Date: Thursday 29 July 2004
Subj: Malaysia: The great apostasy debate.
To: World Evangelical Alliance Religious Liberty News & Analysis
From: WEA RLC Principal Researcher and Writer, Elizabeth Kendal.
A fascinating debate is raging in Malaysia regarding Islamic teaching on religious freedom, and the contradiction between Malaysia's constitutionally guaranteed freedoms and the total lack of religious freedom for Muslims under the Syariah Law. While the debate might be fascinating for those who enjoy reading combative letters and editorial columns, it is tragic for the four courageous apostates who are presently losing their battle to have their constitutional right to religious freedom acknowledged and respected in the Malaysian courts.
Mr Daud Mamat (62), Ms Kamariah Ali (51), her late husband Mohamad Ya and Mr Mad Yacob Ismail (62) are Malays from Kelantan who have renounced Islam. They are discovering that they do not have the right to exercise their constitutional right to religious freedom because they were born Muslim and therefore must come under the jurisdiction of the Syariah Courts in all religious matters, beginning with their desire to renounce Islam. This is regardless of the fact that Syariah dictates death for apostates.
The four apostates were arrested in 1992 and charged in the Kelantan Syariah Court for teaching "deviant practices inconsistent with Islamic teachings". They each received a sentence of 20 months imprisonment.
In August 1998 the four attempted to officially cut all ties with Islam and therefore with the Syariah Court by formally renouncing Islam before a commissioner of oaths. However, in 2000 the four were again charged by the Kelantan Syariah Court. They were charged with contempt of the Syariah Court for refusing to attend repentance classes which were part of their earlier sentence. They were each sentenced to three years of rehabilitation at an Islamic Rehabilitation Camp.
The apostates appealed to the Kelantan High Court, claiming that as they were no longer Muslims the Syaraih Court had no jurisdiction over them. The High Court however dismissed their appeal, claiming that matters pertaining to Islam were not within its jurisdiction, but rather they were issues for the Syariah Court. The four apostates each served two years of their three-year sentence and were released in November 2002. Mr. Mohamad Ya died in October 2003.
In November 2003, the three surviving apostates took their case again to Malaysia's Federal Court. They wanted to clarify whether the constitutional right to freedom of belief includes the right for a Muslim to renounce Islam. They wanted official recognition that they had renounced Islam and are therefore, as non-Muslims, immune from Syariah laws.
On 21 July 2004, after nine months of court deliberation, the court deemed the issue of apostasy irrelevant saying that the four had committed the offences before they had officially renounced Islam. The appeal failed. The apostates are considering filing for a review of the court decision. As the National Evangelical Christian Fellowship (NECF) Malaysia notes, "Basically the court has declined to answer a landmark issue", that of whether a Muslim over the age of 18 years has the right to renounce Islam, and are laws that restrict a person's right to renounce Islam inconsistent with Article 11(1) of the Constitution and therefore void.
The apostates have been supported by the Malaysian Human Rights group Suaram. According to Andrew Ong, who reports for Malaysia Kini, Suaram's 2003 Human Rights Report noted that "Madyaacob Ismail, Daud Mamat, Kamariah Ali and Mohamed Ya filed a motion in November 2003 at the Federal Court seeking judicial acknowledgment of their renouncement. Their lawyers cited that Malaysia is a signatory of the Universal Declaration of Human Rights, the Bangkok Declaration and the Vienna Declaration, all which includes a freedom of religion clause, and argued that domestic laws must conform to international norms. 'As long as Malaysia presents to the international community that its citizens enjoy freedom of religion, the government must not act and interpret domestic laws in a way that inhibits meaningful exercise of that freedom', added Suaram."
According to Andrew Ong's report, lawyers for the apostates also argued that Article 11(1) of Malaysia's constitution gives every individual the right to profess, practise and propagate any religion. Suaram claims that included in that right is the right to renounce, or not to profess, any religion.
