One of the manifestations of personal liberty is the freedom of
the individual to profess the religion of his or her choice without compulsion. As the
Holy Quran declares to the effect, "There shall be no compulsion in
religion," (al-Baqarah, 2: 256) and this is corroborated by another verse
revealed to the Holy Prophet (pbuh) to the effect, "Had Allah willed,
everyone on the face of the earth would have professed the faith. Are you then forcing
people to become believers?" (Yunus, 10: 99)
Hence no one can hope to successfully argue that Islam does not respect
the fundamental "human rights" of the individual. As Fathi Uthman observes,
"no power of any kind in the Islamic state may be employed to compel the people to
embrace Islam. The basic function of the Islamic state, in this regard, is to monitor and
prevent the forces which might seek to deny the people their freedom of belief."
(Fathi Uthman, Huquq al-Insan. 1982: 91)
Freedom of religion under Islam would therefore imply that non-Muslims
are not compelled to convert to Islam, nor are they hindered from practicing their own
religious rites. However, many tend to forget or take for grant that this also applies to
Muslims, in that they are not to be compelled or be put under undue influence so as to
become apostates. In other words, both Muslims and non-Muslims are entitled to propagate
the religion of their following, as well as to defend it against attacks or seditious
provocation, regardless of whether such an action is launched by their co-religionists or
by others. (Mohammad Hashim Kamali, Freedom of Expression. 1994: 85)
Notwithstanding the clarity of the Quranic proclamations, the subject
of freedom of religion, especially concerning apostasy, remains controversial. Some
commentators have drawn the conclusion that the Quranic passages which validate holy war
or jihad and fighting against disbelievers actually abrogate the Quranic proclamations on
tolerance and respect for other religions, and that the punishment for the mere
renunciation of faith is death.
Suffice to say that a significant number of scholars or jurists hold
the view that, in general, hadd is the maximum penalty for apostasy. And in a good many
Muslim countries, their views hold sway regardless of the fact that there has been no
consensus on such matters or that the noted Maliki jurist al-Baji (d. 494 AH) also
observed that apostasy is a sin which carries no prescribed or hadd penalty, and that such
a sin may only be punished under the discretionary punishment of ta'zir (which is lesser
than the hudud), or that the renowned Hanbali jurist, Ibn Taimiyyah, has also agreed
categorically on the punishment for apostasy being ta'zir. (Kamali, 1994: 91)
What this means for a country with a Muslim majority, especially with a
slim Muslim majority, like Malaysia is that cases where Muslims have supposedly declared
themselves apostates and have done so under questionable circumstances can lead to
potentially explosive situations.
To begin with, the laws of Malaysia on the matter seem far from
satisfactory. As Salleh Buang, a noted academic on Malaysian law, notes, "to date,
there are no written laws by way of a State enactment or federal territory act that
provides for the situations in which a Muslim wishes to become an apostate.
"There are no laws on the procedure for arresting, detaining, and
counseling for the purpose of facilitating repentance. There are no laws that
categorically state the kinds of judgments that can be pronounced against those who are
unrepentant."
And in most States, "there are no laws that clearly sanction
against 'influential second parties' that are proven to be a source of undue influence
upon the Muslim youth who have forsaken the religion into which they were born," adds
Buang. (Utusan Malaysia, Jan. 27, 1998)
In fact, in States that have enacted some form of laws within the
limits of art. 11(4) of the Federal Constitution such as Trengganu, Kelantan and Pahang,
these laws have, thus far, not been enforced.
This means that the very absence of all such laws in most States and
the seemingly unenforceable laws that already exist in some States may make detection of
undue influence and the prevention of it next to impossible. And as such, the Internal
Security Act (ISA) 1960 has proven to be a tool that is far too blunt for the job that
needs to be done.
As in the case of the Minister of Home Affairs v. Jamaluddin bin Othman
[1989] 1MLJ 368, the circumstances pertaining to the case may well have shown how
uncertain the nation's "Syariah" laws are regarding the regulation of
apostasy or the prevention thereof under questionable circumstances, so much so that the
government felt compelled to employ s. 8(1) of the ISA.
The Supreme Court of Malaysia upheld the decision by the court of first
instance that the constitutional clause on freedom of religion under art. 11 must be
respected in its fullest sense. The plea by the Minister of Home Affairs that conversion
to Christianity by a Muslim was a punishable offence was therefore dismissed.
The Supreme Court held that "the sum total of the grounds for
detention in this case was the supposed involvement of the respondent in a plan or
programme for the dissemination of Christianity among the Malays... We do not think that
mere participation in meetings and seminar can make a person a threat to the security of
the country. As regards the alleged conversion of six Malays, even if it were true, cannot
be regarded as a threat to the security of the country."
