Here's what members of the Institute of Islamic Understanding have to say.
Using the mechanism of the judiciary to ‘Islamise’ people, or to prevent them from leaving the religion is unreasonable.
CAN a child really ‘convert’ to Islam? This is the real question which needs to be addressed, not the question of whether or not the syariah court has jurisdiction over non-Muslims.
Let us settle the issue of what it takes to be a Muslim, rather than occupy ourselves with the business of converting others to what appears to be an issue a great number of us do not understand.
First and foremost, the call to Islam is a willing and conscious submission to Allah. It is what one chooses for oneself. It cannot be forced upon anybody. The fundamental elements of Islam are premised on revelation, reason and language.
Islamisation refers to a conscious effort towards creating a good and proper Muslim through the process of education. This education reflects the two essential aspects of man, namely, reason and language.
This fact will become evident when we examine the first pillar of Islam, upon which all other religious obligations depend.
The first pillar is the testimony couched in what is referred to as the kalimah shahadah, namely, to profess the act of bearing witness. It reads: “I bear witness that there is no God that deserves to be worshipped but Allah, and that Muhammad is His messenger.”
Even though every convert is required to utter these words as a declaration of his or her conversion to Islam, in reality one does not become a Muslim merely by uttering it. What matters is the act of witnessing itself, because the person who bears witness may be sincere, lying, or is ignorant.
Only the testimony of a truthful witness is accepted. The testimony of a liar, who in his heart denies what is being uttered, and of the ignorant, who does not know the implications of his own utterance, are invalid.
The ones deemed ignorant in- clude minors and the mentally retarded, by virtue of their immature faculties of comprehension and recognition.
The words ilah, Allah, and Rasulullah convey a significant meaning. When uttered in the form of a testimony, a recognition of truth and commitment to a certain way of life is being made. It is thus imperative that the one testifying understands the meanings and implications of his utterance.
It means there must be a certain degree of consciousness, that the person recognises and submits to God, consciously and willingly, in accordance with the religion of Islam.
The Quran clearly mentions that God does not accept one who desires other than Islam as his religion. It means that whosoever ‘converts’ to Islam not for the sake of submitting to the will of God according to the religion of Islam is not truly a Muslim.
Yet, this is apparently what is happening in our country of late; ‘to convert’ to Islam in order to marry a Muslim, and ‘to leave’ Islam when the marriage fails. The truth is the person has never been a Muslim consciously and willingly.
As such, he or she has been coerced to convert in order to legalise a marriage. To be blunt, the real intention is not concerned with religion but with marriage.
The emphasis on will and consciousness, when talking about Islam, assumes knowledge to be of paramount prerequisite. Knowledge is the property of reason (‘aql).
Without reason there can be no true knowledge, and without true knowledge it is not possible to convert to Islam willingly and consciously. We are reminded of the saying of the Prophet: “no religion (din) to one who has no reason (‘aql)”.
Furthermore, we may argue that all religious obligations like prayer and fasting necessitates reason as the required condition of the obligation.
Now if we take ‘to be a Muslim’ as an obligation, then reason should also be an essential condition. As such, because a child’s faculties of reason are still immature, it cannot be burdened with the responsibility.
Hence, what is the point of using the courts ‘to convert’ a child, and separate it from his or her non-Muslim mother? It should be clear by now that one does not become a Muslim by changing one’s name to Muhammad or Abdullah, nor by changing the status of religion in the registration office, what more if it is done by someone else.
Perhaps the converted parent is worried that his or her child may be raised in an ‘un-Islamic’ environment resulting in him or her being a non-Muslim adult. That fear is actually baseless, and it contradicts the parent’s own experience.
A child is a child, and naturally has a strong emotional bond with its mother. As the child matures, it may make a conscious, willing decision concerning which religion to adopt. To separate a child from its mother is indeed a cruel act, and is unjust from the point of view of Islam, let alone to claim that one is doing so in the name of Islam.
