On Wednesday May 30, 2007 Malaysia’s highest court ruled that they did not have the authority to help Lina Joy, a Malay Muslim, officially convert to Christianity and have that change reflected on her National Identity Card. Depending on what you know about the Malaysian Constitution and their judicial system, this may or may not surprise you. Obviously, I found it distressing. When I then learned that Article 11, clause 1, of the Malaysian Constitution states, “Every person has the right to profess and practice his religion and, subject to Clause 4, to propagate it.” I grew more confused. I should also mention that Article 3, clause 1, is “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.” So why is Lina Joy screwed? Welcome to the nightmare of the Malaysian Constitution butting heads with the Malaysian judicial system, and religion.
“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of inconsistency, be void,” Article 4, clause 1, the Malaysian Constitution. Of course, the Malaysian Constitution is enough to make the average person bash their head against the wall, or maybe that was just me. The Constitution became official in 1957 and has been amended approximately 42 times up through 2005. The wrinkle is that every batch of amendments only counts as one, regardless of how many changes were actually made each time the Constitution was amended. Thus, some scholars estimate that the true number of amendments has been more like 650. Ouchie. To help with your perspective, the United States Constitution, including the Bill of Rights and subsequent amendments, takes up roughly nineteen 81/2×11 pages. The Malaysian Constitution, in a similar font and format, uses up one hundred and sixty three 81/2×11 pages. Most authorities agree that the Malaysian document was deliberately vague, because the founding fathers were unwilling to upset any of the three dominant groups at the time of independence from Britain, when building a multiracial and peaceful nation was more important. Upon reading the document, a brain buster to say the least, I can safely say that the Malaysian Constitution is a somewhat conflicting piece of governance. Among loads of things, it allows for the freedom of faith, yet it says that Islam is the official religion. Anyone who understands the importance of separation of Church and State knows that this is a recipe for disaster.
I found several different numbers, so I’m taking the average. Approximately 54% of Malaysians are Muslim, with the remainder being Buddhist, Christian, Hindu, and Sikh. Malaysia has long served as an example of the world’s most progressive and modern Muslim democracies. I don’t want to put down Malaysia, it’s blend of religion and cultures is impressive and made for an awesome episode of “No Reservations” with Anthony Bourdain, but the more I’ve been learning, the more I have to say that Malaysia has some issues that terrify a born and raised American. Here is where the fun starts. Most native Malays, like Joy, are Muslim and have been for generations. Muslims, by order of their faith have certain requirements, and in an effort of the Malaysian government to better serve the Muslim needs, which have different laws that apply to them, a Muslim’s National Identity Card identifies them as Islam. In addition, to better serve the Muslim populations, they have their own court, the Shariah courts. These courts deal in the family and personal affairs of Muslim citizens. Civil courts see to the affairs of everyone else. Bumiputra, Malays and other indigenous people, who are primarily Muslim, benefit from a 30 year-old program of privileges that require certain levels of ownership by bumiputra to be maintained and enforce hiring quotas within large companies. Obviously, those standards continuing are dependent on the bumiputra staying a majority in Malaysia, and that religious conversions potentially can mess with those numbers. All of this lays the groundwork for how Lina Joy was screwed.
In 1990, Azlina Jailani began attending a Christian church. In 1998, she became baptized and filled out the paper work to have her name legally changed to Lina Joy. She also requested that her religion on her National Identity Card be changed to Christian, so that she could marry her Christian fiancé. Muslims in Malaysia are not allowed by law to marry people of other faiths. The intended spouse is expected to convert to Islam. Her name was legally changed, but both times she made the request to have Islam removed from the card, it was refused because she was ethnic Malay and was legally Muslim and could not change religions. Citing Article 4, 3, and 11 of the Malaysian Constitution, Joy took her case to the civil courts, because she was a baptized Christian and felt that the Shariah courts should not be involved in the matter.
The Federal Court was divided 2 to 1 in its decision that the matter was beyond the jurisdiction of the country’s civil courts and must be handled by religious authorities. Chief Justice Ahmad Fairuz Abdul Halim said that the government agency responsible for identity cards acted reasonably when it refused to change Joy’s religious status. According to the International Herald Tribune, he was quoted as saying, “She cannot at her own whim simply enter or leave her religion. She must follow the rules.” Yep, 8 years is very whimsical. Silly girl.
What are these rules that Joy should follow? She must offer proof in a special Muslim court that she has abandoned Islam and that the civil courts cannot interfere. Oh, that’s not so tough. Bearing in mind that according to Leonard Teoh Hooi Leong, a lawyer representing the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism, and Taoism (they’re called MCCBCHST for short…I’m serious), Joy will have a very difficult time getting the Islamic authorities to allow her to leave Islam. No one in recent years has done it in the federal territory of Kuala Lumpur, where Joy is registered. He says that those who have tried have been threatened and cajoled. Um, okay. That’s tougher. Oh, by the way, the abandonment of Islam is called apostasy, is deplored by many Muslims, and in several Malaysian states is punishable by fines and imprisonment. (To show how progressive Malaysia is, in other Muslim countries the punishment could be death.) Lina Joy’s fate now rests with the Shariah courts, and that would be why she is screwed. The Malaysian Constitution does not clearly state who has the final say in such matters and so by default it goes to the Islamic court.
rd Malanjum, the one dissenting opinion, was quoted in the International Herald Tribune as saying Joy’s “fundamental constitutional right of freedom of religion” had been violated. Also, “She is entitled to have an identity card in which the word Islam does not appear.” Calling the agency’s refusal to officially change her religion “an abuse of power.”
Well amen brother! The older I get, the more I appreciate the simplicity, yet effectiveness, of the United States Constitution and the Bill of Rights. After trying to learn and weave my way through this mess, I would kiss every last person involved with the Philadelphia Convention. Moreover, I don’t mean that figuratively. Go! Dig up their bones! After learning all this, I appreciate them enough I would French kiss their decomposed remains! Take heed friends, Malaysia is a shining example of what happens when there isn’t an effective separation of Church and State, and when civil liberties are whittled away at. The next time someone is willing to make a concession and gives away even a sliver of our rights, all it’s doing is making it easier for them to take more away.
In honor of Lina Joy and her plight, take a moment to read the Constitution of the United States of America, its Bill of Rights, and subsequent amendments. Savor the freedoms that our Constitution gives us that poor Lina Joy does not have access to. http://www.constitutioncenter.org/constitution/constitution.pdf
Obviously, a dumb average American like me does not innately know all about the Malaysian Constitution and justice system. I read many articles and visited many sites to cobble this together. If you want to walk in my footsteps, here are the many websites I visited and articles I read:
http://www.pogar.org/publications/other/constitutions/malaysia-e.pdf (all 163 pages of Malaysian Constitutional headache!)