Fauwaz Abdul Aziz
Dec 24, 04
Far from being a pandora’s box of amendments to the Federal Constitution, recognising the conversion of Muslims to other religions involve only minor accommodations that can, and should, be dealt with by the legislative branch of government to address the issue of Malays’ special position, say academicians.
Although disagreeing with court intervention in cases of Muslims seeking to convert to another religion, International Movement for a Just World president Dr Chandra Muzaffar said he believes the phenomenon should be recognised and addressed by Parliament.
“We should be dealing with the issue, not through the courts because it is too heavy a burden to be placed on the judges, but through Parliament and the state legislatures,” he said when contacted.
Chandra said despite the incidence of Malay apostates being very few and isolated cases, there will have to be constitutional amendments to address the existence of Malays “in limbo” by virtue of their religious conversion.
“The definition of who is a Malay would have to be worked out, because (by recognising Malay conversions out of Islam) you create a group of people who are in limbo,” said Chandra, who was formerly the director of the Center for Civilisational Dialogue in Universiti Malaya.
As the constitution defines a Malay as one who professes the religion of Islam, speaks the Malay language, and practices Malay customs, it would have to be modified to address the question of the Malay convert’s rights as far as his ‘special position’ is concerned, he added.
“You can ask them to make a statutory declaration that they are non-Malay because they have left Islam. Or you can create a legal niche for the people of this group as non-Malays as opposed to Malays. For (either of) these, you may have to change the constitution.”
Article 153 of the Federal Constitution provides for the reservation of certain proportions to Malays in the public services, educational opportunities and business permits and licenses.
‘Accrued versus future rights’
Echoing Chandra’s sentiments on the matter was constitutional expert Dr Shad Faruqi who added that among the first questions to be asked was with regards to the ‘initiator’ of such a move to declare a person a ‘non-Malay’.
“Someone has to go to the courts. Do the courts act on their own? Does someone complain? Certainly in the civil courts, someone has to move the courts. Maybe the Shariah courts could issue a declaration.”
“As things stand, judicial power is not exercised at its own initiative,” said the Universiti Institut Teknologi Mara (UiTM) professor when interviewed recently.
The other question deals with the issue of accrued versus future rights pertaining to educational scholarship, study loans and ownership of Malay reserve land, said Shad. “It would definitely cause problems. She (the converted person) has shares. Are you going to withdraw them? She may have bought a reservation land. Are you going to take that back from her? Maybe you could say rights already accrued remain, but new rights cannot be obtained.”
Shad dismissed claims, however, that such the few apostasy cases that have been brought to the courts signal the beginning of larger concerns with the integrity of the Malay community.
“I think it would in individual cases, there may be ‘irritations’ where, for example, an individual goes to the registration department and says he wants his IC not to show the word ‘Islam’ and the case going up to the court of Appeal asking the registration department to explain.”
“That problem is there, but I don’t think it would lead to massive dislocation,” he added.
‘Serious crime’
Last week, a seminar on apostasy held in the International Islamic University (IIU) heard academics urging the government to stem the tide of apostasy before it grew to larger proportions.
IIU law professor Abdul Aziz Bari in his paper said failure to restrict the number of Malay Muslims leaving their religion would open up a pandora’s box of the constitution’s established provisions.
“Legal interpretations by those seeking to defend the problem of apostates will clearly disturb the structure and framework of the constitution, including the definition of Malay,” he said in his paper.
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.
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Don: Unconstitutional for courts to meddle in apostasy cases
Fauwaz Abdul Aziz
Dec 22, 04 Malaysiakini
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.
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Constitution provides for action against Muslim apostates
Fauwaz Abdul Aziz
Dec 17, 04 Malaysiakini
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.
