David Hodgson
(Judge of the Supreme Court of NSW).
The Melbourne Age
June 22, 2007
Can Islam be compatible with religious freedom? I certainly hope so, but
doubts are raised by a decision of Malaysia's highest court, given a
month ago. Lina Joy is a 43-year-old Malay woman who became a Christian
some years ago and wished to marry a Christian man.
As a Malay shehad received a national identity card specifying her
religion as Islam. As long as her identity card stated she was a Muslim,
she could not obtain a marriage licence to marry a Christian.
She applied to the National Registration Department to have her
designation as a Muslim removed. The department required a certificate of
apostasy from an Islamic court before this would be done.
Malaysia has civil and Islamic courts, the latter having jurisdiction over
Muslims in religious and family matters. In most states of Malaysia,
apostasy from Islam is punishable as a criminal offence by order of an
Islamic court. Certificates of apostasy are very difficult to obtain. If
Joy and her Christian boyfriend had children without marrying, the
children could be taken from them to be raised as Muslims.
Before the court's decision Joy and her boyfriend had received death
threats and were in hiding.
As a member of the United Nations, Malaysia is committed to the Universal
Declaration of Human Rights, which states that: "Everyone has the right
to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief", as well as providing that
"without any limitation due to race, nationality or religion" men and
women have the right to marry and have a family. Malaysia's constitution
provides that every person has the right to profess and practise his
religion; although it does also provide that civil courts have no
jurisdiction over matters within the jurisdiction of Islamic courts.
Interpretation of the constitution is a matter for civil courts and,
ultimately, for Malaysia's Federal Court.
By a 2-1 majority, the Malaysian Federal Court decided that the
department's requirement of a certificate of apostasy was lawful. The two
judges of the majority were Muslim and included the Chief Justice of
Malaysia. The dissenter, Justice Richard Malanjum, is a non-Muslim.
According to the majority, the question whether Joy was or was not a
Muslim was a decision for the Islamic courts, which had been given
jurisdiction over issues of conversion to Islam and, by implication, had
jurisdiction over questions concerning conversion from Islam. The Chief
Justice was quoted as saying: "If a person professes and practises Islam,
he should be following Islamic laws including his conversion or
renunciation. That is what is meant by adopting and practising Islam.
What the [department] did was to ascertain whether Lina [Joy] had
renounced this religion. I do not see this as an infringement to freedom
of religion. No one is stopping her from marrying. She is merely required
to fulfil certain obligations, for the Islamic authorities to confirm her
apostasy, before she embraces Christianity."
The dissenting judge considered among other things that the requirement
that Joy apply to Islamic courts for a certificate of apostasy was
unreasonable, as it would expose her to punishment for the criminal
offence of apostasy.
How the criminal offence of apostasy can co-exist with the Malaysian
constitutional guarantee of freedom of religion, especially if that
guarantee is construed in the light of Malaysia's commitment to the
Declaration of Human Rights, was not addressed. However, that offence
exists, and the difficulty of obtaining a certificate of apostasy seems
clear. As well, Joy was not shown to have voluntarily adopted Islam as an
adult: her classification came from her birth as a Malay and was an
automatic procedure.
In light of this, the decision and the words of the Chief Justice are
difficult to understand: that a highly intelligent and moderate Muslim
could reason in that way raises the doubts about Islam's compatibility
with religious freedom.
The decision was applauded by Muslims in Malaysia. But what do moderate
Muslims in Australia think about it?
Suppose that there was a law enforced in Australia. which made conversion
from Christianity a criminal offence, punishable by order of Christian
tribunals.
Suppose that there was also a law that prevented a woman who had converted
from Christianity to Islam from marrying a Muslim man, unless she obtained
a certificate from a Christian tribunal that she was no longer a
Christian, and that these certificates were difficult to obtain. I'm sure
Muslims in Australia would find this utterly repugnant, and rightly so.
Do Muslims in Australia not think that the converse situation in Malaysia
is similarly repugnant? Would it be possible for Muslim leaders in
Australia, and in other countries with religious freedom, to speak firmly
and clearly against the denial of religious freedom in countries such as
Malaysia?
If they can and do, this would certainly help to show that Islam can be
compatible with religious freedom; but if they cannot and don't, doubt
must remain.
----------------------------------------------------------------
This e-mail has been sent via JARING webmail at http://www.jaring.my
No comments:
Post a Comment