lina joy

24 Pages·2014·0.41 MB·English

by  Shawn Rajanayagam

LINA JOY — UNOFFICIAL TRANSLATION

IN THE FEDERAL COURT, MALAYSIA
AT PUTRAJAYA (APPELLATE JURISDICTION)
CIVIL APPEAL NO. 01-2-2006 (W)

Lina Joy
(Appellant)

vs

1. Islamic Religious Council of the Federal Territory
2. Government of Malaysia
3. Director of National Registration
(Respondents)

JUDGMENT OF THE MAJORITY
[Except Richard Malanjum, the judge in the minority]

1. The appellant was given leave to appeal to this court on the following questions:
a. whether the National Registration Department (‘NRD’) is entitled in law to
impose a requirement that the appellant produce a certificate or a declaration
or an order from the Syariah court that she has apostatised before the word
"Islam" in the applicant's identity card (‘IC’) is deleted?
b. whether the NRD has correctly construed its powers under the National
Registration Regulation 1990 especially Rules 4 and 14, to impose the
requirement as stated above when it is not expressly provided for in the 1990
rules?
c. whether the case of Soon Singh a/l Bikar Singh vs Kedah Islamic Welfare
Body, Malaysia (PERKIM) (1999) 1 MLJ 489 was rightly decided when it
adopted the implied jurisdiction theory propounded in the case of Md Hakim
Lee vs Federal Territory Islamic Religious Council, Kuala Lumpur (1998) 1
MLJ 681 and not following the case of Ng Wan Chan v Federal Territory
Islamic Religious Council, Kuala Lumpur & Anor (No.2) (1991) 3 MLJ 487
and Lim Chan Seng vs Director of the Department of Islamic Religion,
Penang and 1 other case (1996) 3 CLJ 231 which declared that if no express
jurisdiction is conferred on the Syariah court, the civil courts will retain their
jurisdiction?
2. Appellant was born a Muslim. Because she intended to marry a Christian man,
Appellant made application to NRD on 21 February 1997 to change her name from
Azlina binti Jailani to Lina Lelani on the reason that she had already embraced
Christianity. This application was not approved by the Third Respondent (Director of
National Registration). On 15 March 1999 the Appellant applied once again to change
her name by this time from Azlina binti Jailani to Lina Joy. In her statutory
declaration, he Appellant once again said she wanted her name to be changed because
she had already embraced Christianity. On 2 August 1999, the Appellant, acting on
the advice of an officer at NRD, made another statutory declaration in which she gave
the reason of her wish to changed her name as deliberately choosing that name and
not because she changed her religion. In November 1999, the Appellant was given her
new Identity Card but the NRD inserted the word ‘Islam’ at the front of her IC and
her previous name a the back of that card. On 3 January 2000, the Appellant applied
to the NRD to have the word ‘Islam’ deleted. This application was rejected and the
Appellant was told that her application was incomplete without an order from the
Syariah Court which stated that she had already left the religion of Islam. The
Appellant then made application to the High Court for several declarations against the
Federal Territory Islamic Religious Council and the Government of Malaysia. The
Declarations applied for were based on infringements of her basic right to the freedom
of religion as guaranteed by Article 11(1) of the Federal Constitution. Nevertheless,
the High Court rejected that application. The Appellant then appealed to the Court of
Appeal. The Court of Appeal by majority rejected her appeal. The Appellant then
made application for leave to appeal to this court and her application was granted on
the questions as stated at the beginning of this judgment.
3. At the Court of Appeal the parties agreed (and this is clear from the grounds of
judgments of the majority and dissent) that only one issue needed to be considered by
the court – namely, whether the NRD was right, under the law, when it rejected the
Appellant’s application to delete the word ‘Islam’ from her IC and to require a
certificate or order of apostasy from the Syariah Court beforehand. The majority
judgment of that court decided that the NRD was not wrong under administration law
when rejecting the appellant’s application; (2005) 6 MLJ at page 213. The Appellant
in her application to NRD stated that there was an error in her IC and the said error
was her religion was described as ‘Islam’. Hence the majority judgment was of the
view that the Appellant’s statement had indirectly meant that the Appellant said she
had already left Islam. Because of that, NRD could require the Appellant, under Rule
4(c)(x) of the 1990 Regulation, to produce documentary evidence to support the
accuracy of her claim that she was no longer a Muslim. The majority judgment also
ruled that whether a person had left Islam is a question which is related to Islamic
law, and that question is not within the NRD’s jurisdiction which was not equipped or
qualified to decide that matter. Because of that, the NRD maintained a policy to
require confirmation by the religious authority before the NRD acted to delete the
word ‘Islam’ from a Muslim’s IC. This policy is completely reasonable, according to
the majority judgment; (2005) 6 MLJ at page 209.
4. In this court, Appellant’s lawyer argued that only the 1990 Regulation formed the
written source of powers under which the NRD could require an apostasy order.
According to the lawyer, the 1990 Regulation did not contain provision which
permitted the NRD to require that documents from the Appellant. The lawyer then
went on to stress that the document specified under Rule 14 was only a statutory
declaration. Therefore, by requesting the production of a document and that document
was however not provided for or permitted by Rule 14, the NRD acted ultra vires its
powers under the 1990 Regulation. This, the lawyer argued, is not valid under
administration law. That lawyer then argued that the majority judgment should have
decided that way and their failure to do so should become the reasons upon which this
court, as an Appellate Court, must set aside that judgment.
5. The 2nd and 3rd Respondents’ lawyers stressed that the Appellant’s application was
to delete the word ‘Islam’ from her IC. Therefore, that application falls under Rule
14(1)(c) which is to correct the details of her religion. Rule 14(1) reads:

