Loyal Followers

Tuesday, November 22, 2011

Anti-apostasy law – the legal dynamics

I wonder whether the proponents of anti-apostasy laws have given thoughts to various legal issues which will undoubtedly arise in the event anti-apostasy laws are passed.

First of all, article 11 of the Federal Constitution guarantees the right of every person to profess and practise his religion. Freedom of religion, as this article guarantees, is deemed to be so important and universal so much so that the Federal Constitution guarantees it for every person in Malaysia as opposed to just her citizens.

By contrast, freedom of speech and expression, the right to assemble and the right to form associations are only guaranteed for Malaysian citizens. Such is the universality and fundamentality of freedom of religion that every person within Malaysia is guaranteed of that right.

The right to practise a religion is absolute. That right is not limited to the right to choose a religion but also the right to practise the religion of choice in accordance to the person’s belief and faith. In other word, under our Federal Constitution, one can not only choose a religion of his or her choice, but also to practise his or her religion freely, without any mullahs, monks, priests or prophets, real or otherwise, telling him how to do this and that.

Being so, anti-apostasy laws would run foul of article 11 as soon as it is passed. It is a non-starter. In legal jargon, it is void ab initio.

There are only two very narrow restraints which the Federal Constitution allows in so far as freedom of religion is concerned.

Firstly, laws may be passed to control or restrict the propagation of any religious doctrine or belief among Muslims. This means, a law may be passed for example, to prohibit anybody or group from propagating Christianity to Muslims. This provision however, does not allow any law to be passed to prevent a Muslim from leaving Islam or to punish Muslims for doing so.

Secondly, any person is not allowed to practise his or her religion in any way which may be contrary to any general law relating to public order, public health or morality. This simply means that if your religion requires you to slaughter five pigs at Dataran Merdeka every Friday at precisely 12.30pm, you cannot do so even though article 11 says you are free to practise your religion. Similarly, if your religion requires you to have sex with your daughter and your wife at the same time, you are not allowed to do so, although of course, it is open to you to argue that you may do so spiritually and not physically. (excuse me, I have to laugh…hahaha).

So, that’s about it. Quite how the proponents of anti-apostasy laws are planning to overcome this Constitutional hurdle to their beloved anti-apostasy laws is beyond me. I suppose, they would also seek to amend the Federal Constitution along with the anti-apostasy laws.

Assuming the Constitutionality issue is overcome, then comes the jurisdiction clanger. This is what I normally refer to as the judicial ping-pong or pass-the-bucket.

You see, in the United States, United Kingdom, Australia or anywhere else in the civilised world, every arm of the country’s administration would defend it’s jurisdiction and powers so fervently. Of course here in Malaysia, our judiciary, in the form of the highest Court of the land, ie the Federal Court, have always done it’s darndest best to disclaim its jurisdiction and powers. It’s almost funny really.

Whenever cases involving Islam come to our Federal Court, it will, without fail hold that it does not have the jurisdiction or power to hear such cases because they involve matters concerning Islam. Never mind the fact that the matter also involves serious and multiple Constitutional issues which have far-reaching consequences and ramifications on our society and nations. As long as the word Islam appears of the Court papers, the Federal Court will tremble in its pants and disclaim jurisdiction.

Sometimes, the Federal Court will cling to some technicalities in order to refuse hearing such hot potatoes of a case. See Shamala and the skirt of technicalities, as an illustration of this.

The oft-relied Constitutional provision for this disclaimer of jurisdiction is of course article 121 (1A), which says that our Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

So, assuming anti-apostasy laws are passed and a man is going to be charged for being an apostate. The first question is, in which Court is he supposed to be charged?

He cannot be charged in our civil Courts. Because quite simply, our civil Courts will say whether or not that man is an apostate would depend on whether he has really left Islam and that would be a matter for the Syariah Court to deal with. So, our civil Court will gladly disclaim jurisdiction.

And so, our guy would then have to be put in the black maria and driven to the Syariah Court. Okay, hold on to your seat guys, this is going to be one hell of a ride.

