Malaysia's Thought Control Of Muslims: Books on Islam BANNED in Malaysia (26th April 2007)

Read here full article in The Sun

Quote:

"These publications can cause confusion and apprehension AMONG MUSLIMS and eventually jeopardise public order."
-Che Din Yusoh,
Secretary of the Publications and Quranic Texts Control Division
Internal Security Ministry

The Internal Security Ministry has banned 37 book titles and publications on Islam containing twisted facts that can undermine the faith of Muslims.

The list of book titles and publications, the names of the authors, compilers or translators and publishers as well as the country of publication are contained in the Government Gazzette dated April 26, 2007.

Secretary of the Publications and Quranic Texts Control Division Che Din Yusoh said today:

• 21 of the publications were in English language and published in the United States, United Kingdom and Jordan
  
  
• 16 were in Bahasa Malaysia and published in Malaysia and Indonesia.

All the book titles and publications were banned by a prohibition order under the Printing Presses and Publications Act 1984, he said in a statement.

He said the prohibition order was imposed on the publications because their contents and text on Islam twisted facts and true Islamic teachings or contained elements that misled the faithful and humiliated the prophets.

"These publications can cause confusion and apprehension among Muslims and eventually jeopardise public order," he added, reported Bernama today.

THE BANNED BOOKS ON ISLAM
("that can cause confusion and apprehension among Muslims " in the country and eventually result in Malaysian Muslims "to jeopardise public order.")

1. The banned book titles and publications published in ENGLISH are:

• Unveiled At Last: Bob Sjogren (YWAM Publishing, United States);

• The Last of the Giants: George Otis Jr (Fleming H.Revell, US);

• Inside the Community: Understanding Muslims Through Their Traditions: Phil Parshall (Baker Books, US);

• Now You Can Know What Muslims Believe: (Ministries to Muslims, US);

• Blind Following of Madhhabs: Shaykh Muhammad Sultaan (Al-HidaayahPublishing, United Kingdom);

• My Journey from The Christianity of Ahlul Sunnah Wal Jamaah To The Islam Of The Prophet: Saim Bakar;

• Answering Islam: The Crescent in Light of the Cross: Norman L Geisler, Abdul Saleeb (Baker Books, US);

• Islam in Context Past, Present and Future: Peter G. Riddell, Peter Cotterell (Baker Academic, US);

• Feminism and Islamic Fundamentalism, The Limit of Post-modern Analysis: Haideh Moghissi (Zed Books Ltd, UK);

• Islam At The Crossroads, Understanding Its Beliefs, History and Conflicts: Paul Marshall, Roberta Green, Lela Gilbert (Baker Books, US);

• Glad News! God Loves You My Muslim Friends: Samy Tanagho (Authentic Media, US);

• The Fifth Pillar A Spiritual Pilgrimage: David Zeidan (Piquant, GreatBritain);

• Heart of the Koran by Lex Hixton (The Theosophical Publishing House, US);

• The Life and Times of Muhammad: Sir John Glubb (Madison Books, US);

• Inside Islam: The Faith, The People and The Conflicts of the World's Fastest Growing Religion (Marlowe & Company, US);

• Jesus and Muhammad- Profound Differences and Suprising Similarities: Mark A. Gabriel (Charisma House,US);

• Nine Parts of Desire -The Hidden World of Islamic Women: Geraldine Brooks (Anchor Books, US);

• Introducing Islam: The Basics: Kim Whiteheads (Mason CrestPublishers, Jordan);

• Introducing Islam: Islam, Christianity and Judaism: Dorothy Kavanaugh (Mason Crest, Jordan);

• Murder in the Name of Allah: Hazrat Mirza, Tahir Ahmad (LutterworthPress, Great Britain);

• The New Paths in Muslim Evangelism, Evangelical, Approaches to Contextualisation (Baker Book House,)

2. The banned book titles published LOCALLY are:

• Ringkasan Mafatih Al-Jinan Kunci Pembuka Syurga: Syeikh At-Tuisy (Jasmin Enterprise, Kuala Lumpur);

• Bahaya Tarikat Sufi/Tasawuf Terhadap Masyarakat: Ustaz Rasul Bin Dahri (Perniagaan Jaha Bersaudara, Johor); and

• Apa itu Ahmadiyah?: Mirza Bashiruddin, Mahmud Ahmad (Jemaat Islam Ahmadiah, Batu Caves).