To leave the child in the care of its non-Muslim parent does not make the child an infidel. If Islam is defined as a willing and conscious act of submission, its antithesis, unbelief (kufr) points to a denial of consciousness, a refusal to submit, or to submit grudgingly.
The cause of unbelief, as exemplified by the devil, according to the Quran, is arrogance. One’s refusal to open one’s eyes, ears, and heart to the message of Islam without knowing what is being rejected is unbelief.
The refusal to accept Islam after knowing its truth is an even greater form of unbelief because it assumes arrogance, and a refusal to submit to truth consciously.
Are we now saying that children who have yet to mature are arrogant and devilish?
Islam is not to be made the desperate handmaiden of any political party in dire need of support and membership at all costs. Islam is God’s gift of mercy to mankind. Accepting and recognising this gift does not make God greater for He is not in need of anything.
Similarly, by refusing, it does not make Him a lesser God. Islam is not a religion for fools. Using the mechanism of the judiciary to ‘Islamise’ people, or to prevent them from leaving Islam is totally absurd.
All it achieves is to unjustly portray all Muslims as ignorant fools, and as a result of association, Islam becomes the victim.
Imagine what the non-Muslim community in general will understand of Islam. They will conclude that Islam is a cruel religion that seeks to separate a parent from his or her children.
As a result, Islam will be put on trial. And this is already happening.
Here's another view from a prominent law professor and a constitutional lawyer who disagrees that the power of the state should be used to enforce religion.
Freedom of religion is not absolute, but subject to general laws relating to public order, public health or morality. Part 2 of a two-part article.
THE right to convert out of one’s faith and to adopt another is an implicit part of freedom of conscience in all developed constitutional states.
But in the special context of Malaysia, where there is a unique, fascinating link between Islam and Malay identity, apostasy arouses deep emotions. Any attempt by a Muslim to renounce his faith is seen as a threat to the whole community.
How many murtad (apostates) there are in the country is not known. Some religious leaders have made wild allegations of hundreds of thousands.
But data gathered by UiTM scholar Dr Azam Adil gives some indication. He found that from1994 to 2003, Syariah Courts in Negri Sembilan granted renunciation certificates to 16 applicants, most of whom were former converts to Islam.
Till the 1980s Muslim Law Enactments in several states recognised apostasy by imposing a simple registration requirement on all who enter the faith and all who exit from it. But in the 80s with Islamisation catching on, the unilateral right to register a renunciation was repealed.
In some states, legislation was enacted to require anyone seeking to convert out of Islam to be subjected to compulsory counselling and rehabilitation procedures for prescribed durations.
In other states, a Muslim’s membership of the ummah was regarded as irrevocable. Any attempt at apostasy was an insult to Islam and punished criminally.
The second approach does not harmonise with other rules of the legal system.
First, in all states, the syariah authorities possess a power to excommunicate Muslims from the fold. From time to time, state religious authorities have brought down the axe on the Qadiyani, the Ismaili, the Ahmadiya and the Ithna Ashari.
Obviously, one’s status as a Muslim is not eternal. It can be lost or forfeited.
Second, the criminalisation approach violates the freedom of conscience clause in the Constitution. The civil courts are near unanimous that under our basic charter, a Muslim does have a right to convert. But he cannot do it unilaterally. He must first obtain a Syariah Court certificate of renunciation.
The problem is that most syariah courts fail to act on such applications and would-be converts spend years in legal limbo.
A wide gap has developed between constitutional theory and the realities on the ground. Nevertheless, one must not lose sight of constitutional fundamentals.
When our document of destiny was being drafted, no consideration was given to the idea of a theocracy (supremacy of God’s law). Instead, a supreme Constitution was adopted by Article 4(1).
Islam is the religion of the Federation, but other religions may be practised in peace and harmony (Article 3(1)).
The implication of Article 3 is that unlike in secular states, Federal and State governments in Malaysia may promote Islamic education, set up Islamic institutions and incorporate Islamic policies in the administration.
However, though Islam is the religion of the Federation, Malaysia is not an Islamic state. The syariah is not the basic law of the land. The Constitution is supreme. The syariah applies only to Muslims and that, too, in areas demarcated by the Constitution in Schedule 9, List II, Item 1.
