The freedom of religion is a universal human right and
as mentioned by the writer s.18 of the United Nations Universal Declaration of
Human Rights (UDHR) emphasizes the freedom to have adopt a religion or belief
and to change one’s religion without restriction. But we have to bear in mind
that all most of the International Instrument such as declaration, Convention,
optional Protocols were drafted not in accordance with Islamic law or law of
the country. That’s why we have to be careful before accepting whatever form of
International instrument. Sometimes some of the Islamic country accept the
instrument but make a reservation to the Article which is incontravene with
Hukum Syarak. As an example, Malaysia has rectify the Convention on the Rights of the Child (CRC) but we reserved the
enforcement of Article 14 which states as follows:
“1.
States Parties shall respect the right of the child to freedom of thought,
conscience and religion. “.
With regard to the UDHR, it started become an
issue with adoption of this Declaration in 1948. The
objectives of the UDHR do not create 'hard law' obligations on the Malaysian
judiciary to adopt the International Instruments in interpreting the provisions
on fundamental liberties. Adoption of the rights listed under the International
Human Rights Instruments depends significantly upon the legislative
implementation in the country. Unlike some constitutions in other
jurisdictions, the Malaysian Federal Constitution does not impose on the
national court to take cognisance of the International Human Rights laws in any
of its provision. In other words, the international law on human rights are not
law of the country and the Malaysian judiciary should not assume the
parliament's power to make law.[1]
In the same breath, the European
Court of Human Rights in Otto-Preminger-Institut's
Case decided that it was up to the individual states to adopt and to any
limitations to freedom of expression on the grounds legitimately prescribed by
the European Convention on Human Rights 1950. The decision gives the
implication that the individual states may interpret the rights under the
international document according to the strategies to achieve basic human
rights in their communities which lie at the core of their own social or moral
values. [2]
Furthermore, it is noteworthy
that section 2 of the Human Rights Commission of Malaysia Act 1999 ('SUHAKAM
Act') provides that, 'human rights' refers to 'fundamental liberties as
enshrined in Part II of the Federal Constitution'. Because of that reason, the
argument to apply international instruments, such as the UDHR in defining the
right to freedom of religion in Malaysia has no strong basis for a simple
reason that the documents are not binding on the country.[3]
It is notable that the right to
change religion under art. 18 of the UDHR was controversial and Saudi Arabia
refused to ractify the Declaration as the Kingdom disagreed on the provision
because its contradiction to the teaching of Islam. Probably that was the
reason why the International Covenant on Civil and Political Rights ('ICCPR')
does not explicitly provide for the right to change religion, though it
prescribes the right to freedom of thought,
conscience and religion that includes the right to adopt a religion or belief.[4]
In our country,
right to freedom of religious is clearly provided under article 11(1) of the
Federal Constitution. But the right to convert out from the religion which was
professed since our birth, has no clear provision on it. In my opinion by
inserting a provision in a state enactment about the power of the
Syariah High Court in its civil jurisdiction to make a declaration that a person is no longer a Muslim or to make a declaration that a deceased person was a
Muslim or otherwise at the time of his death.indirectly could be interpreted that such act is allowable and there is
a method to convert out from Islam provided in the Act/Enactments. However, the
Act/Enactment not differentiate between the convert out cases involving muallaf
or Muslim by birth. I think the method should be different because as a Muslim
by birth we have no right to convert out. It is also in line with our federal
Constitution Art 160 which states as follows:
“"Malay" means a person who professes the religion of Islam,
habitually speaks the Malay language, conforms to Malay custom and—
(a)
was before Merdeka Day born in the
Federation or in Singapore or born of parents one of whom was born in the
Federation or in Singapore, or is on that day domiciled in the Federation or in
Singapore; or
(b)
is the issue of such a person;”.
In
the case of Daud bin Mamat,[5] Kamariah bte Ali[6], Lina Joy[7],
the most controversial issue on the right to freedom of religion is the right
of a Muslim to change his religion or the Muslims' right to renounce
Islam. The courts in Malaysia thus far, directly or indirectly, are
incline to the view that art. 11 does not include the right to change religion.
This position is obvious in the decisions of and . In the High Court decided
that the Kelantenese descents of Malay parentage have no right to renounce
Islam. And freedom to 'profess' a religion under art 11(1) does not include the
right to leave Islam as leaving Islam is 'exiting from a religion is
certainly not a religion or could be equated with the right 'to profess and
practise' their religion'. In , the Court of Appeal decided that the word
'profess' under art 11 should not be widely interpreted as to give to every
person the right to leave Islam. The court said that if such interpretation is
given to the word 'profess', it would also be applicable to the word 'practise'
since both rights are used in the same phrase. If the interpretation is so, it would
have a far-reaching effect that all religious law will be invalidated. This
could not happen to Islam and Islamic law as the Constitution sanctions the
position of Islam and Islamic criminal law. In there are at least two important
aspects that have been dealt with by the court in relation to the Malay
Muslims' right to freedom of religion. The High Court decided that a Malay
Muslim cannot change his religious status. According to the court, being a
Malay, one shall always be a Muslim. This is because the Constitution defines
'Malay' as a person, who, among others, professes the religion of Islam.
Another issue that has been laid down by the High Court is the recognition to
Islam as the religion of the Federation. It was decided that, in determining
the scope of Muslims' right to religious
freedom, the court must take into consideration the special
position of Islam. Thus, respect must be given to Islamic religious
institutions such as the Syariah courts and other religious bodies.
In all these cases the civil
courts have excluded themselves from deciding on the Muslims right to leave
Islam. The courts decided that the Syariah court is the proper forum to
determine a Muslims' religious status. By implication, it can be said that, in
deciding whether a Muslim can change his religion or not, it is left to the
Syariah courts to decide, in which, Islamic law will surely be applied. Thus,
the position is rather clear, a Muslim shall not be allowed renounce Islam
without being referred to Syariah courts or religious authorities.[8]
Besides that, having read
through Articles 11 and 12 of the Constitution, it appears that apostasy, or the right to apostatise
is not clearly provided for in the provisions. Probably it is a mere assumption
derived from the generality of the title to art 11 or perhaps it is an
inference from the right to 'profess' a religion under art 11(1). Thus, it
seems that to include the right to apostatise as part of the right to freedom
of religion under art 11 is a mere matter of interpretation to the provision.
