Firstly, for those of you who speak Legalese, here's Justice Richard Malanjum, the Chief Justice of Borneo and the only non-Muslim member of the 3 man bench's dissenting judgment. It's a pdf file. Read how he explains the logic behind his dissent.
Here's a synopsis.
PUTRAJAYA: Illegal and unreasonable. This was how Justice Richard Malanjum described the insistence of the National Registration Department (NRD) for Lina Joy to obtain a certificate of apostasy from the Federal Territory Syariah Court or any Islamic authority.
The Chief Judge of Sabah and Sarawak said that under applicable law, the Syariah Court in the Federal Territory has no statutory power to adjudicate on the issue of apostasy.
“The (NRD) insistence is unreasonable for it requires an act that is almost impossible to perform,” he said.
Justice Malanjum alleged that NRD’s unreasonableness would have consequential effects in some states where 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 offences under the Islamic law – is, in my view, unreasonable.”
Disagreeing with the Court of Appeal’s majority judgment, he said it completely disregarded the fact that Lina had made several applications for a change of name. Therefore, it should be regarded as a continuing act.
He said to confine the matter to Lina’s third application was completely ignoring her dealings with the NRD.
He agreed with submissions by Lina’s counsel that if the NRD had correctly acted on her choice of religion for a replacement identity card (in October 1999) instead of rejecting it on the grounds she had not produced a certificate of apostasy, there would have been no necessity for the last application to correct the particulars as regards to entry of “religion.”
Others reasons stated by Justice Malanjum include:
> NRD’s implementation of its policy has a bearing on Lina’s fundamental constitution right to freedom of religion under Article 11 of the Federal Constitution.
> NRD director-general was wrong in stating that apostasy was exclusively within the realm of the Syariah Court as apostasy involves complex questions of constitutional importance.
The majority decision is untenable and doesn't hold water and the arguments for it are logically faulty and will not pass the scrutiny of an impartial and unbiased observer. Check out the reasoning.
PUTRAJAYA: Chief Justice Ahmad Fairuz Sheikh Abdul Halim has ruled that the National Registration Department had reasonably required Lina Joy to get a certificate of apostasy from the Syariah Court.
This would allow the court to proceed to make a deletion (of the word ‘Islam’) from her identity card.
The top judge also ruled that since the Syariah Court had the jurisdiction over cases involving conversion to Islam, it should, by implication, have the power to decide on apostasy matters.
“I do not see any defect in the 1999 Federal Court judgement in the case of Soon Singh (which decided on the same grounds and which led to the provision for Muslims to state their religion in their identity card).
“To say that she is not under the jurisdiction of the Syariah Court – because she no longer professes Islam – is not appropriate,” said Ahmad Fairuz in his 41-page judgment.
He added that the way one leaves a religion is set by the religion itself.
“No one is stopping her from marrying. She is merely required to fulfil certain obligations, for the Islamic authorities to confirm her apostasy, before she embraces Christianity.
“In other words, one cannot embrace or leave a religion according to one’s whims and fancies.”
He said a mere statutory declaration that one has renounced Islam is not sufficient to remove the word “Islam” from a Muslim person’s identity card.
“This is because apostasy is an issue dealing with Islamic laws.
“Therefore, the NRD has adopted the policy that requires verification by the religious authorities or the Syariah Court before the department can delete the word.
“Therefore, I agree with the Court of Appeal’s majority judgment that the NRD’s policy is completely reasonable,” said Ahmad Fairuz.
The Bar Council of course fully supports his judgment against the Muslim Chief Justice's majority decision and argues for the supremacy of the Federal Constitution as the law of the land against those who was the subvert the civil and secular laws under which the country was founded.
PETALING JAYA: The Bar Council supports the minority judgment of Chief Judge of Sabah and Sarawak Richard Malanjum that no court or authority should be easily allowed to have implied powers to curtail rights that are constitutionally granted.
Its president S. Ambiga said the Federal Constitution “is and must remain in law, supreme.”
“In an event of any inconsistency or conflict between the provisions of State Enactments and of the Federal Constitution, the latter must prevail,” she said in a statement yesterday.
On Wednesday, the Federal Court rejected Lina Joy’s appeal to compel the National Registration Department (NRD) to remove the word “Islam” from her identity card.