(1) A person registered under these Regulations who—
(a) Changes his name;
(b) Acquires the citizenship of Malaysia or is deprived o his citizenship of
Malaysia; or
(c) Has in his possession an identity card containing any particular, other than
his address, which is to his knowledge incorrect,
shall forthwith report the fact to the nearest registration office and apply for a
replacement identity card with the correct particulars.”

The lawyer then referred to Rule 4 which reads:

Any person who is required to register under regulation 3(1) or 3(2) or to re-register
under regulation 18 or 28 or who applies for a replacement identity card under
regulation 13 or 14, shall—
(a) …
(b) …
(c) give the following particulars to the registration officer as aforesaid,
namely:
(i) his name as appearing in his Certificate of Birth or such other
document or, if he is known by different name, each of such names, in
full;
(ii) his previous identify card number, if any;
(iii) the full address of his place of residence within Malaysia;
(iv) his race;
(iva) his religion (only for Muslims);
(v) his place of birth;
(vi) his date of birth and sex;
(vii) his physical abnormalities, if any;
(viii) his status as a citizen of Malaysia or other citizenship status;
(ix) such other particulars as the registration officer may generally or
in any particular case consider necessary; and
(x) produce such documentary evidences the registration officer may
consider necessary to support the accuracy of any particulars
submitted.”

The lawyer then stressed that Rule 4(c)(ix) and (x) are the powers which justified the
NRD introducing the condition of the need for apostasy certificate.

6. Regarding these arguments, I agree with the majority agreement that Rule 14(1) is
related to:
(a) change of name under paragraph (a); and
(b) to correct particulars which are not true under paragraph (c).

