Acknowledgement to Screenshots for the link to Mohamed Azam Mohamed Adil's essay published in the Asian Journal of Comparative Law .
The following essay by Mohamed Azam Mohamed Adil makes an in-depth study of the right to freedom of religion and the issue of apostasy from the Islamic law perspective.
It argues that Muslims who intend to leave the Islamic faith are only required to undergo a process of repentance (tawba), and any punishment prescribed for apostasy is contrary to the right to freedom of religion.
The right to freedom of religion is one of the fundamental rights guaranteed in Islam, which is emphasised in verse 256 of Sura al-Baqara: “Let there be no compulsion in religion”.
In reality, punishment for apostasy is NOT prescribed in the Qur’an and had not been practised by the Prophet (S.A.W.). Instead, the Prophet (S.A.W.) had imposed the death penalty upon apostates because their acts were contemptuous of, and hostile towards, Islam.
Muslims who merely renounced the Islamic religion were only required to undergo a process of repentance (tawba).
The right to freedom of religion is guaranteed in Article 11(1) of the Federal Constitution of Malaysia.
However, as Islamic matters belong to the state jurisdictions, most provisions in relation to apostasy are under the exclusive jurisdiction of the Shari’a Courts and apostates are subject to punishments such as fine, imprisonment and whipping.
"Law of Apostasy and Freedom of Religion in Malaysia".
Mohamed Azam Mohamed Adil
(Mohamed Azam Mohamed Adil is fromMARA University of Technology, Shah Alam, Malaysia, and can be reached at email@example.com)
EXCERPTS from Mohamed Azam Mohamed Adil's paper "Law of Apostasy and Freedom of Religion in Malaysia'. Read here the full paper
While the right to freedom of religion is guaranteed in all religions, classical Muslim jurists argue for a restrictive scope of the right to freedom of religion in Islam.
According to these classical Muslim jurists, Muslims who intend to leave the Islamic faith are subject to the death penalty. These classical Muslim jurists argue that the right to the freedom of religion only applies to those who wish to convert to Islam. Once an individual becomes a Muslim, he is prohibited from converting out of Islam.
In Malaysia, although the Federal Constitution guarantees the right to freedom of religion, Muslims who intend to renounce Islam or who have apostatised, in reality, face considerable obstacles, among others, various punishments for apostasy.
II. THE MEANING OF APOSTASY
Apostasy, in its ordinary meaning, denotes “abandonment of one’s religious faith, party, cause, etc”. The Arabic equivalent term for apostasy is ‘ridda’ and ‘irtidad’. The former signifies turning back from Islam to another religion or to unbelief, while the latter has an additional meaning, i.e. one who forsakes Islam for unbelief or for another religion is called a ‘murtadd’.
In Islamic jurisprudence, most classical and modern Muslim jurists attempt to define apostasy as a “disbelief or turning back from Islam through belief, word or deed”.
A Muslim who insults Islam by banishing the Qur’an, humiliating the Prophet,and denying Islamic ritual obligations such as exclamation for praying and fasting, or neglecting forbidden acts such as drinking liquor, committing adultery and fornication could constitute apostasy.
In most of the classical Muslim jurists’ writings, there are four broad aspects of the constitution of apostasy, i.e.
a) Apostasy in Faith (Ridda fi al‘Aqida),
b) Apostasy in Actions (Ridda fi al-Af’al),
c) Apostasy in Statement (Ridda fi al-A qwal) and
d) Apostasy in Abandoning of Obligation (Ridda al-Tark).
III. THE MEANING OF THE RIGHT TO FREEDOM OF RELIGION IN ISLAM
The root source of this FUNDAMENTAL RIGHT is embodied in verse 256 of Sura Baqara: “Let there be NO compulsion in religion”.
Based on this command, many jurists and scholars postulate that among the rights that are manifested in personal liberty is the freedom of the individual to profess the religion of his or her choice WITHOUT compulsion.
