Consequences of conversion

Consequences of conversion
Helen Ang Malaysiakini
Dec 14, 06 11:21am




"WHY should it become a matter of state as to this person’s religion and burial?" asks Tunku A’amash Tunku Adnan, a founding member of the Article 11 coalition movement. He is referring to the controversy surrounding the late Rayappan Anthony.

Answering my question as to possible reasons for t! he Selangor religious authority officials – who are strangers to the family – to lay claim to Rayappan’s body, Tunku A’amash suggests: "Amongst the Malays, the Muslim must be buried in the Islamic way. If not, the living will be [held] responsible. I think that’s the reason here."

Nonetheless, in Tunku A’amash’s own opinion, the last rites attendant upon apostate van driver Rayappan should on the contrary have been ‘a very personal matter for the immediate family’ to settle. Yet the state and even the prime minister had gotten involved. Why so?

Tunku A’amash comments, "It’s political" and cites the conventional wisdom "because PAS has put Umno into a corner and Umno is trying to be more holy than PAS." There are many who will agree with him that administration of processes governing Muslims in Malaysia has become increasingly politicised.

Tunku A’amash traces the push for this development to Dr Mahathir Mohamad’s amendment to the Federal Constitution in 1988 on Article 121 (1A) pertaining to ! Syariah courts. He locates its subsequent acceleration within the national framework to the influence of the Anwar years.



Has the general public got its finger on this politicising of God which has led to widening and encroaching Islamisation? And how more worryingly, this trend exhibits an orthodox and uncompromising nature?

It is certainly disingenuous if not downright foolhardy to buy into the argument that this is solely the Muslim’s province. And that non-Muslims should shut up, butt out, put up or get out of the country if they don’t like living in this so-called ‘Islamic state’. What will it take to make the non-Muslim community shake off their apathy, I wonder?

Non-Muslims affected

As ! the Rayappan affair illustrates, conversion to Islam or out of the religion does impact on other than the person alone. Lourdes Mary Maria Soosay and S Kaliammal, widows respectively of Rayappan and Everest hero M Moorthy, are not Muslim but this had not prevented the Syariah Court from impinging on their rights.

S Shamala is a non-Muslim whose young children were converted to Islam without her consent by her estranged husband, and she reportedly fled Malaysia with her kids in tow after being caught in court limbo. Lina Joy’s other half has been forced to go into hi! ding together with her. The parents of Susie Teoh, who converted when she was a minor, were denied access to their daughter. There are more Malaysians who have suffered harrowing ordeals but whose stories have not hogged national headlines.

A generic example of the impact of syariah on the non-Muslim is the woman who suddenly faces a forced dissolution of her civil marriage should her husband take a new Muslim wife. In such an event, her rights to their marital property and her children’s inheritance may be nullified.

Another example is the non-Muslim elderly parents of a deceased convert who may find his entire estate unwittingly devolved upon the Baitulmal (state charity agency) following the distribution of property under Islamic law. Or the non-Muslim partner may lose custody of their children when his or her spouse converts to Islam.

Therefore, it is at ou r own peril for non-Muslim communities to remain cowed in a cocoon of indifference. The Islamisation we see galloping a-pace has yielded just the type of religious enforcement that tells you to take your Mykad, tear it up and throw it away. Well, so much for illusions of secular citizenship.

Serving justice

Leading civil rights lawyer Haris Mohamed Ibrahim clarified some points of law on the rights and remedies that former Muslims and non-Muslims might avail themselves when trapped in what he tells me are the ‘human tragedies’ that these types of cases represent.

In the Lina Joy case, Haris appeared as co-counsel with Malik Imtiaz Sarwar holding watching brief for the Bar Council, both in the Court of Appeal and in the Federal Court. He is pro bono counsel to Daud Mamat, Mad Yaacob Ismail, Kamariah Ali and her (late) husband Mohamad Ya in their apostasy case. He also held a watching brief for the Bar Council in the Moorthy case and for women NGOs in the Shamala case.

Haris is in agreement with Tunku A’amash that PM Abdullah Badawi should not have interfered in the Rayappan issue. Says Haris: "Fundamentally, it was wrong for the government, the exec! utive, to direct the AG (Attorney-General) to intervene when the matter was already before another arm of government, the judiciary."

He furthermore finds it quite understandable why Rayappan’s wife and daughters declined to comply with the subpoenas issued and feels in fact that it would have been ‘very dangerous’ had they actually agreed to present themselves in the Shah Alam Syariah Court.

Haris explains that the Syariah Court has no jurisdiction to have non-Muslims as party to the proceedings although there are provisions in the syariah evidence procedure that allows them to give evidence. He stresses that we must appreciate the distinction between being a witness to assist the court and being a party to pursue your interest.

"Now, Rayappan’s family had a plain and ample interest in ! these proceedings. They claim that he was a Catholic at the time of his death. Now to tell them that they should be satisfied and that they should appear before court proceedings merely to give evidence and not to represent their interest, in any jurisdiction in any place on the face of this Earth, is completely unsatisfactory and it’s completely abhorrent and inconsistent with the notion of representation of one’s own interest.

