http://www.themalaymailonline.com/malaysia/article/not-nrds-place-to-query-religious-status-change-lawyers-say
KUALA LUMPUR, July 14 — Lawyers are disputing the
National Registration Department’s (NRD) requirement of a
Shariah court order before it will remove the status “Islam” from the records of Malaysians, contending that the rule was arbitrary and unconstitutional.
Although acknowledging a Federal Court decision that says the NRD has the right to impose the requirement, the lawyers stressed that bureaucracy should not prevent anyone from exercising their constitutional right to religious freedom.
Syarie lawyer Ab Kadir Ismail questioned the NRD’s refusal to amend a Muslim’s record without an order from the Islamic courts, saying that the government agency was acting ultra vires or beyond its authority.
“
It’s already [violating] the law because that’s not their function. Their function is just to record the details of Malaysian citizens. Who gave them the power to reject?” he told the Malay Mail Online in a recent interview.
Andrew Khoo, co-chair of the Bar Council’s Human Rights Committee, and civil liberties lawyer Syahredzan Johan similarly disagreed with the need for the NRD to compel Muslims to seek a Shariah order before making the amendment.
Among others, they said the stipulation infringes on an individual’s constitutional right to profess the faith of their choosing.
But despite saying that “nothing” in the current regulations requires “a person to furnish a Shariah court order in order to change” their religion as stated in their identity card, Syahredzan noted this was the de facto rule.
“
However, it has become a practice which has been affirmed by the Federal Court and this is where we stand,” he told the Malay Mail Online recently.
In stating the current position of the Federal Court, Syahredzan cited the 2007 ruling in the Lina Joy case, where the Malay applicant Azlina Jailani had challenged the NRD’s refusal to change her Muslim status in her identity card (IC) without her first getting a Shariah court order.
“The Federal Court, in a majority decision, held that although there is no legal requirement to obtain a Shariah court order, the NRD still had the right to insist on the Shariah court order before removing Islam from her [identity card],” he said.
The Federal Court reasoned that Azlina — who is believed to have since left Malaysia — was still a Muslim and consequently bound by Islamic rules including procedures to leave the religion, Syahredzan explained.
But the lawyer said the legality of the NRD’s requirement was open to contest, noting the difficulty in securing such an order from the Shariah courts.
“
Administrative requirements should not get in the way of a person’s freedom to profess his religion, which should include the right to embrace another religion,” Syahredzan said.
Khoo also conceded that the government department would be acting legally within its powers based on the existing regulations and case law, saying that the Lina Joy ruling “upheld the right of the NRD” to require applicants to go to the Shariah court.
He added, however, the NRD requirement was open to challenge on the grounds that it is a “breach” of the constitutional right to religious freedom.
“
If freedom of religion is subject to the decision and control of a third party, then that is not freedom of religion,” Khoo said.
Still, Khoo noted that the uncertainty and the complexity of such a challenge to test the constitutionality of the NRD’s requirement would lead most to simply yield and comply by seeking a Shariah order.
Last month, the NRD was quoted as telling news agency Astro Awani that it “
is not an agency that determines whether an individual has renounced Islam”, saying that only the Shariah courts can decide the religious status of an individual who claims to be non-Muslim but is registered as a Muslim in the NRD’s records.
In a recent interview with the Malay Mail Online, the Department of Shariah Judiciary Malaysia (JKSM) said, however, that only the Shariah courts have jurisdiction to decide the religious status of those officially known as Muslims, saying that the latter was not bound by any civil court orders or certification from state Islamic religious departments.
In 2011, Islamic Affairs Minister Datuk Seri Jamil Khir Baharom said only
135 out of 686 applicants in the Shariah courts during the 2000-2010 period had obtained a declaration that they are no longer Muslims.
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