A person also has a freedom to observe and to practise his or her faith without any fear of, or interference from, others. Hence, every individual is given the absolute freedom to choose any religion he or she prefers.
The Qur’an says: “The truth is from your Lord. Let him who will, believe, and let him who will, reject (it)”.
The Qur’an also states that under no condition should anyone be forced to accept a religion or belief against his or her will.
As Fathi Uthman observes “No power of any kind in the Islamic state may be employed to compel people to embrace Islam. The basic function of the Islamic state, in this regard, is to monitor and prevent the forces which might seek to deny the people their freedom of belief”.
IV. THE SCOPE OF THE RIGHT TO FREEDOM OF RELIGION IN ISLAM
There are at least two different views over the issue of the right to freedom of religion in Islam.
- The first view echoed by the classical jurists suggests that freedom of religion in Islam is not absolute. Hence, Muslims are strictly forbidden to leave the Islamic faith. For those who infringe this rule, the punishment of death penalty is likely to be imposed.
- The modernists argued that the right to freedom of religion in Islam is absolute, as humankind is bestowed with a choice whether to accept or reject the Islamic faith. Furthermore, whether a person embraces Islam is closely connected to the ‘hidaya’ (guidance) embodied in the Qur’an. According to Abdulaziz A Sachedina, a human being may reject this guidance without giving any reason for it. If he rejects the guidance provided by the Qur’an, he will be led astray spiritually, and will suffer for the choice that he had made.
To the modernists, absolute freedom of religion means that an Islamic state cannot force a person to embrace Islam, as each individual has a right to follow the religion of his choice.
In fact, history shows that the Prophet Muhammad S.A.W. did NOT compel non-Muslims to embrace Islam. As a messenger of Allah S.W.T., the Prophet merely asked his fellow beings to follow the right path. He invited non-Muslims to embrace Islam but did not use force to make them accept Islam. As such, the majority of Muslim jurists are of the view that if a person is compelled to accept Islam, then such an act of conversion is not valid.
The most common verse that deals with the right to freedom of religion is stated in Sura al-Ba qara where Allah says:
“Let there be no compulsion in religion: Truth stands out clear from error: whoever rejects evil and believes in Allah hath grasped the most trustworthy handhold that never breaks”.This is generally taken to mean that ISLAM promotes religious FREEDOM and is AGAINST any compulsion in religion.
According to the translation by Abdullah Yusuf Ali, Islam never imposes on an individual to accept its religion. He further says:
Compulsion is incompatible with religion. Because religion depends upon faith and will, and this would be meaningless if induced by force. Truth and error have been so clearly shown by the mercy of Allah that there should be no doubt in the minds of any persons of good will as to the fundamentals of faith. Allah’s protection is continuous, and His plan is always to lead us from the depths of darkness into the clearest light.In many books of Tafsir al-Qur’an (Interpretation of The Qur’an), many commentators support the right to freedom of religion.
However, some of them adopt a restrictive interpretation on this matter. Al-Qurtubi, al-Tabari and al-Tusi, for example, are among those that suggest that the verse: “Let there be no compulsion in religion” does NOT actually carry the literal meaning, i.e. a person is actually free from being compelled in religion.
According to them, there are four views on this matter.
- First, the right to freedom of religion only applies to the people of the book (ahl al-kitab) from which the Islamic state received a poll-tax (jizya).
- Second, that the verse “Let there be no compulsion in religion” was abrogated by the verse that ordained jihad (holy war) “Seize them and slay them wherever ye find them”, since Allah had ordered a war against them. It was also due to the compulsion carried out by the Prophet towards the Arab tribes to accept Islam, failing that they shall be killed.
- Third, it was said that the people of Ansar (local community of Medina) intended to compel their children to convert to Islam, and Allah prohibited them from carrying this out. There are numerous narrations with regard to whom this verse was revealed to.
