Friday, June 22, 2007

Lina Joy and religious freedom in Malaysia

In today's Sydney Morning Herald, NSW Supreme Court Judge David Hodgson provides a compelling summary of the recent decision of Lina Joy, a Malay woman who abandoned her ancestral Islamic faith.

Malaysia’s constitution declares Islam to be the official state religion. At state level, it establishes Islamic courts which govern the legal affairs of Muslims in certain defined areas. At state and federal level, it also has secular courts applying the common law and statute law, just as an Australian court would do.

So what happens to a person who falls somewhere in the middle? What happens when a case involves an ex-Muslim or an alleged Muslim convert with non-Muslim family members? Which court is supreme? Which legal system operates?

This is an ongoing legal and constitutional saga in a country where at least 40% of the population are non-Muslims.

His Honour says:

As a member of the United Nations, Malaysia is committed to the Universal Declaration of Human Rights ...


Sadly Malaysia hasn’t ratified a host of international human rights treaties, including those dealing with eliminating racial discrimination. This means the contents of these treaties need not be reflected in Malaysia's domestic law.

Malaysia’s Human Rights Commission (SUHAKAM) has, in its 2005 Annual Report, mentioned the case of former Army Commando M Moorthy, a Hindu by birth given a Muslim burial after he allegedly converted to Islam. His Hindu wife and family wanted him cremated in accordance with Hindu custom. Civil courts refused to consider the widow’s application that religious courts erred in declaring Moorthy a Muslim.

His Honour erred, in my opinion, in claiming that the majority ruling of two Muslim judges in the Federal Court decision of Lina Joy “raises the doubts about Islam’s compatibility with religious freedom”. If His Honour could establish that Malaysian Federal Court rulings represent the definitive consensus of 14 centuries of Islamic sacred jurisprudence, I might accept his statement. Is the Joy case really a failure of Islam itself? Or is it a failure of those who drafted the Malaysian constitution?

Malaysia has no constitutional court able to sort out clashes between secular and religious jurisdictions or to review decisions of secular courts refusing to intervene in religious court decisions having direct impact on non-Muslims.

His Honour suggests Malaysian Muslims “applauded” the Joy decision. Perhaps His Honour might subscribe to Malaysiakini.com and read the many letters and articles penned by Muslims critical of the Joy decision. He might also talk to people from groups like Sisters In Islam.

His Honour then challenges Muslim Australians to speak out against such excesses, even suggesting any silence on their part only reinforces these doubts.

The decision was applauded by Muslims in Malaysia. But what do moderate Muslims in Australia think about it?

Suppose that there was a law enforced in Australia. which made conversion from Christianity a criminal offence, punishable by order of Christian tribunals.

Suppose that there was also a law that prevented a woman who had converted from Christianity to Islam from marrying a Muslim man, unless she obtained a certificate from a Christian tribunal that she was no longer a Christian, and that these certificates were difficult to obtain. I'm sure Muslims in Australia would find this utterly repugnant, and rightly so.

Do Muslims in Australia not think that the converse situation in Malaysia is similarly repugnant? Would it be possible for Muslim leaders in Australia, and in other countries with religious freedom, to speak firmly and clearly against the denial of religious freedom in countries such as Malaysia?

If they can and do, this would certainly help to show that Islam can be compatible with religious freedom; but if they cannot and don't, doubt must remain.


In principle, I agree to some extent. Muslim lawyers, at least, should express their dismay in the strongest possible terms. These issues can be easily dealt with. The stalemate between religious and secular courts must be resolved in a manner that maximises and preserves freedom of religion. As one Malay anthropology professor told me in June last year:

"What sort of Islam is this that we have in Malaysia where I don't have the right to be non-Muslim? The Prophet Muhammad gave me that right. Why can't the Malaysian law?"


Further, to suggest that the law of one Muslim country and the decision of one of its courts somehow reflects on the religious heritage of 1.2 billion Muslims and 14 centuries of Islamic juristic heritage is surely drawing a long bow.

