Bread. June 2007
Lina Joy case holds lessons for Singapore
The Lina Joy case was big news in Malaysia last week when the Federal
Court in Kuala Lumpur delivered its decision, but I noticed that few
Singaporean blogs touched on it. Perhaps it's because most people here do
not think it relevant to Singapore since we do not have a split judicial
system in quite the same way as our neighbour. Yet there are 2 aspects of
the court's findings that I think resonates with our experience of law and
bureaucracy in Singapore.
The other possibility why so little is said in Singaporean blogs about this case may be that Singaporeans have been frightened off discussing race and religion, particularly Islam, in the wake of the 2005 prosecutions when three young men were found guilty under the Sedition Act for inciting racial hatred. If so, this is a pity, and a misreading of the scope of those cases. Spewing expletives is one thing, debate, even robust debate, is quite another. Our societal discourse would be poorer if we are too frightened to talk about what must surely be among the chief faultlines of society.
The 2 aspects that I cam going to discuss are (a) the impact on fundamental rights and (b) legality of administrative action. The decision obviously will have far-reaching effects on Malaysia's constitutional guarantee of freedom of religion. Technically however, the case revolved around administrative law.
As you can see from the gist of the case (box at right), Lina Joy was aggrieved that the National Registration Department (NRD) demanded from her a certificate of apostasy from a shariah court before it would accede to her request to delete "Islam" from her identity card (IC). Was this demand legal?
In effect, the majority on the court said the demand was legal. Contrary to the more breathless reports, the Federal Court did not say that Lina Joy could not convert to Christianity. It merely said that she would have to go to a shariah court and persuade it to issue her with a certificate of apostasy, as required by the NRD.
As to whether directing her to do so infringed on her constitutionally guaranteed freedom of religion, the court noted that no fundamental right is ever absolute. To leave Islam, one has to follow the procedures of Islam for leaving it.
Indeed, fundamental rights are never absolute. They have to be balanced against others' rights and subject to a few compelling limitations. For example, one cannot claim the right of free speech to smear another person's good reputation or to shout "Fire!" in a crowded cinema.
But the majority on the Malaysian court was, in my opinion, too quick to rely on such a rationalisation. They didn't ask themselves what other rights were being balanced against, for example. They should also have looked harder at the practicalities of sending Lina Joy to the shariah courts. Would she get a fair hearing? Would she have a realistic chance of success through it?
For her to submit to the jurisdiction of the shariah court would be to admit that she was Muslim. This would be completely contrary to her stand -- that she was Christian. How could it be fair to expect her to take this route? It's really a non-starter.
Secondly, many states in Malaysia have criminal laws against apostasy. Prescribed penalties, while varying from state to state, are generally in the order of a fine of 5,000 Ringgit and a jail term to up to 3 years. Apostasy does not only mean leaving the religion. It also means doing or saying anything that denies one or more of the fundamental tenets of the religion, e.g. desecrating the Koran or denying some aspect of Allah. Hence, for Lina Joy to even ask for a certificate of apostasy -- that is, to deny that Allah is the one true God -- would be to incriminate herself, exposing her to such punishment. With no guarantee that she would be permitted to leave the religion at the end of it.
And that's the third point. A comment on a Malaysian blog pointed out that a study had recently been conducted of what happened in the Malaysian state of Negri Sembilan, where the shariah courts have developed, unlike other Malaysian states, a process for leaving Islam: "Of the 89 applications made between 1984 and 2003, 16 applications were allowed, 29 applications were dismissed and 39 postponed."
There were nearly twice as many "dismissed" than "allowed". How does the "freedom of religion" guarantee then pan out for those who are "dismissed"? Can they go back to the secular courts to seek redress?
This latest judgement seems to say: No. The court ruled that determining whether someone was Muslim or not was within the purview of the shariah courts, and not the secular courts. Yet it is the role of the secular courts to enforce the constitution; it is doubtful (from what I read) that the shariah courts have a responsibility to the constitution. So, in the matter of freedom of religion, who is there to enforce that guarantee?
For the Federal Court to consign Lina Joy to the procedural limbo of the NRD and the shariah court is not a shining example of justice. The court should have recognised that bureaucratic procedures that have the effect of unreasonably thwarting a constitutional right should be struck down, not upheld.
And Singapore? The parallel that came to my mind was in police procedures for allowing gatherings in public. For all practical purposes, such gatherings with the slightest whiff of political intent have been disallowed. Yet we have a constitutional guarantee of freedom of association, which in developed democratic countries includes the freedom to assemble peaceably in public in order to make known and propagate certain views.
Thus, we too seem to have a constitutional right that is thwarted by impenetrable bureaucratic procedure. Can we rely on our courts for redress? Going by what happened in the suit pursuant to the police breaking up a 4-man protest outside the CPF Building in 2005, don't bet on it. In that case, the judge said the police were acting correctly when they demanded that the 4 persons disperse. 
With such a low threshold for police intervention, what kind of protest can be held in Singapore? What then is left of the meaning of "freedom of speech and assembly"?
The technicality in Lina Joy's case revolved around the question of whether it was lawful for the NRD to insist that she produce a certificate of apostasy from a shariah court. The NRD said they needed this document before they could delete the word "Islam" from her IC.
On the face of it, it doesn't sound too unreasonable. Malaysian law provides that the NRD may ask for evidence to support any particular bit of information that an applicant for an IC has provided in the application form. Wasn't the NRD therefore acting under this remit to require a certificate?
The dissenting judge said No. And I agree with him.
You see, Lina Joy, in her application form gave her religion as "Christian". She was more than able to provide supporting evidence of this, since she had a baptismal certificate.
Where did the word "Islam" come from? It didn't come from her; it came from the department. And then she was asked to disprove what the department had imputed to her.
The Malaysian law regulating the NRD's job said the department could ask an applicant to provide evidentiary support for what is written on the form by the applicant. It didn't say that the NRD could demand proof or disproof of things that the NRD came up with.
One could say that it was obvious that Lina Joy had once been a Muslim, since she was born to Malay-Muslim parents. But I don't think it's terribly fair to expect people to be bound by a religion they did not consciously choose for themselves. She shouldn't be required to prove that she had left Islam via the proper procedures when she didn't choose to be in it in the first place. She had been a practising Christian since she was 26 years old, early in her adulthood.
In conclusion, the dissenting judge said the NRD's demand for a certificate of apostasy was unlawful. Obviously the majority on the court felt otherwise.
The dissenting judge's position brought to mind the 2004 Snowball affair in Singapore. Snowball was one of the spin-offs from the Nation Party that had been held annually since 2001. In the press statement issued by the police when they refused Snowball 2004 a licence, the police said it was because the party would be a gay event. The police had on previous occasions required an undertaking by the organisers that their parties would not be gay affairs, but have subsequently found them to be such. Hence future parties would be banned, the statement said. 
The question to be asked is: What right had the police to demand an undertaking that the parties were not gay affairs as a condition for the licence? Weren't the police exceeding their remit which was to ensure security? Or were they trying to play moral police?
If their demand for such an undertaking was not lawful, their banning of the party would not be lawful either.
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The Lina Joy case is not irrelevant to Singapore; in fact we would benefit if we could see beyond the question of religion to the question of law. Then, quite instructive parallels appear.
© Yawning Bread