Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

Ridiculosity in the Lina Joy Decision

Written by johnleemk on 3:25:05 pm Jul 30, 2007.
Categories: ,

I have recently been going over both the majority and dissenting judgments in the infamous Lina Joy case. The last time I looked at it in detail, I concluded that the case was hopeless because the case focused on technical details instead of the big picture.

Having finished reading both judgments, I am more convinced of that conclusion than ever. And lest you think that the majority judgment is the only one guilty of this, one of the highlights of Richard Malanjum's ruling is where he asserts that stating you are a Christian is not tantamount to stating you are not a Muslim.

Having read both judgments, I find that they both make very convincing points, but also have a lot of assertions which just fall flat. (Again, seriously — Malanjum is effectively saying it is possible to adhere to two religions at the same time.)

The strongest argument I can find, and one which I believe the majority judgment of Tun Ahmad Fairuz was unable to satisfactorily rebutt, is that the regulations concerning identity cards violate Article 8 of the Federal Constitution by requiring Muslims to submit their religion, while not applying the same requirement to non-Muslims.

As you probably don't know, Article 8 guarantees equal treatment to all people under the law, and specifically bans discrimination on the grounds of race, religion, etc. It does have a huge field of exclusions, but none of them apply to the administrative issue of identity cards (I wonder how on earth you would argue that this is a matter of "personal law", i.e. Islamic law, and thus exempt from Article 8(1), but this is exactly what the majority judgment does). Since Muslims are required to submit their religion while non-Muslims are not, Malaysians are not treated equally under the law, making the law unconstitutional.

If we put that aside, though, Joy actually has a very weak case. I don't find her other arguments very convincing, and a lot of what the Bar Council and other supporters of hers had to say in their watching briefs was more of the same. (It wasn't as amusing, though, as the fact that ABIM and other Muslim NGOs could barely muster a total number of arguments that was a quarter of Joy's supporters' arguments.)

I find the majority judgment quite ridiculous in its assertion that a person cannot simply leave their religion. If a person no longer sincerely believes something, well, isn't it their problem? Why should they be forced to pretend they still believe it?

That was the crux of Joy's argument, and of her supporters, and unfortunately it failed. But it failed for a sadly good reason — as Tun Fairuz points out, this would basically allow anyone in danger of being charged with an offense under the Syariah law to simply convert out of Islam by making a statutory declaration to that effect, and escape punishment. As you might have realised, a legal system doesn't work very well if you can simply opt out of it.

However, which should have primacy — the right to choose one's own identity and beliefs, or the legal system which we implemented subsidiary to the civil law (the very fact that the Quran is not on par with the Constitution in Malaysian law indicates that civil law remains supreme, although unfortunately this is not explicitly reflected in the law at the moment)?

I do not think the Islamic faith would collapse if the Syariah system fails. The failure of the Syariah Courts would be a symptom of the failure of Muslims, not the other way around. If the Muslims don't have enough faith in their own legal system to face the music there, then surely the problem lies with their faith, rather than with the fact that the law does not coerce them into following Islamic tenets?

But that is an irrelevant question. Why should Joy's application be rejected? Because apostasy is dealt with in Islamic law. The Syariah Courts have jurisdiction over all matters related to Islamic law, according to the Constitution, and thus for Joy's conversion out of Islam to be valid, she must refer to the Syariah Courts.

Of course, Syariah Courts only have jurisdiction over those who profess the Islamic faith, so you could argue (as Joy did) that by virtue of not believing in Islam any longer, Joy could no longer be considered a Muslim and thus no longer be subject to that court's jurisdiction.

Do you see the circular logic here? Joy wants to convert out of Islam. To do this, she must go to a court which only has jurisdiction over Muslims. So how the hell does she convert out of Islam?

This is an argument just as circular as the debate over whether Syariah or civil courts should have jurisdiction over a particular issue — it's not going to be easily sorted out any time soon by virtue of its circular nature.

There is of course a lot more to the Joy judgments than the brief issues I have raised here. I would urge those interested to have a look at them and see for yourselves (though the legal jargon can be slightly impenetrable at times). But I think I have painted the biggest picture I can see from reading the judgments.

I think, based on the state of the law, Joy should have won, simply because of the strength of her case based in Article 8. Her arguments on other grounds, however, were not as convincing because of the perplexing state of Malaysian law when it comes to the subject of religion.

I think we have to break the circular loop when we turn to the Syariah versus civil divide, and when we look at the subject of conversion. We must restore the absolute primacy of the civil courts, and we must make it clear that the process of changing one's faith depends solely on oneself, and not on any worldly authority. Only then can we undo this Gordian knot.


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