Perhaps it may be suggested that should apostasy
is guaranteed by the Constitution, it may be necessary to have a clear
provision in art 11 on the right to change religion as clearly provided for
under art 18 of the Universal Declaration of Human Right 1948 ('UDHR'). In
respect of the interpretation to the word 'profess' under art 11(1), Suryadi
Halim Omar J in pronounced that apostasy
is not a profession of religion and
thus should not be considered as part or the right
to 'profess' a religion under art 11(1).[9]
Suggestion to extent the meaning
of the words 'profess' and 'practise' under art 11(1) to include the right to
apostatise was rejected by the court in the case. The extension, according to
the court, 'would stretch the scope of art 11(1) to ridiculous heights, and
rebel against the canon of construction'. Thus, may be said as a case which
established that art 11 does not include the right to 'change religion' under
the right to freedom of religion as exiting a religion is 'certainly not a
religion'. In similar vein, Bari pointed out that 'freedom of religion' does
not connote 'freedom from religion'.
Apart from that, besides the
conflicts due to convert out cases, we also facing the conflict due to conversion
to Islam with regard to the status of marriage because there are 2 laws which
govern this matter. Firstly is section 51(1) of the Law Reform (Marriage And Divorce) Act 1976 [Act 164] (LRA) for non-Muslim and
secondly is Islamic Family Law
Act/Enactments. In Federal Territory, it is provided in section 46(2) of
the Islamic Family Law (Federal
Territory) Act 1984 [Act 303] (IFLA)
for Muslim.
In a Parliametary debate
on section 51(1) of the LRA, it was clear that the intention of this section is
to provide relief to the non-Muslim wife in case the husband converts to Islam
whilst the wife does not, the wife has the option to convert herself if she
wishes. This section also gives her the right to apply for a divorce. If she
does not petition for a divorce under the law, she remains to be a wife as she
is not technically divorced.[10]
Muslim delegates argued that section 51(1) of the
LRA causes humiliation to the convert spouse as it does not provide room for
the convert spouse to dissolve the marriage. However, in the full context of
section 51 of the LRA, it clearly states that the section aims to take care of
the welfare of the child and wife. It seems that the welfare of the non convert
spouse was the main concern and the legislators put aside the fact that the
convert party may also be a wife. Indeed this creates bias against the convert
spouse as the husband’s right to petition for a divorce is deprived.
Although we have inserted in our
Act, a provision to dissolve the non-Muslim marriage by syariah court as
specified in section 46(2) of the IFLA, but the Syariah Court has no jurisdiction over the non-Muslim marriage. The
Federal Constitution Item 1, List II, Schedule
Ninth of the Federal Constitution clearly states that the Islamic laws enacted
by virtue of this Schedule shall only has the jurisdiction over persons
professing the religion of Islam.
In the case of Pedley V Majlis Ugama Islam Pulau Pinang & Anor [11], the
plaintiff, a Roman Catholic, had married a Roman Catholic lady according to
Catholic rites on 12 February 1966. On 12 January 1987, the wife embraced the
religion of Islam without the plaintiffs knowledge and
assumes a Muslim name. On 10 April 1987, the Chief
Kadi of Penang wrote to the plaintiff to the effect that his wife has embraced
Islam and therefore he was advised also to follow her and embrace Islam within
90 days. The letter stated that if he not do so, the relationship between him
and his wife as husband and wife would be terminated according to Islamic Law.
The husband applied for a declaration that the conversion of his wife had not
determined the marriage.
In tis case, the learned judge of the High Court
held that the assertion of the Chief Kadi did not and will not affect the
plaintiff’s legal position in the eyes of his own personal laws and civil laws
of the country. Under the civil law, a non-Muslim marriage is not dissolved upon
one of the parties converting to Islam. It only provides a ground for the other
party, who has not so converted, to petition of divorce.
The decision in this case, is similar with the case
of Natalie Abeysundere and Another as
mention in the Article. The principle used is similar whereby the civil
marriage will not be dissolved when one of the spouse convert into Islam.
An overview of the treatment of shariah law on
apostasy
The person who
apostate shall be punished with severe punishment because belief is the basic
foundation of the identity, pivot, and spirit of life. That is why it does not
allow anyone to harm this identity. Hence, proclaiming apostasy is considered
the most flagrant crime in the eyes of Islam as it poses a danger to the
identity of the Muslim community and its moral being. In other words, it
jeopardizes the first five main objectives of the Shariah, which Islam with its
moral and legislative systems seeks to preserve - religion, life, offspring,
the intellect, and property. Religion occupies the very first place here as
believers may sacrifice themselves, their country, and their wealth for the
sake of their religion.
However, Almighty Allah
does not accept that religion be taken lightly: a person joining it one day and
forsaking it another day, in the like manner of the group of Jews about whom
the Qur'an says, [A section of the People of the Book say: believe in the
morning what is revealed to the believers, but reject it at the end of the day;
perchance they may (themselves) turn back.][12]
The death penalty with
regard to apostasy is to be applied only to those who proclaim their apostasy
and call for others to do the same. Islam lays down this severe punishment in
order to protect its unity and the identity of its community. Every community
in this world has basic foundations that are to be kept inviolable, such as
identity, loyalty, and allegiance. Accordingly, no community accepts that a
member thereof changes its identity or turns his or her loyalty to its enemies.
They consider betrayal of one's country a serious crime, and no one has ever
called for giving people a right to change their loyalty from a country to
another whenever they like.[13]
Apostasy is not only an
intellectual situation whose handling is confined to discussing the principle
of freedom of belief; it also involves a change of loyalty and identity. People
who apostatize from Islam give up their loyalty to the Muslim nation and pay
allegiance, heart and soul, to its enemies. This is denoted in the agreed-upon
hadith that clarifies the kinds of people whose blood is lawful to shed and
describes among those people the apostate, by saying, "Or someone who
abandons his religion and the Muslim community" (Ibn Mas`ud).
