2. Islam and Constitution

R. Manirajan and Liew-Ann Phang - The Sun

Islam is not above the Federal Constitution, and the decision by the Federal Court on Lina Joy's appeal was not politically motivated, said Prime Minister Datuk Seri Abdullah Ahmad Badawi.

"One must have a hole in the head to say it was a political decision. We've never asked or pressured the court to make political decisions," he said. "The problem here is emotion, and if one allows emotion to control [him/her], this is what will happen and one will have all kinds of things in the head, including suspicion." He was asked to comment on allegations that the court's decision was politically motivated.

The three-member panel of judges, in a 2-1 judgment on Wednesday, dismissed Lina's appeal to have the word "Islam" removed from her identity card after she converted to Christianity, without an apostasy certificate from the syariah court.

Abdullah said Islam was not above the Federal Constitution. "This country upholds the Constitution and supremacy of the law, otherwise, we would have become a failed state. "We must uphold our Constitution and all laws are made in Parliament and by Parliament. That is made of all sorts of members and it is a multiracial Parliament," he said after chairing the Umno Supreme Council meeting.

He dismissed allegations that the two Muslim judges on the panel - Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim and Datuk Alauddin Mohd Sheriff - had ruled in favour of their own religion.

He said he believed the judges would have made the decision after taking into account all the facts. Asked to comment on a foreign news report alleging that Malaysia did not favour Christianity, he said if that were the case, there would be no churches and Christians in the country. Asked about the problems faced by those who wanted to renounce Islam with the syariah court, he said this was a different matter and needed to be dealt with.

Commenting on Lina's appeal, several legal minds said a full bench should have been empanelled to hear it.

Former High Court judge Prof Datuk Seri Dr Visu Sinnadurai expressed concern that only three judges heard the appeal that resulted in a split decision.

"I am sure many were surprised that Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim did not empanel a full bench because this was a very important case - it was not any ordinary commercial law case - it involved several constitutional law issues and many other important questions of law. "Furthermore, the appeal before the Federal Court originated from a two-one (split) decision from the Court of Appeal," he told theSun today. "The case involves constitutional, administrative and human rights issues, and in most countries, including the US, India or Australia, such an important case would have a bigger quorum. "If there was a bench of five or seven judges hearing Lina's case, the decision may possibly have been different," he said.

Senior lawyer Karpal Singh said: "In view of the case's significance, the full Federal Court bench should have determined it." In as statement, he called for the landmark decision to be reviewed by a nine-member bench. "I call upon the government to repeal Article 121 (1A) of the Federal Constitution which came into force in 1988. Before then, there was no controversy of freedom of religion in the country," he said.

Meanwhile, Council of Churches of Malaysia (CCM) general-secretary Rev. Dr. Hermen Shastri clarified that he supported the dissenting judgment by Chief Judge of Sabah and Sarawak Datuk Richard Malanjum.

"We have to live with the Federal Court judgment, but remember there was a dissenting judgment. I support that decision as the issue is in conflict with the Federal Constitution which allows Lina Joy to exercise her right to choose her faith and life."

The Centre for Public Policy Studies said in a statement the strong dissenting judgment indicates disagreement at the highest level and points to the urgent need to re-address the issue.

Bar Council president Ambiga Sreenevasan said the Constitution is and must remain supreme in law. "In the event of any inconsistency or conflict between the provisions of state enactments and of the Federal Constitution, the latter must prevail," she said in a statement.

"The religion that a person professes must be the religion that that person states he or she professes; since there can be no evidential difficulty in ascertaining this in the case of a living person.

"Asserting this right, and upholding it, in no way undermines the position of any religion under the Federal Constitution and is consistent with the position of Islam under Article 3," Ambiga said.