Constitutional right to freedom of belief is made illusory

This letter is issued on behalf of All Women’s Action Society (AWAM), Sisters in Islam (SIS), Women’s Aid Organisation (WAO), Women’s Centre for Change (WCC) and Women’s Development Collective (WDC), five women’s groups that held a watching brief in Lina Joy’s case.

We are disappointed with the Federal Court majority decision dismissing Lina Joy’s appeal. The decision disregards the right of a person to profess and practise the religion of her choice as enshrined in Article 11 of our Constitution, and renders illusory this Constitutionally-guaranteed fundamental liberty.

We are deeply concerned about the implications of this judgment for individuals, such as Lina Joy, who no longer profess Islam. Despite the clear guarantee to freedom of religion in our Constitution, the court’s judgment would require them to seek consent from religious authorities regarding the very private matter of their personal faith, before their choice of religion is recognized in civil law. Compelling such individuals to do so is unfair as it forces them to incriminate themselves and risk criminal prosecution in those states where renunciation of Islam is a religious offence.

We are troubled that the decision will also have the effect of denying Lina Joy, and others in a similar position, various basic women’s rights, therefore infringing their human rights. These include the right to marry a partner of their choice and to choose their country of domicile, as they would have to leave Malaysia should they wish to marry non-Muslims. Their reproductive rights are also affected in that they are denied the right to bear children within a legitimate marriage. All these rights are enshrined in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Malaysia ratified in 1995.

We are, however, heartened by the dissenting judgment of Justice Richard Malanjum, which raised several critical points that warrant serious consideration.

Article 4 of the Constitution states categorically that the Constitution is the supreme law of Malaysia. According to Justice Malanjum, the supremacy of our Constitution means that all laws as well as “administrative, departmental and executive discretions, policies and decisions” must conform to the Constitution.

Furthermore, as stated by Justice Malanjum, the civil courts must not abdicate their constitutional function by declining jurisdiction on matters that involve Constitutional issues and fundamental rights just by invoking Article 121(1A) of the Constitution, which states that the civil courts have no jurisdiction over matters within the Syariah Courts’ jurisdiction. Only the civil courts can adjudicate constitutional issues that implicate fundamental liberties.

We also agree with Justice Malanjum, whose judgment begins with the view that where issues of constitutional importance are concerned, “all other interests and feelings, personal or otherwise, should give way and assume only a secondary role if at all”.

In any event, fundamental rights guaranteed under our Constitution cannot be removed merely by submitting individuals to the jurisdiction granted to the Syariah courts under Article 121(1A).

The divide in our society over the issue of freedom of religion has grown due to the lack of public space for discussion and for alternative viewpoints to be expressed on this matter. The issue remains unresolved because the constitutional and legal arguments raised by the dissenting judgment do not appear to have been addressed by the majority judgment. We believe that the judgments approving the National Registration Department (NRD)’s requirement for Lina Joy to provide a certificate from the Syariah Court may open doors for abuse by allowing other agencies to impose discriminatory requirements that are not provided for in their regulations.

We believe that the Federal Constitution protects every person’s right to freedom of religion in a way that acknowledges the person’s right to harmoniously practise her personal beliefs within our society. The denial of this right constitutes a violation of the right to equality and non-discrimination enshrined in Article 8 of our Constitution.

We urge that opportunities for open discussion be provided so that Malaysians can collectively seek just and durable solutions to the issues that impede our efforts to build national unity.

Finally, we call on the government to take urgent steps to ensure that all Constitutionally-guaranteed fundamental liberties, including the freedom of personal faith, are upheld and given effect in practice.