An attempt to categorise as merely 'procedural' the National Registration Department's (NRD) refusal to delete Christian convert Lina Joy's status as a Muslim from her identity card was shot down by the Federal Court today.

Senior federal counsel Umi Kalthum Abdul Majid, representing the government and NRD, had contended that regulations requiring Muslims' identity cards (IC) to register 'Islam' as their religion were gazetted in March 2000 but had a retrospective effect.

This meant that Joy's application, made in late October 1999, fell under the ruling of the new regulation, said Umi Kalthum.

"It was submitted in the Court of Appeal that it is a procedural law and therefore it can be backdated (to apply to Lina Joy's case)," she told justices Ahmad Fairuz Sheikh Abdul Halim, Alauddin Sheriff, and Richard Malanjum.

This triggered an immediate query from Malanjum, who asked Umi Kalthum whether she meant the application for an IC, though made before the new law took effect, "is still subjected to the new law."

"How can you say this is a procedural law when this affect the rights of the party? That cannot be correct. The consequence of putting Islam into the IC affects the rights of the individual," Malanjum said.

Submit chronology

Umi Kalthum responded by saying it was a matter of regulations pertaining to registrations, to which everybody is subjected to.

"We are talking about the registration of the individual in Malaysia. It is like the law that we must use MyKad. I don't believe one can say rightly 'that it is my right, I want the old system. Why can't I maintain my old IC?'" she said.

Justice Malanjum then responded by saying "That depends on when the law applies. There is a right to know (the new law) when one applies (for an IC)," and asked for the authority behind her assertions.

Fairuz then ordered all parties to submit their respective versions of the chronology of events surrounding Joy's application to strike off the word 'Islam' from her IC.

Joy - whose Muslim name was Azlina Jailani - converted to Christianity in 1998 and is married to a Christian man. She had successfully applied in 1998 to change her name but failed to have the entry 'Islam' deleted from her identity card. The questions posed before the Federal Court are:

  • If the NRD is legally entitled to impose as a requirement a certificate or a declaration or an order from the Syariah Court before deleting the entry of 'Islam' from the applicant's (Joy's) identity card;

  • If the NRD has correctly construed its powers under the National Registration Regulations 1990 to impose the above requirement when it is not expressly provided for in the regulations and;

  • Whether the landmark case of Soon Singh vs Perkim Kedah - which declared that the civil courts will retain their jurisdiction unless an express jurisdiction is conferred to Syariah Court - was rightly decided.

    • 'Freedom guaranteed'

    Umi Kalthum later requested that those holding a watching brief for their respective organisations refrain from speaking extensively on Article 11 of the Federal Constitution, which pertains to freedom of religion, as it would deviate from the issue.

    "If we go down this road (of discussing Article 11), the watching brief would abuse and go against the three questions posed," she said.

    This was, however, overruled by the Justice Fairuz, who allowed for Article 11 to be discussed at length.

    Following this, Malik Imtiaz Sarwar, holding a watching brief for the Bar Council, said the case could not be deliberated as merely a "technical" matter but needed to be seen in the larger context of such constitutional provisions as Article 11.

    "(Article 11) guarantees the freedom to profess and practice their religion of choice and necessarily entails a right to change faith," said Malik in his submissions.

    "Such choice cannot be made subject to the discretion of any third party, agency or institution, including courts of law," he added.

    Malik also said the syariah courts do not have jurisdiction over persons who do not profess Islam and are not seized with the jurisdiction to make declarations with regard persons who no longer profess Islam in their own right.

    "Such legislation which has the effect, directly or indirectly, of fettering the freedom under Article 11 (1) of the Federal Constitution [...] render the freedom under Article 11 (1) illusory and otherwise fetter the said freedom," he said.

    "Any provision, express or implied, would as such be unconstitutional," he said further.

    Universal rights

    Counsel for other various interested parties in their submissions urged the country's highest court to take cognisance not only of its constitutional duties but also of the country's international obligations when considering the appeal by Joy.

    National Human Rights Society counsel Ramdas Tikamdas said Article 11 (1) of the Federal Constitution has to be read and interpreted together with Article 18 of the Universal Declaration of Human Rights as it is part of customary international law.

    "It is respectfully urged upon this honourable court to have regard to the universally accepted standard of human rights under the UDHR in construing the content of the constitutional right in Article 11 (1) of the Constitution," he said.

    Meera Samanther, who was representing five women's organisations, said several of Joy's fundamental rights as a woman hinged on the decision of the Federal Court including not only her right to profess the religion of her choice but also the right to marry the person of her choice, her right to have children, and the right to choose her country of domicile.

    Until these rights were enforced, said Samanther, Joy would have been deprived of her rights as provided for, among others, by the UDHR and Convention on the Elimination of All Forms of Discrimination against Women (Cedaw).

    The tragedy is two-fold, Samanther added, as the discrimination would be against Joy as an "equal to other groups of women" who are non-Muslims as well as "an equal to Muslim men."

    "Lina Joy has also been denied her right to equality in relation to non-Muslim men in that non-Muslims in Malaysia do not face these obstacles when converting in or out of their religions and when choosing a marriage partner," said Samanther.

    "Again, Lina Joy has far less rights in relation to conversion and choice of marriage partners than non-Muslim women in Malaysia who do not face these similar obstacles," she said.