The phrase, "And
the Muslim community," is part of the description of an apostate; this
entails that every apostate from Islam by implication abandons the Muslim
community.
In the context of major
and minor apostasy, Ibn Taymiyah mentioned that the Prophet (peace and
blessings be upon him) accepted the repentance of a group of apostates, and he
ordered that another group of apostates, who had committed other harmful acts
to Islam and the Muslims, be killed.
For instance, on the
day of the conquest (fath) of Makkah, the Prophet (peace and blessings be upon
him) ordered that Maqis ibn Subabah be killed, as he had not only apostatized
from Islam but also insulted and killed a Muslim person. He (peace and
blessings be upon him) also ordered that Ibn Abi Sarh be killed, as he had
apostatized from Islam and also sought to spread falsehood and slander.
In this respect, Ibn
Taymiyah differentiated between two kinds of apostasy, an apostasy which does
not cause harm to the Muslim society and an apostasy in which apostates wage
war against Allah and His Messenger and spread mischief in the land. The
repentance of the apostates in the first kind is accepted; while in the second
kind, it is not if it occurs after the apostates have fallen into the power of
the Muslim authority.[14]
`Abdur-Raziq,
Al-Baihaqi, and Ibn Hazm reported that Anas returned from a mission for jihad
and went to `Umar, who asked him, "What has been done with the six people
from (the tribe) of Bakr ibn Wa'il who have apostatized from Islam?" Anas
said, "O Commander of the Believers, they are people who turned apostate
and joined the polytheists, and thus they were killed in the battle."
`Umar commented, "We belong to Allah and to Him we will return." Anas
wondered, "Had their penalty been but death?" `Umar replied,
"Yes. I would have asked them to return to Islam, and had they refused, I
would have imprisoned them."[15]
This attitude of `Umar
was also held by Ibrahim An-Nakh`I, and Ath-Thawri, who said, "This is the
viewpoint that we follow."[16] Ath-Thawri also said,
"The punishment of the apostate is to be deferred so long as there is a
hope that he may return to Islam."[17]
In the opinion of Dr.
Yusuf Al-Qaradawi,
as the scholars have differentiated between major and minor innovations in
religion and between mere innovators and those who spread and call for their
innovations in religion, we can also differentiate between major and minor
apostasy, and between apostates who do not wage war against Islam and Muslims
and those who proclaim their apostasy and call for it.
Major apostasy, which
the apostate proclaims and openly calls for in speech or writing, is to be,
with all the more reason, severely punished by the death penalty, according to
the majority of scholars and the apparent meaning of the Prophet's hadiths.
Otherwise, An-Nakh`i and Ath-Thawri's view which was built on `Umar's attitude
may be followed.[18]
Apostates who call for
apostasy from Islam have not only become disbelievers in Islam but have also
become enemies of Islam and the Muslim nation. They, by doing so, fall under
the category of those who wage war against Almighty Allah and His Messenger and
spread mischief in the land.
According to Ibn
Taymiyah, waging war against something may be done by already attacking it or
by speaking against it. The latter may be far more dangerous than the former
with regard to religions. So is also the case with spreading mischief: it may
be through causing physical damage or through causing moral harm, and the
latter is, likewise, far more hazardous than the former with regard to
religions. This proves how much more harmful it is to wage war against Allah
and His Messenger by speaking against them and seeking to spread mischief in
the land.[19]
In Arab culture, we say
that the pen is mightier than the tongue. Writing about something may be far
more effective than merely speaking about it, especially in this day and age,
as writings can be widely published.
On another hand, the
apostate is deprived of its love, loyalty, and cooperation according to
Almighty Allah's words, [And he amongst you that turns to them (for
friendship) is of them][20]. This far exceeds the
punishment of execution in the view of the people of common sense.
Apart from sanction as mention
above in accordance with Hukum Syarak, the state also regulates a law which
provides a sanction of convert out cases. Muslims who renounced from Islam are
subject to certain restrictions which include imprisonment, fine, whipping, or
mandatory detention. Such restrictions have brought into debate, whether those
punishments and detention are considered as infringements to the right of
freedom of religion stipulated under fundamental liberty, which is guaranteed
under the Federal Constitution.
So that, in discussing the law
pertaining to apostasy, in fact there are at least five states in Malaysia that
have incorporated the punishment for apostasy either in the Islamic Criminal
Law Enactments or the Administration of Islamic Law Enactments. These
provisions could be identified in the states of:
(a) Pahang
In
a decisive provision on apostasy, Pahang has made apostasy an offence in
its
Administration of the Religion of Islam and the Malay Custom Enactment of
1982
(Amended 1989). Section 185 provides “Any Muslim who states that he has ceased
to be a Muslim, whether orally, in writing or in any other manner whatsoever,
with any intent whatsoever, commits an offence, and on conviction shall be
liable to a fine not exceeding five thousand ringgit or to imprisonment for a
term not exceeding three years or to both and to whipping of not more that six
strokes”.
(b) Perak
The
State of Perak has also made apostasy as an offence in its Islamic Criminal
Law. Section 13 of the Perak Islamic Criminal Law Enactment of 1992 provides
“Any Muslim who by his word or conduct whatsoever intentionally claims to cease
to profess the religion of Islam or declares himself to be non-Muslim, shall be
considered as insulting the religion of Islam, and shall on conviction be
liable to a fine not exceeding three thousand ringgit or to imprisonment for a
term not exceeding two years or both”. Section 13 of the Perak Islamic Criminal
Law Enactment of 1992 is merely a blasphemy. However, since there is no
distinction made between blasphemy and apostasy, section 13 has been regarded
as an offence of apostasy.[21]
(c) Melaka
Like
Pahang and Perak, Melaka has also incorporated the punishment of apostasy in
its enactment. Section 209 (1) of the Melaka Administration of Islamic Law
Enactment of 1986 provides a provision on insulting the religion of
Islam
as an offence. Any Muslim convicted of this offence shall on conviction be
liable
to a fine not exceeding three thousand ringgit or to imprisonment for a term
not exceeding one year or both. Under section 209 (2), the Enactment reiterates
that a Muslim who declares himself to be out of the religion of Islam, shall
also be regarded as insulting the religion of Islam, and upon conviction is
subject to a fine and imprisonment as provided under clause (1).