- Fourth, “Let there be no compulsion in religion” means people who have converted to Islam after being rebels should NOT be killed, and their conversion to Islam should be accepted even though there was an element of force.
As far as punishment for apostasy is concerned, there appears to be NO CONSENSUS among the Muslim jurists. There are at least three views:
It must be noted here that there is a conflict of Hadith on whether an apostate should be put to death.
It has been pointed out by some Muslim jurists that the Prophet S.A.W. had sentenced a death penalty upon traitors (baghy) not as a result of apostasy.
According to Ibn Taimiyyah, the Hadith that states “the life of a Muslim can be taken if he commits adultery, murder or leaves his religion” is directed specifically against a traitor (baghy) and NOT against the apostates.
Furthermore, the principal Hadith that says “whoever changes his religion shall be killed” is considered weak (daif), and is conveyed in the form of a general provision (‘am) which is in need of specification (takhsis). It is further said that instead of being specific, the said Hadith is too general in scope.
A number of Muslim jurists argue that apostates should be sentenced to death penalty.
Abdul Hamid A. Abu Sulayman tried to explain how the classical jurists could have gone wrong in their interpretation.
According to him, there at least three confusions.
A contemporary scholar, ‘Abd al-Muta’ali al-Sa’idi agrees with the modernists.
According to him, an apostate is NO different from a person born as a non-believer; just as the non-believer is allowed to profess his religion, the apostate is allowed to leave Islam.
For support, he cites the views of the Muslim jurists of the past such as Ibrahim al-Nakha’i, Hassan al-B asri, Sufyan al-Thawri, ‘Abd Wahab al-Shar’rani and Shams al-Din al-Sharakshi. It is to be noted however, that Al Sa’idi’s views are not free from controversy.
The modernists adopt the view that those who leave Islam without committing acts of sabotage or betrayal against Islam or without insulting, degrading, reviling or ridiculing Islam will NOT suffer any punishment in THIS world as such punishment is postponed to the hereafter.
It has been argued that by virtue of the difficulty of differentiating these two acts, it is quite understandable that the classical Muslim jurists would have regarded an act of blasphemy as a category of apostasy, and that those who commit the two offences would suffer the death punishment.
In reality, apostasy may occur without the presence of elements constituting acts of rebellion or insult against Islam; on the other hand, acts of insulting Islam may lead to acts that ridicule Islam or are hostile to Islam.
As there is a difference between the two offences under the law, the punishment must necessarily be different.
VII. THE SPECIAL POSITION OF ISLAM IN THE FEDERAL CONSTITUTION
The Report of the Reid Commission was silent on the provision on Islam as a State Religion.
The Alliance party had recommended that a provision on Islam as the religion of the Federation should not effect non-Muslims who would not be imposed with any disability in professing, propagating and practising their religions, and indeed, it would not prevent the State from being a secular State.
It was understood that in the early stage of the meetings, the Rulers were reluctant to accept this proposal as they were doubtful whether the provision might have taken away their powers on Islam.
In the end, the final version of such provision was inserted in the Federal Constitution, which provided that: Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
However, clause (4) provided: State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
Thus it would be constitutional for a law to be enacted to restrict the propagation of non-Muslim religions among Muslims.
Article 3(1) appears, to some extent, to reiterate the rights protected under Article 11(1) and also to reaffirm the supremacy of the position of Islam under the Federal Constitution.
Furthermore, the interpretation on the position of Islam is very crucial. Islam seems to be placed beyond other religions in the Federation. The Supreme Court held that the provision of Article 3(1) merely provided for a ritualistic and ceremonial role of Islam.
The Supreme Court (as it then was) (said) that the provision in Article 3(1) does not actually give a meaning that Malaysia is an Islamic state, where in reality Islamic law only applies to Muslims on matters that related to personal laws. And since the Constitution makes a clear distinction between private law and public law, offences like drug trafficking are under the Federal List, and therefore constitutional.
