Another missed opportunity to resolve religious issue

A lawyer who was the solicitor for Lina Joy and was present in the Zaina Abdin Hamid and his three children’s case today, said it was another missed opportunity by the Federal Court in not trying to answer the five constitutional questions posed over a religious dispute.

Benjamin Dawson, who was present representing the Bar Council which was holding a watching brief in the Zaina case, said as a pluralistic society with many races and religion, it is becoming impossible for a Muslim to renounce the religion and marry a non-Muslim.

Bringing a humanistic aspect to the whole saga, Benjamin said what is even more sad in this case is that Zaina’s children may face problems as they are now of marriagable age.

Zaina’s children, Surindran, 24, Mohanasubash, 21, and Chandrika, 19, who are also applicants, bear their father’s name and are also practising Hindus.

“What if the children want to marry and their religious status is in question as their father has a Muslim name despite Zaina being a practising Hindu from birth,” he said.

“Like in the Lina Joy case, she had converted and wanted to get married to an Indian Christian man and have a family. Her hopes were dashed following the civil court being not willing to decide on the status of her religion in a dispute. There will be more hopes dashed as people who may fall in love but come from opposing religions wanting to set up or have families,” he pointed out.

Lina Joy, whose real name is Azlina Jelani, was a Malay and a Muslim who had however converted to Christianity. She wanted her religious status on her identity card, which states her religion as Islam, to be removed. She was not willing to go to the Syariah Court, as she had already converted.

However, the Federal Court in a majority decision ruled they cannot determine her religious status and her identity card status remains.

Following Lina’s case, there have been other religious disputes case brought to the Federal Court including the case of S Shamala vs her former husband Dr M Jeyaganesh, who converted their two sons to Islam after he became a Muslim.

‘Facts in Zaina’s case are peculiar’

Benjamin said the facts of Zaina’s case are rather peculiar, and putting aside the definition of Muslim in the Selangor enactment, and going by the constitution alone, the appellants are clearly not Muslims.

“This is insofar as the definition of a Muslim in the state enactment goes beyond Article 11 (1) of the federal constitution, where everyone has the right to profess and practice his or her religion,” he said.

In their affidavit, Zaina, who despite having a Muslim name, professed that he has been a practising Hindu from birth, and that the children are also practising Hindus.

Zaina, who is now 61, is married and had it registered with the National Registration Department under the Law Reform (Marriage and Divorce) Act 1976 and they had raised their children as Hindus all their life.

Benjamin said based on these facts alone it would be a gross injustice to hold that these four persons are not of the Hindu faith when all through their lives they had lived as such.

“A fact remains a fact. No amount of legislation can alter that,” he said.

In Zaina’s affidavit, he also related a sad fact where he had made many application to change his name including by a deed poll since 1973 but to no avail. He is worried that with his Muslim name people would think he is a Muslim but in fact he is a practising Hindu and wants his body cremated.

He also saw the Muslim authorities seize his father’s body after the family had finished their  Hindu prayers at his Hindu funeral, and was brought to the Sungai Besi Muslim cemetery where Islamic prayers and rites were performed.

“I was present at the burial with my brothers but we do not take part in the Islamic rites and were treated by the men at the burial as non-Muslims. I felt very very sad that we were not able to cremate our father in the Hindu way,” he said in his affidavit.

Suhakam response

Lawyer Andrew Khoo, who is holding a watching brief for the Human Rights Commission of Malaysia (Suhakam), said they are obviously disappointed that the Federal Court had declined to hear the case.

“It was filed 10 years ago in the High Court, and then it went to the Court of Appeal.  When it finally reaches the Federal Court, the apex court orders it to be heard again in the High Court.

“After 10 years, the appellants are back to square one. Questions of constitutional law, especially regarding human rights, must be quickly resolved as they affect the lives of many people.  Last year, the Federal Court refused to decide on the Bato Bagi native land rights case. Today it is the Zaina Abdin conversion of religion case. What will it be tomorrow?”

“One cannot help but get the feeling that the Federal Court is sidestepping critically important cases dealing with constitutional law and fundamental liberties,” he said.