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The final judgment on the Lina Joy case has brought to head the increasingly controversial and divisive issue of religious freedom in Malaysia.
In an apparent attempt to skirt a potential confrontation between the civil court and the syariah court, both the Court of Appeal and the Federal Court (the nation’s highest court) had narrowed the case down to one of pure administrative issue – whether the National Registration Department (NRD) acted legally in rejecting Joy’s application to delete the world “Islam” from her identity card (IC).
That attempt to avoid confrontation has obviously failed, for the Federal Court judgment in rejecting Joy’s request to delete the word “Islam” aroused even greater consternation, this time attracting world-wide publicity, most of which is adverse to Malaysia’s image.
It is not difficult to understand why the Federal Court failed, for the bottom line of the Lina Joy case is not one of mere technicality involving only the NRD, but one that touches on fundamental issues relating to the Constitution as well as those surrounding religious faith.
When confronted by this case, the first question we must ask ourselves should be: Is Joy a Christian or a Muslim? The answer to this question is vital, for if Joy is not a Muslim, then according to NRD regulations, she needs not stipulate her religion to the NRD, and the court should therefore readily grant her request.
Joy is a Malay woman, born in 1964 and brought up by her family as a Muslim. In her statutory declaration, she said she had never professed or practiced Islam since birth, and that she had embraced Christianity in1990. She wanted to marry a Christian, but marriage between Muslims and non-Muslims are prohibited in this country. That prompted her to have her religious status of Islam in the IC deleted.
In any society, she would have been deemed a Christian. But obviously, the Malaysian courts do not think so, hence the prolong controversies which threaten to split the country, mostly along religious and racial lines.
Fundamental questions
Arising from these controversies, are a host of fundamental issues that beg for answers. These relate to personal conscience, religion, the Constitution, Syariah laws, and peculiar to this country, the unique relationship between the Malay race and Islam. I will attempt to explore some of these by asking the following questions:
1. How do you define a Muslim? When is the point of entry and when is the point of exit? When is a Muslim considered having left his religion?
2. Is there or isn’t there religious compulsion in Islam? If negative, shouldn’t Muslims be allowed to leave the religion as their conscience dictates? Are punitive apostate laws then contradicting the religion?
3. Article 11 of the Constitution states: “Every person has the right to profess and practice his religion.” Does this include Malays and Muslims?
4. Article 8 of the Constitution proclaims all persons are equal before the law and prohibits discrimination on the ground of only religion, race, descent etc in any law. It does not, however, prohibit any provision regulating personal law. “Personal law” is understood to include family matters such as marriage, divorce, inheritance etc. Does it also include religion?
5. Islamic laws are legislated in the state assemblies and enforced by the Syariah courts. The scope of such legislation is prescribed in Schedule 9: List 2: para 1 of the Constitution. Among the items prescribed, which generally relate to family matters and administration of Islamic institutions, is one which empowers punishment on Muslims breaching the “precepts” of Islam. There is however no mention of apostasy. Does this “precepts” include apostasy?
6. In 1988, Article 121 of the Constitution was amended whereby civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” Arising from this amendment is the question of whether it is possible to have a clear-cut dividing line demarcating the boundary between the jurisdiction of the civil court and the jurisdiction of the Syariah court. What if the contending parties are Muslims vs non-Muslims – which jurisdiction does the case fall? What if there is a perceived conflict between the Syariah laws and the Constitution, or between the Syariah court and the civil court – which should reign supreme?
7. Should the Syariah system of justice be interpreted as parallel and independent of the Constitution and the civil courts?
It will be seen that the above questions tend to touch the base lines of the present conflict. Divergent views to these issues are expected due to differing backgrounds. However, I strongly believe that if we discourse with rationality and good conscience, considerable common grounds can be established among conflicting parties. I will start the ball rolling by volunteering some answers to them.
Answers
Islam and Muslims
A person who believes in and consciously follows Islam is a Muslim.
As for entry and exit, other than those born to Muslim families, Muslim converts have to go through a well defined ceremony just like most other religions. However, unlike other religions which treat religious drop-outs as non-events, Islamic apostasy is taken more seriously; but Islamic opinions on apostasy vary widely, ranging from the extreme of those advocating for punishment by death to those in favour of peaceful exit. As in all religions, leaving Islam is not so well marked as at the time of entry. For instance, in Malaysia’s Federal Territories, where Joy used to reside and where her apostasy case might have been handled, the Islamic laws there (Islamic Administration Act) have no provision regulating the leaving of Islam, though apostasy is considered catastrophic for Malays.
The reason for not highlighting the leaving of any religion is simple – when one ceases to believe, that religion doesn’t exist in him any more. Why beat the drum about it?