3. The banned book titles published in INDONESIA are:

• Petunjuk Membuat Azimat dan Benda Bertuah: Abd. Hamid Zahwan (CV.Aneka, Solo);

• Islam Tanpa Syariat Menggali Universalitas Tradisi: Ziauddin Sardar (Penerbit Grafindo);

• Ombak Hidup Mengalami Damai Di Mata Taufan - (Yayasan IsahiNusantara, Jakarta);

• The Passion of Christ- Kesengsaraan Al-Masihi; Mujarobat Ilmu Kekebalan: Ahmad Toha, Abdul Ghoni (CV Bintang);

• Menyoal Relevensi Sunnah Dalam Islam Modern: Daniel W. Brown, Jaziar Radianti (Penerbitan Mizan, Bandung);

• Rahsia Manusia Menyingkap Ruh Ilahi: Syekh Nur ad-Din ar - Raniri (Pustaka Sufi, Yogyakarta);

• Ikhtisar Tajul Muluk (Mahkota Raja): Abd.Hamid Zahwan (CV Aneka,Solo);

• Pilihan Do'a Jaljalut Mengantisipasi Gejolak Zaman Modern: Muh.Rofi'.SI (CV Aneka, Solo);

• Pengantar Psikologi Al-Quran Dimensi Keilmuan di balik Mushaf Utsmani: Dr Lukman Saksonro (PT Grafikatama Jaya);

• One True God- Risiko Sejarah Bertuhan Satu: Rodney Stark, Sadat Ismail (Penerbit Qalam,Yogyakarta);

• Tasawuf Dalam Qur'an: Dr Mir Valiudin (Pustaka Firdaus, Jakarta); and

• Wahdat Al-Adyan Dialog Pluralisme Agama: Fathimah Usman (LK iSYogyakarta).

A Muslim Lawyer's Reply to PEMBELA's Yusri Mohammed on Lina Joy Case

Read here in People's Parliament Blog

by

Haris Ibrahim

After the Federal Court judgment, Yusri Mohamed of ABIM issued a media statement on behalf of PEMBELA. Amongst other things, he said that the decision vindicated and upheld :

‘...the existing arrangement relating to the position of Islam and the Shariah courts in the constitutional and legal set-up of the country.

An arrangement that has been in place since before independence and 50 years after.’

My views have NOT changed :

The Superior courts comprise the 2 civil High Courts, the Court of Appeal and the Federal Court.

All OTHER courts, including the Syariah courts, make up the INFERIOR courts.

Position of Islam Before Independence and 50 Years Later

What (is the) position of Islam, a position that Yusri says has been in place ’since before independence and 50 years after’?

Well, this has actually been considered in 1988 by the Supreme Court in Che Omar Che Soh.

It was argued in this case that as Islam is, pursuant to Article 3(1) of the Constitution , the religion of the Federation, the death penalty for drug offences, NOT having any foundation in Islamic law, was therefore contrary to Islamic injunctions and unconstitutional.

Tun Salleh Abas, presiding over a 5-man coram, noted that the first task of the court was to get at the meaning of ‘Islam’ in Article 3(1).

He readily acknowledged that Islam was more than just a collection of dogma and rituals but a complete way of life.

He then posed the question that the full court went on to unanimously answer :

Was THIS the meaning intended by the Framers of the Constitution?

I would urge you to (click here) read the judgment in its entirety, which is about 2 pages.

