Baradan Kuppusamy |
KUALA LUMPUR, Jul 12, 2006 (IPS) - Both Muslims and non-Muslims keenly await the verdict of Malaysia's Federal Court on one of the most contentious issues it has ever examined -- whether the country's secular constitution, which guarantees freedom of worship, allows ethnic Malays to renounce Islam.
The case, for which hearings were completed this month, is deceptively simple. Azalina Jailani, a Muslim woman, converted to Christianity in 1998 and changed her name to Lina Joy. But the national registration department, that issues compulsory identification cards to all Malaysians above 12 years, declined to remove the word "Islam" from her identity card.
The department demanded that Lina first produce a certificate from the Islamic Shariah court attesting that she was an apostate. But the Shariah court refused and now it has become a case which has pitted Muslims, who form 60 percent of the country's 26 million people against non-Muslims who form the rest and are mostly Hindus, Sikhs, Christians and Buddhists.
Converts like Lina live in fear because the punishment for apostates includes forced "rehabilitation", caning and imprisonment. The Quranic injunction of "death and damnation" for Muslims who help others renounce Islam is taken seriously, even by officials.
According to some estimates there are at least 15,000 Malay-Muslims who have converted to Christianity. Most converts are students who changed their faith while studying abroad or, like Lina, are married to people of other faiths and want the state to recognise the change for themselves and their families.
Lina's lawyers have argued that there is no provision in law for either the registration department or the Shariah court to demand or issue such a certificate.
She has been making the rounds of the courts since 1990 for redress after a lower court ruled: "As Malay, she exists under the tenets of Islam until her death." And now the case is in the hands of the apex court which has reserved judgment to a later date.
Lina has appealed the decision on the grounds that it contravened Malaysia's constitutional guarantee of religious freedom.
One of the many complications of the case is that the constitution defines ‘Malays' as those citizens who profess Islam, speak the national language and practice Malay culture. Constitutionally, therefore, when Malays renounce Islam they cease to be Malay and may have to forego privileges that are given to them by way of affirmative action.
Non-Muslims see the case as a watershed. If the apex court orders the national registration department to drop the word ‘Islam', it would be taken as an affirmation of the supremacy of the secular constitution over religion.
It would mean the highest court has affirmed that all the secular rights guaranteed in the constitution, especially Article 11 which guarantees the freedom of worship, as sacrosanct.
Many moderate Muslims agree with the majority of non-Muslims that the constitution is supreme. However, orthodox Muslims, mostly the powerful ulemas (clerics) disagree. They say the Quran is supreme and must take precedence over the secular constitution.
A victory, they believe, will attest to their argument that Malaysia is an Islamic state and that the government must give preference to Islam and its tenets over ‘man made' laws.
This case is important because the apex court's ruling is binding on all courts below it. It could help resolve several conflicting judgments at the lower courts over whether civil courts have jurisdiction to decide on Islam or matters concerning Islam.
Lower courts have consistently refused to touch any matters remotely involving Islam even if the litigants are non-Muslims.
A lower court, in 2001, had ruled that Lina Joy, now 42, being a Muslim, could not renounce Islam and that the Shariah court has jurisdiction over her. Clerics say the Quran demands death for apostates and therefore, a Shariah court will not grant permission for Lina to switch religion.
Nobody really knows how many apostates there are in the country but a senior Muslim cleric put the figure as highs as 250,000 while arguing for stern action to stop apostasy. This may be an exaggeration.
Apostates live in secrecy and are always fearful that they would be discovered and punished as what happened to 27-year-old Aishah (name changed). "I was caned, and forced to recant and released to a rehabilitation centre last year," Aishah told IPS. ‘'I am a Christian and remain so at heart although I pretend to be a Muslim sometimes.''
The stern punishment given to apostates belies the image of Malaysia as one of the world's most modern Muslim country. Alcohol is easily available and so is gambling -- albeit for non-Muslims only. Seedy bars, scantily clad women and an easy and relaxed atmosphere add to the Western, liberal ambience.
Increasingly, Islamic law is being used to punish Muslims for "crimes" such as consuming alcohol, gambling or holding hands. Unmarried couples found in cars or hotel rooms can be charged for ‘khalwat' or close proximity. Usually they are fined about RM 2,000 (547 US dollars) each.
The ascendancy of Islam has many Malaysians worried. ‘'This country was intended to be a secular state by the founding fathers. It has a secular constitution and the people enjoy certain fundamental secular rights like freedom of religion," said civil rights lawyer Haris Mohamed Ibrahim, a Muslim himself.
"But that foundation is being eroded and has come under attack," he told IPS. "Apostasy is not new but it is now in the forefront because of the growing Islamisation of this secular country."
Some groups, including the opposition Pan Malaysian Islamic Party or PAS want apostasy to be punishable by death, and are looking at the verdict on Lina Joy's case for direction.
Shariah, or Islamic law, now applies to Muslims across the country, with variations from state to state. Activists worry about the expanding reach of the Shariah courts at the expense of the civil justice system.
"There is great concern now that Islam is gaining such power to affect our personal rights. We should have shouted in outrage before," said a prominent Muslim lawyer who declined to be named.
"It is too late now. We are sliding down the fundamentalism path --there is no stopping it," he told IPS, describing as "feeble" the attempts by human rights activists and Muslim liberals to safeguard the secular constitution and stop the growing intrusion of Islam into their private lives.
Both sides of the divide are looking forward to the judgement to give credence to their views, though its delivery may not stop the debate from going on. (END/2006)