Ong reports: "The authorities acknowledge this fact. However, they had said that the group could only renounce their religion through the Syariah court, in which they would be exposed to possible imprisonment and death penalty for apostasy. Given the situation, Suaram said that the possible judicial ramifications would form a restriction on fundamental human rights to freedom of religion. 'Such restrictions on apostasy, because they are imposed only on Malays, and converts to Islam, are also in contravention of Article 8(1) and 8(2) of the constitution, which guarantee equal protection under the law...,' said the report." (Link 2)
The National Evangelical Christian Fellowship (NECF) Malaysia reports that Attorney-General Tan Sri Abdul Gani Patail said in the hearing that the Kelantanese are still Muslims: "until they are certified by the Syariah Court to have renounced the religion, they are, by virtue of the law, still Muslims". He pointed out that Article 11(3) of the constitution conferred to every religious group the right to manage its own religious affairs, including the right to rehabilitate those who attempted to leave the religion. Chambers' head of civil division Datuk Azahar Mohamad Azahar added, "A Muslim is bound by the syariah laws on apostasy which falls within the exclusive jurisdiction of the Syariah courts."
The implications are clear. Malaysian Muslim who wish to renounce Islam must do so through the Syariah Courts which will not permit them that right, regardless of the constitution. On matters pertaining to Islam, Malaysian Muslim are under the repressive Syariah Courts, not the liberating Malaysian Constitution.
A DEBATE THAT MUST BE HAD
This has generated some heated debate in the Malaysian media. Some letter and editorial writers express deep sorrow for the apostates, and shock at the fact that they are not free to practise their constitutionally guaranteed religious freedom. The attitude is summed up well in an article by AB Sulaiman entitled, "Does Islam allow apostasy?" (21 July 2004, Malaysiakini).
Sulaiman writes, "I had made the observation that (Malay) Muslim apostates lived in a state of suspended animation, with Islam saying on one hand they are free to change their religion on their own volition [Qur'an, Surah 2.256], but on the other, the Syariah law stating they may lose their lives should they do so.
"The operating principle seems to be - 'Islam stands for the freedom of religion but if its own adherents choose to leave it, they will be punished, or even be put to death.'
"I sense an inherent contradiction here." (Link 3)
On the other side are the writers who oppose religious freedom and support the Syariah Court's punishments for apostates as a means of preserving Islam and protecting the integrity and security of Islamic nations. One writer, Arbibi Ashoy, wrote a piece published in Malaysiakini on 29 June amazingly entitled "Chaos if Muslims allowed religious freedom".
Ashoy runs the line that conversion/apostasy is a tool of Western imperialists and colonialist who seek to "divide and rule". "Thus the desire not to allow Muslims to divide in Malaysia is to prevent foreign interference in the country. Also, if Muslims in Malaysia were allowed freedom to renounce Islam as they please, the Syariah Court would lose its jurisdiction over all matters including inheritance laws and matters pertaining to child custody. If Syariah law is favourable to them, people will convert to Islam. If, on the other hand, Syariah law is unfavourable to them, then they will renounce Islam. Can you imagine the chaos and confusion this will lead to, besides making a mockery of the religion? " (Link 4)
HINDU MOTHER RETAINS CUSTODY AFTER HUSBAND'S CONVERSION TO ISLAM, BUT CHILDREN ARE DEEMED MUSLIM
This issue of Syariah laws pertaining to child custody is already being challenged. Earlier this week the Federal Court granted a Hindu woman, Shamala Sathyaseelan (32), custody of her two boys aged 4 and 5 years, overturning an April ruling by the Syariah Court which had awarded custody to the father who converted to Islam in 2002. The Federal Court decision is a landmark ruling that goes against Syariah law and practice.
Her sons however, have been officially deemed Muslim by the Syariah Court in line with Syariah law which states that all children are considered automatically converted to Islam if one of the parents becomes a Muslim. The Federal Court has ordered their mother not to interfere with her sons' Muslim religion and warned her that if she does, she will lose custody. (Link 3) The Federal Court said it could not overturn the boys' automatic/forced conversions because, as Muslims, their cases were a matter for the Syariah Court, not the Federal Court.
- Elizabeth Kendal
1) Four who renounced Islam lose appeal in top court
Straits Times Interactive, 22 July 2004
2) Suaram: Four Muslims who renounced Islam in limbo
Andrew Ong, 19 June 2004
3) Does Islam allow apostasy?
AB Sulaiman, 21 July 2004
4) Chaos if Muslims allowed religious freedom
Arbibi Ashoy, 29 June 2004