(d) Sabah
Unlike
Sarawak, Sabah is the only Borneo state that declares apostasy as an offence
under its Islamic Criminal Law Enactment of 1995. Section 55 (1) states
“whoever by words spoken or written or by visible representation or in any
other
manner
which insults or brings into contempt or ridicule the religion of Islam or the
tenets of any lawful school or any lawfully appointed religious officer,
religious teacher, Imam, any lawfully issued fatwa by the Majlis or
the Mufti under the provisions of any law or this Enactment shall be
guilty of an offence and shall, on conviction, be liable to a fine not
exceeding two thousand ringgit or to imprisonment for a term not exceeding one
year or both”. Section 55 (2) reiterates “ A Muslim who claims that he is not a
Muslim shall be guilty of an offence under subsection (1) and shall, on
conviction, be liable to the punishment thereof provided”.
(e) Terengganu
It
seems that Terengganu also follows the same step in introducing punishment for
apostasy. Section 29 of the Terengganu Administration of Islamic Law Enactment
of 1996 provides “Any Muslim who attempts to renounce the religion of Islam or
declares himself to be non-Muslim, shall on conviction be liable to a fine not
exceeding three thousand ringgit or to imprisonment for a term not exceeding
one year or both”.
Apart from provisions of
punishment for apostasy, there are also some states that provide detention for
Muslims who intend to renounce Islam. This is because the respective state
enactments require the persons to be rehabilitated and educated for the purpose
of repentance. The general approach taken by states like Melaka is that, if a
Muslim admits that he has left the religion of Islam or declares himself a
non-Muslim, and the Court is satisfied that he has indeed done something that
can be interpreted as an attempt to change his religion, the court should order
him to be detained at the Islamic rehabilitation centre for a period not
exceeding six months. During the period of rehabilitation, he will be required
to undergo a course of education and asked to repent.[22] During this period also, the officer in charge is
required to send a weekly progress report to the court.[23] If the detainee repents and the court is satisfied
about the repentance, he will then be released.[24] Other states like Kelantan and Sabah appear to
provide the same provisions except that the period of detention has been
increased to up to 36 month.[25]
Part One:
Conversion and Human Right in the Malaysian Context
The right to religious freedom in Malaysia is
provided for under art 11 of the Federal Constitution. It is a provision under
Part II of the Federal Constitution, which contains provisions on fundamental
liberties. The title to art 11 is 'Freedom of Religion', which seems to cover
various aspects of religious freedom, including
those prescribed under international documents. However, there is restriction
on the freedom. If there is no restriction imposed of course it will create
chaotic situation because all the religions may do whatever their want includes
propagate their religion without any limitation.
However, according to Abdul Aziz
Bari, given the constitutional perspective on the issue, it is not a
complicated issue. As mentioned earlier, the second limb of clause (1) to art.
3 may be said as providing for a formula on freedom of religion. Article 11(1)
of the Federal Constitution is the most important provision on freedom of
religion in Malaysia. It provides for the content and the scope of freedom of
religion in Malaysia. Article 11(1) speaks on the right of individuals to
profess, practise and propagate the religion. The right to propagate the
religion however, may be restricted by state law by virtue of Article 11(4).
Article 11 (4) provides
for the restriction of the propagation of any religious doctrine or belief to
Muslims. The rationale is to protect Muslims from being influenced by other
religions and to maintain social stability.[26] By
virtue of Article 11(4)[27], ten State Legislatures have enacted the laws to control or
restrict the propagation of any religious doctrine or belief among persons
professing the religion of Islam. The
states are Terengganu[28], Kelantan[29], Kedah[30], Malacca[31], Perak[32], Selangor[33], Pahang[34], Negeri Sembilan[35], Johor[36] and Perlis[37].
Although
ten states have make these law come into effect, but until now, only the state
of Pahang has enforce this enactment in case, PP v Krishnan a/l Muthu[38]. In this case the complainant, Maziah Jusoh
was in love with the accused, a married man, for seven years. As the
complainant did not have a place to stay, she asked permission from the accused
and his wife to live with them. The accused and the complainant had a series of
arguments which resulted in physical fights. There was an instance the accused
issued threats against the complainant to leave Islam and embrace Hinduism. The
complainant was also asked to make an oath at the Hindu temple. Two charges
were filed against the accused in the Magistrate’s Court. The accused was
convicted on the charge under section 325 of the Panel Code and imposed with fine
of RM 2,000. Besides that, the accused also convicted on the charge under section
4(2)(i) of the Control and Restriction of the Propagation of Non-Islamic Religion
(Pahang) Enactment 1989 and imposed with fine of RM 1,500 and imprisonment for
a period of 20 days.
Apart from Article 11(4), the
right to choose religion also restricted by the virtue of article 12(4).[39] This Article clearly restrict the right of freedom
of religion over the child. This Article also incontravene with the Article 14
of CRC[40] as stated earlier. The religion of a person under
the age of 18 will be determined by the parent or guardian.
In the case of Re Susie Teoh or
Teoh Eng Huat v Kadhi Pasir Mas & Anor[41], I am in favour of the judgement made by the High
Court, Abdul Malek J (as he then was). The approach take by the judge about the
age of majority to ensure the capability of the children to choose her religion
is in line with Hukum Syarak. As said by the judge the age of puberty is
determined by her having menstruation rather than a specified age.
State law and
jurisdictional issue
In the
Administration of Islamic Law Act/Enactments, there is a provision about the
procedure to convert Islam. But there is no provision about the matter of
convert out of Islam. However since we have inserted a provision in a state
enactment about the power of the Syariah High Court in its civil jurisdiction to
make a declaration that a person is no longer a
Muslim or to make a declaration that
a deceased person was a Muslim or otherwise at the time of his death, indirectly could be interpreted that
such act is allowable, anly the procedural aspect was left to judge to decide
except Negeri Sembilan, the only state which provides the proper procedure.
