Of Religion And Choice

Of Religion And Choice

It may be wise to pause for breath before rushing out to celebrate the decision of the Penang syariah court in the Siti Fatimah case. Though welcome, not least for the fact that it allows Siti Fatimah to carry on with her life, we must ask ourselves whether it really sets the required precedent that the issue of apostasy requires.

I do not think it does.

The first difficulty I have with the decision is its basis in law. The syariah court has jurisdiction only over persons professing the religion of Islam. Siti Fatimah claimed, and still claims, that she was not such a person and that she converted only for the purpose of marriage. Let us say for purposes of argument that at the time of her conversion, and in the period she wished to remain married, she was for all purposes a Muslim. It is apparent that at some point prior to her petitioning the syariah court, she ceased being one and was, as such, no longer a person professing the religion of Islam.

How then did the court assume jurisdiction?

This brings me to the second difficulty. There are two distinct polar views concerning the issue of renunciation. At one end, there is what I call the pro-choice view that allows every person, without qualification, a freedom to determine of their own right their choice of religion. The Federal Constitution guarantees this choice in Article 11 which vests the freedom in ‘every person’. At the other extreme, there is the view that the choice of leaving Islam is one that can only be exercised through, and as such by, the syariah court. I call this the pro-regulation view.

It is apparent that the pro-regulation view renders illusory the right to choice of religion. For persons who happen in law (as opposed to ‘in fact’) to be a Muslim, the decision of which religion to profess is no longer theirs. If they wished to leave Islam they would have to go on bended knee to the syariah court, uncertain that the syariah court would ultimately agree with their petition. In the legal fiction perpetuated by those who espouse the pro-regulation view, a group that includes those judges of the Federal Court who formed the majority in Lina Joy, a person is a Muslim until such time as that person is declared a non-Muslim. It does not matter that the person may not in fact profess Islam any longer. Though an incredible perspective, it has nonetheless informed constitutional jurisprudence as of late and entrenched a mind-set that has resulted in grave injustice to persons unfortunate enough to have had to confront the issue.

It is on this precarious premise that the syariah court of Penang assumed jurisdiction over a person it ultimately declared as being not a Muslim. Our celebrating of the decision would as such be a celebration of a wrongful seizing of jurisdiction and wielding of power by a court not empowered to do so in law. It would also be, where Muslims are concerned, a commending of the vesting of the right to choose in a third party agency, leaving in tatters the fundamental liberty so painstakingly provided for in the Constitution.

Regardless of the convenience of the Siti Fatimah decision, it cannot be a good thing. Media reports suggest that the Penang syariah court was swayed by Siti Fatimah not having been given proper advice about Islam by her former husband and the Islamic authorities. This means that the court could take a different view of those who were born into the faith, such as Lina Joy, or those who made a decision to embrace Islam after due consideration. The court would after all be at liberty to do so if it were vested with a discretion.

I am concerned that the decision may distract from meaningful and coherent efforts aimed at ensuring a just and constitutional solution to the issue of apostasy. We should not lose sight of the fact that before a grossly misconceived decision of the Supreme Court handed down in 1999 (Soon Singh), Muslims were not required to obtain an exit-order from the syariah courts. They left the faith, declaring the fact by deed poll and carried on with their lives in relative privacy. The public face of Islam was left unscarred and the religion was not made a victim in a way that it has been of late.

(Malay Mail; 13th May 2008)

MIS

Article 11 Meets Select Committee On National Unity

'Article 11', the coalition of NGOs was invited by the Parliamentary Select Committee On National Unity to make representations before the Committee on 6th August 2007. The coalition attended and made representations through Zainah Anwar and myself. A statement was submitted. The full text appears below.

Statement By “Article 11”
Hearing By Parliamentary Select Committee On National Unity (06.08.2007)

Article 11’s position from the outset, as has been the case for the civil society organisations that make up the coalition, has been the position declared by HRH The Regent Of Perak as reported in the media on 6th August 2007.

