LUSHANI A/P RAMANATHAN PAVITRA A/P SATHASIVAM Analyze the principles in the High Courts decisions of Meor Atiqulrahman [2005] 5 MLJ 375 and Lina Joy [2004] 2 MLJ 1. Do you think that these decision are in line with the position of Islam in the Federal Constitution? Article 3 (1) of FC : Islam is the religion of the federation but, all other religions may be practiced in peace an harmony.
In Schedule 9, List II, Paragraph 1 State Legislatures are permitted to legislate for the application of Islamic laws to persons professing the religion of Islam in a variety of areas.
CASE : Che Omar bin Che Soh v PP [1988] 2 MLJ 55
Syariah Courts may be established by the State law and it is declared that they shall have jurisdiction only over persons professing the religion of Islam.
in exercise of powers within their jurisdiction, Syariah Courts are independent of the civil courts : Article 121(1A)
The plaintiffs claimed to have been dismissed from school for wearing serbans in school beside wearing the school uniform.
The plaintiffs seek for a court order to declare that their expulsion from school was void, null and of no effect and they should be accepted back to study in the school.
The defendants in their defence contended that the plaintiffs in wearing serbans in school had breached art 3(5)(v) of the School Rules 1997, prepared by the school headmaster according to the Ikhtisas Circular Letter No 9/1975, Ministry of Education.
The Circular Letter, inter alia, provided: 'The headmaster could also consider other matters which are not in the list according to the circumstances in their respective school'.
Held : Allowing the plaintiff application. Rules prohibiting pupils from wearing serbans (Rules of School Uniform No 3/1983) There was no notice given An opportunity to be heard was not granted Art 11(1) of Federal Constitution Wearing the serban is valid according to Hukum Syarak The plaintiff was born as a Muslim, she was brought up as a Muslim or her up bringing was conducted on the basis that she was a Muslim, she lived as a Muslim with her family and reputed to be a Muslim.
She had replied to the National Registration Department (NRD) to change her name from Azlina bte Jailani to Lina Lelani and in support stated, inter alia, that she intends to marry a person who is Christian.
The application was however rejected on matters relating to conversion out of Islam shall be determined by the Syariah Court. Article 11(1) Faiza J distinguish freedom of religion and freedom of choice The right to profess and practice did not extent to change of religion Civil court must accept a Muslim to be still Muslim till the Syariah court has made a pronouncement. FC allows the conversion out of Islam to be determined by the Syariah court. Freedom of religion under Article 11(1) must be read with Article 3(1) special position of Islam as a dominant religion of the Federation. In the case of Meor - no clear provisions in FC that prohibits a Muslim from wearing a serban. Besides, the wearing of serban does not contradicts the principles of Islamic law. Hence, the decision of the High Court is in line with the Federal Constitution. Regarding the case of Lina Joy, as Islam is the dominant religion of the federation, there is a duty to protect, defend and promote the religion. Thus, freedom of religion does not leads to any conversion of religion. Since Lina Joy is still a Muslim, finality decision of conversion of religion falls within the competency of Syariah court.
Case : Lina Article 11(1)- gives her right to profess and practise the religion of her choice No restriction regarding the issue of conversion but it should be determined and concluded by the Syariah court. Matters regarding Muslim- must be settled in Syariah court ( Article 121(1A) of FC) Case : Meor Atiqulrahman
The mere act of wearing serban is not contradicted with any law as there was no presence of clear provisions in FC that prohibiting the act of wearing serban
Every person has the right to practice any religion and a mere act of wearing serban is valid according to hukum syarak and not void under the civil laws of muslim and no muslims. Therefore,the wearing of serban is valid according to the constitution.
By virtue of Art.3 and Art.11 of FC i.e. by adopting Islam the religion of the Federation, Islamic Education and way of life can be promoted for Muslims.
Islamic Constitutions can be established , Islamic Court can be set up and Muslims can be subjected to the Syariah Court in areas assigned by the Constitution.
Introduction to Syrian Personal Status and Family Law: Syrian Legislation and Jurisprudence on Marriage, Divorce, Custody, Guardianship and Adoption for the Purpose of Immigration to the United States: Self-Help Guides to the Law™, #9