The debate on whether Malaysia is an Islamic state or a secular state was again raised in 2001, when Tun Dr. Mahathir Mohamad, the then Prime Minister of Malaysia, declared that Malaysia is an Islamic state. This announcement was not followed by any amendment to the Federal Constitution.
According to Tan Sri Dr. Abdul Hamid Othman, the religious adviser to the Prime Minister, “Malaysia has fulfilled the requirements of an Islamic State”. He refers to a book written by Wan Zahidi Wan Teh entitled Malaysia Adalah Sebuah Negara Islam (Malaysia is an Islamic State).
In this book, the author attempts to ascertain whether or not Malaysia is an Islamic state, and argues that reference must be made to the opinion of Muslim scholars about the definition of an Islamic state. First, the nation has to be under Muslim governance, its defence in the hands of Muslims, and it must be the responsibility of every Muslim to defend it. Second, the nation is controlled by Muslims, in which they attain peace within it. Third, the laws of an Islamic ruler are enforced, and finally, Islamic law must be adhered to.
Some legal commentators suggest that these criteria will not change the status of Malaysia being a secular state. The provision in Article 12(2), that allows the use of official funding to promote and facilitate Islamic institutions, also proves that Malaysia is not a secular state.
Perhaps the position taken by Shad Faruqi, Aziz Bari, Lee Min Choon and Hassan Bahrom that categorised Malaysia somewhere between the secular state and the Islamic state could be the answer to the ambiguity of the position of Islam in Malaysia. Thus, according to Shad Faruqi, “Malaysia is neither a full-fledged Islamic state nor wholly secular”, but that “in view of the fact that Muslims constitute the majority population, and Islamisation is being vigorously enforced, Malaysia can indeed be described as an Islamic or Muslim country”.
In addition, Shad Faruqi adds that “in a secular constitution, there is no prescribed official religion and no state aid is given to any religion or for any religious activities, but the word religion does occur at least twenty four times in the Federal Constitution”.
It must be emphasised that despite the policy on Islamisation that has taken place for at least two decades, there was no attempt by the present government to amend the Federal Constitution to declare Malaysia an Islamic state.
However, the recent approach taken by a High Court judge seems to elucidate that Islam is a superior religion in the Federation.
VIII. THE SCOPE OF THE ISLAMIC LAW AND THE JURISDICTION OF THE SHARI’A COURTS IN MALAYSIA
The only provision where the Federal Constitution does state ‘Shari ’a Courts’ is Article 121(1 A), where it takes away the jurisdiction of the Civil Courts on matters that are within the jurisdiction of the Shari’a Courts.
The jurisdiction of Islamic law is specifically provided in the Ninth Schedule, List II – State List,98 which among other things, covers only persons professing the religion of Islam. Matters that are provided under this jurisdiction are strictly confined to personal laws such as marriage, divorce, and all ancillary matters related to them and succession.
With regard to criminal laws, jurisdiction relates only to offences by persons professing the religion of Islam against precepts of that religion such as the offences of eating and drinking in public during the month of Ramadhan, neglecting from performing the Friday prayer, committing zina and khalwat and other matters that are strictly provided in various States’ Islamic Criminal Laws.
It must be noted that Parliament has no power to legislate any law under the Ninth Schedule, State List – II.
The Supreme Court (as it then was) held that it was the power of the respective State Legislative Assemblies, not the Parliament, to pass such law as being legislation on the Islamic religion according to Article 11(4) and item 1 of List II, Ninth Schedule of the Federal Constitution.
The Supreme Court held that there must be a declaration that Section 298A of the Penal Code is a law with respect to which Parliament has no power to make and such section was invalid and therefore null and void and of no effect. The ruling, however, shall not apply to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
The jurisdiction of the Shari ’a Criminal law is also confined to persons professing the religion of Islam. The Shari ’a Courts Act 1965 (Criminal Jurisdiction) gives jurisdiction to the Shari ’a Courts to punish with up to 6 months of imprisonment, or fine up to RM1,000.00, or a combination of both. The Shari’a Courts’ jurisdiction pertaining to criminal matters was amended in 1984 which gave the Shari ’a Courts the power to sentence up to 3 years of imprisonment, to fine up to RM5,000.00, to order up to 6 strokes of the cane, or any combination of these punishments.
