The stunning decision by Malaysia's highest secular court last Wednesday that freedom of worship, a constitutional guarantee, does not apply to Malay Muslims is a major blow to freedom and constitutional democracy, lawyers and human rights activists said.

The Federal Court also reaffirmed that the civil court had no jurisdiction over any Islamic matters, even when non-Muslims are involved.

The verdict does not end the Muslim, non-Muslim divide, but may cause it to worsen as the tussle for primacy between inherited secular guarantees and a resurgent Islam demanding pre-eminence for Syariah laws continues, said observers.

The case involved a Malay woman, Azlina Jailani, 43, born a Muslim, who converted to Christianity in 1989 and changed her name to Lina Joy. She fell in love with an Indian Christian cook and wanted to marry in a civil ceremony and raise a family.

But her national identity card referred to her religion as 'Islam'. She fought the Islamic authorities and the national registration department for nine years to change her religious identity, taking the matter to court.

Non-Muslim leaders - in both politics and religion - reacted with shock and disbelief after the apex court ruled in a 2-1 decision that a Muslim cannot rely on Article 11 that guarantees freedom of worship to leave Islam but must go to a Syariah court to get a certificate to turn apostate.

Ironically, Syariah law does not permit Muslims to become apostate but instead prescribes punishment with fines, forced rehabilitation or jail term.

"Muslims going to Syariah court would incriminate themselves, invite prosecution," said Justice Richard Malanjum, the dissenting judge, who held that Article 11 applies to all citizens without discrimination.

The ruling, which is binding on all lower civil courts, will affect at least a dozen cases of apostasy pending in civil courts, mainly involving Muslim converts who want to return to their former religion.

It will also impact negatively on many cases where non-Muslims are fighting for justice such as custody of children, sharing of matrimonial wealth, maintenance and dissolution of civil marriage after one spouse converts to Islam and relies on Syariah law to settle contentious issues.

"The judgment does not end the Muslim, non-Muslim divide but has instead widened it by introducing Islamic principles into secular, constitutional matters," opposition leader Lim Kit Siang told IPS .

"A political solution is urgently needed to resolve this potentially dangerous disquiet. It is necessary for the government to take immediate steps to promote and protect the supremacy of the constitution."

No legal redress

Lina's struggle had become a test case for religious freedom with both Muslims and non-Muslims rallying to her cause, especially her right to freedom of worship.

Sisters in Islam, a rights group for Muslim women, said it was disappointed the constitution had not been upheld.

"For us, the dissenting judgment is significant. The Federal Court is divided over this issue, as the country is divided on it," said executive director Zainah Anwar.

Lawyer and human rights activist Malik Imtiaz Sarvar who has handled several apostasy and other related cases in court is of the view that "the issue is not over" yet as there is a strong dissenting judgement.

Bishop Paul Tan of the Christian Federation of Malaysia said in a statement that the decision reflects a growing trend of decisions in the courts where "civil courts are abdicating their responsibility of providing legal redress to individuals who only seek to profess and live their religion according to their conscience".

''It is pressing for the government and lawmakers to revisit the relevant legislation and to reinstate the jurisdiction of the civil courts so that equal protection of the right to choose and express one's religion is accorded to all Malaysians, as enshrined in Article 11,'' he said.

A human rights activist who did not want to be identified fearing persecution described the situation as a "sad day for freedom and judicial independence".

"There was widespread hope that the Federal Court would stand firm and uphold the constitution especially Article 11, but that is not the case," she said.

Lina's response

Lina, believed to be in hiding, expressed deep dissatisfaction over the verdict through her lawyer Benjamin Dawson.

"I am disappointed that the Federal Court is not able to vindicate a simple but important fundamental right that exists for all persons; namely, the right to believe in the religion of one's choice and equally important, the right to marry a person of one's choice and to raise a family," she said.

"The Court has not only denied me that right but to all Malaysians who value fundamental freedoms. It is extremely difficult to exercise freedom of conscience here now."

Leonard Teoh, a lawyer for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism said however that "freedom of religion here is an illusion".

Outside of a political solution, there appears little else that activists can do after the court ruling.

"A political solution has to come from the office of Prime Minister Abdullah Ahmad Badawi - he has to lead the way to protect the constitution and the rule of law," DAP secretary-general Lim Guan Eng.

"When the courts have failed, Parliament has to step in and make legislative changes to clarify issues and uphold secular rights which are the basis for a legal and modern society."

But the Barisan Nasional government has a stranglehold on Parliament, controlling 90 percent of the 217 seats - a massive majority that can steamroll any opposition.

"Ultimately the solution is in the hands of the voters - whether to speak up or remain silent," Lim added. - IPS