To claim that silence of any Australian Muslim represents his or her agreement with Malaysian law effectively suggests Muslims here are somehow responsible for the actions of Malay Muslims. Do we hold all Jews responsible for ever excess of the State of Israel? Of course not.

But in practice, what possible influence could Australian Muslims have on Malaysian lawmakers? I tested this in June last year when I visited representatives of the Malaysian Chinese Association (MCA), a party in the ruling coalition government. MCA officials spoke passionately to our Australian Muslim delegation about the lack of religious freedom in Malaysia. We were appalled.

We repeatedly asked MCA officials whether they’d like us as Australian Muslims to lobby Malaysian Muslim MP’s on behalf of non-Muslim minorities. MCA officials repeatedly avoided the question. I couldn’t understand why, though later I received the following explanation when speaking to a Malaysian Chinese lawyer with links to an opposition Malaysian Party.

“Irfan, these guys benefit from Malaysia’s near-apartheid. They’ve been bought off with government contracts and tenders for their business. Why would they want you to threaten the system that butters their bread?”


Is this true? Who knows? What is certain is that MCA and other groups are campaigning hard to raise awareness about the difficulties faced by religious minorities in what is regarded as one of the world's more progressive Muslim-majority states.

© Irfan Yusuf 2007

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7 comments:

Karl said...

Dear lrfan,

Better tell ya opposition lawyer friend of Chinese descendant, do Singapore nor 'near-apartheid'.

Ask him too where we can find a country like Malaysia gave everything they not even dream to ask it even in China mainland and Singapore? Chinese shool in SG, Chinese tradition in China also big big cemetery? All located at hills? Fire cracker? All allowed in Malaysia.

Some Chinese companies never feel guilty when disclosed they want Chinese-speaking candidates for a certain job they advertise. This is not 'near-apartheid'? Xenophobic?

The Chinese don't really want into civil service or government don't give enough place?

Where we can find Chinese company enjoy AP (ie sugar-Robert Kuok) when Bumiputra company will gave their AP in three years from now? Government should take the AP!

Please look from the history, when they got jus soli why they very very reluctant to give some room for origin people of the soil? Is 30% is too much? BTW l'm not support blindly if some Bumiputra/BNputras take advantage of the social engineering formula of NEP.

Jack said...

Does that previous post come with subtitles? Or perhaps an English language translation?

Anonymous said...

l think karl is from another planet. who told him firecracker is legal in malaysia especially during chinese new year? If you don't know stop barking like a mad dog. AP(Robert Kuok)? l think this is so far you know.Do you know how many given to the malays? your ten fingers are not enough to count.The chinese are citizens too so they are entitled their schools and a place to buried their dead but compare to their contributions that is not too much to ask because the chinese are good tax payers even our former PM also said if not because the chinese paid their taxes the govt won't have so much to spend for the economy . 30% is not much but those who keep thinking people owe them a living is not satisfied even when proven it's already more than 30%given.Who benefited from the 30%? The elite group not the ordinary people that deserve it. So the policy is to enrich that few because the good intentions of the policy has been abuse and misuse.l hope you do some research before posting this distorted views of yours because it's an insult to your own intellgence.

Anonymous said...

Dear Karl,

Before you start saying how your UMNO bosses are being fair to the malaysian Chinese, please look at the comments below to see the often unreported gross discrimination against them in boleh land. Please see the dark side of your ketuanan Melayu:

