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Title: Lina Joy-Submission by Counsel for MCCBCHS
        Author: Leonard Teoh Hooi Leong

 

DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO:W-01-29-2001

Antara

 

LINA JOY (No. K.P. 640108-10-5038)                ?PERAYU

 

Dan

 

     1. MAJLIS AGAMA ISLAM

         WILAYAH PERSEKUTUAN                      ?RESPONDEN PERTAMA

     2.KERAJAAN MALAYSIA                               RESPONDEN KEDUA

     3.KETUA PENGARAH PENDAFTARAN           RESPONDEN KETIGA

         NEGARA

 

 

Brief of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism.

Preface

We are a registered society with our membership restricted to representatives from our component members representing the four religions which together represent the majority of non-Muslims in Malaysia.

 

Our Society is concerned with the implications of the various regulations gazetted under the National Registration Act as many of our members or members of their families have been deemed to be Muslims by the definition of ?Muslim? in various state enactments.

 

We are also concerned with the infringement of our constitution guarantee of freedom of religion as provided for in Article 11 of our Federal Constitution and non-Muslims? access to the Civil Court to seek legal redress.

This Court, bring the highest Court of our country is our only recourse for redress from the excesses of bureaucrats in our country.

 

Outline of Submission by Council for the Malaysia Consultative Council of Buddhism, Christianity, Hinduism and Sikhism.

 

Question 1

 

?Whether the national registration department (NRD) is entitled in law to impose as a requirement for deleting the entry of ?islam? in the applicant?s IC that she produce a certificate or a declaration or an order from the syariah court that she has apostatized??

 

1.            This question must be answered in the negative for the following reasons.

2.            Under Article 74(2) of the Federal Constitution, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List.

 

List II ? State List provides as follows:-

 

LIST II - STATE LIST

(Article 95B (1) (a))

 

1.      Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.

 

(Emphasis my own)

 

3.      Accordingly, except with respect to the Federal Territories, state legislative assemblies can legislate on the ?constitution, organisation and procedure of Syariah Courts which shall have jurisdiction only over persons professing the religion of Islam??..?

4.      It is to be noted that ?Muslim? is not mentioned in the State List and hence of the six definitions of a ?Muslim? in State Islamic enactments only that of ?a person who professes the religion of Islam? is in conformity with the State List and all other definitions will be inconsistent with the Federal Constitution and thus void.

 

5.      Islamic law can only be applied to ?persons professing the religion of Islam?: see para. 1 of the State List (List II of the 9th Schedule to the Federal Constitution) and the decision of the Federal Court in Kamariah binti Ali & Lain-lain lwn Kerajaan Negeri Kelantan & Satu Lagi [2005] 1 MLJ 197, FC per Tun Ahmad Fairuz KHN, @ headnote 1, and paragraphs 26-27, 37.

 

6.      The correct test to determine a person?s religion is what that person professes. The declaration by Lina Joy that she is a Christian means she professes Christianity as her religion. This in turn means that she can no longer be deemed to be a ?person professing the religion of Islam?

 

7.      ?Profess? is not defined in the Constitution and the only judicial definition for it locally is in a decision of the Singapore High Court (on 2nd November 1964 - thus, technically, a Malaysian High Court) in the case of Re Mohamed Said Nabi, deceased (1965) 31 MLJ 121, at 122 per Chua J, where the following meaning of ?profess? is adopted:-

?According to the Shorter Oxford English Dictionary, ?profess? means ?to affirm one?s faith in or allegiance to (a religion, principle, God or Saint, etc)?. ?

 

8.      The Indian Supreme Court in Punjab Rao v D. P. Meshram & Ors [1965] 1 SCR 849 (also reported in AIR 1965 SC 1179) also had occasion to consider the meaning of the word ?profess?.