I also agree with
the writer, that there is no difference made in interpretation of Islam to
differentiate between the Muslim by birth or Muslim by conversion. In Administration of Islamic Law (Federal Territories)
Act 1993 [Act 505], section 2 states as follows:
“Muslim” means—
(a) a person who professes the religion of Islam;
(b) a person either or both of whose parents were, at
the time of the person’s birth, Muslims;
(c) a
person whose upbringing was conducted on the basis that he was a Muslim;
(d) a person who has converted to Islam in accordance
with the requirements of section 85;
(e) a person who is commonly reputed to be a Muslim; or
(f) a person who is shown to have stated, in
circumstances in which he was bound by law to state the truth, that he was a
Muslim, whether the statement be verbal or written;
By virtue of this
provision all Muslims will be treated equally in the eyes of Islamic law
enforceable in the states or Hukum Syarak either Muslim by birth or Muslim by
conversion.
In my opinion these 2
kinds of Muslim, in terms of right to convert must be treated in different way.
Being a Muslim by birth, they cannot simply convert out. The Muslim community
is based on belief and faith. Belief is the basic foundation of its identity,
pivot, and spirit of its life. That is why it does not allow anyone to harm
this identity. Hence, proclaiming apostasy is considered the most flagrant
crime in the eyes of Islam as it poses a danger to the identity of the Muslim
community and its moral being. In other words, it jeopardizes the first five
main objectives of the Shari`ah, which Islam with its moral and legislative
systems seeks to preserve - religion, life, offspring, the intellect, and
property. Religion occupies the very first place here as believers may
sacrifice themselves, their country, and their wealth for the sake of their
religion.
However for the Muslim
by conversion, there should be a different method pertaining to convert out
issues. In fact there are many cases of conversion due to marriage purposes not
because of the voluntariness. Because of that situation, they easily to convert
out especially if there is no more harmonious and happily marriage between the
spouses.
Because of this factor,
I think it is justified to have different method pertaining to convert out
issue among Muslim either by birth or conversion.
In both cases given
by the writer, it involves person who are Muslim by birth. In the case of Kamariah
Ali v The Government of Kelantan, Malaysia & Ors[42], the judge make a conclusion that the
law does not prohibit a Muslim to convert out of Islam. What is required is
that a person must make a confirmation in the Syariah court to avoid confusion
whether a person is still a Muslim or not. The same principle applied in the
case of Lina Joy v Majlis Agama Islam Wilayah Persektuan & Ors[43].
According
to Aziz Bari, by virtue of Article 160(2)[44]
of the Federal Constitution, Malays cannot renounce Islam. If Malay renounces
Islam, he/she cannot be regarded as Malay since Malay and Islam are much
attached. A Muslim who is an apostate could be considered as deviant, which
consequently, allows some sort of punishment and rehabilitation. Detaining an
apostate or a Muslim who intends to leave the Islamic faith for repentance and
education purposes is meant to ‘persuade’ him to return to being Malay.[45]
In Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor[46],
the learned judge said that “a person as long as he/she is a Malay and
by definition under Article 160 clause (2) a Malay, the said person cannot
renounce his/her religion at all. A Malay under Article 160 (2) remains in the
Islamic faith until his or her dying days.” The Court held that the
appellant must first get the declaration from the Shari’ah Court and the
regulation imposed by the National Registration Department on that matter was
constitutional. This was affirmed by the Federal Court.[47]
Based on the judgement on the
cases above show that most apostasy cases mainly do not suggest that Muslims
are prohibited from renouncing Islam as long as they follow the procedural
requirement as imposed by state law or any order made by the judge which is in
accordance with Hukum Syarak (if there is no provision about the procedure to
convert out). The learned judges also had ruled that the Shari’ah Courts were
the competent courts and the right forums to adjudicate the cases when matters
concerning Islamic law arise. Until the Shari’a Courts decide the status of the religion of
a Muslim, he is deemed a Muslim and all Islamic rules shall applicable upon
him.[48] It is very suitable and relevant with the
provision of subsection 74(2) as stated-
“74. (2) For the avoidance of
doubt, it is hereby declared that a Muslim shall at all times be acknowledged
and treated as a Muslim unless a declaration has been made by a Syariah Court
that he is no longer a Muslim.”[49]
Procedural
requirement
It is true that there
is no specific legislation governing the procedure to apostate. So far, the
detail procedure with regard to the apostasy is provided in Negeri Sembilan
through their Administration of the religion of Islam (Negeri Sembilan)
Enactment 2003. Because of that reason, the judge has to used their knowledge
in Hukum Syarak to handle the convert out cases. Furthermore we have the
provision in our Act/Enactments which stated that, “in the event of a lacuna or in
the absence of any matter not expressly provided for by the Act or Enactment,
the court shall apply Hukum Syarak.”.
Based
on the case given, we know that there are a lot of approaches taken by the
court to decide the jurisdiction of court to try the convert out cases. In the case of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia
(Perkim) Kedah & Anor[50].
In this case the court used the concept of inherent jurisdiction in the absent
of written law. Wan Adnan Ismail J said that according to the fatwa, a Muslim
who renounced the Islamic faith continues to remain in Islam until a Syariah
Court makes a declaration that he has become an apostate.
With
regard to this matter, I think there is no more problem arise since most of the
state enactment has inserted in their law the power of the Syariah High Court
in its civil jurisdiction to make a
declaration that a person is no longer a Muslim or to make a declaration that a deceased person was a
Muslim or otherwise at the time of his death. However for the state
which did not have that express jurisdiction, the concept of inherent jurisdiction
maybe applied to decide the case as decided in the Soon Singh case.
In the
case of Dalip Kaur[51],
the plaintiff was a non-Muslim. In this case, the Supreme Court accepted the
judgement of the High Court Judge (the writer) declaring that the deceased died
as a Muslim. Mohamed Yusof HMA also stated that the issue of apostacy required
specification in Islamic law and a suitable forum to do such decision is the
Syariah court. Justice Mohamed Yusof has also stated that the court which is
suitable to hear this matter is the Syariah court. So by this judgement,
impliedly we might say that the Syariah court has the jurisdiction to declare
religious status of a person, even though the applicant is not a Muslim.
