Shadow cast over similar cases of apostasy

The Straits Times, May 31, 2007
By Carolyn Hong, Malaysia Bureau Chief


Muslim groups hail ruling on Lina Joy's appeal but non-Muslims call it a setback

PUTRAJAYA - IT WAS a grim day yesterday for Ms Lina Joy, who lost her six-year legal battle to have her conversion from Islam to Christianity recognised.

But it was an equally grim day for at least six other Muslim women who have similar cases pending in the lower civil courts.

They were eagerly awaiting the outcome of this case, seen as a test for religious freedom in Malaysia.

But the judgment did not bring cheer for them.

The Federal Court decided in a 2-1 ruling yesterday that Ms Lina could not have the word 'Islam' deleted from her identity card without first obtaining a certificate of apostasy from the Syariah Court.

But that could prove difficult as the Syariah Court is reluctant to allow it, and some states have also criminalised apostasy.

So far, it is believed that only 15 to 20 Muslims have been allowed to leave Islam officially through the Syariah Court, according to lawyer Pawancheek Merican.

Mr Pawancheek heads Defenders of Islam, a coalition of 80 Muslim non-governmental organisations, which was set up following a spate of religious disputes that have strained race relations in Malaysia.

To some non-Muslims, yesterday's judgment spelt a setback for religious freedom in Malaysia.

'I think it's a major blow,' opposition politician Lim Kit Siang was quoted as saying by Reuters.

'It casts a large shadow on civil liberties and the constitutional rights of Malaysians.'

But Muslim groups hailed it as upholding the special position of Islam in Malaysia and reaffirming the social construct of the country, which gives the Malays and Islam a more prominent position.

The influential Malaysian Muslim Youth Movement said Malaysians should now 'modify their expectations' in line with the realities of the country's social fabric.

'We invite anyone who is aggrieved to use other less confrontational approach towards change and reform,' said its president, Mr Yusri Mohamad.

In law, there is one major point in the judgment which will cast a long shadow over pending cases - the court's ruling on the jurisdiction of the Syariah Court vis-a-vis the civil courts.

Malaysia has a parallel justice system for family and religious matters - the civil court for non-Muslims, and Syariah Court for Muslims.

But there is frequently a tussle in grey areas such as apostasy where the party refuses to submit to the Syariah Court as they have left Islam, or when disputes involve both Muslims and non-Muslims.

Of late, many have turned to the civil courts for redress, but the courts have consistently declined to hear them.

One example is the case of the late M. Moorthy, a soldier who died in 2005 after converting to Islam. His Hindu widow fought the Islamic religious authorities for his body as she insisted that he was Hindu.

The civil court refused to hear her case, saying it was a matter for the Syariah Court.

Mrs Moorthy has filed an appeal in the civil Court of Appeal for her husband's body to be exhumed and cremated according to Hindu rites. This is pending.

The Lina Joy judgment on the jurisdictional issue will have vast implications for this case and other future cases, said lawyer Malik Imtiaz Sarwar.

Mr Malik, who has handled many such cases, said the Federal Court had decided in Ms Lina's case that the Syariah Court could have jurisdiction by 'necessary implication'.

This is because the law does not specifically stipulate that the Syariah Court has jurisdiction over apostasy.

Chief Justice Ahmad Fairuz Sheikh Abdul Halim, who delivered the main judgment, said the Syariah Court had such powers by necessary implication.

'It is logical that the Syariah Court, which has jurisdiction over those embracing Islam, will by implication also deal with the issues of leaving Islam or apostasy,' he said.

Mr Malik said this could mean that the Syariah Court can take jurisdiction over any matter relating to Islam, and this can be a vast area.

It could have an impact on the Moorthy case, and on the case of Mrs R. Subashini, a Hindu who is fighting to stop her estranged husband, who converted to Islam last year, from converting their youngest son.

Her appeal to the Federal Court is pending after a lower civil court said she had to seek redress from the Syariah Court.

But Mr Malik hopes these cases might, in fact, provide the opportunity to revisit this issue of jurisdiction.

'I don't think the issue is closed,' he said.

But another lawyer, Mr Leonard Teoh, who has been monitoring the trial for several non-Muslim NGOs, thinks the next step has to be a political one.

'In the interest of racial and religious harmony, something needs to be done,' he said.

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'The manner for a person to renounce a religion must follow a procedure or law or practice set by the religion itself. Lina Joy was not prohibited from getting married. The freedom of religion provided for under Article 11 of the federal Constitution requires her to adhere to Islamic laws, particularly on the renunciation of the religion.'

CHIEF JUSTICE AHMAD FAIRUZ SHEIKH ABDUL HALIM