Apr 14, 06 7:51am
The highest court in Malaysia will decide whether syariah courts have the
exclusive right to rule on whether Muslims can legally convert, lawyers
and reports said today.
The move comes amid ongoing debates over cases involving Muslims who
renounce their religion, and whether civil or syariah courts have the
last say in recognising renunciation.
The Federal Court decided it would rule on the matter following the case
of a Muslim woman who appealed to have her former religion struck off her
identity card after converting to Christianity.
Lina Joy was originally known as Azlina Jailani but changed her name when
she converted in 1997.
The National Registration Department granted a card with her new name in
1999 but refused to remove her religion, stated as Islam, saying it
needed permission from a syariah court, which oversees Islamic issues.
"In the past, the courts have recognised constitutional rights more
liberally but over the last decade, dress codes and government policies
seem to need to be in conformity to Islam," said Joy's counsel Benjamin
Dawson.
"I hope the court declares a guarantee of constitutional rights," he told
AFP.
Taboo subject
Dawson said the consitution does not require Muslims to obtain syariah
court declarations to leave the faith but earlier court decisions had
suggested that was necessary.
The issue of apostasy is a taboo subject in Malaysia, and authorities
argue that renouncing Islam by declaration will allow Muslims to escape
syariah court judgments.
Malaysia's judiciary has largely skirted the sensitive issue, referring
instead to syariah courts to decide if a Muslim can renounce the
religion.
But the syariah courts have avoided declaring Malaysians as non-Muslims,
with apostasy an offence considered punishable by death.
While Malaysia is proud of the racial harmony that has prevailed here for
some four decades, public disputes over the rights of religious
minorities are becoming more common.
One of the most bitter incidents occurred last year when a Malaysian
mountaineering hero was buried as a Muslim against the wishes of his
wife, who disputed claims that he converted from Hinduism.
- AFP
Conversion: Federal Court gives hope to Joy
Arfa'eza A Aziz
Apr 13, 06 12:49pm
Lina Joy, a Muslim who converted to Christianity, was today granted leave
to appeal to the Federal Court over the National Registration
Department's (NRD) refusal to delete her status as a Muslim from her
identity card.
A three-member panel of the apex court comprising Chief Justice Ahmad
Fairuz Sheikh Abdul Halim and Justices Richard Malanjum and Augustine
Paul held that there were new issues to be argued in the case and the
matter was of public interest
"Having given anxious and careful consideration to the submissions
advanced by the parties we are of the unanimous view that the principle
involved in this case is a matter of general principle on which there has
been no decision by this court.
"It is also a matter of public importance of which further arguments,
followed by a decision of this court, would be to the public advantage,"
said Justice Ahmad Fairuz.
He also stated that the appeal will be confined to three main issues which
are:
if the NRD is legally entitled to impose as a requirement a certificate or
a declaration or an order from the Syariah Court before deleting the entry
of 'Islam' form the applicants (Joy's) identity card;
if the NRD has correctly construed its powers under the National
Registration Regulations 1990 to impose the above requirement when it is
not expressly provided for in the regulations and;
whether the landmark case Soon Singh vs Perkim Kedah - which declared that
the civil courts will retain their jurisdiction unless an express
jurisdiction is conferred to Syariah Court - was rightly decided.
The court earlier heard submissions from Joy's counsel Dr Cyrus V Das,
senior federal counsel Umi Kalthum Abdul Majid, representing the NRD and
the government and senior lawyer Sulaiman Abdullah who was acting for the
Federal Territory Religious Council.
Administrative decision
Joy - whose Muslim name was Azlina Jailani - converted to Christianity in
1998 and is married to a Christian individual. She had successfully
applied in 1998 to change her name but failed to have the entry 'Islam'
deleted from her identity card.
The NRD director-general had declined to change her religious status
stating that it had no jurisdiction to do so without a proper advice from
the Syariah Court or other Islamic religious authorities.
Her attempt to quash and overturn this administrative decision at the High
Court failed when the court on April 18, 2001 ruled that she could not
renounce Islam and the issue should be decided by the Syariah Court.
She then took the matter to the Court of Appeal which upheld the lower
court's decision in a majority 2-1 decision.
Court of Appeal judges Abdul Aziz Mohamad and Ariffin Zakaria had held
that it was crucial for the NRD to seek confirmation from the Syariah
Court before removing the word 'Islam' from national registration
identity cards (MyKad).
The dissenting judgement by Justice Gopal Sri Ram views that an order from
the Syariah Court was not a relevant document for the processing of Joy's
application.
No written law
Das submitted today that the 'sharp cleavage of opinion' between the
majority and dissenting Court of Appeal judgment strongly indicated that
the matter requires the attention of the apex court.