In summary, the learned judges first noted that consequent upon British intervention :

1. The notion of the Malay rulers being God’s vice-regent on Earth, which is a precept held by Muslims, was displaced and instead each Malay ruler was regarded as a sovereign within his territory;
   
   
2. By ascribing sovereignty to the Malay rulers and no longer to God, the divine source of legal validity was severed and a secular system was institutionalised;
   
   
3. All laws thereafter, including those relating to the administration of Islamic laws, were valid only if made through this secular system; and
   
   
4. The Malay rulers plenary powers were reduced to such an extent that Islam in its public aspect had become nothing more than a mere appendix to the ruler’s sovereignty.

The Supreme Court concluded, a page 56 of the reported judgment:

‘…it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only.

In our view, it is in this sense that the framers of the Constitution understood the meaning of the word ‘Islam’ in the context of Article 3.

If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void.

Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter’.

It is also worth noting the following observation by Tun Salleh Abas.

‘…we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality NOT accepted by the law, is NOT enjoying the status of law.

Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament.

Until the law and the system is changed, we have no choice but to proceed as we are doing today.”

....In trying to understand this controversy on Lina’s case, please remember the following, which we can take from the decision in Che Omar Che Soh:

1. the Supreme Court considered the meaning of ‘Islam’ in Article 3(1). In fact, the case was principally about the impact of Article 3(1)
   
   
2. the Supreme Court REJECTED the argument that the constitutionality of laws might be measured against Islamic laws
   
   
3. the Supreme Court confirmed that since BEFORE independence our system of governance has been secular in nature. That SECULAR system is the foundation of the Constitution
   
   
4. most importantly, the judicial reminder by Tun Salleh that personal feelings should NOT get in the way in the process of interpretation and application of the law

In the PEMBELA media statement, Yusri also alleged that the judgment of the Federal Court :

’should be seen as a rejection of an attempt by a certain individuals and segments to deconstruct and radically revamp of the current formula’.

You may wish to ponder on these questions:

By ’existing arrangement’, is Yusri referring to the continuity, established by Article 162, of the secular law in place PRIOR to Merdeka?

If not, who, then, is in fact attempting to ‘deconstruct and radically revamp ' the secular law in place prior to Merdeka?

Answers to this last question will begin to shed light on why a simple administrative procedure became a constitutional controversy.

Definition of "Secular"

What is meant by ’secular state’ or ’secular law’, which has often been deliberately misinterpreted to mean anti-God or anti-religion? ( Let me state clearly that I do not use the word ’secular’ in either of these senses.)

The Cambridge Advanced Learner’s Dictionary offers the following meanings:

secular : not having any connection with religion

secularism : the belief that religion should not be involved with the ordinary social and political activities of a country

secularise : when something is secularised, religious influence, power or control is removed from it

Meaning of "Sekularisme"

If you googled the word ‘sekularisme’, you would find much writings which present a meaning plainly AT ODDS with the dictionary meaning reproduced above.

Invariably, these writings portray secularism as an ‘anti-God’ ideology.

I managed to retrieve an article by one Abu Bakar bin Yang posted on the Institut Kefahaman Islam Malaysia (IKIM) website entitled ‘Sains dan Sekularisme’ which offered the following interpretation:

sekularisme: konsep penyingkiran nilai ketuhanan

I use the word ‘secular’ in the sense that religion, or any one or more of the established faiths, should reign supreme, wielding influence, power or control over the governance of the country.

Any one or more religions ought NOT to be the basis for the formulation of national policy, national law-making or judicial interpretation of those laws.

By ‘secular federation’, then, I mean a system of government where governmental policies and laws passed for application to the general public would NOT be ‘theocracy’ or ‘any-one-or-more-religion-based’.

Let us call these policies and laws ‘secular-based policies’ and ‘secular-based laws’ respectively.

Henceforth, every reference to ‘secular’ or ‘secular federation’ is intended to mean a system of government where governmental policies formulated for general public application, laws promulgated for application to the general public and the judicial process of interpreting and applying those laws are NOT theocracy-based.

For instance, murder is an offence in our statute books NOT because it is a sin by the tenets of Islam and / or Christianity or all known religions. (It is) because it is essential to the very survival of the human race and hence for the common good of all mankind that homicide without just cause be prohibited.