-------------------------------------

And today this is what happened in Malaysia racism,
These lists cover a period of about 49 years since Independence Day in Malaysia (1957):
(1) Out of all the 5 major banks in Malaysia , only one bank is own by multi-racial, the rest are controlled by Malays.
(2) 99% of Petronas (the only one petroleum company) directors are Malays, and the former Prime Minister work as Consultant in Petronas.
(3) 3% of Petronas employees are Chinese.
(4) 99% of 2000 Petronas gasoline stations are owned by Malays.
(5) 100% all contractors working under Petronas projects must be "bumi's status" (Malay).
(6) 0% of non-Malays staffs are legally required in Malay's companies. But there must be 30% Malays staffs in Chinese companies. And big companies in Malaysia require a Malays hold as director status with 51% shareholder. Which this mean non-Malays own company needs to give their property to Malays. And non-Malays citizen can't really own their business.
(7) 5% of all new intake for government police, nurses, army, is non-Malays.
(8) 2% is the present Chinese staff in Royal Malaysian Air Force (RMAF), drop from 40% in 1960.
(9) 2% is the percentage of non-Malays government servants in Putrajaya ( Malaysia main government office). But Malays make up 98%.
(10) 7% is the percentage of Chinese government servants in the whole government (in 2004), drop from 30% in 1960. Only 2 position for non-Malays in political status. -
(11) 95% of government contracts are given to Malays; even it is an open tender. Non-Malays contractors tender the lower price and use better materials can't get the contract that government given.


(12) 100% all business licensees are controlled by Malay government e.g. Taxi permits, Approved permits, etc. and all the license are given to government officer families. -

(13) 80% of the Chinese rice millers in Kedah (north of peninsular Malaysia ) had to be sold to Malay and controlled by Bernas (Government Org.) since 1980s. Otherwise, life is make difficult for Chinese rice millers.

(14) 100 big companies set up, owned and managed by Chinese Malaysians
were taken over by government, and later managed by Malays since 1970's
e.g. UTC, UMBC, MISC, etc. This company now is the sole company. -
(15) At least 10 Chinese owned bus companies (throughout Malaysia, throughout 40 years) had to be sold to MARA or other Malay transport companies due to rejection by Malay authority to Chinese application for bus routes and rejection for their application for new buses. - (16) 2 Chinese taxi drivers were barred from driving in Johor (South of Peninsular Malaysia) Larkin bus station. There are about 30 taxi drivers and 3 are Chinese in October 2004. Spoiling taxi club properties was the reason given.

(17) 0 non-Malays are allowed to get shop lots in the new Muar (city in south peninsular Malaysia ) bus station (November 2004).
(18) 8000 billions ringgit is the total amount the government channeled to Malays pockets through ASB, ASN, MARA, privatization of government agencies like Tabung Haji etc, through NEP over 34 years periods.
(19) 48 Chinese primary schools closed down since 1968 - 2000
(20) 144 Indian primary schools closed down since 1968 - 2000
(21) 2637 Malay primary schools built since 1968 - 2000
(22) 2.5% is government budget for Chinese primary schools. Indian schools got only 1%, Malay schools got 96.5%
(23) while a Chinese parent with RM1000 salary (monthly) cannot get school-text-book-loan, and a Malay parent with RM2000 salary is eligible.

(24) 10 all public universities vice chancellors are Malays. And politics in universities are held by Malays. If non-Malays want to form a politics parties, there is no way to get approved.

(25) 5% - the government universities lecturers of non-Malay origins had been reduced from about 70% in 1965 to only 5% in 2004 with the reason Malaysia Education Ministry give full support for Malays only.
(26) Only 5% is given to non-Malays for government scholarships over 40 years.
(27) 0 Chinese or Indians were sent to Japan and Korea under "Look East Policy".
(28) 128 STPM (High Study / A Level) Chinese top students could not get into the course that
they aspired i.e. Medicine and doctors (in 2004). Malays with not qualify result can get into the course.
(29) 10% place for non-bumi students for MARA science schools beginning from year 2003, but only 7% are filled. Before that it was 100% Malays.
(30) 50 cases whereby Chinese and Indian Malaysians, are beaten up in the National Service program since 2003.
(31) 25% is Malaysian Chinese population in 2004, drop from 45% since 1957 because government are not support non-Malays like government support Malays.

