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The Lina Joy Case

We've all missed the big picture; the case of Lina Joy is inconsequential because the courts are powerless to address the real reasons we don't have liberty in Malaysia.

Written by johnleemk on 12:15:12 pm May 31, 2007.

I wasn't really planning on writing about this (in my opinion) over-hyped issue, especially since I have written substantially on this subject before, but since "Comrade" in the chatroom (it can be found in the right sidebar, just under the poll) asked for my views, here they are.

This is much ado over nothing. There is no reason to celebrate this victory, even if you are a Muslim fundamentalist, and there is no reason to make great proclamations of doom, even if you are a staunch secularist.

I think Lina Joy (or Azlina Jailani, whatever you want to call her) is right in principle. Why should she not have the freedom to choose what religion to practice, what label to call herself? Not a single person can provide such a reason without recourse to something stupid like "Because the Quran says so!"

This is what was recognised by the Chief Justice of the Federal Court, whose ruling focused solely on the legal technicalities of the case. I am not sure if the dissenting judge, Richard Malanjum, noticed this, but he also steered clear of dealing with broader principle at stake.

For this reason, this is not a case about freedom of religion at all. This is a case whose scope has intentionally been narrowed by all involved to much shallower questions like whether the National Registration Department can demand that people present proof of apostasy before removing the phrase "Islam" from their identity cards.

That is why I am not particularly concerned about the outcome of the case — because once you have set aside the broader questions and substituted simpler ones for them, demolishing the case is so much simpler.

After all, it is already crystal clear that the civil and Syariah courts are on the same footing. When this is so, it is impossible to resolve questions of jurisdiction if the jurisdictional boundaries are not clearly defined.

For this reason, the civil courts are at complete liberty to say "Okay, this is a matter for the Syariah courts" whenever a case involves the Muslim religion, for whatever reason. Unless the Constitution says otherwise, the courts can correctly wash their hands of the matter.

But even that is not the main salient issue — although obviously we should be focusing more on ending this silly coequal positioning of the civil and religious courts than on trying to win things in an unfocused and piecemeal method — we need to win the war, not win a few battles.

The true issue which has never been addressed is why the government has to be so involved in a person's religious choice. If someone wants to believe something, who are you to tell them that they cannot believe it? If they are not harming anyone else, why is it any business of yours what they believe, or what they call themselves?

The fact that Islam is our official religion does not give our government the right to tell people born into Muslim families that they must call themselves Muslims all their lives. The degree to which one's religious choice and the government have become intertwined is sickening.

The word "Islam" should not be on anyone's IC, and the government should not have some complex paperwork process for people to wade through in order to change their religion. I believe what I believe; for you to tell me that I believe something else is the height of insanity.

The head of the UMNO Wanita legal bureau actually acknowledged this when she tellingly said:

Religion is a matter of faith and it is difficult for us to try and distinctively define it by law. Regardless of the points of law and arguments, what Lina Joy wants to believe is personal to her but her identity (being born a Malay and Muslim) cannot change. The case should not have been brought to court because it affects and creates fear and sensitivity in our society.
That ridiculous charge of sedition aside, what this woman has acknowledged is striking. They don't care about the religion; you could pray to Moloch and they could not care less. What they care about is making sure that you maintain your "identity", because they don't want anyone deviating from this.

That is frankly a bunch of bull. Who are you tell me what my identity is? I am who I say I am, nothing more and nothing less. If I decide that I am a Malaysian, not a Chinese or a Chinese-Filipino or a Chinese-Filipino Christian, or if I decide that I am simply just another human being, who the hell are you to tell me that that is not what I am?

And that doesn't even matter, considering that what the UMNO woman is saying has no constitutional basis. The Constitution defines a Malay as a Muslim, but it does not say that a Malay is by definition Malay forever, or that a Muslim is by definition Muslim forever. Don't read things into the Constitution that aren't there — doing this is really reminiscent of one hapless fundamentalist's attempt to prove that Muslims cannot convert according to Article 11 of the Constitution.

Still, one may wonder why I think this Lina Joy case has been blown out of proportion. Why, you say? Because the decision has changed nothing. I knew what the decision was going to be, because the moment we ignored the elephant in the room — the issue of my right to decide who I am — and focused on the nitty-gritty technicalities, there was no way Joy was going to win.

Like it or not, the decision is an affirmation of the legal status quo in Malaysia. It is not a radical departure from the existing state of the law; it is not legally unfounded. It is just a routine decision, and nothing more. The larger problems of my freedom to decide who I am, and the issue of the jurisdiction of different court systems, have not been touched at all.