This position is:

• that the Federal Constitution is the supreme law of the land. All laws, state actions and policies are to be tested against the Constitution. If they contravene the Constitution, these laws, actions and policies are void;

• Malaysia is not an Islamic State. Our Constitution and a binding decision of the Supreme Court have rejected any such notion. The public, and as such the governing, law of this country is law premised on universal values equally cherished and applicable to all; and

• The Rule of Law is essential to the continued progress and development of this Country. The Rule of Law must be blind to ethnic and religious influences. The special status of Malays, natives of Sabah and Sarawak and the place of Islam in the Federation have, and should have, no bearing on the Rule of Law. The laws of Malaysia must serve all Malaysians.
  

Article 11 was and is concerned that:

• the 3 points stated above have not been fully appreciated by those charged with responsibility amongst us. There has, sadly, been an undermining of the Rule of Law in a series of actions and decisions of the Court that have run counter to the letter and spirit of the Federal Constitution including:

1. the case of Kaliammah, the widow of the late P Moorthy;
2. the case of Lina Joy; and
3. the case of Subashini.

• These decisions have not only resulted in injustice to the parties concerned but have also laid down precedents which have created deep rifts in society. The fact that these decisions have been justified by reference to the Constitution makes the situation more alarming. It points to:

1. a state of affairs where the aspirations of some, in particular the aspiration for a greater role for what some perceive as precepts of Islam in public life, have become a reality through processes which are not constitutional or even legal;
2. these unconstitutional processes include:
   

• the irresponsible and reckless declarations by some quarters as to Malaysia being an Islamic State despite this not being the case and the stifling of free debate over such declarations (This should be compared and contrasted to the approach taken by the Government in 1988 when the then Chief Justice was removed on the following ground:

(charge 4) - Your attempt to restate the law generally along Islamic legal principles ignores the character of Malaysian society as one which is multi-religious and multi-racial with cultural differences. No responsible Government can allow the postulation of such views by the Head of the Judiciary without cause for consternation among its non-Muslim population. Furthermore your statement violates established principles of judicial interpretation widely accepted in the courts of Malaysia and in the Commonwealth.;

• the re-writing of history to attempt to justify claims, for political reason or otherwise, that Malaysia is an Islamic State and a greater role for the perceived precepts of Islam in public life including declarations to the effect that this nation was founded by Muslims (consider the Government response to a written query by SUHAKAM as to Malaysia being an Islamic State, (published in SUHAKAM Annual Report 2003, pp 285-286) in which the following points were made);

o the nation was founded by Muslims;

o the Head of the Nation is a, and the government is in the hands of, Muslim(s);

o the majority of its citizenry are Muslims and most of their cultural and social elements are influenced by the culture of Islam;

o the Islamic umah (in Malaysia) is free to abide by Islamic Law (‘Syariat Islam’), and are even supported in this regard by the Government;

o systems to increase religious observance of ‘munakahat’ (religious rules pertaining to marriage) and ‘muamalat’ (rules pertaining to societal issues) are implemented all over the nation;

o Islamic education is taught from primary school to institution of tertiary education level and its quality are continuously being improved;

o The existence of Sharia courts and Sharia laws; and

o The existence of other Islamic institutions which expand the greatness of Islam.

• continued use of divisive labels such as ‘Islamic State’ and the emphasis on the greater role of the precepts of Islam without regard to the sensitivities of all concerned communities nor of the ‘policy’ positions such declaration will take in the minds of lower ranking bureaucrats and administrators. Bearing in mind the close link between ethnicity and religion for the Malays, and the prevalence of Malays in the public administration, this has resulted in discriminatory practices that run counter to any notions of unity and equality. This takes on particular significance in the face of assertions of ‘Ketuanan Melayu’; • as a consequence of the foregoing, or otherwise, this has resulted in an increasing defiance of the Constitution and oaths to uphold the Constitution by public administrators;

• the use of inflammatory language and religious incitement has not been adequately curtailed. Conversely, they have been allowed to shape government response to the subject of such language and incitement. Illustrating this is the directive to Article 11 to desist in its efforts to promote the Constitution and constitutionalism as a consequence of hostile and untruthful distortions that were given validity through State action. It is significant that much of what Article 11 stated or sought to state was given prominence on the front page of the New Straits Times on 06.08.2007 when declared by HRH The Regent of Perak;

