Having written 'Jurisdiction fault-line: Who's to blame', I knew fully well that it wouldn't be my last on the conundrum over the Federal Court decision on Lina Joy.

I have religiously followed the ranting and raving by everyone on both sides of the divides, I hasten to add.

I have absorbed enough to think that I deserve my say. I would like to have the last word but it may be a bit vain, perhaps wishful. Like me, you may have vouched not to read or write anything else on this subject.

The judgment has never been the real bone of contention in this long-drawn judicial debate. But by the twists and turns of events, the judgment has however been reduced to almost as an administrative and purely a technical matter. The high court and Court of Appeal were judged as right in determining that the National Registration Department was correct in asking Lina to obtain a decree from the Syariah court affirming her apostasy.

Time and time again we have avoided confronting critical issues head on. For failing to take the bull by the horn, we are under the false impression that we have solved the problem. Frankly, we have not. If anything, we have exacerbated the problem. For the record, there are pending cases awaiting trial and judgment, each with its attendant grief and untold sufferings.

Lina wasn't the cause of this fiasco but very much instrumental in bringing out its sinister existence. It has become more evident recently, that the nation deliberately chooses and insists on walking down this confrontational path and plunging itself headlong into the abyss of self-destruction, of widening the religious divide and deepening racial fault-line.

True enough, at the centre of this acrimonious debate are constitutional issues that are as divisive. While each side may be fiercely advocating and championing its respective causes, little do they realise that their actions smack of arrogance, perhaps ignorance at times and worse still, sheer defiance of established legal practices.

The purpose of this writing is about how to prevent the nation from being continuously 'damned' by the ever-increasing mutual inability to understand, acknowledge and respect 'the other', within the ambit of a parliamentary democracy that practises a dual or parallel judicial system.

Jurisdictional issues

At the heart of this debate is the constitutional issue, of whether or not 'a Muslim is allowed to apostasise or renounce his or her faith' as an expression of his/her fundamental right to profess and practise his/her religion (Article 11).

It must be made clear as to which court or authority takes precedence in adjudicating such cases. As it pertains to apostasy committed by a Muslim (not persons of any other religions), either born, converted or reverted later, the case rightly and perfectly falls within the jurisdiction of the Syariah court.

Could there be any doubt about it? Pressing for any other avenues or forum to seek justice, amounts to wanting a 'back door exit' from Islam Yes, someone could have renounced Islam ages ago, but the fact remains that if they were born Muslim or consciously reverted to Islam (for whatever reasons) under no duress, the Syariah court must adjudicate should they seek legal redress.

Why the Syariah court? The state legislative assembly has a right to legislate on Islamic matters as set out in List II of the Ninth Schedule of the Federal Constitution. The state legislative power is a primary power and may create offences and provide punishment of offences 'by persons professing the religion of Islam against the precepts of that religion, except in regard to matters included in the Federal List'.

Parliament in 1965 passed a federal law to demarcate the powers of Syariah courts in criminal matters by allowing the state to legislate on criminal Islamic law. The Syariah Courts Act (Criminal Jurisdiction) 1965, was revised in 1988 (Act 730) and made applicable to all states.

The 1965 Act which extends to Sabah and Sarawak provides a ceiling on punishment of criminal offences in the Syariah court - imprisonment not exceeding three years or with a fine not exceeding RM5,000 or with whipping not exceeding six strokes or with any combination of these.

In June 988, Article 121 of the constitution was amended to include Article 121(1A). It stipulates that the high court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

Could we now come to an agreement, however inimically, that matters pertaining to Islamic law must be referred to the Syariah court, as it has been entrusted by Parliament to dispense justice according to the precepts of Islam. Any attempt at rejecting this fact smacks of defiance and arrogance that invites a constitutional crisis.

As Islam is provided a very limited space in the constitution, it will be defended at all costs by Muslims. They have their right to practise and profess their religion as enshrined in the Federal Constitution. Hence, to claim that Article 121(1A) and List II of the Ninth Schedule are ultra virus the Federal Constitution, specifically Article 4, is immensely regrettable from the Muslim standpoint.

Now that we have established that the issue of apostasy, as it pertains to Muslims, comes within the jurisdiction of the Syariah court, it is in the best interests of the nation that it be accorded its due respect as an internal legal problem of the Muslims. No mediation, conciliation or negotiation, however well meaning, would be welcomed by the Muslim constituency, lest this is regarded as an intrusion into the religious practices by people of other faiths. In this regard the 'siege mentality' of some Muslims is understandable.

Incidentally the recent research findings of Prof Patricia Martinez of Universiti Malaya on Muslims' perception, are consonant with this observation. While 77 percent endorsed the right of every citizen to profess and practise the religion of their choice, 99 percent returned a definite 'No' on the question as to whether Muslims could renounce their religion. In this sense Article 11(5) may be invoked to perspective.

Mutual respect

Islam provides for the greatest religious freedom in matters of faith.

Allah (PBUH) says in the Holy Quran (Chapter of Al-Kahfi: 29): "Truth is from God Almighty. Whosoever wills believe and whosoever wills disbelieve."

In a more celebrated verse of the Chapter of Al-Baqarah verse 256, the Holy Quran announces that "There is no compulsion in religion".

However, if one chooses Islam and becomes a Muslim willingly and consciously, he or she ceases to have the freedom to opt out of Islam. This would be tantamount to renouncing and declaring war against the Almighty Allah - this is why apostasy has been criminalised by an authentic tradition of the Prophet in Sahih Al-Bukhari (Vol 9, No 57) and as well severely reprimanded in the Holy Quran (2:217).

The Muslim community, however, must be realistic in its expectations of how much the Islam Hadhari government is willing to commit towards criminalising this offence. After all, it has never claimed to be the custodian of Islam, much less received a mandate as an Islamic government. It is for the Umno-led government to openly and correctly propound that such criminalisation is not ultra virus Article 11 of the constitution or any international treaty it has ratified.

Should a lacuna arise as a result of the implementation of the Article 121(1A), it must be redressed immediately. No one should be denied remedy if they truly possess the right in either the civil or Syariah court.

The nation, on the verge of celebrating her 50th independence, deserves a mutually respecting citizenry celebrating our multi-cultural heritage and our religious plurality, so as to enhance our effort at national unity and integration.

Given the multitude of challenging crisis at hand, from endemic corruption in government machinery to the sky-rocketing of the crime rate and a besieged environment, we are being unduly burdened by a regime that has overstayed its welcome.

Ironically, every time we sink into a quagmire, the real culprit (the ruling regime) escapes scot-free, while the citizenry (namely the opposition parties and civil society) are embroiled in endless bickering and enmity.

If we insist on going down this dark alley of self-destruction, we do so at our own peril and have only ourselves to blame.

DR DZULKIFLI AHMAD is director of the PAS Research Centre.