IX. THE SCOPE OF THE RIGHT TO FREEDOM OF RELIGION IN MALAYSIA
Article 11 of the Federal Constitution, which guarantees the right to freedom of religion, provides:
(1) Every person has the right to profess and practise his religion and, subject to clause (4), to propagate it
It must be noted that Article 11(1) contains two important expressions, namely ‘to profess’ and ‘to practise’.
However, the terms ‘profess’ and ‘practise’ are not defined.
Constitutionally, a person can profess a religion “without having to prove the worthiness of his religious profession”.
The most important thing is that accepting a particular religion indicates that one professes such a religion. The extent of knowledge of that particular religion is also irrelevant when the question of the right to profess a religion arises.
In the eyes of the law, a person could be said to be professing a particular religion by simply adhering to such religion although he does not attend a specific place of worship at all.
The Court held that in order to maintain the status as Muslim one does not need to observe the ritual obligations but “a person who was born in the Muslim faith and has never been proved to have adopted any other religion must be held to be a Muslim”. The Court decided that a person is considered Muslim as long as he professed the religion of Islam.
Since there is a distinction between the profession of religion and its practice, one could argue that practising a religion is not a prerequisite element to be regarded as a follower of a particular religion.
Such a distinction was lost in Ng Wan Chan v Majlis Ugama Islam, Wilayah Persekutuan. In this case, there was a dispute whether the husband (the deceased) of the plaintiff was a Muslim or Buddhist at the time of his death. The plaintiff claimed that her husband was a Buddhist at the time of his death, while Majlis Agama Islam (Council of Islamic Religion) claimed otherwise. She led evidence to show that her husband had renounced Islam and had converted back to Buddhism when he died.
The Court ruled in her favour since it was clear that her husband was a Buddhist at the time of his demise.
However, the Court in Dalip Kaur v Pegawai Polis Daerah Mertajam, took a different stand. Although the widow (appellant) claimed that her late husband was no longer a Muslim at the time of his demise, the High Court (as it was then) held that the deceased was a Muslim at the time of his death and had not reconverted back to Sikhism. The Supreme Court dismissed the appeal.
One of the most vital issues surrounding the question of profession is the position of a Muslim who leaves the Islamic religion.
Given that Article 160(2) stipulates that a Malay must professes the religion of Islam, habitually speak the Malay language and conform to the Malay customs, the issue of conversion out of Islam remains controversial and ambiguous.
While non-Muslims could profess any religion they wish, including changing from one religion to another, Muslims particularly from the Malay ethnicity are prohibited from doing so. It seems that the right to profess a religion in Malaysia is not an absolute right.
Of course a person who frequently changes his religion will not win the respect of others but what is the position in the case where a person changes his religion once in his lifetime?
One would not be concerned if the parties are non-Muslims.
But if a Malay leaves his Islamic religion, then the question of the freedom of right of profession arises.
Lee Min Choon, for example, postulates that the right of profession of a religion is an unrestricted right. In other words, a person has the right to choose and embrace any religion at any particular time. This does not mean that a person can only choose one religion for his whole life. He therefore argues that the expression “his religion” in Article 11(1) of the Federal Constitution must necessarily mean that the religion adopted by a person should be one free of choice.
As a result, a person who changes his religion freely, without deception, coercion or undue influence, is exercising his right to freedom of religion.
X. THE NON-ABSOLUTE NATURE OF THE RIGHT TO FREEDOM OF RELIGION UNDER THE CONSTITUTION
The non-absolute nature of the right to freedom of religion in Malaysia, at least insofar as Islam is concerned, was given judicial recognition by Heliliah Mohd Yusoff J in the case of Ahmad Yani b Ismail v Ketua Polis Negara.
