Posts Tagged ‘catastrophe’

The Catastrophe That Is The Lina Joy Decision

June 1, 2007

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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