THE IMPACT OF ART. 121 (1A) 1988 ON ART. 11 - THE FREEDOM OF RELIGION IN THE FEDERAL CONSTITUTION OF MALAYSIA: THE APOSTASY CASE OF LINA JOY

Abstract

Methodologically, this paper revolves around a qualitative discussion on the apostasy case involving Lina Joy and its impact in Malaysian law and society. After 1988, the judiciary was made subservient to Parliament and has no jurisdiction in respect of any matter within the purview of the Syariah Courts. An analysis on the details pertaining to the continuing dilemma over whether the civil or the syariah was the correct avenue to decide apostasy cases will be specifically highlighted. People wanting to renounce Islam argue that they should not be subject to the Syariah courts that only recognize Muslims, given that they no longer profess the faith. With the state-led Islamisation under the Mahathir administration previously (1981-2003), state Islamic laws were being promulgated and streamlined among the thirteen states in Malaysia to include specific state laws criminalizing apostasy and several others. Apostates were required under several state Islamic laws to go through a period of “rehabilitation”. Hence, a contestation of jurisdiction began under Art. 121(1A) in 1988 of the Malaysian Federal Constitution. A curious situation had arisen at this time where freedom of religion may be denied or side-stepped as a constitutionally protected freedom, once a case is perceived to have come under the purview of the Syariah courts. The civil courts (High Court and Federal Court) had upheld the principle that in a case of conversion out of Islam, the jurisdiction belongs to the state Syariah court. Only the state Syariah court is empowered to deliberate and declare on apostasy. Until such a time the application for conversion out of Islam has been made, heard and disposed of in the Syariah court, the plaintiff is to all intent and purposes, a Muslim. The High Court decided that it has no jurisdiction over such a Muslim who is seeking a declaration as to a change in status. The affected Muslims in these cases claim that they are entitled to renounce Islam under Art. 11 (Freedom of Religion). Connectively, this paper aims to scrutinize and understand further the selected apostasy case involving Lina Joy, which will enable us to use this case point as an important term of reference in highlighting the issue on the freedom of religion as guaranteed under Art. 11 and the cognisance of it with Art.121 (1A). In this said case of Lina Joy, the court ruled that the freedom of religion in Art. 11 (1) (over Muslims), does not give the plaintiff the freedom of choice to practice the religion of her choice. Conclusively, this paper affirms the fact that the so-called right is subject to Art. 11 (4) and Art.11 (5), as the issue of a person’s religion is directly connected to the rights and obligations of that person as determined under state Islamic law.