Similarly, the judicial arm of government, in interpreting and giving effect to laws, must not overlook that as those laws must be ‘secular-based’, so too their interpretation and application.

So, a JUDGE in passing sentence in respect of an individual convicted of a crime, must be guided by principles of sentencing adhered to by the judiciary as a whole, taking account of the general public view then prevailing in respect of such crime, and NOT his own personal convictions premised on his religious beliefs.

Also, the EXECUTIVE , in formulating national policy on matters such as health and education, and local authorities in frawing up policies such as the placement of houses of worship within their jurisdiction, must be guided by considerations of well-being of the general public, and NOT the advancement of the precepts or cardinal beliefs of any one or more faiths.

Must Read Article: The Double Standards of the Muslim Right-Wingers in Malaysia

by

Dr. Farish Noor
(Dr. Farish A. Noor is currently visiting professor at Sunan Kalijaga Islamic University, Jogjakarta, Indonesia)

Quote:

"... Malaysian citizens like Lina Joy have been summarily denounced, demonised and vilified by conservative Malay-Muslim groups and movements in Malaysia as a ‘traitor’ to her race and religion.

There are actually more non-Muslims converting to Islam on a daily basis than the opposite. Yet oddly enough few of these new converts to Islam are denounced as ‘traitors’ to their race and religion.

So why the double standards?

And why do the right-wing conservatives in Malaysia bemoan the insignificant ‘loss’ of one of their members, while celebrating the conversion of others?

...the very same right-wingers who have preached a discourse of hate now demand that she returns to Malaysia to stand before a Shariah court, in order to criminalise herself by declaring herself to be an apostate.

It has even been suggested by some that Lina Joy’s conversion was something done at a whim, as if converting from one religion to another is akin to choosing between Coke and Pepsi.

(Lina Joy) happens to be a Malaysian and as Malaysians we should be ashamed that one of our number has been forced to flee into asylum as she can no longer live in her country.

The right-wing hate-mongers and demagogues who have threatened her safety have done so partly on the grounds that she constitutes a threat and a danger to the Muslim community.

But in their hate campaigns that have divided Malaysia’s multi-religious nation so clearly, one can argue that these communitarian and sectarian bigots are the real peddlars of anti-Malaysian and un-Malaysian ideas and sentiments.

Who is the real victim and who are the real culprits then?
-Farish Noor

Read here full article by Dr.Farish Noor

Excerpts:Read here for more

" How long can a country be at the crossroads of its history?

It seems that Malaysia in particular has been stuck at some empasse and has not been able to move on; a situation that has been aggravated by the culture of communitarian, sectarian politics that is rife in the nation, and which has been elevated from the racial to religious register.

The stagnant state of Malaysian popular political culture was demonstrated recently over the case of the Malaysian citizen Lina Joy, who was born a Muslim and who has, for the past several years, been appealing to the justice system of the country to allow her to be recognised as a Christian after her conversion many years ago.

Lina Joy’s is not the only case in the troubled land: At present several other cases are likewise trapped in the imbroglio that is the Malaysian legal system.

Now there is also a case of a Malaysian who was accidentally switched at birth and brought up by a Malay-Muslim family, who is claiming the right to be correctly recognised as a Malaysian of Chinese origin and who wishes to return to the faith of his original family…

What is most troubling about all these cases is HOW Malaysian citizens like Lina Joy have been summarily denounced, demonised and vilified by conservative Malay-Muslim groups and movements in Malaysia as a ‘traitor’ to her race and religion.

Yet we forget that the figures point to the opposite: That despite everything, there are actually more non-Muslims converting to Islam on a daily basis than the opposite.

Yet oddly enough few of these new converts to Islam are denounced as ‘traitors’ to their race and religion.

So why the double standards?

And why do the right-wing conservatives in Malaysia bemoan the insignificant ‘loss’ of one of their members, while celebrating the conversion of others?

Lina Joy has now been forced to leave Malaysia in search of asylum elsewhere, for fear that her life may be in danger.