He said the matter was of public interest as it raised issues of
importance on the powers of the NRD, the religious rights and status of a
citizen in relation to their respective identity cards.
The court must once and for all decide whether a government department can
impose a regulation in the absence of a written law authorising it, said
Das (pix, right).
"Could policy impose a requirement which could disqualify an applicant
when written law - whether by Parliament or subordinate legislation- does
not require the same? Could this amount to legislation by policy by a
government department?"
He also contended that if the majority judgment of the Court of Appeal is
upheld, many citizens facing a similar predicament as Joy would be in 'a
state of limbo'.
"While the judgement defended NRD's policy, it nevertheless admitted that
the Syariah Court had no jurisdiction to deal with apostasy under the
Administration of Islamic Law (Federal Territories) Act 1993.
"So the judgment says: NRD has no jurisdiction to change, so you go the
Syariah Court and try and get a declaration on your apostatisation and
although we know that it has no jurisdiction to do deal with the issue,
you just try. So what happens to the citizen? She falls in between
because she cannot obtain a finality at neither place. Could this be
right?"
In her reply, Umi Kalthum argued that there was no new issue in the
present case as the principle of general application of administrative
law was 'a settled issue' that had been repeatedly dealt by the Federal
Court in other cases.
She said the NRD had not imposed any new condition but was merely
complying with the law of the land which authorises only the Syariah
Court to deal with matters involving conversions and apostasy.
"How can the NRD change the status of the applicant to say that she was no
longer a Muslim? It cannot do that. If it does, then he would be
officially pronouncing the applicant an apostate which even this August
court cannot do for obvious reasons," she said.
She said that the policy 'was reasonable' as it was also applicable to
Muslim converts who apply for a change of their name and religious
status.
Front door, back door
Concurring with Umi, Sulaiman urged the court not to allow apostates to
abuse the NRD in order to avoid facing the Syariah Court on the matter.
"We cannot have a back-door method for people who try to avoid facing the
Syariah Court by going to the NRD to change their status from Muslim to
non-Muslim," he said.
Responding to this, Justice Paul said: "So you say that there is a front
door and a back door. Shouldn't we settle the issue once and for all so
that there would be only one door in the future?"
The lawyer replied that the matter had already been decided in that issues
involving Islam be left only to the Syariah Court.
Don: Unconstitutional for courts to meddle in apostasy cases
Fauwaz Abdul Aziz
Dec 22, 04 1:42pm
The courts should not get involved in apostasy cases in order to adhere to
the spirit of the constitution, said Universiti Institut Teknologi Mara
(UiTM) law professor Shad Faruqi.
According to him, state legislatures in the 1970s provided for registers
to record the number of converts into as well as out of Islam. This
reflected the recognition then of Muslims leaving the faith.
However, Shad said today there are calls for apostasy to be punished.
"I think the law should just discreetly stay out of this area, as it did
up to now. For nearly 40 years, it has done fairly well.
"Staying out of it falls within the spirit of the constitution," he told
malaysiakini in a recent interview at his residence in Kuala Lumpur.
Shad was commenting on assertions by legal academics at a seminar last
week that the constitution provides for action to be taken against
Muslims who seek court declaration of their conversion out of Islam.
At the seminar, another constitutional expert from the International
Islamic University (IIU), Professor Abdul Aziz Bari (photo), said
religious freedom as articulated by Article11 is qualified by Article
3(1), which conferred a special status to Islam as the official religion
of the Federation, and thus should be interpreted through the yardstick
of Islam in the case of Muslims.
Personal liberty
Commenting on this, Shad said Article 3(1) committed the state to build
mosques, promote Islamic education, generally promote Islam as a
religious, moral, social, and economic force.
"Article 3(1) was meant to permit the use of tax-payers money for Islamic
purposes and to promote Islam. In the United States, the state was not
allowed to do so. Article 3 in Malaysia was meant to demolish that
church-state separation," he added.
However, he said Article 3(1) did not signify the abrogation of
fundamental rights contained in Articles 5-13 which include the freedom
to association.
"There is personal liberty in Article 5. There is freedom of association
in Article 10. That also means, don't forget, the freedom to
disassociate. There is also freedom of speech in Article 10. There is
also the dimension of Article 12(3), which says no person shall be forced
to receive instruction or take part in any ceremony or act of worship
other than his own.
"I don't think Article 3(1) was meant to truncate fundamental rights or
eclipse Articles 5-13. Article 3(1) was not meant to eclipse an entire
chapter on fundamental liberties," he noted.
As for those who use Article 11(4) providing for restrictions against
propagating to Muslims, Shad explained that the clause says nothing of
one who desires to study and profess another religion out of his own
volition.