He is then produced before a Kadhi/Syariah Judge and charged. The charge might read as follows:

“Bahawa kamu, Jakim bin Jais, telah didapati tidak sembahyang Jumaat sebanyak tiga kali berturut-turut dan telah dengan itu keluar dari agama Islam dan dengan itu telah melakukan kesalahan di bawah seksyen 3 Akta Anti-Apostasi.”

(“That you, Jakim bin Jais, has been found not to perform the Friday prayer for three consecutive times and accordingly you have left the religion of Islam and accordingly has committed an offence under section 3 of the Anti-Apostasy Act.”)

So far so good.

Suddenly Encik Jakim says, “err…excuse me,  item 1 of List II of the Ninth Schedule of the Federal Constitution says that Syariah Courts shall have jurisdiction only over persons professingthe religion of Islam. Since according to the charge I had left the religion of Islam, you, the Syariah Court, have no jurisdiction or power over me. Thank you very much and assalamu’alaikum.”

So, we have a situation where our civil Courts disclaiming jurisdiction and power because of article 121 (1A) of the Federal Constitution and the Syariah Courts having killed it’s own jurisdiction by the very charge that it is supposed to hear.

This jurisdiction issue, to me, cannot be cured or solved. Even if the Federal Constitution is amended to allow the Syariah Courts to have jurisdiction, such amendment would still run foul against the doctrine of equality and anti-discrimination on the ground of religion.

Will the rocket scientists who are proposing the anti-apostasy laws solve this conundrum please?

Assuming the aforesaid issues are solved and either our civil or Syariah courts are given the jurisdiction, have we ever ever imagined how the case is going to proceed?

Let’s get back to Encik Jakim’s case. Finally, after the Federal Constitution and all sorts of other laws are amended to charge him, he is charged before the Syariah Court.

Encik Jakim then says, “okay, you are accusing me to be an apostate, which means I have left Islam. So, for me to leave Islam, I have to be a Muslim first. You have to prove that I was a Muslim in order to prove that I have left Islam. Can you tell me what is Islam and what is not?”

Oh uh…

During an enquiry headed by Justice Munir under the Punjab Act II 1954, Justice Munir had set out to establish just that, ie, what is Islam or who is a Muslim.

He then sets out to ask, what in the opinion of several  ulamaks, were the "irreducible minimum conditions which, a person must satisfy to be entitled to be called a Muslim." Here is some of their answers.

Quote:

"Maulana Abul Hasanat Muhammad Ahmad Qadri, President, Jami’at-ul-Ulamai- Pakistan

Q.— What is the definition of a Muslim ?

A — (1) He must believe in the Unity of God.

(2) He must believe in the prophet of Islam to be a true prophet as well as in all other prophets who have preceded him,

(3) He must believe in the Holy Prophet of Islam as the last of the prophets (khatam-un-nabiyin).

(4) He must believe in the Qur’an as it was revealed by God to the Holy Prophet of Islam.

(5) He must believe as binding on him the injunctions of the Prophet of Islam.

(6) He must believe in the qiyamat.

Q.—Is a tarik-us-salat a Muslim ?

A.—Yes, but not a munkir-us-salat

Maulana Ahmad Ali, President, Jami’at-ul-Ulama-i-Islam, Maghribi Pakistan

Q.— Please define a Muslim ?

A.—A person is a Muslim if he believes (1) in the Qur’an and (2) what has been said by the prophet. Any person who possesses these two qualifications is entitled to be called a Muslim without his being required to believe in anything more or to do anything more.”

Maulana Abul Ala Maudoodi, Amir Jama’at-i-Islami

Q.—Please define a Muslim ?

A.—A person is a Muslim if he believes (1) in tauheed, (2) in all the prophets (ambiya), (3) all the books revealed by God, (4) in mala’ika (angels), and (5) yaum-ul-akhira (the Day of Judgment).

Q.—Is a mere profession of belief in these articles sufficient to entitle a man to call himself a Musalman and to be treated as a Musalman in an Islamic State ?

A.—Yes.

Q.—If a person says that he believes in all these things, does any one have a right to question the existence of his belief ?

A.—The five requisites that I have mentioned above are fundamental and any alteration in anyone of these articles will take him out of the pale of Islam.”

Ghazi Siraj-ud-Din Munir

“Q.—Please define a Muslim ?