Further, Article 3 (on Islam) does not extinguish any thing else in the Constitution. Article 3(4) provides that “Nothing in this Article derogates from any other provision of this Constitution”. This means that Article 3 cannot be employed to challenge the validity of a drug trafficking law on the ground that some of its provisions were un-Islamic (Che Omar Che Soh (1988)).
Nor can Article 3 be relied on to trump any other constitutional provision – whether on fundamental rights or the system of parliamentary government or Malay privileges or the position of the Sultans or the special rights of the people of Sabah and Sarawak.
The Constitution is its own justification for being and does not need validation from any other source.
According to Article 11(1) “Every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.” The guarantee of Article 11(1) applies to all persons including Muslims.
In Minister vs Jamaluddin Othman (1989), a preventive detention order on the ground that a convert out of Islam was involved in propagating Christianity among Muslims was held to be illegal.
Freedom of religion is, of course, not absolute. All religious freedom is subject to general laws relating to “public order, public health or morality” (Article 11(5)).
Who may enact these laws? Laws on public order and public health must be enacted by the Federal Parliament because these topics are in the Federal List. But laws on morality may be enacted by State Assemblies as well.
What about State laws criminalising apostasy? They are not protected by Article 11(5) because apostasy per se is not condemned anywhere in the Constitution.
Perhaps Schedule 9 List II Item 1 could envelope these aqida (articles of faith) laws? This Schedule permits State Assemblies to create and punish “offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List ?”
In relation to State powers under Schedule 9 the following factors must be taken note of:
·The Legislative Lists in Schedule 9 are subject to the chapter on fundamental rights and cannot violate Article 11;
·State powers to legislate on Islam are limited and derived and cannot violate the supreme Constitution. One must remember that Article 3(4) clearly indicates that the provision on Islam does not derogate from any other provision of the Constitution;
·The criminal law power of the states applies against persons professing the religion of Islam. If a person of sane mind and legal capacity formally declares that he no longer professes a faith, it is constitutionally difficult to subject him to the religion he has renounced. All that can be required is a formal procedural requirement of renunciation; and
·The power of the states to enact criminal laws cannot apply to matters included in the Federal List. Public order is in the Federal List and acts of belligerency by murtad must be punished under the Federal Penal Code and not under State aqida laws.
In sum, it can be stated that, looking at the Constitution as a whole, it is clear that Article 3(1) on Islam does not displace constitutional supremacy. Article 3(4) itself declares that nothing in this Article derogates from anything in this Constitution.
The power of the States to legislate on Islam in Schedule 9 cannot be exercised in disregard of fundamental rights or in transgression of Federal legislative power on public order.
It is a flagrant violation of the Constitution as drafted in 1957 to imprison someone for his religious belief. Any argument to the contrary is a radical, revisionist and medieval re-interpretation of our cherished basic charter.
Anyone who stands in the shade of the Constitution has to concede that under the present constitutional order apostasy per se cannot be criminalised. But prosecution of belligerent apostates who disturb the peace or cause offence under section 298 of the Penal Code is perfectly constitutional.
In the special circumstances of Malaysia, apostasy has significant legal, political, social and economic consequences. A Muslim apostate will lose his Malay status. His marriage will be dissolved. Painful questions of custody and guardianship and of Malay privileges will arise.
It is reasonable, therefore, that a unilateral act of renunciation is not enough. A formal application for change of status must be made followed by a mandatory procedure for investigation, counselling and consultation (but not adjudication).
There should be no detention for purpose of counselling. This is similar to the procedure for seeking dissolution of marriage.
But the syariah authorities must be required to complete the investigation and counselling within statutory time frames so that the applicant can get on with his life and not remain suspended in a legal limbo. If the intending apostate cannot be won over through love, then the apostate should be ex-communicated and this should be recorded and registered.
In matters of religion, the naked, criminal power of the state should not be employed. This is also the exquisite message of the Quran.
Dr Shad Faruqi is Professor of Law at UiTM.