"This matter was properly to have been before the civil courts, not before the Syariah Court."

Haris believes, "Justice in Islam would have been served if parties were allowed to appear before the civil court where there was no impediment or limitation in representation for all parties to have their interests ventilated before the court, for the court to hear all evidence without limitation and for the court to decide on the merits of the case premised on evidence without any other considerations."

Restrictions and repercussions

Nonetheless, as with the tussle over Rayappan’s dead body, there was similarly a clash over court jurisdiction. Haris holds the view that it is legally untenable for non-Muslims to seek relief or redress through the syariah courts because List II of the 9th Schedule of the Federal Constitution confines the jurisdiction of the Syariah Court to Muslims only. Moreover, the extent of the Syariah Court’s authority – over what is termed Muslim affairs – is also clearly defined and limited.

Haris avers that prior to the enactment of Article 121 (1A) and its subsequently contentious interpretation the civil high courts time and again exercised a jurisdiction of review over the decisions and pronouncements of subordinate courts and tribunals, including the Syariah Court.

"If anyone suggests that the power of judicial review of the civi! l courts over any decision by any tribunal which is acting beyond its jurisdiction has been taken away by the 1988 amendment, they must produce the evidence. We haven’t seen any."

Beginning in 1999, the IC holder’s religious affiliation was documented in the Malaysian identity card. It’s noteworthy to observe that while other Mykad applicants are allowed to declare their religion, a person deemed Muslim will automatically have ‘Islam’ printed on his. This move appears to allow federal bureaucracy to place a fetter or obstacle in the exercise of the citizen’! s right to freedom of belief, worship and conscience.

An ‘ordinary’ (ordinary being the operative word) person whose IC identifies him as Muslim could be liable to punishment if caught by the moral police in khalwat, imbibing alcohol or eating during fasting month. Therefore having your religion officially categorised does carry repercussions. One restriction, for instance, is that a person with ‘Islam’ on his IC will not be able to register his marriage with a non-Muslim.

Lina Joy was told by the National Registration Department (NRD) that she must first obtain a declaration by the Syariah Court or state Islamic department before she could have the particular ‘Islam’ deleted. The requirement for a Syariah Court order is not expressly provided for in the National Registration Regulations 1990 and the Federal Court will now have to decide whether the NRD has correctly construed its powers to impose this requirement.

! Haris' stand is thus: "We say that it is unconstitutional. If she has a right under Article 11 to decide her choice of faith, no organisation, no body, no court, can be the final arbiter of that exercise of choice."

The denial of Joy’s rights has caused her much grief over the past eight years ever since she changed her name from Azlina Jailani. "Well, it has reached its pinnacle. In July this year, the Federal Court had heard the submission of all parties … We all await the decision of the Federal Co! urt," he says.

Malay-Muslim Siamese twin

Haris adds the case raised a very important question of law ‘whether Article 11 in its totality, allows an individual born to the Muslim faith, who of his own free will having attained the age of majority, is entitled to renounce Islam. That is the situation that Lina Joy finds herself in.’ He emphasises a precedent in ! Joshua Jamaluddin, a Malay who converted to Christianity – and detai ned under ISA and abused while in custody – where ‘no question arose whether he could or he couldn’t’. Strictly speaking from a legal standpoint, that is.

Joy’s predicament was compounded by a court ruling that as Malay she exists under the tenets of Islam until death.

Haris challenges this reasoning. "Malay doesn’t appear in Article 11. Malay appears in Article 153 [on the Malay’s special position]. The Malay in Article 153 should bear the meaning in Article 160 (2). No more, no less. [Note: Malay in Article 160 (2) of the Federal Constitution is defined as a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom].

"You cannot now extrapolate the meaning of! Malay provided for in Article 160 (2) and impose it on Article 11 whe n Article 11 in itself does not bear the word Malay. The meaning of Article 160 (2) was never intended to apply in the extrapolation and interpretation of Article 11," he reiterates.

Be that as it may, Joy is the rare visible exception to the norm. In the Malaysian context, the twin aspects of the Malay-Muslim construct has been rendered mutually inclusive and inseparable through political and legal mechanisms, family and peer pressure as well as state and social conditioning.

For those born Malay and living here, to contemplate leaving the faith bears an insufferable stigma, not to mention the act is almost an insurmountable hurdle in practice. Summing up this Malay dilemma, Haris says: "So let’s accept that socially it’s difficult but legally it’s not impossible."

Given her plight, one h as to salute Lina Joy for her resilience and courage in following the dictates of her heart and conscience. I, for one, would wish that the Islamic authorities and powers-that-be, and the hostile public issuing her death threats just allow Joy to get on with life, undisturbed. As Haris once famously said in a debate on prime time TV, "Islam also means submission to God, not fear of court prosecution".

And might I also add, ISA.