A.—I consider a man to be a Muslim if he professes his belief in the kalima, namely, La Ilaha Illalah-o-Muhammad-ur-Rasulullah, and leads a life in the footsteps of the Holy Prophet.”

Mufti Muhammad Idris, Jamia Ashrafia, Nila Gumbad, Lahore

Q.—Please give the definition of a Musalman ?

A.—The word ‘Musalman’ is a Persian one. There is a distinction between the word ‘Musalman’ which is a Persian word for Muslim and the word ‘momin’. It is impossible for me to give a complete definition of the word ‘momin’. I would require pages and pages to describe what a momin is. A person is a Muslim who professes to be obedient to Allah. He should believe in the Unity of God, prophethood of theambiya and in the Day of Judgment. A person who does not believe in the azan or in the qurbani goes outside the pale of Islam. Similarly, there are a large number of other things which have been received by tavatir from our prophet. In order to be a Muslim, he must believe in all these things. It is almost impossible for me to give a complete list of such things.”

Hafiz Kifayat Hussain, Idara-i-Haquq-i-Tahaffuz-i-Shia

Q.—Who is a Musalman?

A.—A person is entitled to be called a Musalman if he believes in (1) tauheed, (2)nubuwwat and (3) qiyamat. These are the three fundamental beliefs which a person must profess to be called a Musalman. In regard to these three basic doctrines there is no difference between the Shias and the Sunnies. Besides the belief in these three doctrines, there are other things called ‘zarooriyat-i-din’ which a person must comply with in order to be entitled to be called aMusalman. These will take me two days to define and enumerate. But as an illustration I might state that the respect for the Holy Book, wajoob-i-nimaz, wajoob-i-roza, wajoob-i-hajj-ma’a-sharait, and other things too numerous to mention, are among the ‘zarooriyat-i-din’ ”

Maulana Abdul Hamid Badayuni, President, Jami’at-ul-Ulama-i-Pakistan :

Q.—Who is a Musalman according to you ?

A.—A person who believes in the zarooriyat-i-din is called a momin and everymomin is entitled to be called a Musalman.

Q.—What are these zarooriyat-i-din ?

A.—A person who believes in the five pillars of Islam and who believes in the rasalatof our Holy Prophet fulfils the zarooriyat-i-din.

Q.—Have other actions, apart from the five arakan, anything to do with a man being a Muslim or being outside the pale of Islam?

(Note—Witness has been explained that by actions are meant those rules of moral conduct which in modern society are accepted as correct.)

A.—Certainly.

Q.—Then you will not call a person a Muslim who believes in arakan-ikhamsa and the rasalat of the prophet but who steals other peoples’ things, embezzles property entrusted to him, has an evil eye on his neighbour’s wife and is guilty of the grossest ingratitude to his benefector?

A.—Such a person, if he has the belief already indicated, will be a Muslim despite all this”.

Maulana Muhammad Ali Kandhalvi, Darush-Shahabia, Sialkot

Q.—Please define a Musalman?

A.—A person who in obedience to the commands of the prophet performs all thezarooriyat-i-din is a Musalman.

Q.—Can you define zarooriyat-i-din ?

A.—Zarooriyat-i-din are those requirements which are known to every Muslim irrespective of his religious knowledge.

Q.—Can you enumerate zarooriyat-i-din ?

A.—These are too numerous to be mentioned. I myself cannot enumerate thesezarooriyat. Some of the zarooriyat-i-din may be mentioned as salat, saum, etc.”

Maulana Amin Ahsan Islahi

Q.—Who is a Musalman?

A.—There are two kinds of Musalmans, a political (siyasi) Musalman and a real (haqiqi) Musalman. In order to be called a political Musalman, a person must:

(1) believe in the Unity of God,

(2) believe in our Holy Prophet being khatam-un-nabiyin, i.e., ‘final

authority’ in all matters relating to the life of that person,

(3) believe that all good and evil comes from Allah,

(4) believe in the Day of Judgment,

(5) believe in the Qur’an to be the last book revealed by Allah,

(6) perform the annual pilgrimage to Mecca,

(7) pay the zaka’at,

(8) say his prayers like the Musalmans,

(9) observe all apparent rules of Islami mu’ashira, and

(10) observe the fast (saum).