This judgment has to be read carefully in that the Court was merely
saying that in the absence of proof of undue influence or sedition, freedom of religion or
religious expression cannot be easily curtailed just because it involved Muslims. To
suggest otherwise would be equivalent to saying that non-Muslims were basically a threat
to the security of the country. Hence the question remains as to the adequacy of laws.
Fortunately, the situation of inadequacy of laws has been helped or
improved somewhat by the settling of the issue of jurisdictional conflict - that is to say
the conflict of jurisdiction between the civil and Syariah court on the matter of apostasy
- by virtue of an amendment to art. 121 of the Federal Constitution as well as a string of
judicial decisions that have given effect to the spirit of that amendment.
Art. 121(1A) (which took effect on June 10, 1988) simply states that
the "courts referred to in Clause (1) [meaning civil courts] shall have no
jurisdiction in respect of any matter within the jurisdiction of the Syariah courts."
And in the case of Md. Hakim Lee v. Majlis Agama Islam Wilayah
Persekutuan Kuala Lumpur (Original Summons No R1-24-61-96), whereby the plaintiff alleged
that he had established himself as an apostate through a "deed poll", the Kuala
Lumpur High Court held as per Datuk Abdul Kadir Sulaiman J. on Nov. 5, 1997, that despite
the absence of a specific State legal provision on the matter of apostasy, "the
jurisdiction of the Syariah Court is much wider than those expressly conferred upon it by
the respective State Legislature".
Simply put, the learned judge may be said to have been abiding merely
by the spirit of the amendment to art. 121 (i.e. art. 121(1A)) of the Federal Constitution
as well as other relevant constitutional provisions when he held that, just because State
laws do not confer specific jurisdiction to the Syariah court to hear the issues brought
by the plaintiff in the case, it does not mean that such issues are to be adjudicated
automatically by a civil court.
The learned judge's decision was also very much in line with the case
of Mohamed Habibullah v. Faridah Datuk Talib' [1992] 2 MJL 793, whereby it was held that
"in determining whether a Muslim has renounced Islam, the only forum qualified to
answer the question is the Syariah Court." (As per Tan Sri Gunn Chit Tuan J. and as
concurred by Tan Sri Mohamed Azmi J.)
This had also been in accordance with the judgment given by Tan Sri
Mohamed Yusoff J. in the earlier case of Dalip Kaur v. Bukit Mertajam District Police
Officer [1992] 1 MLJ 1 as well as the later decision given by Wan Adnan J. in the case of
Soon Seng v. Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah [1994] 1 MJL 690.
However, what the decision in the Md. Hakim Lee case shows is that the
Muslim personal laws of certain States may be far from adequate since, as can be seen in
this particular instance, the Syariah court would need to rely on its "inherent
jurisdiction" in order to determine the legality of a person's state of apostasy as
accorded to it under the broad ambit of the 9th Schedule of the Federal Constitution as
per art. 74 of the Constitution, instead of the particular State laws that could have been
enacted under the State List.
This gives rise to a considerable amount of uncertainty especially in
light of the recent furor over the matter of Nor Aishah, a former Citibank worker, who was
said to have converted "out of her own free will" to Catholicism. In as much as
a person is guaranteed his or her freedom of religion by virtue of art. 11, the matter
came not to the Syariah Court but to a civil High Court in the form a writ of habeas
corpus (as per her a 20-page handwritten complaint on Jan. 16 to the High Court, a copy of
which was sent to Associated Press (AP)). Though subsequently withdrawn, the Nor Aishah
case has brought to light yet again the inadequacy of laws on the matter of apostasy.
As Salleh Buang observes, any declaration of apostasy by Nor Aishah,
even if it were a statutory declaration as per the Statutory Declarations Act (1969),
would not be binding on any other party except herself unless and until it has been
adjudicated upon by the Syariah court. However, despite the fact that the Syariah court
has an inherent jurisdiction to determine such a case, the absence of particular laws
meant for establishing sound mind and free will or the absence of undue influence or
coercion may yet prove problematic.
In the least, the absence of clear cut laws would be a source of
friction between the Muslim and non-Muslim communities. Muslims would be quick to point
out that, due to the inadequacy of laws, Muslims who have been under coercion or undue
influence are allowed to go about their lives as apostates. At the same time, non-Muslims
would also be quick to point out that, due to the inadequacy of laws, those who no longer
wish to be Muslims are denied their fundamental right to freedom of religion and are
wrongly subjected to Muslim laws including the laws of khalwat (close proximity)
and zinah (fornication and adultery).
And the last thing the peoples of Malaysia need, especially when
stricken by economic problems that stem from the lack of investor confidence, is political
turmoil or instability.
Ahmad Faiz bin Abdul Rahman
4 February 1998.
-----------------------------
[Currently, he is a Researcher with the Institute of Islamic Understanding, Malaysia
(IKIM) and a Pro-temp Committee Member of the International Movement for a Just World
(JUST).]