Federal
Court in the case of Kamariah bte Ali[52]
remind us not to use the literal approach towards the jurisdiction of Syariah
court. The most important thing is to ensure the Syariah court to uphold
justice based on the relevant law. The decision of the Syariah court by
considering the evidence “bayyinah” of the dead heirs which is non Muslim shows
the capability of the Syariah court to give justice to all person including non
Muslim.
Besides
that, the cases that the writer put in this Article also, draw the same
principle whereby in determining the status of religion of a person whether
they are still a Muslim or not, the jurisdiction is on the hand of Syariah
court. I agree with the judgement made by the court by giving the jurisdiction
to the Syariah court because
the issue of apostacy required specification
in Islamic law and a suitable forum to do such decision is only the Syariah
court as decided in the case of Dalip
Kaur. However by having
the provision of the jurisdiction only is not comprehensive if there is no
procedure regulated for the purpose of implementation. So that, the state
legislature have to provide certain procedure in their Act/Enactments as a
guideline to the syarie judge in handling the postasy cases.
Part
Two: Freedom Of Religion And The Right To Convert: The Practice In Indonesia
The
background
Islam had stepped on the land of nusantara (the then
Malaysian-Indonesian archipelago as it was known) as early as first century of
Hijriyah. However, the more established report said that Islam came and
flourished in Nusantara on the first half of twelth century. It was so obvious
in that era that Islamic kingdom emerged in Pasai, Sumatera. This fact was
witnessed and written by Muslim scholar cum traveler Ibnu Batutah in
1345. From that time on, Islamic norms and laws emerged and were being
implemented in Islamic kingdoms in Sumatera, Java, Banjar, Mataram as well as
Banten
The historical and social phenomenon
was recognized by the prominent Dutch legal scholar L.W. Christian van den
Berg (1845-1927), who subsequently pronounced his celebrated theory of “receptie
in complexu”. This theory believes that the law applicable to Indonesian
people at that time was reffered to the religion they embraced. Meaning to say,
for the Indonesian Muslim society in the period of Islamic Kingdoms, they already
had Islamic law took place being implemented and enforced.
However, the arrival of Dutch
colonials into the Indonesian land in the sixteenth century started with the
commercial and trade mission, sees the influence of Islamic laws in Indonesia
being slowly diminished and eliminated.
This was deemed important strategy for the Dutch to strenghthen their power in
the country, i.e by first weakening main pillars of society.
Cornelis Van Volenhoven, and supported by orientalist Prof. Snouck
Hurgronje, who contributed significantly in reengineering the legal system
in Indonesia.They promulgated the so-called theory of “receptie” that
limited the reception and application of Islamic law in Indonesia. The theory
said that Islamic law in Indonesia was
applicable on so far it has been adopted as a customary law (adapt) in one
particular territory.
Not surprisingly, this theory was
formalized by the Dutch government and thus incorporated under the Dutch
colonial constitution insdische Staatsregeling Article 134:2, and
as the result, Islamic law has been put in the ‘prison’.
This discovery of adapt law
principle was destruction to the legal system that lived in the Indonesian society at that time. Not only
this theory limited the scope of Islamic law in Indonesia, but also it
restricts the application, if any, to specific custom and region.
The
1945 Constitution
Islam has regained significant
position in the independent Indonesia. However this improvement had to undergo
a long and uphill road to emerge. This is because not every Muslim understood
Islam as the way of life for them. This situation is undoubtedly due to low
level of Muslim education as well as the impact of Dutch colonization.
According to Prof Huzairin noted;
“mere education factor is not
sufficient to ensure place for Islam and Islamic law in the new Indonesia. Not
less important than that, regulatory and legislative approaches are a must. He
lamented that the implementation of
Islamic law would be subject to the authority since law is associated with
binding force. This notion conforms to the positivist school of law that considers authority as an
essential instrument in the law. It is the authority that makes the law enacted and implemented
through its binding force and punishment. In this respect, it is very important
for Islamic law to have a constitutional basis in Indonesian legal system so as
to ensure basis for further legislation”
It is submitted that the Indonesian
1945 constitution had brought greatest significance in liberating Islam from Dutch ‘imprisonment’
through its provisions favorable to Islam. Different from several Muslim countries in the
world those declares Islam as the religion of the country, Indonesia’s
constitution does not specifically mention Islam as the religion of states. However,
it has put very significant place for the religion to grow in the heart of the
people and the state alike.
This significance was first derived
from Article 29 of the 1945 Constitution whereby it states that the
state shall be based on the belief of oneness of the God, and that the state
shall guarantee freedom of all the citizens to embrace religion and practice it
accordingly. Hartono Mardjono, elaborated that the article indicates
three important points:
(i)
State
cannot enact laws or set policies that are in confrontation with the principle of belief in one supreme
God;
(ii) State is mandate to enact laws and set up policies
that will serve requirements of the faith principle on the belief in one
supreme God; and
(iii) State is bound to enact laws to prevent and
penalize those who undermine the
religious norms asnd teachings.
Apart from this provision on
constitutional guarantee to freedom of religion and practice, the gist of
Indonesian constitution as promulgated in its preamble clearly mentions this
belief in one supreme God as the basics principles of Indonesia, known as Pancasila.
The words mention that Indonesia shall
be based on (inter alia) the principle of belief in one supreme God.
Liberalism
Theory and Apostasy
The implementation of Shariah law
always being a controversial issue in Indonesia. Aceh remained the only
province within the country in which the central Government specifically
authorized Shariah. The struggle to implement the law which is in line with the
Hukum Syarak could be seen in several situation. As an example while Indonesian
intend to table the draft of antipornography bill in Parliament. The draft bill
sparked a heated national debate and led to large demonstrations (both for and
against). Opponents of the bill said that it was an attempt by proponents of
Shariah law to implement Shariah through the "back door."
The
situation which was happen above shows that it is not easy to introduce Shariah
law in Indonesia. Because of that reason also, I think it is difficult for the
government of Indonesia to have codified law about murtad and make it as an
offence. If that law want to be implemented, it will be a controversial issue
since they might think that it is incontravene with the freedom of the religion.
