THE CICAK.com

The constitution and apostasy: Freedom of religion should include Malays and Muslims

By JONATHAN LIM

Who determines your religious identity? You or the government?

Revathi Masoosai, who was named Siti Fatimah by her Muslim parents, say she was brought up a Hindu. Religious authorities say she is a Muslim.

It is a frightening situation. Revathi and Malaysians who no longer embrace Islam as their religion have no protection against Syariah laws, no freedom to practice their beliefs and no opportunity to live like other non-Muslim citizens.

“In the case of Revathi, it really clearly shows what happens in real human lives when you force someone to believe when he or she does not believe,” says Zainah Anwar, executive director of Sisters in Islam in Al Jazeera’s weekly magazine Everywoman. See the video below:

Let’s begin with the main legal issue on apostasy in Malaysia.

Article 121(1A) of the Malaysian Federal Constitution provides the Syariah courts with exclusive jurisdiction over Muslims. Therefore it is the Syariah courts that decide whether a citizen is Muslim. Civil courts cannot interfere with or overrule their judgment. This represents a catch-22 for Muslims wanting to convert out of the religion. They are still governed by the Syariah courts, in which apostasy is seen as a sin and Muslims cannot condone a sin.

But this goes against Article 11(1) in the Federal Constitution, that “every person has the right to profess and practice his religion.”

It is unjustifiable that “every person” should exclude Malays and Muslims.

Syariah courts are second to the supreme law of Malaysia, that of the Federal Constitution, which cannot be overruled.

Thus, in allowing a conversion out of Islam, Syariah courts should not regard themselves as condoning the sin of apostasy. Rather they should see themselves as rightly upholding the supreme law of Malaysia.

However, even the civil courts have not always upheld Article 11(1) the way some constitutional lawyers think they should.

Let’s study the landmark case of Lina Joy who is still trying to convert out of Islam.

Her lawyers tried to advance the supremacy of the Federal Constitution over the Syariah courts.

The trial judge in Lina’s case ruled that “the freedom to profess and practice the religion of one’s choice guaranteed by Clause (1) of Article 11 does not include freedom of choice of religion.”

The judge meant that everyone can practice but not necessarily choose his or her own religion. Muslims who either were born or converted into the religion are bound to the Syariah courts.

The High Court’s judgment was upheld when Lina appealed against the verdict in 2005.

Saying that the constitution has been misinterpreted is a gross understatement.

This is a clear breach of Article 18 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

While it is arguable that Muslims in Malaysia should not be allowed to hop in and out of the religion merely to avoid certain obligations under Syariah law, it is in my opinion that those who genuinely wish to convert out of the religion must be allowed to do so.

Furthermore, this issue begs the question whether faith should be personal or public. Is it fair and desirable that other religions in Malaysia are not publicly scrutinised whereas Muslims have to contend with the intrusive powers of the respective federal and state Islamic departments?

Personally, if I want to convert into Islam, I would rather not have people watching me and judging all of my actions. To me, and many others I know, faith is a personal subject that matters only to me and my God.

Where I choose to go in the afterlife is none of your business. It is also not the government’s.

On that note, to what extent should one’s religious details be made public?

Malaysians who have spent some time in the United States, United Kingdom or Australia know that those respective governments and institutions rarely, if ever, ask for its citizens’ religious identity.

Perhaps the only reason why religion plays such a big role in Malaysia is not because our country is a multi-ethnic and multi-religious one. There are many other countries that have become increasingly so with globalisation.

It is rather the difference how Muslims and non-Muslims are treated in Malaysia, which extends to married life; monogamous and polygamous relationships, education; choice of SPM subjects, banking; fixed interest rates or Islamc profit-sharing, and more. The contrast between the daily lives of Muslims and non-Muslims is blinding!

And when you stir in the fact that by constitutional definition in Article 160(2), all Malays must be Muslims, and that Malays possess special rights, you begin to understand the perspective of the ulama in the video when he remarked that “So when we allow all these things (apostasy), we are finished. The Malays are finished.*”

(*Contrary to the subtitles in the video, I believe the ulama said “the Malays are finished” instead of “Malaysia is finished.”)

When a Malay stops being a Muslim, the undefined position of such a person is mind-boggling – a Malay must be Muslim, so what does that make an apostate Malay?

Malays are being deprived of freedom of religion because of the way the constitution is being interpreted.

Because of the manner in which the constitution is defined.

The civil courts, which have no jurisdiction over Syariah courts, has its hands tied around its back. It can only skirt and dodge constitutional issues while delivering politically correct judgments.

Such sensitive decisions are best left to the lawmakers in Parliament.

We will not have a clear solution to the issue of conversion as long as Parliament refuses to grant its citizens, and not the courts, the liberty to choose a religion. There will also be no answer to this grey area if the government refuses to acknowledge and allow Malays to be non-Muslims.

The odds are against Malaysians who were born or converted into the religion and who now want to convert out of it. Prime Minister Abdullah Ahmad Badawi and our MPs have been reluctant to address the issue even in the aftermath of the S. Shamala and Moorthy Maniam cases.

Is this a sign? Are we moving from a secular to an Islamic state, contrary to the constitution? Have Islamic laws become the supreme law of the country?

Suddenly, we realise that the issue of apostasy is only the tip of the iceberg in the troubling conflict between Islamic laws and the Federal Constitution. These questions involve all Malaysians, whether Muslims or non-Muslims.

This cannot be ignored and must be resolved by the Parliament and the ruling government. We need to uphold the constitution.

Note: Neither the contributor nor theCICAK encourages Muslims to renounce Islam. We both acknowledge that Article 11(4) restricts the propagation of other religions among Muslims. The writer’s stand on apostasy is that laws can and must be put in place to safeguard the civil liberties of Malaysians while ensuring that persons wanting to convert out of Islam are not merely evading any obligations they might have.

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JONATHAN LIM is a contributing writer for theCICAK.

A law student at the London School of Economics, Jonathan inevitably writes in a somewhat “legal” manner. He values intellectual discussion and open dialogue as important tools in nation building and is optimistic about the youth of Malaysia. Visit his site.