If a person satisfies all these conditions he is entitled to the rights of a full citizen of an Islamic State. If any one of these conditions is not satisfied, the person concerned will not be a political Musalman.

(Again said) It would be enough for a person to be a Musalman if he merely professes his belief in these ten matters irrespective of whether he puts them into practice or not. In order to be a real Musalman, a person must believe in and act on all the injunctions by Allah and his prophet in the manner in which they have been enjoined upon him.

Q.—Will you say that only the real Musalman is ‘mard-i-saleh’ ?

A.—Yes.

Q.—do we understand you aright that in the case of what you have called a political (siyasi) Musalman, belief alone is necessary, while in the case of a haqiqi Musalman there must not only be belief but also action?

A.—No, you have not understood me aright. Even in the case of a political (siyasi) Musalman action is necessary but what I mean to say is that if a person does not act upon the belief that is necessary in the case of such a Musalman, he will not be outside the pale of a political (siyasi) Musalman.

Q.—If a political (siyasi) Musalman does not believe in things which you have stated to be necessary, will you call such a person be-din ?

A.—No, I will call him merely be-amal”.

The definition by the Sadr Anjuman Ahmadiya, Rabwah, in its written statement is that a Muslim is a person who belongs to the ummat of the Holy Prophet and professes belief in kalima-i-tayyaba." End quote.

Justice Munir then concluded:

"Keeping in view the several definitions given by the ulama, need we make any comment except that no two learned divines are agreed on this fundamental. If we attempt our own definition as each learned divine has done and that definition differs from that given by all others, we unanimously go out of the fold of Islam. And if we adopt the definition given by any one of the ulama, we remain Muslims according to the view of that alim but kafirs according to the definition of every one else."

Encik Jakim then asked which test of “Muslimness” or “Islamness” that is going to be adopted by the prosecution?

After a long and tedious trial, the Court might be ready to declare that Encik Jakim bin Jais has committed apostasy and ought to be punished.

Just before the Court does so, Encik Jakim says, “do you know that under the Amman Message, which is endorsed by Malaysia, as a member of the OIC, you are prohibited from making a declaration of apostasy against another Muslim?”

This takes Encik Jakim and the learned Syariah Judge to the Amman Message. It says, among others, the followings:-

"Circa 2004, H.M. King Abdullah II of Jordan sent the following three questions to 24 of the most senior religious scholars from all around the world representing all the branches and schools of Islam: (1) Who is a Muslim? (2) Is it permissible to declare someone an apostate (takfir)? (3) Who has the right to undertake issuing fatwas (legal rulings)?

Based on the fatwas provided by these great scholars (who included the Shaykh Al-Azhar; Ayatollah Sistani and Sheikh Qaradawi), in July 2005 CE, H.M. King Abdullah II convened an international Islamic conference of 200 of the world's leading Islamic scholars 'Ulama) from 50 countries. In Amman, the scholars unanimously issued a ruling on three fundamental issues (which became known as the 'Three Points of the Amman Message'):

  1. They specifically recognized the validity of all 8 Mathhabs (legal schools) of Sunni, Shi'a and Ibadhi Islam; of traditional Islamic Theology (Ash'arism); of Islamic Mysticism (Sufism), and of true Salafi thought, and came to a precise definition of who is a Muslim.

  2. Based upon this definition they forbade takfir (declarations of apostasy) between Muslims.

  3. Based upon the Mathahib they set forth the subjective and objective preconditions for the issuing of fatwas, thereby exposing ignorant and illegitimate edicts in the name of Islam."

(The full message can be viewed here).

It continues:-

"These three points were unanimously adopted by all the members of the Organization of the Islamic Conference summit at Mecca in December 2005. And over a period of one year from July 2005 to July 2006, the Three Points were also unanimously adopted by six other international Islamic scholarly assemblies, culminating with the International Islamic Fiqh Academy of Jeddah, in July 2006. In total, over 500 leading Muslim scholars worldwide unanimously endorsed the Amman Message and its Three Points."