 

8.1      In that case, the issue was to determine whether the 1st respondent was a member of the Scheduled Castes within the meaning of the Indian Constitution (Scheduled Castes) Order 1950. (The scheduled castes are the lower castes in India who had suffered mistreatment in the past and for which special provisions are guaranteed by the Constitution of India.) If the 1st respondent was from the scheduled castes, his election as a member of Parliament for an electoral constituency reserved for the scheduled castes would have been valid. If not, his election would be null and void.

8.2      Overturning the Bombay High Court, the Supreme Court held that a public declaration of belief in Buddhism was sufficient to hold that a person had ceased to profess Hindusim and that it was unnecessary to see if the conversion was ?efficacious?. The ratio of the Supreme Court can be found, it is submitted, at p. 858F-859D of the case where it is held:-

             ?The meaning of the word ?profess? have been given thus in Webster?s New Word Dictionary: ?to avow publicly; to make an open declaration of; ..... to declare one?s belief in: as, to profess Christ. To accept into a religious order.? The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning ?to declare one?s belief in: as, to profess Christ? is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of one?s belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious.?

                    [Emphasis is my own.]

 

9.      Profess means to ?affirm one?s faith in or allegiance to a religion? or ?self-acknowledged? (according to the Concise Oxford English Dictionary?s definition of ?professed?).

 

10.    In view of the foregoing the National Registration Department is not entitled to impose the requirement for the Appellant to produce a Certificate or a declaration as the Syariah Court will not have jurisdiction over the Appellant who is a person who does not profess the religion of Islam.

 

11.    In the case of Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor (1992) 1 MLJ 1 the Court needed the expertise of Islamic experts to give an opinion whether a deceased person was a Muslim and hence the need to refer the matter to the Islamic religious authorities for an opinion on the religious status of the deceased.

 

         But in this case, the appellant is still alive and had sworn a statutory declaration and affidavits to state that she now professes the religion of Christianity and therefore there is no necessity for any Islamic authorities to decide whether she is an apostate from Islam.

 

12.    Article 11 of the Federal Constitution states as follows:-

 

?(1) Every person has the right to profess and practice his religion??

 

This fundamental liberty is in line with Article 18 of the Universal Declaration of Human Rights which read as follow:-

        

?Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.?

 

13.    I submit that there is now a legitimate expectation amongst Malaysians that the rights enshrined in the Universal Declaration of Human Rights, so far as those rights are not inconsistent with the fundamental liberties guaranteed to us in our Federal Constitution, will be respected and given due regard by all the organs of State in Malaysia, since it has been statutorily recognized by virtue of s.4(4), Human Rights Commission of Malaysia Act 1999.

 

14.    It is therefore an infringement of the Appellants religious freedom under Article 11 of the Federal Constitution for the National Registration Department to unilaterally enter the word ?Islam? into her identity card.  

 

Question 2

 

Whether the NRD has correctly construed its powers under the National Registration Regulations 1990, in particular Regulation 4 and Regulation 14, to impose the requirement as stated above when it is not expressly provided for in the Regulations?

 

I have heard the submission of counsel for the appellant and am in full agreement with him.

 

Question 3

 

Whether Soon Singh was rightly decided when it adopted the implied jurisdiction theory propounded in Md Hakim Lee  in preference to Ng Wan Chan and Lee Chang Seng which declared that unless an express jurisdiction is conferred on the Syariah court, the civil courts will retain their jurisdiction?

 

1.            For the reasons stated in answer to Question 1 above, the case of Soon Singh v Perkim Kebajikan Malaysia (PERKIM) Kedah & Anor (1994) 1 MLJ 690 was wrongly decided.

 

2.       121(1A) which reads as:-

 

?The Courts referred to in Clause (1) shall have no jurisdiction in respect in respect of any matter within the jurisdiction of the Syariah Court.?

 

          Hence, it is only when the state legislatures have expressly made laws conferring jurisdiction on the Syariah Court would the High Court be deprived of jurisdiction in the matter.

 

 

 

 

Dated 28th day of June, 2006

 

-------------------------------------------

Leonard Teoh Hooi Leong

Counsel for Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism



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