It is imperative therefore that:

• all State actors be made to appreciate that the Constitution is the supreme law;

• the supremacy of the Constitution be reaffirmed;

• mechanisms be put in place that ensure the appointment of persons to public office who are qualified and competent to discharge their functions and duties in a manner contemplated by the Constitution. The lack of such individuals in the public administration has been a key factor in the process that has led us to where we are as a nation. This can be corrected as long as there is adequate political will; and

• the Attorney General’s Chambers be called upon to determine the state of affairs and make such recommendations as are necessary to strengthen the existing Constitutional structures if there is a need for the same. Such deliberations must be made public and be conducted in conjunction with civil society to ensure that all interests are taken into consideration. It is disconcerting to note that as of late the AG’s Chambers appears to have been at the vanguard of a push towards Islamisation. This is illustrated by the fact that the web-site declares as a mission statement the efforts of chambers to ensure that all civil laws are syariah compliant.

Article 11 wishes to express its gratitude for the opportunity afforded to it to present its views and to make representations. Article 11 also wishes to reaffirm its commitment to nation building and the Federal Constitution in light of the call by HRH The Regent Of Perak that civil society stands up and be counted.

***

MIS

Article 11 - Ideas Please

It bears repeating. The objectives of Article 11 are nation building objectives. The coalition is looking at more ways in which we can highlight the issues involved and the objectives. The short lived forums kick started the process, the on-line petition is still running (go here please and sign on if you have not) and the videos are on-line (see them here, download and share them round).

Any ideas on how to bring more awareness and understanding? These do not have to be confined to Article 11. Civil society (that means you) should really be looking at ways in which you can build on what has been achieved already or other initiatives of a similar nature. The Constitution belongs to all of us, just as each of us is entitled to Justice and the Rule of Law.

Comment here OR e-mail: projectmalaysia@arc.net.my OR feedback@article11.org.

MIS

Article 11: Alive And Kicking

Article 11, the coalition, launched its video series today. The videos are aimed at clearing the air about what the coalition stands for and what its objectives are. At the moment, there are 3 videos: a dialogue in English with key coalitions members, a dialogue in Malay with other key members and a dialogue (in Malay) about the role of Islam in governance. The videos will be available for viewing shortly on prominent internet portals and sites. For further details, please go to www.article11.org. The website also has an FAQ about the coalition and its activities.

It is worth underscoring that Article 11 stands for what all of us as Malaysians should be standing for. A just and compassionate society in which the interests of all are equally protected through an unbiased and objective adherence to the Rule of Law. For those of you who have doubts, let me set out here the mission and objective of Article 11 (as is set out in its website):

“Mission Statement

Our mission is to ensure a Malaysia that:

• upholds the supremacy of the Federal Constitution;
• protects every person equally, regardless of religion, race, descent, place of birth or gender; and
• is firmly established in, and upholds, the rule of law.
  

Objectives

We aim to promote awareness towards, advocate for, and contribute to achieving a Malaysia where all Malaysians in our daily lives:

1. affirm the Federal Constitution as the supreme law of the land;
2. strive to build national unity;
3. affirm the right of every person to full and adequate access to justice;
4. recognise the need for a judiciary that is impartial, independent and an equal arm of the government;
5. recognise that the Federal Constitution embodies an agreement among the various communities;
6. respect the Constitutional guarantees of equal protection for every person in a multi-racial, multi-religious Malaysia;
7. seek to protect fundamental liberties for all;
8. respect the freedom of thought, conscience, belief and religion of every person; and
9. ensure that Malaysia does not become a theocratic state.”
   

The mission and objectives of Article 11 are not inconsistent with Islam. On the contrary, they go far in attempting to ensure that the core Islamic values of justice and righteousness are adhered to and applied. How is it Islamic to leave any person – muslim or otherwise – without recourse? How is it Islamic to apply the law tactically to deprive a person of legitimate rights of access to justice? Islam does not only offer justice and fairness to Muslims. It does not create a monopoly over these values for Muslims. Any suggestion to the contrary is an insult to the religion. Any application of the law to that end misrepresents Islam as a religion that enjoins unfairness, injustice and oppression.