Malaysia is of course an OIC member. In fact, Tun Abdullah, while being our PM, was the Chairman of OIC. Among the 500 "leading Muslim scholars" who "endorsed the Amman Message" are:-

  • H.E. Dato’ Seri Abdullah bin Haji Ahmad Badawi
  • Prime Minister
  • Dr. (sic) Anwar Ibrahim
    Former Deputy Prime Minister
  • Dato’ Dr. Abdul Hamid Othman
    Minister in the Office of the Prime Minister
  • Prof. Dr. Kamal Hasan
    President of the Islamic International University, Kuala Lumpur
  • Prof. Dr. Mohammad Hashim Kamali
    Dean of the International Institute of Islamic Thought and Civilisation
  • Mr. Shahidan Kasem
    First Minister of Perlis State, Malaysia
  • Mr. Khayri Jamal Al-Din (sic) - (presumably this means YB Khairy Jamaluddin)
    Deputy Chairman for the Youth Sector, the United Malays National Organisation
  • Dr. Salih Qadir Karim Al-Zanki
    International Islamic University

    (See the full list here).

  • I think Encik Jakim would be given an acquittal after that.

    21 comments:

    Anonymous said...

    Anonsest

    Anonymous said...

    Farouq Omaro says:
    When UMNO came to power in Sabah in 1994 they wasted no time in passing an anti-apostasy law. By 1995, the apostasy law was passed in the state assembly. However since the law directly contradicts the Malaysia Agreement of 1963, the Batu Sumpah Malaysia and the state constitution, the law has not been enforced. It is also due to keeping the non-Muslim Bumiputera happy. However, attempts to enforce the law has not been ditched. From time to time we will hear a spokesman speaking about it, like what Amri Suratman of the state Islamic dept did early this year when he spoke of building a faith rehabilitation centre. But the opposition SAPP quickly jumped on it and if the state govt is still going to go on with it, then BN would be committing political suicide in Sabah! As one Sabah BN politician told me, let them build it, but watch it if they detain anyone in it.

    Anonymous said...

    Hi Art,

    Brilliant as usual..
    Thanks a million

    Jaya

    ... ... ... ... ... ... nik elin said...

    this is exactly what the followers of Ayah Pin were saying. That they cannot be charged in the Syariah Courts as the Syariah Courts no longer have jurisdiction over them as they are not Muslims. But hell no. the Syariah Court made them apply to apostasise first. And then having failed their application to apostasise, the courts asked them to bertaubat.

    PahNur said...

    Hahaha Art..brilliant article!! thank you for sharing us some of the jurisDICKtion that lies behind the so called hudud law....

    I think they have to come up with a gadget called "believe-meter" to measure a muslim's level of believe coz apparently in islam, there's a lot of believes involved to stay a muslim. But at the rate muslims are going, i think the only thing we are capable of inventing would be more farts from the fart-was..frankly, i think fart gas from all these fartwas are partly responsible for Al-Gore's global warming..

    Geronimo said...

    Art, as usual, your article has been so insightful, and I must say thank you to you for making my day. Cheers!

    abdooss said...

    In Malaysia, anything with regards to Religion (of Islam) is under the Jurisdiction of States (Sultans) and those without Sultans are under the Agong, which goes to the Islamic Authorities (Majlis Agama Islam Negeri / Jabatan Agama Negeri).

    Most of your Jakim bin Jais would choose to represent themselves, and not Syariah Lawyers, and to cut a long story short - later they would find themselves in so-called 'Correctional Centres' to 'repent'.

    Art, I enjoy your legal ramblings, but you missed out the part on Syariah Lawyers. I have not heard anyone representing those committing apostasy yet..

    allen said...

    Art, this must be translated and passed on to all the umno & pas folk. I have been enlightened.
    I've always been totally perplexed when it came to these matters where the court decides what religion a person is.
    Seems to me that the court knows better what's a persons belief than the person himself.
    I've also been told that once a Muslim, always a Muslim; and that as well got me totally confused.
    Lastly, is there anything in the definations that state..a Muslim is a Malay:-)

    Anonymous said...

    Art,

    We should also cite the sad and tragic story of Kamariah Ali who has been jailed for some 20 months for apostasy in 1992 and when asked to repent and recite the syahada, the syaria judge pronounced that her recital was not convincing enough and rejected her plea. Her latest appeal in July this year has also been rejected.

    I just wonder how anyone could punish a gentle old lady like this and still sleep peacefully. May good sense prevail.

