v      Whether the NRD was legally entitled to require someone to produce a certificate or a declaration or an order from the syariah court before deleting “Islam” from an applicant’s identity card;

Counsel for Lina Joy

Counsel for Respondents (FT Religious Council, Government, NRD Dir. General)

-          By requiring an apostate certificate from syariah court has practically shut the door on LJ’s application to delete the word ‘Islam’ from her identity card. It is an injustice. Because there is no provision for apostasy in the FT Islamic law.

-          NRD's requirement is a violation of the Constitution.

-          NRD cannot determine a person’s religion. Under the NR Regulations 1999, NRD has the right to require Lina Joy to produce an order from the Syariah Court to confirm her renunciation of Islam.

v      “Islam” on IC

-          The word “Islam” on IC is discriminatory (Bar).

-          Entering “Islam” on IC is not discriminatory but a constitutional concept, a useful provision and serves as a practical process like identifying a person's religion at death, the collection of zakat (tithes), for marriage purposes, for identification during the fasting month and so on.

-          The National Registration (Amendment) Regulations 2000, gazetted in March 2000, requires Muslims to state their religion. It was brought into force retrospectively on Oct 1, 1999. Lina Joy applied her new IC on Oct 25, 1999.

v      Whether a person converting out of Islam must acquire declaration or an order from the syariah court

Counsel for Lina Joy

Counsel for Respondents (FT Religious Council, Government, NRD Dir. General)

-          There is no provision for apostasy in the FT Islamic law.

-          While syariah courts handle conversion to Islam, it does not mean that they should also handle renunciation.

-          The policy of seeking proof of apostasy from the Syariah Court is based on the “fundamentally flawed” 1999 Federal Court judgment of Soon Singh v Federal Territory Religious Council.

-          Renunciation of religion should not solely be a question of Islamic law but has to be considered in the context of a constitutional right under Article 11.

-          Not only the Syariah Court has no jurisdiction over persons who do not profess Islam, it has no power to decide whether one is an apostate. A person who had renounced Islam should only be required to register with the relevant religious council about his/her status (Bar).

-          FT syariah court has the power to issue the certificate of apostasy.

-          LJ has never brought up the case to the syariah court.

-          The current legal decisions have consistently held that the question of whether or not a person is a Muslim needs proper interpretation by the Syariah Court.

-          The issue of renunciation is a matter pertaining to the akidah (faith) of a Muslim transgressed into the realism of the Syariah Law. It needs serious consideration and proper interpretation of the law. Only the Syariah Court and/or bodies are qualified to make such a determination.

-          A proper determination of the status is important as the determination will take her out of the application of the Syariah Laws and out of the jurisdiction of the Syariah Courts.

v      Syariah court’s jurisdiction

-          Federal Constitution only confers limited jurisdiction to the Syariah Court and in that limited jurisdiction the doctrine of apostasy is not included.

-          The court should interpret the constitution and the court’s jurisdiction over this issue based on the express judicial approach.

-          The Constitution does not provide implied jurisdiction to the Syariah Court to handle matters pertaining to apostasy of Muslims.

-          "The civil court has no jurisdiction to hear an apostasy case. It is purely an Islamic matter and under the Syariah Court."

-          Syariah Courts have implied jurisdiction to handle matters regarding apostasy. “Deprivation of the appellant’s rights was not the issue” “It is the appellant’s own folly for not having pursued her remedies in the forum (syariah court) ordained by the Federal Constitution.”

-          The formal separation of jurisdictions of the civil and syariah courts by the inclusion of Article 121 (1A) of the Federal Constitution in 1988 accorded parallel status between the syariah courts and the civil courts was accorded.

v      Soon Singh’s case

Counsel for Lina Joy

Counsel for Respondents (FT Religious Council, Government, NRD Dir. General)

-          The decision was “fundamentally flawed.”

-          The Federal Court had misread “Islamic council” as “Syariah Court” resulting in power being given to the Syariah Courts.

-          The Federal Court had rightly decided in the case of Soon Singh.

v      Constitution & Islam

-          Every person in Malaysia is entitled to the protection of Article 11(1) which necessarily entails the right to change one’s faith. “Such choice cannot be made subject to the discretion of any third party, agency or institution, including courts of law." (Bar)

-          The Reid Commission report and the White Paper, on which the Constitution was based, had fully considered the background and historical evolvement. The report was based on a comprehensive survey of proposals and viewpoints from relevant sectors of the then Malayan society.

-          The Cobbold Commission, formed to obtain the views leading to the formation of Malaysia in 1963, reiterated that Islam was the official religion of the Federation and all other religions could be practised.

-          Despite the history of Islam, the framers of the constitution had intended that Malayan law be secular law. Article 3 was intended to be for ceremonial purposes, not to make Islam the governing law.

-          The Constitution is the supreme law of the country (Article 4) and safeguards the interest of people of all races and religions. This overrides Article 3 on the position of Islam as the religion of the Federation. The theory that Article 3 overrides all other provisions including Article 11 ought to be rejected as a kind of revisionism and re-writing of the federal constitution.

-          The definition of ‘law’ in Article 160 does not refer to Islamic law but to written law, common law and custom and usage

-          Freedom of religion as enshrined in Article 11 should not be interpreted in isolation from the larger context of the role of Islam in the formation of the country’s Constitution.

-          Islam has a special position in Malaysia because it was the religion of the federation.  Article 3 must take precedence over Article 11.

-          Islam has been granted by the Constitution certain powers to govern the affairs of Muslims, including the issues of conversion and apostasy of members of the Muslim community.

-          There is no relevance to make references to Article 11(1) of the Federal Constitution, as LJ is not prohibited from renouncing her religion.

v      Lina Joy’s rights to apostasy

-          LJ can practise and profess a religion of her choice because it is a right given under the Constitution. The interpretation – that the right to freedom of professing or leaving a religion depends on the tenets of the particular religion – would render the freedom guaranteed by the Constitution illusory.

-          LJ has the right to profess the religion of her choice as guaranteed under Article 11 of the Federal Constitution. “She has been denied the right to profess the religion of her choice, right to marry and have children." (Women NGOs)

-          Malaysia is a signatory of the Universal Declaration of Human Rights and Convention on the Elimination of all Forms of Discrimination against Women.

-          Muslims could not enter and leave Islam as freely as the adherents of other religions.

-          LJ cannot become an apostate at will

-          LJ is a Muslim in accordance with Section 2(1) of the Administration of Islamic Law (Federal Territories) Act 1994 (Act 505) at all material time because she was born into the faith and her upbringing was conducted on the basis of the religion.  If she wishes to renounce the religion, she must first resolve the issue with the authorities which protect and preserve the affairs and interests of Muslims before raising the issue of constitution with the Federal Court.

-          LJ is not constitutionally prohibited from renouncing her religion. Therefore Article 11(1) is irrelevant.