Religious compulsion
In spite of the fact that the name of Islam has been contaminated by contemporary violence around the globe, I still believe that main stream Islam is for peace. Similarly, I think main stream Islam accepts the concept of non-compulsion in religion as mentioned in the Quran. The question I want to ask Malaysian Muslims is: why is apostasy treated with such severity in this country, subjecting apostates to state punishment and social ostracisms, not excluding threat to lives? Aren’t Malaysian Muslims in main stream Islam?
Article 11
The wordings in this article of the Constitution guaranteeing freedom of religion to every person in this country are clear and unambiguous. There is no “if” or “but”. The only exception is the empowering of state legislatures to enact laws controlling or restricting the propagation of other religions to Muslims.
So, I don’t see any reason why Malays and Muslims in this country should not enjoy the same protection of the Constitution to have their religious freedom.
If indeed religious freedom is not meant for Muslims and Malays, wouldn’t our founding fathers and drafters of the Constitution have inserted words to this effect in this article?
Discrimination
Article 8 of the Constitution prohibits discrimination on the basis of race or religion but makes exception to those within the ambit of “personal law”. Do the latter include religion? I leave it to people well versed in law to advance their opinions.
The answer to this question is relevant to the Lina Joy case, in that a negative answer would mean that NRD could not discriminate against Muslims by forcing them to declare their religious status in their IC while non-Malays are exempted from doing so. And that means it is illegal for NRD to reject Joy’s request to have the word “Islam” deleted from her IC.
“Religious precepts” and apostasy
The Constitution, under Article 74 (2), empowers state legislature to enact Islamic laws as prescribed in Schedule 9, among which is one pertaining to punishment for breaching “religious precepts” but with no mention of apostasy.
Is apostasy included in “religious precepts” for punishment? If it is, does it not contradict Article 11, rendering such legislation ultra vires the Constitution? If it is not, from where do the state legislatures derive its power to enact such apostasy laws?
Amendment to Article 121
In a country where almost half the population is non-Muslims, creating a Syariah legal system which has the appearance (though not in fact) of a parallel system on par with the civil courts is an invitation for trouble. And that is what the 1998 amendment to Article 121 has done.
Legal experts should be able to tell that these two systems are in fact not parallel (in fact they converge somewhere), neither are they on par. This is because, Syariah laws are enacted in the state assemblies, and the latter derived its law making power from the Constitution, which is the supreme law of the land. And who administers the Constitution? The civil courts, of course. So naturally when a Syariah law contradicts the Constitution, the civil court has to step in. So is the case when a Syariah court judgment conflicts with the Constitution – the civil court must over-rule the Syariah court judgment.
If that is the case, why should there be so much confusion and turmoil arising from Muslim vs non-Muslim legal conflicts. The problem lies with the wording of the amendment as well as the timidity of Muslim judges to adjudicate over issues involving Islam.
Take another look at the amendment, which is introduced through inserting the complete sub-clause (1A), which reads in full:
“The courts referred to in Clause (1) (meaning the civil high courts – insertion mine) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”
Without qualifying the limitation to this division of jurisdiction, this sub-clause tends to mislead the reader who is not well versed in law into thinking that, Syariah courts have absolute jurisdiction over matters related to Islam even when their adjudication may come in conflict with non-Muslims’ constitutional rights or contradict fundamental provisions of the Constitution.
Unfortunately, even learned judges in the civil courts who are Muslims (who dominate our judiciary) also fall into this trap, therein lies the fermenting ground that gives rise to incessant inter-religious legal conflicts. It is no coincidence that in the Lina Joy case, both the Court of Appeal and the Federal Court return a 2 –1 verdict that splits along religious lines, with two Muslim judges voting against the lone non-Muslim judge. Though in this case, the split is influenced less by lack of legal knowledge than by religious sentiments.
Islamisation
The increasing phenomenon of Muslim judges abdicating their jurisdiction to Syariah courts, or lacking courage or intellect to deliver a verdict free of religion as called for by the Constitution can be traced to one major cause. And that is the trend of Islamisation that has set in since the early eighties.
There are indications that the fundamentalists have rapidly gained the upper hand under the weak leadership of Prime Minister Abdullah Ahmad Badawi, (who ironically has advocated his pet Islam Hadhari to reverse the fundamentalist trend), as evident by the spate of suppression of discourse and dialogue promoting religious harmony such as the proposed inter-faith commission, Article 11, and the most recent abrupt cancellation of the World Christian–Islam dialogue, held annually since 9/11 and participated by top scholars of both faiths. These suppressions bear the unmistakable hallmark of religious intolerance, and bode ill for the future of this multi-racial, multi-cultural and multi-religious country.
The demographic make-up of this country is such that if Malaysia were to survive as a nation it has to overcome its ever worrisome religious and racial fault lines. But that may be a bit of wishful thinking under a decadent political power that is hell bent to exploit racial and religious fissures for its own political survival.

KIM QUEK is a retired accountant with an interest in current affairs.
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