Chief Justice Ahmad Fairuz Sheikh Abdul Halim and Federal Court Justice Alauddin Mohd Sheriff voted against her appeal and said conversion issues should be dealt with by the Syariah Court.
In his dissenting judgement, Justice Malanjum described the NRD's insistence that Lina Joy obtain a certificate of apostasy from the Federal Territory Syariah Court or any Islamic authority as illegal and unreasonable.
Ambiga said: “We are mindful that issues relating to religion will inevitably draw emotive responses in a multireligious society.
“Malaysians must be prepared to confront these issues maturely and dispassionately within the framework of our Federal Constitution as the supreme law of the land.”
Council of Churches of Malaysia general-secretary Rev Dr Herman Shastri said it viewed the Federal Court's decision with regret and concern.
“We believe that the constitutional provision in Article 11 of the Federal Constitution which guarantees freedom of religion in our country has been severely violated,” he said.
He said the majority judgement had denied the individual the right to freedom of conscience and choice of religion.
“It is, therefore, vital that the necessary legislation be enacted to ensure that no citizen would be penalised when he or she exercises the individual right to choose a faith and to practice it in freedom,” he said.
Poor Lina is devastated and not a little pissed. Of course the result was expected, with the decks stacked against her from day 1, but still, she still hoped for a miracle that the integrity of the law and the judges would prevail despite the Muslim opposition.
KUALA LUMPUR: Lina Joy is extremely unhappy with the Federal Court judgment.
“I am disappointed that the Federal Court is not able to vindicate a simple but important fundamental right that exists in all persons; namely, the right to believe in the religion of one's choice and equally important, the right to marry a person of one's choice and to raise a family in the Malaysia context.
“The Federal Court has not only denied me that right but to all Malaysians who value fundamental freedoms,” she told The Star, through her solicitor Benjamin Dawson.
“I am hoping that my case would have made a difference to the development of constitutional issues in the plight of many others.”
Asked whether she would leave Malaysia for good, Lina, who is believed to be overseas at present, said: “It would extremely difficult to exercise freedom of conscience in the present environment.”
Lina, 42, was born Azlina Jailani to Malay parents. She was brought up as a Muslim but at the age of 36 became a Christian.
In 1999, she managed to change the name in her identity card to Lina Joy but the National Registration Department retained her religion in the card as Islam.
On April 23, 2001, the High Court refused to decide on her application to renounce Islam as her religion on grounds that the issue should be decided by the Syariah Court. It also dismissed her application for an order to direct the department to drop the word “Islam” from her identity card.
On Sept 19, 2005, the Court of Appeal, in a majority decision, also rejected her appeal.
The reactions. The Muslim extremists are jubilant, having kept an unwilling person in their faith against her will. This is a victory for them.
KUALA LUMPUR: Some Muslim groups welcomed the Lina Joy verdict saying that justice has been served, while non-Muslims groups expressed their disappointment saying it contradicted a person’s constitutional right to the freedom of religion.
Applauding the decision, the Muslim Organisations in Defence of Islam (Pembela) believed it came as a relief for the majority of the Muslims and non-Muslims alike.
“The decision should not be perceived as a victory for Muslims and a loss for non-Muslims in Malaysia.
“Instead it should be seen as a rejection of segments to radically revamp the current formula built on mutual understanding and social realities of the Malaysian society,” Abim president Yusri Mohamad said on behalf of Pembela in a statement.
Pembela is a loose coalition of Malaysian Muslim NGOs concerned with various issues relating to the position of Islam in the country.
Dr Chandra Muzaffar, International Movement for a Just World president, called for reforms of the Syariah laws.
“The Quran does not prohibit a person from or punish a person for leaving the religion. The crux of the problems is the unwillingness of the Syariah Courts to entertain applications of the Lina Joy type.
“We need to come up with a more progressive approach from the Syariah Courts. It needs a totally different mindset on the way we look at and understand Islam,” he said.
However, CFM Christian Federation of Malaysia (CFM) chairman Bishop Paul Tan Chee Ing said it had now become more pressing for the Government and lawmakers to revisit the relevant legislation and to reinstate the jurisdiction of the Civil Courts so that equal protection of the rights to choose and express one’s religion is accorded to all Malaysians as enshrined by Article 11.
Well, all we can do is pray for Lina, so Pater noster... Ave Maria... Gloria Patri...