The Catastrophe That Is The Lina Joy Decision

I promised an explanation and here it is. Malaysiakini was kind enough to publish my letter.

Still can’t shake that feeling, by the way.

AN ADDENDUM:

I notice my newborn blog is getting some traffic from Malaysiakini for which I am thankful.

If I can add anything, it is that our Parliament must play a bigger role in resolving this. I presume they have left it entirely to the courts to resolve because it is an election year but to me this is the height of irresponsibility. Surely an issue of this magnitude should be discussed openly in Parliament. Unless even our MPs are not ‘mature enough’ to have open discussions on ‘sensitive’ issues? [EDIT: See my next post for more on the maturity of Malaysians.]

We are already being told by our Prime Minister and others to not be emotional. I agree. We need to approach this in a reasoned manner but don’t be under any illusions that a lot is not at stake here.

I feel Malaysia is at a turning point in its history. We can go one way or we can go the other.

Is it just me?

-UK-

________________

Malaysiakini

Umran Kadir
Jun 1, 07 2:49pm
     

 

I refer to the letter Lina Joy: Let’s not leap to polemics (http://www.malaysiakini.com/letters/67989) I beg to differ with Nathaniel Tan’s downplaying of the significance of the decision in the Lina Joy case. Without resorting to hysterics or polemics, the Federal Court’s decision is a tragedy when viewed from at least five perspectives.

First and foremost it is a personal tragedy for Lina Joy, who after going through what I can only imagine has been an immense struggle is still without a remedy.

Second, it is a tragedy for those who believe that there are certain rules to be followed when amending our Constitution. Nowhere in our Constitution does it currently state that Shariah courts are empowered to decide on the matter of a person’s faith, Muslim or otherwise. One cannot fault her but if Lina Joy decides to seek a remedy in a Shariah courts, then the jurisdiction of the Shariah courts will have effectively been expanded without the need for a Constitutional amendment!

Through its deference, the Federal Court has conferred jurisdiction to the Shariah Court. Implicit in this is a question involving the separation of powers doctrine. Specifically, is the Federal Court in a position to be conferring jurisdiction in this matter to the Shariah courts? Admittedly, Parliament has done little to resolve these issues.

However, the question remains as to what the jurisdiction of Shariah courts will allowed to extend to next? Moreover, who is in a position to confer this extension?

Third, it is a tragedy for all Malaysians because this decision fetters a fundamental right of all Malaysians. Article 11 of the Federal Constitution unequivocally guarantees a right to freedom of religion for all citizens of Malaysia. It is a right, not a privilege. Why is Lina Joy’s access to this right being fettered by the requirement of a certificate?

Certificates and similar documentation are meant to be evidentiary in nature but in this case who is in a better position to adduce the evidence but the woman herself? What more can a Shariah court add when she has been a self-confessed and practicing Christian for so many years?

Here a policy or ‘floodgates’ argument (ie, Muslims will leave Islam in droves) may be employed but my question for all Malaysians is this: which other fundamental freedoms can the floodgates argument arrest? Protection against retrospective criminal laws (Article 7)?

Perhaps to reduce our high crime rate Parliament should devise new criminal offences and then we can start charging the people that committed these new offences 10 years ago.

Fourth, it is a further tragedy for all Malaysians because this country that we and our forefathers have all worked so hard to build and promote is increasingly being labelled as intolerant and backwards in the eyes of the world. If we are not more conscious of how others perceive us, we will be left behind.

Fifth, it is a tragedy for Islam and Muslims in general who will be further regarded as petty, vindictive and illogical.

So you see, one needn’t be emotional to realise the multifaceted, catastrophic and utterly depressing implications of the Lina Joy decision.

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12 Responses to “The Catastrophe That Is The Lina Joy Decision”

  1. Frank Says:

    Umran
    I am a non Muslim. But I really feel sorry for my Malay and Muslim brothers and sisters with this ruling handed down by the two Muslim judges in the Federal Court.

    What caught me by surprise is that Muslims in the country are rejoicing and the PM asked us not to be emotional.

    How can one NOT be emotional when the Articles of the Federal Constitution are being put into question by the very court that is supposed to rule on constitutional issues. There is seriously something wrong with our Prime Minister. He thinks we are 10 year kids showing unnecessary tantrums.

    The ruling of the Federal Court hits at the heart of the rights of a majority sectiion of the population, the Malays and Muslims. The ruling basically say that the Federal Constitution can discriminate against the fundamental constitutional rights of Malays and Muslim, while allowing others.

    I hope the people in PEMBELA can think out of their religous and racial BOX and look at the issue from a bigger and wider picture, as citizens of this country with equal constitutional rights with other non Malays and non Muslims.

    Do you think they can see outside the box.

    Religion is one thing but we still have to live a life outside the domain of our religion every hour and everyday. We don’t see the secular world every minute to refer back to to the dogmas of our religion and in our social intercourse with our fellow brethrens under the Malaysian flag and under the protection of the Federal Constitution

  2. Umran Says:

    Frank,

    I agree, it is difficult to not be emotional or at the very least moved by the situation we are confronted with today.

    Some seem to have not understood or accepted that the Constitution remains the supreme law in Malaysia, irrespective of our personal opinions or preferences. Indeed some may even take offence with such a statement. However, this is not a statement of opinion but one of hard fact.

    That does not mean that the rights and freedoms as enshrined in the Constitution are incompatible with the values espoused by Islam. On the contrary, I think they are compatible, including the Freedom of Religion. I hope to have something published about this in the near future and will discuss this in a future post.

    About thinking out of the box, I alluded to the question of whether Malaysians in general are mature enough to think out of the box and discuss sensitive issues. I think we can manage this if only we are allowed to do so. More on this in my next post.

