Lina Joy, a Muslim who converted to Christianity, was today granted leave to appeal to the Federal Court over the National Registration Department's (NRD) refusal to delete her status as a Muslim from her identity card.

A three-member panel of the apex court comprising Chief Justice Ahmad Fairuz Sheikh Abdul Halim and Justices Richard Malanjum and Augustine Paul held that there were new issues to be argued in the case and the matter was of public interest

"Having given anxious and careful consideration to the submissions advanced by the parties we are of the unanimous view that the principle involved in this case is a matter of general principle on which there has been no decision by this court.

"It is also a matter of public importance of which further arguments, followed by a decision of this court, would be to the public advantage," said Justice Ahmad Fairuz.

He also stated that the appeal will be confined to three main issues which are:

  • if the NRD is legally entitled to impose as a requirement a certificate or a declaration or an order from the Syariah Court before deleting the entry of 'Islam' form the applicants (Joy's) identity card;

  • if the NRD has correctly construed its powers under the National Registration Regulations 1990 to impose the above requirement when it is not expressly provided for in the regulations and;

    • whether the landmark case Soon Singh vs Perkim Kedah - which declared that the civil courts will retain their jurisdiction unless an express jurisdiction is conferred to Syariah Court - was rightly decided.

    The court earlier heard submissions from Joy's counsel Dr Cyrus V Das, senior federal counsel Umi Kalthum Abdul Majid, representing the NRD and the government and senior lawyer Sulaiman Abdullah who was acting for the Federal Territory Religious Council.

    Administrative decision

    Joy - whose Muslim name was Azlina Jailani - converted to Christianity in 1998 and is married to a Christian individual. She had successfully applied in 1998 to change her name but failed to have the entry 'Islam' deleted from her identity card.

    The NRD director-general had declined to change her religious status stating that it had no jurisdiction to do so without a proper advice from the Syariah Court or other Islamic religious authorities.

    Her attempt to quash and overturn this administrative decision at the High Court failed when the court on April 18, 2001 ruled that she could not renounce Islam and the issue should be decided by the Syariah Court.

    She then took the matter to the Court of Appeal which upheld the lower court's decision in a majority 2-1 decision.

    Court of Appeal judges Abdul Aziz Mohamad and Ariffin Zakaria had held that it was crucial for the NRD to seek confirmation from the Syariah Court before removing the word 'Islam' from national registration identity cards (MyKad).

    The dissenting judgement by Justice Gopal Sri Ram views that an order from the Syariah Court was not a relevant document for the processing of Joy's application.

    No written law

    Das submitted today that the 'sharp cleavage of opinion' between the majority and dissenting Court of Appeal judgment strongly indicated that the matter requires the attention of the apex court.

    He said the matter was of public interest as it raised issues of importance on the powers of the NRD, the religious rights and status of a citizen in relation to their respective identity cards.

    The court must once and for all decide whether a government department can impose a regulation in the absence of a written law authorising it, said Das ( pix, right ).

    "Could policy impose a requirement which could disqualify an applicant when written law - whether by Parliament or subordinate legislation- does not require the same? Could this amount to legislation by policy by a government department?"

    He also contended that if the majority judgment of the Court of Appeal is upheld, many citizens facing a similar predicament as Joy would be in 'a state of limbo'.

    "While the judgement defended NRD's policy, it nevertheless admitted that the Syariah Court had no jurisdiction to deal with apostasy under the Administration of Islamic Law (Federal Territories) Act 1993.

    "So the judgment says: NRD has no jurisdiction to change, so you go the Syariah Court and try and get a declaration on your apostatisation and although we know that it has no jurisdiction to do deal with the issue, you just try. So what happens to the citizen? She falls in between because she cannot obtain a finality at neither place. Could this be right?"

    In her reply, Umi Kalthum argued that there was no new issue in the present case as the principle of general application of administrative law was 'a settled issue' that had been repeatedly dealt by the Federal Court in other cases.

    She said the NRD had not imposed any new condition but was merely complying with the law of the land which authorises only the Syariah Court to deal with matters involving conversions and apostasy.

    "How can the NRD change the status of the applicant to say that she was no longer a Muslim? It cannot do that. If it does, then he would be officially pronouncing the applicant an apostate which even this August court cannot do for obvious reasons," she said.

    She said that the policy 'was reasonable' as it was also applicable to Muslim converts who apply for a change of their name and religious status.

    Front door, back door

    Concurring with Umi, Sulaiman urged the court not to allow apostates to abuse the NRD in order to avoid facing the Syariah Court on the matter.

    "We cannot have a back-door method for people who try to avoid facing the Syariah Court by going to the NRD to change their status from Muslim to non-Muslim," he said.

    Responding to this, Justice Paul said: "So you say that there is a front door and a back door. Shouldn't we settle the issue once and for all so that there would be only one door in the future?"

    The lawyer replied that the matter had already been decided in that issues involving Islam be left only to the Syariah Court.