"To sum up, this is a simple and straightforward case calling for the application of well settled principles of administrative law. It is a case where a public decision-maker misconstrued the relevant law and took into account extraneous considerations. The appellant is entitled to have an NRIC in which the word "Islam" does not appear. I would accordingly grant her a declaration in those terms and direct the Director General to forthwith comply with the terms of the said declaration."

Love knows no boundary, and in the case of Lina Joy, I guess it also knows no religion.  I think it's wonderful how she pursues her heart and seeks to question the very foundation of islam in Malaysia.  The odds look like they're stacked against her, but at least she has the courage to see it through.

A Fuller Account of the Lina Joy Case
 
LINA JOY was on 8 January 1964 born, under Malaysian law, a Muslim and named Azalina bte Jailani by her parents who are Muslims of the Malay race, one of the three main races in Malaysia, the other two being Chinese and Indian. However she asserts that she had since 1990 renounced her Muslim faith and become a Christian, a profession of faith which she had subsequently publicly asserted through her undergoing the Christian rite of baptism on 11 May 1998.
 
Lina's problems started when she fell in love with a Christian boy and wanted to get married to him and start a family together.
 
As Lina then bore a Muslim name, the Civil Registry of Marriages did not permit her to register a Civil marriage as the Law Reform (Marriage and Divorce) Act 1976 expressly states that the "Act shall not apply to a Muslim or to any person who is married under Muslim law and no marriage of one of the parties which professes the religion of Islam shall be solemnised or registered under this Act" [Section 3(3)]. Lina therefore applied to the National Registration Department to have her name changed as she was no longer a Muslim.
 
After some initial difficulty the National Registration Department relented and permitted Lina to change her name. However, unknown to Lina the government had introduced a new regulation that required all new National Registration Identity Card (commonly referred to as the "MyKad") issued to contain a statement of the person's religion where such person is a Muslim. The MyKad issued to Lina stated that she was a Muslim. Her application to have the statement that she is a Muslim deleted from her MyKad was refused. The Registration Department insisted that Lina must obtain an order from the Syariah or Muslim Religious Court stating that she had become an apostate before the Registration Department would recognise her change of religion. Such a documentary requirement of change of religion is only applicable to those who assert that they were no longer Muslims but not where a person leaves any other religion.
 
Lina took the matter to the Civil Court seeking various declarations that would, as described in the majority decision of the Court of Appeal given by Dato' Abdul Aziz Mohamad JCA (see [2005] 6 MLJ 193 at 198), "be to uphold her contention and confirm her status as a Christian, so that, she hoped, her progress in life would no longer be hampered by any uncertainty as to her religion or by any claim that she is a Muslim" thus allowing her to register her intended
marriage at the Civil Registry of Marriages.

The court of first instance, the High Court, dismissed the plaintiff's application on 2 main grounds (see [2004] 2 MLJ 119). The first ground is that Lina's assertion of unfettered freedom to choose one's religion purportedly guaranteed by Article 11(1) of the Federal Constitution (which states, "Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it") is misconstrued in that it failed to take into account the special status of Islam and its being the main and dominant religion of the Federation and the imposition on the Federation of a positive duty to promote and to defend Islam as demonstrated by the references to Islam not only in Article 3 (1) (which states, "Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation") but throughout the Federal Constitution (such as in Articles 12 (2), 74 (2), 121 (1A) and 160). Further Lina had failed to take into account Article 160 (2) which defines a "Malay" to be "a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom." and thereby precludes a Malay from converting out of Islam and a Malay therefore "remains in the Islamic faith until his or her dying days" (see [2004] 2 MLJ 119 at 143).
 
The second ground was that the Civil courts have no jurisdiction over the matter as the conversion of a person out of Islam is a religious matter which can only be dealt with by the Syariah or Muslim Religious Court by virtue of Article 121 (1A) (which states, "The courts referred to in Clause (1) [Civil courts] shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts").
 
Lina took the matter on appeal to the Court of Appeal.  A fully blown constitutional appeal was initially argued before the 3 man panel of the Court of Appeal but the argument was in time at the suggestion of the Court reduced to the directly relevant narrower issue of whether the Director General of National Registrations had erred, as a matter of administrative law, in requiring Lina to produce an order from the Syariah  or Muslim Religious Court stating that she had become an apostate before the Registration Department would recognise her change of religion in her MyKad. Lina's appeal was dismissed on a majority decision.
 
Under the law Lina has no automatic right of appeal to the highest court in the country, the Federal Court. Therefore an application has to be made for leave to bring an appeal before the Federal Court.
 
The application is to be made under Section 96 of the Courts of Judicature Act 1964 which has 2 limbs.
 
Under Section 96 (a), the preconditions are that there must be a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage. Further the applicant must show that it prima facie might succeed in the appeal.
 
Section 96 (b) on the other hand concerns "the effect of any provision of the Constitution including the validity of any written law relating to any such provision" and therefore the above pre-conditions do not apply.
 
Lina's application sets out a long list of questions we want to put before the court. These questions have been crafted to fall within Section 96(b).
 
If Lina fails to obtain the required leave to bring an appeal to the Federal Court, she will, so far as the law is concerned, be deemed to be a Muslim. This will mean that she cannot validly contract a Civil marriage and any child she gives birth to will not only be deemed to be illegitimate but also a Muslim notwithstanding her self declared religion or that of the child's father. Issues will arise as to whether Lina would be entitled to keep and raise such a child.
 
It will also mean that Lina will be subject to Syariah or Islamic laws of the country that varies from state to state and which laws and the Syariah or Religious Court's jurisdiction being dependant and operative is territorial. These laws include detention for rehabilitation of her faith, fines and imprisonment for attempting to become an apostate and fine and imprisonment for being an apostate.
 
Lina Joy's case is a human right's case. It is a constitutional law case. It is an administrative law case. But ultimately it is a case of a woman whose biological clock is ticking out while she is legally oppressed.
 
Update
=======
 The application for leave to appeal was eventually allowed, and the case was fully argued before a 3 man bench of the Federal Court.  We now await their decision.

Posted on 28/06/2006