There is ample justification behind this move, for indeed her life has been threatened by hate mails, death threats, and public declarations of moral outrage by the right-wingers. Lina’s photo was circulated in the internet, her name and reputation have been torn to shreds as a result of a malicious hate-campaign spread through cyberspace, sms-es and public demonstrations.

Yet the very same right-wingers who have preached a discourse of hate now demand that she returns to Malaysia to stand before a Shariah court, in order to criminalise herself by declaring herself to be an apostate.

Skewered justice indeed.

Beyond the courtroom debates and legal fine-points, we often forget that at the heart of the matter is a plight of a Malaysian citizen, who, for reasons best known to herself, has made what has to be a difficult decision to change her belief.

It has even been suggested by some that Lina Joy’s conversion was something done at a whim, as if converting from one religion to another is akin to choosing between Coke and Pepsi.

To add insult to injury, this lonely Malaysian who was the subject of so many hate campaigns is now being treated in the most patronising manner.

Yet I write this as someone who has several Muslim friends who are converts to Islam, and I know very well how difficult the choice was for them.

In the four cases I know, conversion to Islam led to ostracisation and alienation from their former relatives and friends, and the lingering suspicion of their motives. Their commitment to the religion of their choice, however, remains steadfast and we commend them for their courage and commitment.

So why can't Muslims demonstrate that same understanding for those who leave Islam for another creed?

Why is the anguish of converts to Islam more legitimate, more real, more authentic, compared to the anguish of those who convert from Islam?

This reminds me of the words of the late Nurcholish Madjid, the most prominent Muslim intellectual of postcolonial 20th century Indonesia.

He once said that :

"...we Muslims still cannot go beyond the logic of tribalism, and we think that being a Muslim is like belonging to a tribe called ‘Muslims’.

Muslims still think in these parochial, tribalist terms, and that is why when one person leaves Islam he or she is denouced as a traitor to the tribe. But Islam is not a tribal entity.

Being a Muslim is not like belonging to the Blue Tribe or the Green Tribe; it is a state of mind, an existential state of being."

Whatever the circumstances may be at present, and despite the legal-political obstacles placed before her, Lina Joy is a Christian and she has been a Christian for the past several years.

No amount of slander, abuse or threats of violence will change that. She also happens to be a Malaysian.

As Malaysians we should be ashamed that one of our number has been forced to flee into asylum as she can no longer live in her country.

The right-wing hate-mongers and demagogues who have threatened her safety have done so partly on the grounds that she constitutes a threat and a danger to the Muslim community.

But in their hate campaigns that have divided Malaysia’s multi-religious nation so clearly, one can argue that these communitarian and sectarian bigots are the real peddlars of anti-Malaysian and un-Malaysian ideas and sentiments.

Who is the real victim and who are the real culprits then?

COMMENTARY:

From Metalanguage Blog: Read here

".... How many societies in the world actively celebrate discrimination against their own? As various Muslim groups and quarters laud the decision of the Federal Court in Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Ors, the more devious implication of the majority decision is lost on many.

As a result of the aforementioned case, an extra requirement is imposed upon members of the faithful in matters relating to membership of the faith; a requirement which is NOT imposed upon other segments of Malaysia’s various religions.

This means that non-Muslims, and therefore by implication the non-Bumiputeras, are afforded more human rights than the princes of the soil.

But instead of being up in arms over this form of discrimination, conservative Muslim groups have decided to celebrate the decision as a move which protects the special status of Islam in Malaysia at the expense of a human right.

This discrimination was mentioned by His Lordship Richard Malanjum FCJ himself in his dissenting judgment:

" Regulation 4… has, however, singled out Muslims for additional procedural burdens and impediments which are not connected to personal law. It requires that any registrant or person applying who is a Muslim has to state his or her religion. The requirement does not apply to non-Muslims. There is therefore a differential treatment for Muslims. Hence, in my view this tantamount(s) to unequal treatment under the law… In other words it is discriminatory and unconstitutional and should therefore be struck down...."

The case of Lina Joy also signifies the growing Islamisation of the country when conservatives are willing to sacrifice their very own freedom in a bid to protect Islam as the religion with a special status in the country.

