Loyar Burok by LoyarBurokkers
Today,
the Federal Court hears a special Constitutional Reference from the
Shah Alam High Court which will have very far reaching consequences for a
small minority of Malaysians living a double life. These Malaysians are
forced into having an official “Muslim” identity, when they in fact
profess and practice a different religion.
An
Indian Malaysian, Zaina Abdin @ Balachandran, who says he has spent the
whole of his life – more than 60 years now – as a Hindu, is being
unconstitutionally treated as a “Muslim” by the authorities.
Bala’s
father, also of Indian ethnicity, went through a formal conversion
process in order to marry his Indian Muslim mother in the 1950s. But
Bala’s father and mother lived as Hindus and continued to profess and
practice Hinduism as their religion.
In
the early 1970s, Bala officially changed his name by a Deed Poll
published in the Government Gazette. He went through a marriage
registered under the Law Reform (Marriage and Divorce) Act 1976 to his
Hindu wife, and was blessed with 3 children.
But Bala and his three children are all all still being treated as Muslim even though all profess and practice Hinduism.
Profess
The
Constitution never uses the word “Muslim”. It uses the phrase “person
professing the religion of Islam” whenever it refers to the people we
call “Muslims”.
Bala professes Hinduism – he has never in his life professed Islam as his religion.
The
problem is because in 1989, they changed the law to include a
definition of a “Muslim” in the Selangor Administration of Islamic Law
enactment which had additional definitions other than “person professing
the religion of Islam”. Similar definitions founds its way into the
State Islamic Law of all States.
The
current 2003 legislation in Selangor includes as a definition of
“Muslim” a person who is born to a Muslim parent and a person who by
general reputation is considered a Muslim.
It is because of this that Bala and his three children are now caught in this crisis of identity.
Syariah Court and Islamic law
The
Government of Malaysia, and the Government of Selangor, both say that
Bala must go to the Syariah court first to get permission to “leave”
Islam. They say the other definitions of “profess” are all mere
extensions and elaborations of the phrase “person professing the
religion of Islam”.
But
Bala says that he is a Hindu. He does not want Islamic theological law
applied on him when he is a Hindu. He says it does not matter to him
that Islamic law classifies him as a Muslim – what is important to him
is that the Constitution does not allow Islamic law to be applied if a
person does not “profess” Islam, and the Constitution says he can
profess and practice his religion in peace and harmony.
Earlier,
the High Court had struck out the entire case saying it was an abuse of
process as Bala and his children had to go to the Syariah court. The
Court of Appeal unanimously allowed Bala’s appeal, and reinstated the case saying the issues were of constitutional importance.
Questions for the Federal Court to Determine
Yang Arif Nurchaya Arshad J referred 5 questions to the Federal Court in a Special Case Stated under section 84 of the Courts of Judicature Act 1964. Essentially, those 5 questions are:
1. Are the definitions of a “Muslim” in the relevant enactment, other than the definition “a person professing the religion of Islam” inconsistent with the Federal Constitution2. Under our constitution, does a parent of a child under 18 have the absolute right to determine the religion of the child3. Is it unconstitutional for Islamic law be applied to a person who professes himself to be a Hindu but is considered a Muslim under Islamic law4. Is the need to get permission from the Syariah authorities before a person can stop being considered a “Muslim” unconstitutional5. Is the rule that a person cannot register a change of name on his IC if the reason for the change is a change of religion unconstitutiona
The High Court Judge also gave her Grounds for
referring these questions, since the Government of Malaysia appealed
against her decision to refer this matter straight to the Federal Court.
Interestingly, the learned Judge said this:
I am satisfied that right to ‘profess’ his religion entitled a person with full liberty to declare his religion as he chooses, and that unfettered personal freedom is a fundamental right guaranteed by our constitution
(The appeal by the Government was dismissed because they had not named the other defendants in the High Court as Respondents in their appeal.)
Federal Court proceedings
The
case is scheduled to be heard at the Federal Court on Thursday,
Feberuary 2, 2012 before a panel of 5 Judges of the Court of Appeal.
LoyarBurokkers
Fahri Azzat, K Shanmuga and Aston Paiva will appear for Bala.
LoyarBurokker Edmund Bon will appear for the Malaysian Consultative
Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (who is
the 4th Respondent).
The
Government of Malaysia will be represented by the Attorney General’s
Chambers, whilst the Government of Selangor will be represented by the
Selangor State Legal Adviser. The Selangor Islamic Affairs Council
(MAIS) is represented by a firm of private lawyers.
UPDATED:
The Federal Court dismissed the Reference stating that there were still
facts in dispute making the case unsuitable for determination under
section 84. The matter was remitted to the High Court for a full
hearing. Read about the decision on Malaysiakini here and here, the Malaysian Insider and Free Malaysia Today.
The
written submissions of the lawyers are quite voluminous. What was filed
in Court beforehand and made available to LoyarBurok are the following.
All the submissions will be eventually uploaded here.
UPDATED: The following submissions have now become available.
For more on these issues, read the following:-
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