  3. HJ Angus Says:

    Umran
    Welcome to the new world of blogging.
    Nice neat layout and good writing.

    I suggest U should also spread your thoughts with some BM articles.

  4. Umran Says:

    Thanks HJ. For the record, I agree with you: “WE have the POWER TO CHANGE MALAYSIA.”

  5. Angeline Santhanam Says:

    While paying attention to very sound statements by Umran and Frank I am also thinking of Lina Joy….whose joy has been shattered by persons professing the very Law. she was earnestly asking, to give her the freedom to worship the same God, in a different way. What is wrong with that? What a down-trend for Malaysia in the year of the 50th anniversary.

    What strikes me most is that Lina Joy ,while not being allowed to change her so called religion ie Islam, so called because she never practised Islam only Christianity, has been to be still called Lina Joy?by articles in the Media reporting her case.

    The Prime Minister has urged Malaysians to not be emotional. It is a clear indication that people are viewing this emotionally, when he has to urge them to be not so and to accept. Which again clearly shows that the acceptance factor is not there and he has to urge it on.

    If Malaysians are urged to respect the Constitution, and freedom of religion is enshrined in Article 11 of this indelible book of laws, then the Government is duty bound to respect the right of the individual to worship his or her own chosen Deity, enshrined in this Constitution.

    Malaysians are people who have learned over the years to live in peace and harmony. Everytime the harmony appears to sour, is when issues such as religion are debated and denied to individuals. When are we going to be made to feel that we do not have to exchange notes in public on what our faith is, before we respect our neighbour.

    And the Almighty, we do not even know that we offend Him when all that we are doing to praise and thank Him is saying the same prayer in a different way. Would He, not be pleased with our diversity and colour?

    .

  6. Umran Says:

    Angeline,

    I can only say that I think it is because religion itself has become a political instrument in our country.

    50 years ago I suspect Lina Joy would not have had to go to the extraordinary lengths she has now had to simply in an effort to marry the man she loves while remaining in the country of her birth.

    It is truly heartbreaking.

    Back then religion was not used by our politicians in the way it is being used now and I think that has made a huge difference.

  7. johnleemk Says:

    Actually the way the Constitution is written is such that there are a billion loopholes for it to be amended without the niceties of Parliamentary procedure. The civil courts are theoretically justifiable in holding that anything where the word “Islam” comes in is under the jurisdiction of the religious courts because the Constitution is so unclear about the jurisdiction of both courts, and pronounces the civil and religious courts to be of equal standing.

    In other words, seen from this angle, the civil courts are not expanding the Syariah courts’ jurisdiction – merely interpreting the Constitution. It’s not an interpretation that is logically, ethically or morally justified, but unless Parliament rectifies the Constitution, it is by and large legally sound.

  8. Umran Says:

    John, I can only hope you are wrong…

    I am not a constitutional lawyer or expert but somehow I remain doubtful. Constitutional conventions are not binding but are to be followed in any case. Call it what you will but the effect is to expand the jurisdiction of a court which currently sits outside the purview of the Federal Court. Surely that goes beyond mere interpretation.

    What are the boundaries as to what can be delegated and in the process be fettered? Simply the word ‘Islam’ or the notion of a matter relating to Islam/Muslims?

    If key provisions of our Constitution can legitimately be shuffled around and fettered in this way then what is the point of a Constitution in the first place?

    If you are right then I can only ask what’s next?

  9. johnleemk Says:

    Well, for an answer on the worthlessness of the Constitution, I can only point you to Rais Yatim’s PhD thesis (I forgot the precise title, but it’s something about the pre-eminence of the executive or something like that). Despite his ludicrous pronouncements as a minister, his exploration of the constitution and our basic freedoms is surprisingly lucid and, if you are the thinking type, frightening. Basically, we have no freedoms, and our constitution is worthless.

    That is why the decision did not surprise me – because our courts have a history of such cop-outs and because our constitution is riddled with so many loopholes allowing them such cop-outs.

    The 1988 constitutional amendments worsened things by giving the civil and religious courts equal standing; previously the civil courts had clearly been superior. The result is that the civil courts are now justified in tossing anything which has a possible whiff of religious controversy to the religious courts, because the constitution is largely silent on clear boundaries for the two courts’ jurisdictions; this lacuna in the law can only be filled by an interpretation by the civil courts, and they have chosen to hold that if Islam is involved, it’s an issue for the syariah courts.

    It’s morally and ethically indefensible, and jurists with a conscience like Malanjum would obviously interpret the constitution differently. But because it’s only matter of interpretation, the true way to secure religious freedom would be for Parliament to amend the constitution and end this silly situation of both judicial systems being equal.

  10. Umran Says:

    Thanks for your contributions John.

    On your final point we are in total agreement. Parliament must intervene to set things right.

    Careful now everyone, don’t start holding your breaths.

  11. Umran Says:

    Here is yet another perspective from Haris Ibrahim:
    “There is no constitutional ambiguity in the demarkation of jurisdiction between the civil and syariah courts, nor is there an internal inconsistency in the constitution in this regard. If you say otherwise, please point out the ambiguity. Article 121(1A) is painfully plain in its meaning taking nothing away or adding to the law as it was previously. The problem arises where in, in the course of interpretation, the interpreters interpolate.
    No, the solution is not to amend the Constitution. It lies in correcting the vision or mission of the interpreter.

  12. cherwith Says:

    Hi do you know where I can get Rais Yatim Phd thesis. Would like to read about it sound very intriguing. Thanks

    Hi cherwith, I think it might be best to check with John Lee at his blog infernal ramblings though I believe he is in the US at the moment. Would love to get my hands on it too so if you do happen to get a copy do let me know!

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