Besides that, the concept which was
brought by Prof Bushtanul Arifin as mention in this Article, similar with the
situation in Malaysia whereby in Malaysia we have the interpretation of Malay
in Article 160 of federal Constitution which provides about the relation
between Malay and professing the religion of Islam. If we apply the opinion of
Prof Bushtanul Arifin in Malaysia, it means that conversion out of Islam is not
acceptable in Malaysia community.
The Law After HAM (Hak
Asasi Manusia) 1999-2000
The inclusion of HAM in the 1945
Constitution imposes a duty on every individual in Indonesia to respect human
rights. Because of that reason, many activists of human rights put an effort to
maintain the right of freedom of religion in Indonesia.
As an example, Indonesia’s Legal
Aid and Human Rights Association (PBHI) urge the government to reject any form
of interference by the country/government on religious freedom or belief, allow
everyone or every group the freedom to choose their religion or belief because
any form of interference – without indication of a criminal act – is equal to
disrespecting and not protecting that freedom.
Interference or intervention
means a violation has been committed by the country/government because
religious freedom or belief include the fundamental freedom in itself as
non-derogable rights, therefore the banning of Ahmadiyah can be categorised as
a gross violation of human rights. Firstly, it goes against the obligation to
respect. Secondly, it violates the obligation to protect. Thirdly, with the
ban, the next step is that the country/government has indeed committed a
violation (of these obligations).
Interfaith
marriage
In
discussing about the interfaith marriage, I think it happens because the
position of Islam is not placed like in Malaysia. In Malaysia we recognized
Islam as the religion of Federation by virtue of article 3 of the Federal
Constitution. By having this Article, it will protect any action that
contravene with Hukum Syarak such as interfaith marriage from being happen.
In Indonesia since there is no
special status to religion of Islam, Indonesia take a International instrument
as a basic and guidance to all practice in Indonesia. That's why they
recognized interfaith marriage since it is in line with the human rights.
The human right activist will put
an effort to go against any Islamic authority in order to protect their right
in accordance with the concept of human right. As an example, in late July 2005
MUI issued a fatwa denouncing pluralism, secularism, and liberal forms of Islam,
along with interfaith marriage and interfaith prayer. While the fatwa generated
heated debates and served as a factor behind subsequent militant actions, it
produced no perceptible substantive impact on the law.
Finding
and Conclusion Comparative Overview
Based on the above discussion we might conclude that,
in fact there is no much different between Federal Constitution of Malaysia and
1945 Constitution in Indonesia. With regard to conversion out of Islam, both
constitution guaranteed freedom of religion, but they silent the right to
convert out.
Besides
that, in Malaysia we associate Malay with Muslim, similar like Javanese whereby
they also associated with Muslim. By virtue of this provision, shows that being
a Malay or Javanese, they have no right to convert out.
In
Indonesia, all the laws enacted always influence by an International instrument
such as United Nation Universal Declaration of Human Rights. I think, this situation
happen because in 1945 constitution they fail to give the special status
towards Islam.
The
situation is different in Malaysia, whereby we recognize Islam as the religion
of the Federation by virtue of article 3 of the constitution. In Islamic
matters we left it to the state. So, the state legislature in legislating any
laws will always ensure that it is in line with Hukum Syarak in order to
protect Islam as the religion of Federation.
Legality
of the State Law and Jurisdiction of the Court
The jurisdiction to determine the status of
religion of a person whether he/she is still a Muslim or not should be given to
the Syariah court. Syariah court is the proper forum to determine a Muslims'
religious status. By implication, it can be said that, in deciding whether a
Muslim can change his religion or not, it is left to the Syariah courts to
decide, in which, Islamic law will surely be applied.
Besides that, most of the state enactment has inserted in
their law the power of the Syariah High Court in its civil jurisdiction to make a declaration that a person is no longer a
Muslim or to make a declaration
that a deceased person was a Muslim or otherwise at the time of his death.
However for the state which did not have that express jurisdiction, the concept
of inherent jurisdiction maybe applied to decide the case as decided in the Soon Singh case.
The Nature of Murtad in the Malaysia
Scenario and Appropriate Sanction
I agree with the category of Murtad
in Malaysia as mention by the writer. Although we know that there is no
different made towards the interpretation of Muslim in the Act/Enactments, but
we know that there are person who being a Muslim by birth, conversion or born
Muslim either Malay or non-Malay who associate or mingle in a non Muslim
environment and become confused about their Muslim identity.
With regard to the sanction, I think
counselling or giving the proper guidance is the best solution. What we want
from them is to coming back to Islam. We do not want to create more hatred
towards Islam by imposing the punishment of whipping or imprisonment. The
Islamic authority play an important role to protect the aqidah of a Muslim from
continuously being influenced by the religion other than Islamic religion.
BIBLIOGRAPHY
1.
Abdul Aziz Bari,
“Murtad Dalam Konteks Kebebasan Beragama di Malaysia”, Malaysian Journal of Law
and Society 3 (1999)
2.
Current Law Journal
3.
Dr. Yusuf
Al-Qaradawi, Apostasy:
Major and Minor
4.
Malayan Law Journal
5.
Mohamed Azam Mohamed Adil, Restrictions in
Freedom of Religion in Malaysia: A Conceptual Analysis with Special Reference
to the Law of Apostasy, Muslim World Journal of Human Rights, Volume 4, Issue 2
2007 Article , The Berkeley Electronic Press, 2007
6.
Shamrahayu A Aziz
Lecturer, Apostasy And Religious
Freedom: A Response To Thio Li-Ann
7.
Shamrahayu A. Aziz,
Muslims' Right To Freedom Of Religion In Malaysia: Piercing Through The
Confusion And Contradiction
[1] Shamrahayu
A Aziz Lecturer, Apostasy And Religious
Freedom: A Response To Thio Li-Ann, p.14-15
[2] Shamrahayu
A Aziz, Apostasy And Religious Freedom:
A Response To Thio Li-Ann, p.14-15
[3] Ibid.
[4] ibid
[5] Daud bin Mamat & Ors v Majlis Agama Islam &
Anor[2001] 2 MLJ 390. See the commentary of this case
in Abdul Aziz Bari, 'The Jurisdiction
of Syariah Courts and the Right to Freedom of Religion under the
Federal Constitution: A Case Note
on Daud Mamat & Ors'
(2001) 9 IIUMLJ 87
[6] Kamariah bte Ali dan Lain-lain v Kerajaan Negeri
Kelantan, Malaysia dan Satu lagi [2002] 3 MLJ 657.