Articles 11(1) and 11(4) of the Constitution indicate that the provisions on Islam as a faith and Islam as a law are intertwined; one cannot look at one provision in the Constitution without looking at the other provisions. This is how Article 11(1) should be construed.
It becomes evident therefore that the issue of a Muslim attempting to apostate is not merely an issue of faith but one of law i.e Islamic law, which applies to all Muslims in the States of the Federation.
XI. LAW OF APOSTASY IN MALAYSIA
As far as the law of apostasy is concerned, there are three approaches taken by the states.
First, states have enacted laws whereby apostates are subject to punishment. This can be seen in Perak, Pahang, Terengganu, Malacca and Sabah. All these five states laid down provisions whereby any Muslim who renounced Islam shall be punished with fine, imprisonment or whipping (in Pahang).
In other states, those who leave Islam are not regarded as offenders (apostates) but are detained and given counselling in a “faith” rehabilitation centre. At least three states adopt this practice. In Sabah and Kelantan, for example, if a person leaves Islam or intends to leave Islam, he can be detained at a faith rehabilitation centre for a period not exceeding 36 months. In Malacca he can be detained for a period of 6 months.
In Negeri Sembilan, the law does not provide for detention. In fact, it provides a remedy to any Muslim who intends to renounce the Islamic faith, although the applicant is subject to certain procedural conditions that are consistent with the requirements of the Shari ’a.
XII. APPLICATION TO RENOUNCE ISLAM: NO PROVISION IN STATE ENACTMENTS
States such as Perlis, Kedah, Penang, Selangor, Federal Territories, Johor and Sarawak do not make any provision on the punishment for apostasy, nor do they provide any facilitation for apostasy.
Since these States’ Enactments are silent on this matter, Muslims particularly by conversion who wish to leave the Islamic religion are in a legal quandary.
Such experience could be seen in the Federal Territory of Kuala Lumpur, where until August 2004, twelve applications to renounce Islam at the Shari ’a Court were rejected due to there being no provision in the Administration of Islamic Law (Federal Territories) Act of 1998 to deal with such applications.
Sarawak seems lenient in approving applications to renounce Islam. As the majority of the applicants are Muslims by conversion, the Chief Minister appears to have compromised on the matter.
Though the Shari ’a Court seems reluctant to declare a person has apostatised, such approval could be obtained from the Religious Department.
The procedure seems very straightforward.
Muslims who wish to convert out of Islam may apply for approval from the Religious Department. The officer-in-charge will ask the applicant the reason why he intends to renounce Islam. In most cases, the applicant will undergo a series of counselling for the purpose of repentance. If such process fails, the officer will issue a letter confirming that such person is no longer professing the religion of Islam. By this document, the person can apply to change his Muslim name to a non-Muslim name at the Department of Registration, which in this case faces no obstacle. It is believed that Sarawak has one of the highest numbers of such applications to renounce Islam in Malaysia.
XIII. APPLICATION TO CHANGE MUSLIM NAME TO NON-MUSLIM NAME
The new regulation by the Department of Registration makes it impossible for Muslims to change their Muslim names to non-Muslim names unless the applicants have successfully been declared as non-Muslims by any Shari ’a Court or Religious Department.
The new rule, namely National Registration Rules (Amendment 2001), states that application to change name shall not be related to the changing of religion.
However, if there is an application to change a Muslim name to a non-Muslim name, the applicant must attach a supporting document either by the Religious Department or the Shari ’a Court that indicates that he has been declared apostate.
Based on statistics issued by the Registration Department from 1999 till July 2003, there were 750 applications to change from a Muslim name to a non-Muslim name.
Out of this number, only 220 applications were granted where there were supporting documents either from the Shari ’a Courts or Religious Departments, which indicates that the applicants officially renounced the religion of Islam.
