Most Read
Most Commented
Read more like this

I refer to the malaysiakini report Lina Joy judgment at a glance.

Article 11 of the Federal Constitution says every 'person has a right to profess and practise his religion'. I take it as self- evident that the expression 'every person' here means literally every person, whether Muslim or non-Muslim, Malays or non-Malays.

The court's reasoning : 'While, the Federal Court acknowledges that there are no express provisions that the Syariah courts can decide on the issue of apostasy, however, if non-Muslims are converting into Islam, they have to go through the Syariah courts. Therefore based on the concept necessary implication, if one chooses to exit Islam, (one) must go through the same authorities. I see no flaws in that logic.'

Lets talk about the subject, logic and flaws, bearing in mind Justice Richard Malanjum's 57-page dissenting judgment based on Article 8(1) of the Federal Constitution stating that all persons are equal before the law and are entitled to equal protection of the law.

Let's make three assumptions here, which I think are reasonable:

  • the Syariah courts will uphold the faith, more likely in favour towards those who enter it against those who exit it.

  • Article 11 of the Federal Constitution upholds freedom of religion which means it holds a person's right to enter a faith (conversion) in equal importance as his right to leave the faith (apostasy).
  • All Malays are Muslims by birth, not so for non-Malays.
  • Upon these assumptions, lets examine the argument map which in a nutshell may be reduced thus:

    (a) The Syariah courts determine non-Muslims' conversion into Islam (entry into the faith);

    (b) Therefore arising from (a), the Syariah courts will also determine a Muslim's conversion out of Islam (exit out of the faith - apostasy).

    The (a) implies (b) argument ignores the essential difference in positions of a non-Muslim voluntarily exercising his right to enter into the faith by conversion, and that of a Malay by birth (like Lina Joy) whose being of the faith is an incident of birth and not choice, and whose right to freedom of religion is purported to be exercised by her here to exit rather than to enter the faith.

    In the premises above and if the first assumption were correct, I think (based only on the brief excerpts reported) the minority dissenting judgment is correct to take the view that Lina Joy's right to freedom of religion and equal protection of the law under Articles 11 and 8(1) respectively are more likely abridged if not contradicted, if the sole arbiter of whether she could leave the religion of birth or not is the Syariah courts.

    The (a) implies (b) argument ignores the difference of whether there is choice in the first instance and hence, is, in the premises, inconsistent with the upholding of Articles 11 and 8(1) of the Federal Constitution.

    The majority decision is defensible in logic only if it can be shown that any of the three assumptions are incorrect. Otherwise, with the greatest respect, the logic of the dissenting judgment of the court is preferred.

    ADS