The Appellant’s case falls under the particulars which are not true according to
paragraph (c). Nonetheless, Rule 14 did not state what should be given in the cases of
untrue particulars but Rule 14(1) certainly requires the Appellant to report facts
regarding untrue particulars to the nearest Registration Office and to apply for a
replacement IC which contains the correct particulars. When it comes to this, Rule 4
becomes relevant because that rule clearly states that whoever applies for a
replacement IC under Rule 13 or 14 shall follow Rule 4. Based on that, I agree with
the 2nd and 3rd Respondents’ lawyers that the NRD has justification under Rule
4(c)(x) to require confirmation from the Islamic religious authority regarding the
Appellant’s apostasy or her leaving of Islam. Based on that, I agree with the majority
judgment which states that the Appellant in her 3rd application stating the error in her
IC is regarding the statement of her religion as ‘Islam’ and the Appellant wants that
error to be corrected by removing the word ‘Islam’ from that IC. This is the same as
the Appellant saying that she has already left Islam. Therefore, the NRD can,
following Rule 4(c)(x), require the Appellant to produce documentary evidence which
supports the accuracy of her insistence that she is no longer a Muslim. I also agree
that if the NRD receives a person’s admission that he has already left Islam based on
declaration made by him then the NRD took the risk when approving, erroneously,
that a person as non-Muslim while according to the Islamic laws that person still has
not left Islam. This would also make it easy for those who were born and educated as
a Muslim but has the attitude of apathy or indifference towards Islam be classified as
non-Muslims solely to avoid being penalized for offences under Islamic laws. All
these would result in disparagement from the Muslim society. It is because of these
reasons, same as the views of the majority judgment, that I believe, the NRD adopted
the policy that statutory declaration alone is not enough to enable the word ‘Islam’ be
removed from the IC of a Muslim. This is because the matter of leaving Islam is a
matter which is related to the Islamic laws and because of that the NRD adopted the
policy which requires confirmation from the Islamic religious authority before the
NRD could act to delete the word ‘Islam’ from a Muslim’s IC. Based on the
considerations as enumerated above I agree with the majority judgment that rightly
the NRD policy is something which is completely reasonable.
7. Regarding this NRD policy, the Appellant also argued that by requiring the apostasy
certificate, the NRD has delegated its power and duties under Rule 14 to a 3rd party
so that the 3rd party would decide whether to approve the application to delete the
word ‘Islam’. This, according to the Appellant, cannot happen except when being
permitted by the relevant laws. Hence, that NRD policy without permission under
Rule 14 conflicts with the laws. Then the Appellant’s lawyer argued that the court’s
job is not to confirm that a policy is reasonable; but what the court has failed to
appreciate is that such matters are for the legislators and not for the court to decide
whether reference should be made to another religious body.
8. On that argument by the Appellant, I am of the view that, as argued by the 2nd and
3rd Respondents’ lawyers, that Rule 4(c)(x) clearly gives the power to the
Registration Officer to require documentary evidence which is deemed important to
support the accuracy of any particulars which has been put forward. Therefore the
reference to an authority of Islamic law is provided for by the laws and hence it is not
wrong under the laws as argued by the Appellant. The reference does not mean that
the Syariah Court is asked to decide whether to permit the application to delete the
word ‘Islam’. The Syariah Court is merely asked to confirm whether the Appellant is
of the religion of Islam or not based on Islamic laws. Guided by this decision then, it
is within the NRD’s discretion to decide whether the approval could be given to delete
the word ‘Islam’ or not.
9. Appellant’s lawyer has also referred the case of Ismail bin Suppiah vs Director of
National Registration (R-1-24-31 year 1995) to this court. According to that lawyer,
both the Ismail case and the case under appeal at this court are about:
(a) change of name because of change of religion;
(b) powers of NRD under Rule 14;
(c) a certificate from the Religious Council as a pre-condition before the NRD
could consider the application under Rule 14;
(d) the freedom of a person to choose religion guaranteed under Article 11 of
the Federal Constitution;
(e) third party cannot decide on what religion a person should choose; and
(f) Rule 14 did not introduce a condition that a certificate to be obtained from
the Religious Council.
The lawyer then showed that I was the judge in the Ismail case and I had dismissed
the NRD’s decision which required a certificate from the Religious Council as ultra
vires Rule 14.
9.1. The Plaintiff in the Ismail case was a Muslim since birth. The Plaintiff
applied so that his Muslim name as stated in his IC be changed to a Hindu
name on the reason that, as stated in his statutory declaration, he had
already left Islam and embraced Hinduism. NRD was insistent on requiring
the approval of the Johor Department of Islamic Religion or the Grand Qadi
of Johor about the Plaintiff’s action in leaving Islam. The NRD still refused
to approve the Plaintiff’s application even though the Plaintiff’s lawyer had
already reported to the Grand Qadi of Johor about the fact that the Plaintiff
had already left Islam. Hence the NRD referred the matter to and for the
action of the Johor Department of Islamic Religion. Because of that the
Plaintiff applied and obtained from Kuala Lumpur High Court a declaration
that the approval of the Johor Department of Islamic Religion was not
required and that any reference by the NRD to that Department was ultra
vires Rule 14, the 1990 Regulation, s 141(2) of the Administration of
Islamic Law Enactment 1978 Johor State, and Article 11(1) of the Federal
Constitution. The Plaintiff also applied and obtained an order so that the
NRD issued temporary IC with the Plaintiff’s new name.
9.2. Regarding the Appellant’s argument that the NRD did not appeal against
the High Court’s decision in that Ismail case and because of that the NRD
could not take a stand in this appeal which conflicts with the High Court
decision.
9.3. The majority’s judgment stressed that the Ismail case was a case which
involved application to change name in the IC whereas the Appellant’s
appeal in this court is to delete the word ‘Islam’ from her IC. Because there
was no reasons for judgment in that Ismail case, the reasons for the High
Court in making such a decision could not be known. Hence the Court of
Appeal only managed to make a few guesses regarding why I decided like
that in the Ismail case. Those guesses originate from saying that I looked at
the Ismail case from the angle that it should be decided in the context of
Johor laws. I was said to have perhaps held the view that the NRD was
wrong when required the consent of the Johor Department of Islamic
Religion before the Plaintiff could leave Islam whereas according to the
Johor Enactment the correct authority was the Qadi under s 141(2). Section
141 of the Johor Enactment says:
Section 141
(1) Whoever entered anybody to embrace Islam shall immediately
report the matter to the Qadi by giving evidence which is required for
registration.