    Adam

    Tiger said...

    Good one, Art.
    Skimming through (sorry, a bit busy today) brings up 2 points.

    1. "in the civilised world, ..." means Malaysia is not in conformity with "normal civilised behaviour".
    I'm sure those who read the Dewan Rakyat reports would know this already.

    2. Based on the definition of what is a Muslim,
    I can safely conclude that all those people in BN cannot be real Muslims for their behaviour goes against everything prescribed there.

    Anonymous said...

    wow!

    Anonymous said...

    legal dynamics aside, anti-apostasy law violate the tenet of 'non-compulsion in religion' and the believers say they are God-fearing..

    marinazlain said...

    very enlightening, mr art!

    Malaysia would be a much better place if all malaysians think like you..but alas *sigh*

    looking forward to more of your ARTiculations! This country needs to be educated!!!!!

    Anonymous said...

    the problem is, muslims here are v judgemental, they will brand others liberal, not so muslim lah, infidel...bla,bla...so much for the unity of muslim community,.. blame political islam!!!they will tell you who is right? which practice is right or wrong...even legislate them to enforce!

    Singam said...

    Art, you asked "Quite how the proponents of anti-apostasy laws are planning to overcome this Constitutional hurdle...".

    Sadly, the proponents of a "superior democracy" have already ridden rough-shod over the Federal Constitution.

    So there is precedent! :-(

    Anonymous said...

    If the Constitution guarantees freedom of expression for citizens including those in universities ...and the the freedom of religion ...any attempts in anti-apostasy law is further declaration to the world Malaysia is a fascist dictatorship and only have kopitiam parliament !!!

    Doesn't that explain why FDI has gone down so badly? Of all people he was preaching governance there!

    As in the Middle East, it might make good excuses for foreign government intervention ...well at least the Brits collected lots of revenue during colonial days and saving it for a rainy day?

    Wonder what Tony Bliar was doing in UM? He was preaching governance there!

    Anonymous said...

    Oops!

    "...Of all people he was preaching governance there! "

    ...a testament to Tony Bliar!

    Jill Sango said...

    Art Your article is the definition of thorough. Thank you.
    http://peteduff.com

    Anonymous said...

    Art

    You forgot! Malaysia is practising UMNO Islam.

    Anonymous said...

    Hahhahahha...


    1. I wanna leave Islam, why? I am SICK of the ridiculous shit in IT!

    2. If they dont let me ill migrate and convert.

    3. Then I will EXPOSE all the rotten things about muslims and Islam.

    4. If I become the Minister of that specific country, I will launch a war against Islam and sodomise all muslim.

    Think hard of it. Is it worth of stopping nobody like me?

    Uniset said...

    Aha I note that you are quoting an Indian man on his definition of musalman.

    Why Indian man? What he knows is second hand knowledge from the Arab.

    The funny thing is that people like Sabahan Amri Suratman thinks that the majority of Malays think like him. The fact is that Malays are liberal Muslims.

    Amri Suratman is hiding behind the peninsular Malays behind UMNO to make stupid project like a faith rehabilitaion centre just like they have an orang utan rehabilitation centre in Sepilok.

    Amri want to put Sabahans in an islamic rehabilitation centre.

    The fact that without UMNO these Sabah Talibans are a minority hypocrites.

    They should be thinking why they are not attracting people to their religion rather than forcing people who are not interested.

    The fact is religion and monarchy goes hand in hand in Europe and Middle East.

    Religion is famously quoted as an opiate for the masses for the benefits of priests and Queen.

    By scaring the common people with their fear of death these smart priests cleverly bring themselves a saviours when they themselves will die..just like any other human.

    That is the method of these Judaic religion.

    And the Monarchy are blessed by the Pope. So the pope is actually more powerful.

    But when the masses realised these and start killing their monarchies, Catholic Christianity loses its stranglehold.

    Back here in Malaysia or Sabah, without Monarchy, Islam in Sabah is leaderless and meaningless. The tribes of Catholics Christians in Sabah pays their homage to an old Italian man they called the Pope or God replacement here in the world.

    That is why Islam Madani espoused by Dollah Badawi is required. Religion without monarchy but just for personal development and peace.