Lina Joy - a 'lose-lose' story

If you’re a subscriber to malaysiakini as I am, you can’t avoid reading about the Lina Joy case and sensing a range of emotions emanating from its pages.

Religion is such an emotive subject thus one shouldn’t be surprised to feel those human expressions of their inner feelings brought out to the public gaze – of frustration, elation, sadness, quiet lamentation and embarrassment, depending on which side you are on, and your personal values and conscience.

The story of apostasy is not a topic that can be discussed without heated arguments – note the use of the words ‘discussed’ and ‘heated arguments’, because that’s the inevitable progression of intellectual dissection of a situation where the sovereignty of religion is perceived to be threatened.

Though the Federal Court, as reported by malaysiakini, ruled by a 2-1 decision that jurisdiction of the Lina Joy case remains with the Syariah court, her avenue of appeal to be recognised as a non-Muslim is not yet closed as she still can appeal to the Syariah Court.

Of course non-Muslim supporters of Lina Joy baulked at the very thought of her going to the judgement of the Syariah Court, but as it is the only legal avenue left for her, I would urge her to consider it. What is there to lose anyway?

The current legal predicament confronting Lina stems back to some twenty years ago, when a Malaysian Muslim (or was one) by the name of Abdul Rahim, a teacher, challenged the syariah court’s power to prosecute him. He said he was no longer a Muslim as he was practising the teachings of Qadiani, a Muslim sect in Punjab, India, founded by Hadhrat Mirza Ghulam Ahmad.

Now, the teachings of this sect had been declared as deviant by the Malaysian Fatwa Council, therefore Abdul Rahim argued in court that if he was following a deviant religion, surely he must no longer be a Muslim and not under the jurisdiction of the syariah court.

After hearing the teacher’s case, syariah court judge Sheikh Azmi Ahmad ruled that the syariah had jurisdiction over him as the fatwa (religious edict) alone did not necessarily render him an apostate. But Abdul Rahim took the matter to the civil High Court which granted him a decree that he was no longer a Muslim and therefore not bound under the syariah court.

Needless to say, the ruling caused a big panic among the Muslim community because it meant that any Malaysian Muslim could just leave Islam by looking for and then following a sect pronounced as deviant by the Malaysian Fatwa Council.

The Mahathir government had the Constitution amended to include an additional clause, namely Article 121(1)(A), which states that the civil court has no jurisdiction on syariah matters.

This has come to bear on Lina Joy’s case, though of course I am aware that in Lina’s case, she was challenging the NRD’s regulatory powers to denote in her IC that she is a Muslim and then refusing to remove that religious status when she demanded it. I would 't be surprised if that legal clause constraining the civil court from infringing into the jurisdiction of the syariah court had indirectly influenced the court's ruling.

There’s no point in cursing or blaming the court nor wringing our hands in sympathetic woe with Lina. The fact that it was a 2-1 decision of the Federal Court, which while not satisfactory to Lina’s supporters, nonetheless showed that the hearing was as best as one could obtain in the face of Article 121(1)(A).

While I am not always a supporter of PAS, I believe that Dr Siti Maria Mahmud who is PAS women’s wing leader, lamented the blunt truth when she said: “The damage is done. Ultimately, I don't think there was a victory for either side.”

Yusri Mohamad, the president of Abim actually provided some good advice that those who are “aggrieved in any way” with any part of the existing [Islamic/Muslim] arrangement should “choose other, less confrontational and controversial approach towards change and reform”.

He said: “We believe the court procedure is an unhealthy one because such issues should be avoided (at the courts) as all confrontational approaches should be shunned,” he said when contacted.”

“We also plead that those hoping for an opposite outcome to reconsider their position and to consider modifying their expectations to suit what is good and more sustainable considering our realities.”

He expressed what Dr Siti Maria Mahmud had expressed, that the decision should not be a perceived as a victory for Muslims and a loss for non-Muslims.

He concluded: “It is our belief that it is wrong for us as Muslims and Muslim associations to tolerate any injustice in the name of Islam.”

I did wonder whether Lina Joy could have resolved her predicament in another way. Once the case is taken to court, it's showdown at OK Corral with the inevitable win or lose outcome. Out in the open, in public gaze, there won't be any room for compromise or nifty manoeuvring by both sides.

Quiet negotiations or behind closed door appeals would be better. In this, I am also aware that the general Muslim community has an existing suspicion and rejection of multi-religious bodies or councils, So what would be the best forum or body for people like Lina Joy to lodge her personal difficulties, to seek a solution to her confusing religious status?

I would invite Abim to propose a solution if the courts are to be avoided. I agree the non-court avenue potentially has the most favourable outcome for people like Lina.

Notwithstanding the legality of her religious status, Lina Joy is in reality a person who no longer wishes to nor practises Islamic tenets. Nonetheless I hope she will lodge her appeal with the Syariah Court, and dare hope that the Islamic bench shares Yusri Mohamad’s personal conviction of a compassionate and just Islam.