[7] Lina Joy v Majlis Agama Islam Wilayah Persekutuan
& Anor [2004] 2 MLJ 119. See the commentaries of this case
in Abdul Aziz Bari, 'The Relationship between the Position of Islam in the Cosntitution
and the Scope of Religious Freedom; Lina Joy v Majlis Agama Islam Wilayah &
Anor' (2004) 12 IIUMLJ 145 and in Thio Li-ann 'Apostasy and Religious Freedom: Constitutional Issues Arising from the Lina Joy
Litigation' [2006] 2 MLJ i.
[8] Shamrahayu
A. Aziz, Muslims' Right To Freedom Of Religion In Malaysia: Piercing Through
The Confusion And Contradictions, P.22
[9] Shamrahayu
A Aziz, Apostasy And Religious Freedom:
A Response To Thio Li-Ann, P.12
[10] Parliametary Debate, Vol.1, Section Ii, 4th
November 1975, P.6495-6503
[11] [1990]
2 MLJ 307
[12] (Aal `Imran 3:72)
[14] Reported by `Abdur-Raziq in his Musannaf, vol. 10, p. 168. saying no.
18710.
[15] Ibn Taymiyah, As-Sarim Al-Maslul, p. 368 (As-Sa`adah ed, verified by
Muhey Ad-Din `Abdul-Hamid).
[16] Dr. Yusuf Al-Qaradawi, Apostasy:
Major and Minor
[17] `Abdur-Raziq, Al-Musanaf, vol. 10, saying no. 18697.
[18] Dr. Yusuf Al-Qaradawi, Apostasy: Major and Minor
[19] Ibn Taimiyah, As-Sarim Al-Maslul, p. 321.
[20] (Al-Ma'idah
5:51)
[21] Section 13 of the Perak Islamic
Criminal Law Enactment of 1992 is merely a blasphemy.
However, since there is no distinction made between
blasphemy and apostasy, section 13 has been
regarded as an offence of apostasy.
[22] Section
66 (1) of the Melaka Shari’a Offences Enactment of 1991.
[23] Section
66 (2) (a) and (b) of the Melaka Shari’a Offences Enactment of 1991.
[24] Section
66 (3) of the Melaka Shari’a Offences Enactment of 1991.
[25] Section
102 (3) of the Council of Religion of Islam and Malay Custom Enactment of
Kelantan, 1994; Section 63(1) of the Enactment of Islamic Criminal Law of
Sabah, 1995.
[26]
Mohamed Azam Mohamed Adil, Restrictions in Freedom of Religion in Malaysia: A
Conceptual Analysis with Special Reference to the Law of Apostasy, Muslim World
Journal of Human Rights, Volume 4, Issue 2 2007 Article , The Berkeley
Electronic Press, 2007 page 1-2.
[27] 11. (4) State law and in respect of the Federal Territories of Kuala
Lumpur, Labuan and Putrajaya, federal law may control or restrict the
propagation of any religious doctrine or belief among persons professing the
religion of Islam.
[28]
Control and Restriction of the Propagation of Non-Islamic Religions Enactments
1980 (Enactment 1/1980).
[29]
Control and Restriction of the Propagation of Non-Islamic Religions Enactment
1981 (Enactment No 11/1981)
[30] Control and
Restriction of the Propagation of Non-Islamic Religions Enactment 1988
(Enactment No 11/1988)
[31]
Control and Restriction of the Propagation of Non-Islamic Religions to Muslims
Enactment 1988 (Enactment No 1/1988)
[32] Control and
Restriction of the Propagation of Non-Islamic Religions Enactment 1988
(Enactment No 10/1988)
[33]
Non-Islamic Religion (Control of Propagations Among Muslims) Enactment 1988
(Enactment No 1/1988)
[34]
Control and Restriction of the Propagation of Non-Islamic Religions Enactment
1989 (Enactment No 5/1989)
[35] Control and
Restriction (Propagation of Non-Islamic Religions Among Muslims) Enactment 1991
(Enactment
[36]
Control and Restriction of the Propagation of Non-Islamic Religions Enactment
1991 (Enactment No 11/1991)
[37]
Control and Restriction of the Propagation of Religious Doctrine and Beliefs
which is Contrary to the Religion of Islam Enactment 2002 (Enactment No.
6/2002)
[38]
Magistrate’s Court case No MA-83-146-2002 (Unreported). See Mohamed Azam Mohamed
Adil, “Kebebasan Beragama dan Hukuman Ke Atas Orang Murtad di Malaysia” in
Ahmad Hidayat Buang (ed), Mahkamah Syariah Di Malaysia: Pencapaian Dan Cabaran
(Akademi Pengajian Islam, Universiti Malaya) (2005), p 165.
[39] “For the purpose of Clause (3) the religion of a person under the age
of eighteen years shall be decided by his parent or guardian.”.
[40] “States Parties
shall respect the right of the child to freedom of thought, conscience and
religion. “.
[41] [1990] 2MLJ 300
[42] [2002] 3CLJ 766
[43] [2007] CLJ JT(1)
[44]
Article 160 defines ‘Malay’ as a person who professes the religion of Islam,
habitually speaks the Malay language and conforms to Malay customs.
[45]
Abdul Aziz Bari, “Murtad Dalam Konteks Kebebasan Beragama di Malaysia”,
Malaysian Journal of Law and Society 3 (1999) pp. 54-70.
[46] [2004] 2 MLJ 119.
[47] Ibid
[48]
Mohamed Azam Mohamed Adil, Restrictions in Freedom of Religion in Malaysia: A
Conceptual Analysis with Special Reference to the Law of Apostasy, Muslim World
Journal of Human Rights, Volume 4, Issue 2 2007 Article , The Berkeley
Electronic Press, 2007.
[49]
Administration Of The Religion Of Islam (State Of Selangor) Enactment 2003
[50] (1999) 1 MLJ 489
[51] (1992) 1 MLJ 7
[52] (2002) 3 MLJ 657
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