision of the Federal Court of Lina Joy v The Federal Territory Islamic Council, Government of Malaysia and the Director General of the National Registration Department [2007] 3 AMR 693.

Background

Lina Joy was born to Muslim parents and was named Azalina binti Jailani. In 1997, she applied to the National Registration Department ('the NRD') to change her name to Lina Lelani, stating in a statutory declaration ('SD') that she had renounced Islam for Christianity and intended to marry a Christian. This application was rejected in August 1997.

Undeterred, she made a second application in early 1999 for a change of name but this time to Lina Joy. Initially, the same reason was given in the supporting SD. However, upon advice by an NRD officer, she resubmitted her application, omitting any mention of the conversion of religion but stating that the change of name was a matter of choice. Although the NRD allowed the change of name this time in October 1999, Lina Joy's replacement identity card stated her religion as Islam and her original name was also stated on the reverse side of the replacement identity card. Her third application in early 2000 to remove 'Islam' and her original name from her replacement identity card was rejected.

Lina Joy sought relief in the High Court of Malaya, seeking declaratory orders in respect of her right to freedom of religion, the constitutionality of s 2 of the Administration of Islamic Law (Federal Territories) Act 1993 and the applicability of the Syariah Enactments to her who professed the religion of Christianity and the constitutionality of the state and federal legislations that forbade conversion out of Islam and for an order that her name be entered in the Registry Book as having converted out of Islam. The High Court rejected her prayers, and an appeal to the Court of Appeal was similarly dismissed, by a majority of two to one.
Issues
Lina Joy sought leave to appeal to the Federal Court, which was granted in respect of the following three questions:
1 whether the NRD could require Lina Joy to produce a certificate of apostasy before deleting the entry of Islam in her identity card;

2 whether the NRD construed its powers correctly under the NRD Regulations 1990 in imposing such a requirement; and

3 whether the Federal Court case of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam (PERKIM) Kedah & Anor (1999] 1 MLJ 489 ('Soon Singh') was rightly decided when it adopted the implied jurisdiction theory (ie that 'the jurisdiction of the Syariah Courts to deal with the conversion out of Islam, although not expressly provided in the State Enactments, can be read into them by implication derived from the provisions concerning conversion into Islam') in preference to the opposing theory that unless an express jurisdiction is conferred by the Federal Constitution on the Syariah Court, the civil courts will retain their jurisdiction.

The Federal Court's Decision

Lina Joy's appeal was dismissed by a majority of two to one (the Chief Judge of Sabah and Sarawak dissenting) on 30 May 2007.

The majority judgment
In his majority judgment, the Chief Justice of Malaysia ('the CJ') answered the three questions in the affirmative. The third member of the tribunal concurred with the CJ's reasoning, without adding grounds of his own. The CJ's grounds included the following:
1 In applying to delete the entry of Islam from her identity card, Lina Joy was in effect stating that she was converting out of Islam. It was reasonable for the NRD to require the production of documentary evidence (in this case, a certificate of apostasy issued by the Syariah Court) that she was no longer a Muslim. If the NRD did not impose such a requirement, there would be a risk that she would be classified as a non-Muslim when in fact she had yet to convert out of Islam under the relevant Islamic laws. Furthermore, this would encourage those born and raised Muslim but who did not practise their faith to classify themselves as non-Muslims to avoid punishment for offences under Islamic laws.

2 The requirement for the production of a certificate of apostasy was not an unlawful delegation of the NRD's power and responsibility to the Syariah Court as reg 14 of the National Registration Regulation 1990 clearly gives the power to the NRD registration officer to request for documentary evidence which he feels is important to support the correctness of any particulars given. On the facts, the Syariah Court was only asked to certify whether Lina Joy was professing Islam or not based on Islamic law. The NRD has the discretion to decide whether permission can be given to delete the word 'Islam' based on that decision.
3 Lina Joy had contended that the Wilayah Persekutuan Syariah Court did not have jurisdiction under the Administration of Islamic Law (Federal Territories) Act 1993 to issue the certificate of apostasy required by the NRD. The CJ held that what was required by the NRD was a certificate from an authority with power to issue such a certificate and, as apostasy was an issue or question related to Islamic law, it was not unreasonable to require such a certificate.