For the year of 2003 (until July), there were 81 applicants. There are also certain cases whereby, the applicants applied to use the original non-Muslim name as issued in the birth certificate.
Most cases of approvals involved Muslims by conversion. If there were cases involving Muslims by birth, it is likely that either one of their parents or both of them are Muslims by conversion.
This indicates that there is only a small number of applications to apostatise by born Muslims.
XIV. JURISDICTION IN APOSTASY CASES: CIVIL COURTS VERSUS SHARI’A COURTS
Despite the apparent jurisdictions awarded to the Civil and Shari ’a Courts, conflicts between the two court systems have never been considered. One particular area of conflict in recent years has been the issue of jurisdiction in matters concerning apostasy cases.
One of the main reasons that contributes to this dichotomy is that, some of the state legislatures, despite being conferred the power and jurisdiction of the Shari ’a Courts, have failed to take substantial steps to confer an explicit jurisdiction on Shari ’a Courts over the jurisdiction of apostasy.
The question which arises here is whether the Shari ’a Courts have jurisdiction over those matters listed in paragraph 1 of the State List even in the absence of an express state law conferring such jurisdiction on the Shari ’a Courts?
In addition, because the word ‘jurisdiction’ in Article 121(1 A) of the Federal Constitution seems ambiguous, there is a need for a proper construction of its interpretation by the Federal Court. As such, it has led to conflicting judicial decisions on the question of which court has jurisdiction when apostasy cases arise.
There are two approaches taken by the courts in deciding whether the Shari’a Courts have jurisdiction in matters concerning apostasy.
- The first approach suggests that the Shari ’a Courts have no jurisdiction whatsoever in matters relating to apostasy in a case where there is no express jurisdiction conferred in the State laws. This approach is taken even though the Federal Constitution provides that the State has jurisdiction over matters relating to Islamic law. The view that postulates that State Legislatures need to expressly confer jurisdiction on the Shari ’a Courts was affirmed in Ng Wan Chan v Majlis Ugama Agama Islam Wilayah Persekutuan.
If State law does not confer on the Shari ’a Court any jurisdiction to deal with matter stated in the State List, the Shari ’a Court is precluded from dealing with the matter. Jurisdiction cannot be derived by implication.
In Shaik Zolkaffly Shaik Natar v Majlis Agama Islam Pulau Pinang, the High Court of Penang echoed a similar view. The judge held:When there is a challenge to the jurisdiction of the High Court, the key is not whether the High Court had jurisdiction, but whether jurisdiction of the matter at hand is with the Shari ’a Court.
Jurisdiction to Shari ’a Court is given by state laws but if state law did not confer on the Shari ’a Court any jurisdiction to deal with any matter in the State List, the Shari ’a Court is precluded from dealing with the matter and the jurisdiction cannot be derived by implication.
The High Court found that, because there was no express jurisdiction conferred on the Shari ’a Court, the sole jurisdiction rested with the Civil Courts.
The final example is the case of Mohamed Habibullah v Faridah Talib. This is an important case involving Article 121(1A) although it does not directly involve the issue of apostasy. The Supreme Court held that the provision of Article 121 (1A) was to give the Shari ’a Courts an exclusive jurisdiction over matters related to Islamic law among persons professing the religion of Islam. Hence, the Civil High Court is precluded from having any jurisdiction over such matters.
- The second approach, however, postulates that the Shari ’a Courts do have jurisdiction over matters concerning apostasy even where there is no express provision in the State statutes. The main reason for this approach is that the word ‘jurisdiction’ in Article 121(1 A) of the Federal Constitution “refers to the wider jurisdiction stipulated in Item 1 of the State List”. Under this category, such jurisdiction is awarded to the Shari ’a Courts by Item 1 of the State List, though such provision is not implicitly provided.
Justice Abdul Kadir Sulaiman ruled that the question of apostasy was not within the jurisdiction of High Court and only the Shari ’a Court can deal with this matter even though there was no provision with regard to apostasy in the State Enactment.