(2) Whoever found that a Muslim has already left Islam shall
immediately report to the Qadi regarding his decisioin to leave Islam
by giving evidence required and the Qadi shall declare that the person
has left Islam, and shall be registered.
9.4. It is also the guess of the majority judgment that I have held the view that
NRD had misunderstood s 141 because at para 10 of the affidavit of NRD
dated 28.7.1995, the NRD officer seemed to have said that sub-section (2)
only applied to a person who previously embraced Islam under sub-section
(1). The majority judgment also guessed that I might have held the view,
from the clear words of sub-section (2), that in Johor, the Qadi himself also
did not have the right to give or not give consent to a Muslim to leave
Islam. That matter is left only to the relevant person. The Qadi’s job was
only to announce the facts of a person leaving Islam and then register it.
That job was only mechanical. Deducing from this, I was guessed to hold
the view that:
(a) In Johor, a Muslim was free to leave Islam and he does that by only
saying so;
(b) no approval or determination by any religious authority was
required;
(c) the NRD should have accepted the Plaintiff’s statutory declaration
which stated that the Plaintiff had already left Islam as the proof that
the Plaintiff was no longer a Muslim; and
(d) the NRD should have approved the Plaintiff’s application to change
his name.
9.5. From the guesses as enumerated above, it is clear that the Ismail case
should be analyzed in the context of Johor laws. S 141(2) of the
Administration of Islamic Law Enactment 1978 Johor State clearly showed
that even the Qadi had no right to give or not give consent for the leaving of
Islam. Hence the guess of the majority judgment was correct when it is said
that because of the clarity of the words in s 141(2), the NRD should have
accepted the Plaintiff’s statutory declaration which stated that the Plaintiff
had left Islam as the proof that the Plaintiff was no longer a Muslim and the
NRD should have approved the Plaintiff’s application to change his name.
It should be stressed at this stage that the above enumeration shows that
Article 121(1A) and item 1, list 2, Schedule 9 of the Federal Constitution
did not arise in the Ismail case.
10. The next issue argued by the Appellant is whether the Federal Territory Syariah Court
had the jurisdiction to decide on apostasy. Appellant argued that the NRD had so far
taken the same position regarding the Appellant’s various applications i.e. the
Appellant must first obtain an apostasy order from the Syariah Court or, as later said
by the Director in his affidavit, from any other Islamic authority. The Appellant also
argued that the Administration of Islamic Laws Act (Federal Territory) 1993 (Act
505) did not have provision regarding apostasy. The Syariah Court or any other
Islamic body was not given the jurisdiction in apostasy matter and neither was any
power given to any authority under that Act to issue apostasy order. This was the
situation at all time which is material in the Appellant’s case from February 1997 to
January 2000 and until today. According to the Appellant again, section 46(2)(b) Act
505, as found today, listed matters in which the Syariah Court could exercise its civil
jurisdiction and under this section the matter of apostasy is not found under that list.
The majority judgment accepted that Act 505 did not contain any provision regarding
apostasy. That judgment then considered the Appellant’s argument that the Federal
Court’s decision in the case of Soon Singh (supra) had shaped the procedure followed
by the NRD in requiring the confirmation from the Syariah Court before the
department accepts the fact that a Muslim has left Islam. The decision in the case of
Soon Singh, according to the majority judgment, is and still authoritative in
administration laws, from the angle of that decision, the NRD acted correctly when
named the Syariah Court as the authority which could issue apostasy confirmation and
the NRD will accept the confirmation as proof that the Appellant is no longer a
Muslim. The majority judgment, nonetheless, held the view that the question of
whether the decision in Soon Singh was correct or not was not important because the
appeal before it was already agreed by the parties to the appeal to be deemed to be
about the correctness of the NRD decision according to the administration laws and
no longer about constitutional questions. Therefore the Appellant argued in the Court
of Appeal that the NRD’s action in introducing the condition that the order of the
Syariah Court should be obtained was an action which was not reasonable according
to the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1
KB 223. This was because, according to the Appellant, that order was impossible to
obtain because of the lack of provision about apostasy in Act 505. At this stage, I
should state my agreement with the part of the majority agreement which states that
what he NRD wanted was a confirmation from someone who has the power to make it