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Case Law
: Lina Joy v Majlis Agama Islam Wilayah Persekutuan & 2 Ors 2005 [CA]
Special Reference: [Artivle 3, Article 74, Article 121 (1A)
Article 3 is not a declaration that the federation is an Islamic State, only
as religion.
This is based on the the clarification made by the PM Tunku Abdul
Rahman in the Federal Legislative Council 1958:
I would like to make it clear that this country is not an Islamic State as it
is generally understood, we merely provide that Islam shall be the official
religion of the State
ADMINISTRATION OF SYARIAH LAW IN MALAYSIA
In todays practice of Islamic laws in Malaysia you may ask these
questions:
Lina Joy, 43, was born Azlina Jailani and was brought up as a Muslim,
but at the age of 26 decided to become a Christian. She wants to marry
her Christian boyfriend, a cook, but she cannot do so while her identity
card declares her to be Muslim.
In 1999, the registration department allowed her to change the name in
her identity card to Lina Joy but the entry for her religion remained
"Islam".
She was asked to apply for a new replacement identity card. This she
did on 25 October 1999.
The application by the appellant for replacement identity card was
rejected.
Then, the appellant made a third application on 3 January 2000 (third
application) to NRD office in Petaling Jaya and applied to remove the
word Islam and her original name from her replacement identity card.
The counter clerk however refused to accept her application on the
ground that it was incomplete without an order of the Syariah Court to
the effect that she had renounced Islam.
The Director General attempted to deny that the application was rejected
at the counter. However the Court of Appeal accepted the version of the
appellant.
Article3, Article 74, Article 121 (1A)
Syariah
DEFINITION
ARTICLE 74
In what extend does Syariah laws were applicable to the Muslims?
Islamic law:
The legal rules that are part of the Syariah and enacted as legislation in
accordance with the Federal and State Constitution
In Malaysia the Islamic law applied is of the Shafii school of
jurisprudence (mazhab), with some modification by Malay adat
(customary) law.
Islamic law is not our Federal management but it is within the state
management.
Does not import Islamic principles into the Constitution but it does
contain a number of specific Islamic features:
- States may create their own laws to govern Muslims in respect of
Islamic Law and personal and family law matter.
- States may create Syariah courts to adjudicate over Muslims in respect
of State Islamic Laws.
- States may also create laws in relation to offenses against percepts of
Islamic but this is subject to a number of limitations: (i) Such laws may
only apply to Muslims, (ii) Such laws may not create criminal offenses as
only Parliament has the power to create criminal laws and (iii) the state
Syariah Courts has no jurisdiction over Islamic offences unless allowed
by Federal Law ( See the above section. )
Case Law Related to Article 3
Explaination on Article 74
If any dispute happened, each government jurisdiction must followed its
own power that had been enumerated.
If the matter falls under the Federal List, the state cannot legislate on it.
If a matter falls under the precept of Islam and also the Federal List, the
Federal List prevails.
The
9th Schedule, List II
, i.e. The State List of the Federal Constitution, Syariah Law in Malaysia
applied on persons professing the religion of Islam in the following
areas:
Polygamous Marriage
Close Proximity
Indecent Dressing and Behavior
Violation of the "Pillars of Islam". ( i.e., not fasting during Ramadhan
days, not attending Friday Prayers, Desertion by either spouse )
Apostasy
Who has the authority over Islamic Law in Malaysia?
Islamic Law is a state matter.
Responsible for all Islamic matters except Islamic Law & the
administration of justice.
THE MUFTI
The Mufti are appointed by the Sultan/YDPA ( For states without Sultan )
"In such a situation of conversion by one spouse, the husband still bears
the responsibilities of sustaining the children until the age of majority."
[Surah al Baqarah:233)
Religion of the children below the Muslim age of majority is authentically
considered to be a Muslim after the conversion of one spouse
Conclusion of the case:
Suggestion:
Make the Supreme Court of Syariah. So, there are two phase of appeal.
3 years imprisonment.