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  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'  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  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  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).]