The learned judge ruled that the issue of apostasy is under the state jurisdiction, even though the state legislation is silent on this matter.
Indeed, by virtue of Article 121(1 A) of the Federal Constitution, the Civil Court has no jurisdiction to hear such application and to determine an application concerning renunciation of Islam, as such power and jurisdiction are in the hands of the Shari’a Courts.
Although Article 11(1) of the Federal Constitution guarantees the right to freedom of religion, it seems that some states have penalised Muslims who renounced Islam.
This can be seen in the states of Pahang, Perak, Terengganu, Melaka and Sabah.
In the states of Sabah, Kelantan and Malacca, Muslims who intend to renounce Islam are detained at the Islamic rehabilitation centre for counselling purposes to keep their Islamic faith. Other states are silent on the provision of apostasy.
Given the provisions of Articles 11(1) and 3(1) of the Federal Constitution, the writer is of the view that the law of apostasy must be standardised and uniformed.
Provisions on punishment and mandatory detention at the Islamic rehabilitation centre for apostasy should be reviewed.
It seems that the Negeri Sembilan’s law will be a good model for adoption, whereby Muslims who intend to leave the Islamic faith must undergo a counselling process for repentance purposes.
From Abdul Malik: Read here for more in Malaysiakini
".... It’s true that once upon a time, Islam was a great empire. When was that? When the dinosaurs went extinct?
What happened to the greatness of the past Muslim scholars who created trigonometry and contributed to knowledge and mankind, at the same time not forgetting their responsibilities to God?
What happened to these people? Did their ideology and thinking die with them?
What is happening today is that the Islamic world is very weak. No matter how much Abdul Rahman wants to glorify the past, look at us today, in a pathetic state of denial, fighting among ourselves and the most common excuse is to blame the Western mentality. Oh come on, what a sad state of mind. History should teach us to become better people, but not the Muslim world. We do not use history to improve ourselves. Abdul Rahman comes from Cairo, Egypt so he should look at the state of his neighbour before condemning anyone else.
In the past, Islam was practiced as a whole, contributing to knowledge as well as religion. So much so, that Islam gained the confidence of the people making it one of the biggest empires of all times.
The ‘quran’ and the ‘hadith’ were practiced wholeheartedly. What is happening today? Only bits and pieces of the ‘quran’ and the ‘hadith’ are used.
The sad thing is that the ‘quran’ and the ‘hadith’ are not used to improve society but to create fear. The fanatics of religion choose to neglect the other elements in the Quran to create an unhealthy environment and always use the successes of the past as the milestone for the future.
As an Islamic scholar, I have one question to ask - are we a religion of the past, or one working for a better present and future?
Today, there are two groups of Islamic scholars, one who are is still attached to the glory of the past while the other wants to strive for the present and future.
Fortunately, I fall into the second group wanting to bring Islam to new heights. Dr Syed Alwi Ahmad, myself and many more out there have realised that something has happened to the Islamic civilisation to make it so weak. The leaders of the past have failed to see the implications of neglecting science and technology.
This created a loophole that has been monopolised by the so-called ‘Western secular liberal paradigm’. In order to make up for lost time, we have to sit at the same table with these brilliant Western minds to learn from them.
For most of us, Western civilisation is the one guiding us towards a more civilised society, as there are no role models for us in the Islamic world, particularly in terms of knowledge advancement in science and technology.
After many years working with my seniors from UK and Australia, I am beginning to realise why Islam feels so threatened by the West. But at one point, the West, too, was threatened by Islam. What did they do? What are we doing? Who is the one that has failed to think out of the box?
As a moderate Muslim, I will continue my contribution to knowledge, and will continue to strive to make this world a better place for my child, learning from the past to improve the future.
Moderate Muslims must unite and fight these radicals who are making us weaker and may Allah swt bless us in our quest."