Article 11 promotes the Constitution. In doing so, it accepts the Constitutional declaration that “Islam is the religion of the Federation” (Article 3(1)). It also accepts the Constitutional declaration that “all other religions may be practiced in peace and harmony” (Article 3(1)). There have been many lies about the coalition and its supposed efforts to reject Islam as the religion of Federation. I question the motives of those who have misrepresented the efforts of the coalition. I challenge them to prove that Article 11 has done what it is they say.

It is the Constitution that protects us all, Muslims or otherwise. It is the Constitution that guarantees Muslims the freedom to be Muslims. It is the Constitution that guarantees a Malay Muslim the freedom to practice Islam in the way a Shafee Muslims would. It is the Constitution that allows a Malay Muslim to reject any compulsion to practice Islam other than as a Shafee. But if one accepts that along with the madzhab Shafee, there are other recognized schools of thought, or madzhabs, within the Sunni grouping of Muslims, we must also recognize that the Constitution equally protects the rights of Muslims to practice Islam in accordance with the principles declared by these other madzhabs. Muslims from the Indian sub-continent are more usually Hanafis.

Islam cherishes diversity. In our uniqueness as humans, diverse as we are, we celebrate the Creator. Islam is not monolithic. To attempt to define Islam in a limiting way is to attempt to limit God.

The Constitution protects that diversity. Not only within the religion of Islam but also outside it. It protects the rights of all persons in religion, faith and conscience. It guarantees that all of us are equal in law and before the law; that no one can be discriminated against on grounds of ethnicity, religion and gender. In this way justice is ensured for all. And just because the Constitution is not replete with Islamic terminology, this is no reason to condemn it as being unIslamic or anti-Islamic. Labels only go to form. More importantly, justice is not justice unless it is seen as being impartial. Fairness cannot be created from bias, in fact or in perception. Justice must not only be done but must be seen to be done. The Constitution exemplifies this principle.

So, I believe that in promoting the Constitution and the objective, detached justice it offers to us all, Article 11 is in fact promoting the universality that is an essential aspect of all faiths, religions and ways of life, including Islam.

And that is why it continues with its efforts to highlight those very disturbing trends that have developed in recent times. Can you blame Article 11 for doing so? I think not. To turn its back on the issue would mean turning its back on the very unjust and unfair treatment of individuals such as the widow of Murthi, Shamala, more recently Subashini and all those in similar positions.

The reality is that these individuals have been wronged by a system that was conceived to protect individuals like them but which has been misapplied to contrary ends in recent times. They have been treated unfairly and oppressively. Regretfully, Islam (as represented by the syariah courts and their purportedly exclusive jurisdiction) has been invoked to justify the treatment of these individuals and others like them. In this way, Islam is being given a bad name

The situation that has developed is a grave one. It is a situation that is dividing the nation more and more as the flaws in reasoning get more entrenched. I say flaws because the Murthi or Shamala or Subashini scenario is a recent one. We have been independent since 1957 and Article 121(1A) - the Constitutional provision that introduced the jurisdictional divide between civil and syariah courts - came into play in 1988. One would have thought that the problems would have surfaced much earlier. They did not. Shamala, the first in the series as far as I know, came to court only in 2004.

Why now and not before?

This is what Article 11 has been attempting to grapple with and highlight. If the system worked before, then something must be wrong with the way it is being applied now. The resultant injustice is reason enough for all of us to study the situation and attempt to solve it. Recent developments are tearing apart this nation, ironically in the name of the Constitution.

In this way, the efforts of Article 11 are aimed at ensuring that this country remains united and that the assurance of the Prime Minister of “1 county, 1 system” is borne out.

Article 11 is a nation building effort. It is an effort which all of us should align with. It is not an effort that belongs to the organizations and individuals behind the coalition. It is an effort that all of us are stakeholders in.

Help Article 11. Help Malaysia. Disseminate correct information about the initiative, consider the issues it is dealing with, communicate your understanding to others. The situation developing is serious enough for all of us to be concerned about, irrespective of faith.

MIS