It is worrying when one imagines what else they are willing to sacrifice. Yes, it is noble to protect Islam from unwanted influences, but one must realize that any idea or belief which unifies also operates by way of exclusion.

Are the wishes of one woman enough to bind the whole ummah?

Taking that further, are we willing to imprison Bumiputeras so as to protect its special status?

The case of Lina Joy merely sets the road upon which this nation is travelling on stone, and it has deviated so far we know not where we are.

Layman's Guide to the Federal Constitution on Lina Joy's Case

by

Haris Ibrahim
(Haris Ibrahim is a trained lawyer)

How and where the two Muslims judges in the Federal Court erred in LAW in their majority decision on Lina Joy's appeal.

Read here on People's Parliament Blog and HERE

1. The SUPREME Constitution
   
   
2. Power to make law for persons professing the religion of Islam
   
   
3. The scope of this law-making power under Item 1, List 2, 9th Schedule
   
   
4. Part 2 of the Constitution: Fundamental Liberties Generally
   
   
5. Article 11(1) Guarantee
   
   
6. Syariah Courts are INFERIOR to Civil Courts
   

1. The Supreme Constitution

That‘s what Article 4(1) plainly states.

‘This Constitution is the SUPREME law of the Federation…’.

It means JUST THAT !

In Malaysia, there is NO HIGHER LAW than the Constitution.

The same clause goes on to provide that:

Any law passed after Merdeka which is inconsistent with the Constitution is, to the extent of the inconsistency, VOID .

Under the Constitution, ONLY Parliament and the State Legislative Assemblies may pass law. Except for the limited exceptions mentioned in Article 4(2) and the emergency provisions of Article 149, the effect of Article 4(1) is that:

Both Parliament and the state legislative assemblies are PROHIBITED from passing any law which is inconsistent with any provision in the Constitution.

2. Power to make law for persons PROFESSING the religion of Islam

This is a power that is given under Item 1, List 2, 9th Schedule (click here) of the Constitution to both Parliament and the various state legislative assemblies.

Parliament will pass laws for the Federal Territories whilst the legislative assemblies will pass laws for their respective state.

3. The scope of this law-making power under Item 1, List 2, 9th Schedule

The Constitution has only authorized the following laws :

Islamic law and personal and family law of persons PROFESSING the religion of Islam. You will note from the text that this general provision is followed with a list of specific subjects

For the creation and punishment of offences by persons PROFESSING the religion of Islam against the precepts of that religion

For the constitution, organization and procedure of Syariah courts which shall have jurisdiction only over persons PROFESSING the religion of Islam

Laws for the determination of matters of Islamic law and doctrine and Malay custom

Note and remember that the jurisdiction to pass Islamic law and to create and provide for punishment for ‘religious offences’ is subject to the constitutional limitation that these laws and offences can apply only to persons PROFESSING , and NOT to persons NOT professing, the religion of Islam.

Similarly, the Syariah courts created under laws passed are constitutionally limited in their jurisdiction over persons PROFESSING , and NOT over persons NOT professing, the religion of Islam.

Let’s set this out plainly:

1. Under Item 1, list 2, 9th Schedule, Parliament and the state legislative assemblies CANNOT make any law to apply to persons NOT professing the religion of Islam.
   
   
2. They CANNOT GIVE JURISDICTION TO Syariah courts over persons NOT professing the religion of Islam.

4. Part 2 of Constitution: Fundamental Liberties Generally

Part 2 of the Constitution comprises of 9 Articles, from Articles 5 to 13, under the heading ‘Fundamental Liberties’.

If you scrutinize these 9 provisions closely, you will note 4 very distinct categorizations with some degree of overlap between each.

1. The first category of liberties are those that are guaranteed only to citizens. These are to be found in Articles 9, 10 and 12. Lets call these the ‘citizens only’ category.
   
   
2. The second category comprises the remaining 6 Articles that guarantee the liberties in question to ‘person’ or ‘persons’. These would apply to citizens and non-citizens. Lets refer to these as the ‘person or persons’ category.
   