(32) 7% is the present Malaysian Indians population (2004), a drop from 12% since 1957.
(33) 2 millions Chinese Malaysians had emigrated to overseas since 40 years ago due to unfair politics.
(34) 0.5 million Indians Malaysians had emigrated to overseas.
(35) 3 millions Indonesians had migrated into Malaysia and became Malaysian citizens with bumi's status.
(36) 600000 are the Chinese and Indians Malaysians with "red I/C" (a temporary identity card) and were rejected repeatedly when applying for citizenship for 40 years. Perhaps 60% of them had already passed away due to old age. This shows racism of how easily Indonesians got their citizenships compare with the Chinese and Indians
(37) 5% - 15% discount for a Malay to buy a house, regardless whether the Malay is rich or poor
(38) 2% is what Chinese new villages get compare with 98% of what Malays villages got for rural development budget..
(39) 50 road names (at least) had been change from Chinese names to other names.
(40) 1 Dewan Gan Boon Leong (in Malacca) was altered to other name (e.g. Dewan Serbaguna or sort) when it was being officially used for a few days. Government tries to shun Chinese names. This racism happened in around year 2000 or sort.
(41) 0 temples/churches were built for each housing estate. But every housing estate MUST got at least one mosque/surau built.
(42) 3000 mosques/surau were built in all housing estates throughout Malaysia since 1970 with full government support. No temples, no churches are built in housing estates that supported by government.
(43) 1 Catholic Church in Shah Alam took 20 years to apply to be constructed. But told by Malay authority that it must look like a factory and can't look like a church. Still not yet approved since 2004.
(44) 1 publishing of Bible in Iban language banned (in 2002)
(45) 0 of the government TV stations (RTM1,RTM2, TV3) are directors of non-Malays origin.
(46) 30 government produced TV dramas and films always showed that the bad guys had Chinese face, and the good guys had Malay face. You can check it out since 1970s. Recent years, this tendency becomes less.
(47) 10 times, at least, Malays (especially Umno) had threatened to massacre the Chinese Malaysians using May 13 since 1969.
(48) 20 constituencies won by DAP would not get funds from the government to develop. Or these Chinese majority constituencies would be the last to be developed
(49) 100 constituencies (parliaments and states) had been racist re-delineated so Chinese voters were diluted that Chinese candidates, particularly DAP candidates lost in election since 1970s
(50) Only 3 out of 12 human rights items are ratified by Malaysia government since 1960
(51) 0 elimination of, all forms of racial discrimination (UN Human Rights) is not ratified by Malaysia government since 1960s
(52) 20 reported cases whereby Malay ambulance attendance treated Chinese patients inhumanely, and Malay government hospital staffs purposely delay attending to Chinese patients in 2003. Unreported cases may be 200
(53) 50 cases each year whereby Chinese, especially Chinese youths being beaten up by Malay youths in public places. We may check at police reports provided the police took the report, otherwise there will be no record
(54) 20 cases every year whereby Chinese drivers who accidentally knocked down Malays were seriously assaulted or killed by Malays
(55) 12% is what ASB/ASN (Malays Own banks) got per annum while banks fixed deposit is only about 3.5% per annum.
(56) The latest news about the police in Malaysia . Believe that the Malaysia police officer have caught a Chinese girl and punish her with naked body nearby the windows that other people (believe that is police officer) can took video recording via mobile phones. This news spread to China , and finally Malaysia government told to public that is Malay girl. After that there's no more news about the case.
And more cases haven't been discovered.

Anonymous said...

Dear Irfan,

In the picture you posted, is the girl in the front row Lina Joy? If it is indeed her, then it is the first picture of her anyone has seen. Can you confirm? Thanks.

Anonymous said...

Dear Karl,

In Singapore, your comment will be labeled as "Talking Cock".

What type of Origin people are you referring to? The aborigins are still living in the jungle and Malays are not originated from the peninsular.

Get your history right, your definition of xenophobia & apartheid right too.

Irfan Yusuf said...

OK, can we stick to discussing the issues arising from the case? I'm not interested in the ethnic politics of it all. My concern is with religious minorities and how to ensure their freedom is maintained from the whims of majorities of any colour or faith.