4 Lina Joy contended that, as she no longer professed Islam, she was no longer under the jurisdiction of the Syariah Court. A certificate of apostasy was therefore contrary to her fundamental right to profess and practise her religion pursuant to art 11 of the Federal Constitution. Furthermore, if she was not able to delete the word 'Islam', this would also be a denial of her right under art 5 (1) ['No person shall be deprived of his life or personal liberty save in accordance with law'] to marry a Christian or anyone of her choice.

5 The CJ disagreed and held that Lina Joy's right to profess and practise her religion under art 11 also meant that she had to comply with Islamic laws, specifically those on conversion out of Islam. The CJ opined, interestingly, that she was not prevented from marrying, so long as the requirements regarding conversion were complied with.

6 Soon Singh was rightly decided as the Syariah Court should be conferred jurisdiction by necessary implication as the issue of conversion was directly connected to Lina Joy's rights and obligations as a Muslim before the conversion occurred and her freedom to profess and practice religion was not unlimited but was governed by Islamic laws. Item 1, list 2 of the Ninth Schedule of the Constitution provides, amongst others, that Syariah Courts have jurisdiction on those professing Islam and only relating to matters included in that paragraph (item 1), one of which is Islamic law.

The dissenting judgment
Dissenting, the Chief Judge of the High Court of Sabah and Sarawak held (amongst other issues) that:
1 Although art 3 (1) of the Federal Constitution placed Islam to a special position in Malaysia, art 3 (4) provides that nothing in art 3 derogates from any other provision in the Constitution. This impliedly meant that art 3 (1) was never intended to override any right, privilege or power explicitly conferred by the Constitution.

2 The NRD Regulation requiring documentary evidence mentioned above 'singled out Muslims for additional procedural burdens and impediments which are not connected to personal law'. This was 'tantamount to unequal treatment under the law', is 'discriminatory and unconstitutional and should therefore be struck down'. The regulation was contrary to fundamental principles of administrative law. The NRD's policy was not reasonable within the test of Wednesbury Corporation v Ministry of Housing (1966) 2 QB 275:
a the NRD acted 'illegally' in requiring a document not asked for by the NRD Regulations;

b there was an 'abuse of power' in not taking into consideration a legally relevant factor;

c the NRD acted 'irrationally' in abdicating its discretionary power to an outside religious body;

d the insistence for a certificate of apostasy was 'unreasonable' because the Syariah Court in the Federal Territory has no statutory power to adjudicate on the issue of apostasy and that, as apostasy is a criminal offence, 'to expect [Lina Joy] to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law' and thus Lina Joy 'is made to self-incriminate';

e the NRD acted mechanically and did not consider her case on its own merits;
f the NRD failed to observe the principles of natural justice as it did not give her a fair hearing.

3 Apostasy involves complex questions of constitutional importance. Civil superior courts like the High Court should not decline jurisdiction by citing art 121(1A) and abdicate their constitutional function, especially when the matter involves legislations criminalising apostasy or limiting fundamental liberties enshrined in the Constitution. Article 121(1A) provides amongst other matters that the civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Court. It only 'protects the Syariah Court in matters within their jurisdiction which does not include the interpretation of the provisions of the Constitution.' Soon Singh was therefore rejected.

Conclusion

Specifically, Lina Joy restricts the rights of Muslims in Malaysia to convert out of Islam without a certificate of apostasy or other similar certificate. Generally, it would appear that the civil courts have held that the jurisdiction of the Syariah Courts to deal with administrative matters relating to Islamic elements (including conversion) also excludes such matters from the jurisdiction of the civil courts. The ambit of the decision appears wide enough to include all cases involving the determination of whether or not a person is a Muslim, rather than merely cases where conversion out of Islam is sought, whether or not the applicants are born Muslim.

It remains to be seen whether Lina Joy will be able to obtain an apostasy certificate as that appears to be the only course available legally for her to change the particulars in her identity card. Whether this can be done without her being subjected to criminal punishment under Islamic law is a serious issue in respect of which the decision of the Federal Court in Lina Joy does not provide answers.

Trevor Jason Mark Padasian
Skrine
E-mail: [email protected]