"Article 11(4) is about people going out to others to preach. Article
11(4) does not talk about profession itself. It doesn't talk about a
person himself studying and wishing to profess another faith," he said.
Shad also cited the view of legal writer Andrew Harding, who said Article
11(4) was written into the constitution as a compromise during the
1956-57 period to level the playing field of religious proselytizing.
The professor said Muslims at that time were concerned about the
organisational and financial power of Christian missionaries during the
colonial era, as these missionaries came together with British merchants
and the British military.
"That's why Article 11(4) was put in: to protect Muslims from the
influence of British proselytisers, those who were better financed,
better oiled, better heeled, and enjoyed better mechanisms. At that time,
it was not a level playing field (for Muslims)," he added.
'A hybrid state'
Shad also said as long as Articles 3(4) and 4(1), which relate to the
integrity and supremacy of the constitution, are in effect, the other
laws cannot be interpreted Islamically through Article 3(1) as would they
would in an Islamic state.
"Malaysia is not a full-fledged Islamic state and was not meant to be one
in 1957. There is the problem with Article 3(4) which says nothing in
Article 3 relating to Islam derogates from anything else in the
constitution. In other words, nothing in Article 3 overrides the other
articles of the constitution.
"As long as there is also Article 4(1), which says this constitution is
the supreme law of the federation, Malaysia will not be a full-fledged
Islamic state," he added.
However, Shad said this does not mean that Malaysia was strictly secular
or un-Islamic.
"I would be loathe to say that. Malaysia is rather a 'hybrid' state. There
is rigorous enforcement of Islamic law, (but only) on Muslims. There are
currents and cross-currents," he explained.
The most cogent argument, according to Shad, related to claims that List 2
of Schedule 9 in the constitution provides for state legislation against
those who commit offences against the precepts of Islam.
He said as profession of one's religion had already been covered by
Article 11's freedom to profess one's religion, state law has no
jurisdiction over the matter of an individual's conversion.
"Schedule 9, List 2 item1 did not confer a blank check power. It is a
residual power in those areas where the law had not spoken. Where federal
law had not spoken, Islamic law can come in relation to Muslims only," he
added.
Constitution provides for action against Muslim apostates
Fauwaz Abdul Aziz
Dec 17, 04 12:47pm
The Federal Constitution does provide for legal action to be taken against
Muslim apostates, said a constitutional expert today.
This is because freedom of religion as provided for in Article 11 should
be read together with Article 3(1), which confers a special status to
Islam as the religion of the Federation that has not been accorded to the
other religions of the country.
Law professor Abdul Aziz Bari, who is deputy dean of research and
development at International Islamic University's Research Center, said
this at a seminar on "Freedom of Religion and the Issue of Apostasy" in
Kuala Lumpur.
"The structure and framework of the constitution allows for such
regulative mechanisms. Such mechanisms do not breach the constitution
because the constitution places Islam in an exceptional position in
comparison to other religions," he said in his paper on the topic.
While Article 11 comprehends the profession, exercise and propagation of
the religions, religious propagation is also subject to legal
restrictions contained in clause four of the same Article, said Abdul
Aziz in his paper.
"These restrictions include controls against the propagation of any
religious doctrine or belief among Muslims. This shows the special status
accorded to Islam by the constitution."
In defense of such provisions, Abdul Aziz cited the examples of
legislation in countries such as France, Germany, Turkey, and Singapore
that, while espousing religious freedom, also prohibit polygamy and the
wearing of the veil.
'Enforce laws against apostasy'
This indicates, said Abdul Aziz, that even "secular societies, in
particular, do not easily accord religious freedom or recognition to
religion and spiritual values."
In the Malaysian context, said Abdul Aziz, efforts to restrict the
incidence of Muslim apostates is "an internal matter that did not
infringe upon religious freedom as such restrictions are not meant to
forcibly convert anybody to Islam."
Such standards of religious freedom as contained in international legal
instruments, including the Universal Declaration of Human Rights, should
only be formally adopted after due process by Parliament, said Abdul
Aziz.
"There were more urgent issues at stake such as the incidence of torture
of prisoners. Legally, (laws against apostasy) is similar to the process
of collecting alms tax and charity: the enforcement of Islam upon the
followers of Islam."
In the meantime, he added, the Malaysian courts should strengthen their
resolve in applying constitutional provisions that are already in place.
Agreeing with him on the matter was Prof Shamrahayu Abdul Aziz who said
there were sufficient enactments in the civil and Shariah courts for the
authorities to act in order to stem the tide of apostasy among Muslims.
"This phenomenon is a big challenge that must be confronted with the
Muslim community in Malaysia. This serious crime must be contained before
it reaches critical proportions in our society," she said in her paper.
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