Case Study on Apostasy: Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors
Azlina bte Jailani was born a Muslim. She made applications to change her name and religion. She wanted to change her name to Lina Joy and remove “Islam” from her identity card. She asserted that she had renounced Islam and embraced Christianity. She also intended to marry a Christian man. The National Registration Department (NRD) rejected her applications. It required her to produce a Syariah court order declaring that she was no longer a Muslim. This meant that she had to file a case at the Syariah court to obtain the order.
Dissatisfied with the NRD’s decision, Lina filed a suit in the civil court to assert her constitutional right to freedom of religion. She argued that her right was absolute. The NRD’s insistence that she must have a Syariah court’s approval to leave Islam infringed her right. The High Court dismissed her action. It ruled that article 11(1) of the Federal Constitution did not give Muslims the right to renounce Islam and embrace another faith unless the Syariah court allows it. Disturbingly, the judge said that Malays could not renounce Islam:
 … Therefore a person as long as he/she is a Malay and by definition under art 160 cl (2) is a Malay, the said person cannot renounce his/her religion at all. A Malay under art 160(2) remains in the Islamic faith until his or her dying days. The said Malay cannot renounce his or her religion through a deed poll and sought a declaration by virtue of art 11 of the FC on freedom of religion and article 11 in this instant I rule is not freedom of choice of religion.
Lina appealed the decision but lost, by a majority, at the Court of Appeal. She made a final appeal to the apex court. At the Federal Court, the main issue was whether the NRD was right to require Lina to produce a Syariah court order that she was no longer a Muslim before the NRD could delete the entry of “Islam” from her identity card.
The majority in the Federal Court held that the National Registration Regulations 1990 empowered the NRD to demand evidence to support Lina’s application. As she was seeking to remove the word “Islam”, it was akin to acknowledging that Lina was no longer a Muslim. Her assertion that she embraced another faith was insufficient. The NRD was entitled to seek confirmation of Lina’s religious status from the Islamic authorities (such as the Syariah court). Syariah laws govern the issue, not federal law. Renunciation of Islam has severe implications because Muslims are governed under a parallel system of law which gives rise to rights and legal obligations that differ from non-Muslims. For example, Muslims may be punished for offences against Islamic precepts, but they would avoid such liability should they no longer be considered Muslims. Non-Muslims are not subjected to similar laws. Thus, for a Muslim to leave the religion, he or she must do so following the applicable Syariah law. Because Lina was still considered a Muslim, she had to follow the necessary Islamic procedure to renounce her faith. She had to file a case in the Syariah court to declare that she had left Islam. It is in the court’s discretion to grant or refuse her application. The NRD was not the appropriate body to decide if Lina had left Islam or not. Since Lina could not produce a Syariah court declaration, the NRD was right to have rejected her application to remove “Islam” from her identity card.
The minority judgment written by the then Chief Judge of Sabah and Sarawak took a diametrically different view. The learned judge gave three reasons. First, he held that the regulation requiring Muslims to state their religion on their identity cards imposed procedural burdens and impediments unconnected to personal law:
 … The requirement does not apply to non-Muslims. There is therefore a differential treatment for Muslims. Hence, in my view this tantamount to unequal treatment under the law and in the absence of any exception found to justify this discrimination the said sub-regulation has infringed art 8(1) of the Constitution. In other words it is discriminatory and unconstitutional and should therefore be struck down.
Striking down the regulation naturally meant that “Islam” would be deleted from Lina’s identity card. Second, the judge opined that the NRD had abused its powers by asking Lina for a Syariah court order when it was not stipulated in the regulation as a document needed to be submitted. The NRD misconstrued the law. Third, the NRD had extinguished its “statutory discretion by a self-imposed fetter” because it would act only on the production of a Syariah court order. It relied on a third party when it was not sanctioned to do so by law. The NRD had acted irrationally and unreasonably.
Lina’s case attracted much publicity among Malaysians. Religious and constitutional issues intertwined. Emotions ran high during the pendency of the case, which took some ten years. Allegations and counter-allegations were made. Islamic groups accused Christians of attempting to convert scores of Muslims. They cautioned against apostasy, which is said to be punishable by death. Secular human rights groups argued that freedom of religion for Muslims was being denied, hence violating international law.
The majority judgment still stands today. A Syariah court declaration to indicate that a person is no longer a Muslim is required before being formally recognised as a non-Muslim. Evidence must be shown to the judge. But apart from the applicant’s assertion that he or she has embraced another faith, what more can be shown or is expected? Anecdotal evidence suggests that very few cases are being filed in the Syariah courts because apostasy is punishable as a crime. In some states, apostates are sent to rehabilitation houses and detention centres for counselling. In practice, the right to renounce a religion and adopt another under article 11 of the Constitution is illusory for Muslims. In this sense, it is not a mistaken assumption by some that, in Malaysia, Muslims cannot renounce Islam.
* The law stated is as of 29 June 2021.