   
3. The third category I shall call ‘prohibitory’ Articles. The particular liberty is guaranteed by prohibiting the doing of certain acts. So, for example, Article 5(1) guarantees life and personal liberty by prohibiting the taking of either except in accordance with law.
   
   
4. The fourth and final category I shall call ‘conferring’ Articles. The particular liberty in question is expressly conferred as a right. Article 11(1) is an excellent example. The phrase ‘has the right’, confers the right.

I want to now focus on THREE Articles within the ‘person or persons’ category.

1. NO person shall be deprived of his life or personal liberty save in accordance with law - Article 5 (1)
   
   
2. ALL persons are equal before the law and entitled to the equal protection of the law – Article 8 (1)
   
   
3. EVERY person has the right to profess and practise his religion and, subject to Clause (4), to propagate it – Article 11 (1)

Article 5(1)

Given the nature of the guarantee under Article 5 (1), I think nobody will dispute that ‘NO person’ means just that. Every foreigner, Malaysian, Malay, Chinese, Orang Asli, child, adult, convict, all.

Describe a person, and such a person must necessarily be included in ‘No person’.

It is a guarantee to EVERY SINGLE PERSON on the face of this planet.

Article 8 (1)

I would also say that ‘ALL persons’ in Article 8 (1) must also be treated in the same way as ‘No person’ in Article 5 (1).

Article 11(1)

If you are in agreement, you then bear the onus to explain why, looking at the plain words of Article 11(1), ‘EVERY person’ should NOT also mean the same as ‘No person’ in Article 5(1).

In my view, ‘EVERY person’ in Article 11(1), then, must mean just that.

Every foreigner, Malaysian, Malay, Chinese, Orang Asli, child, adult,
convict, all.

Describe a person, and such a person must necessarily be included in ‘Every person’.

It is a guarantee to EVERY SINGLE PERSON on the face of this planet.

5. Article 11(1) Guarantee

Three (3) activities are GUARANTEED :

1. Profess:
   
   ‘Right to profess’, in my view, confers on ‘every person’, the right to hold and acknowledge faith in a ‘belief system’, whether God-based or not
   
   
2. Practice
   
   Right to practise’ relates to the ‘belief system’ professed, and guarantees to ‘every person’ the right to participate in, live and make manifest that participation in, the doctrines of that professed ‘belief system’.
   
   
3. Propagate. For the moment, let us disregard the third.
   

The Right to Profess and the Right to Practise

The right to profess, in my view, is both constitutionally and practically absolute.

The right to practise, though, may be limited to the extent as permitted under Article 11(5).

Let me illustrate my point (Satan worshipper)

You may be a staunch Satan worshipper.

Parliament may pass a law to ban Satan worshipping. The law, however, cannot reach into your heart and wrench out your belief. There is no way to stop you silently professing your belief.

As a Satan worshipper, your ‘belief system’ may advocate an annual sacrificial killing of a virgin.

Article 11(5), however, provides that the rights guaranteed under this Article do not permit acts ‘contrary to any general law relating to public order, health or morality.

By ‘general law’ is meant law applicable to ‘every person’.

Section 302 of the Penal Code makes murder an offence. It is a general law relating to public order. It applies to ‘every person’.

By virtue of Article 11(5) read together with section 302 of the Penal Code, your professed belief in Satan worship does NOT authorize your partaking in the ritual of virgin sacrifice

‘Right to profess’ is absolute. ‘Right to practise’ is subject to Article 11 (5) limitations.

For the sake of completeness, you should know that the right to profess and to practice is so entrenched that even in a state of emergency, where other fundamental liberties may be suspended, these Article 11 rights cannot be touched. See Articles 149 and 150 (6A).

Let’s close this part with the following observation based on the Constitutional provisions we’ve just considered.

Parliament and all the state legislative assemblies, in exercising their powers under Item 1, List 2, 9th Schedule in relation to the creation of Syariah courts or the passing laws for persons professing the religion of Islam, CANNOT MAKE LAWS INCONSISTENT WITH ARTICLE 11.

Syariah Courts are INFERIOR to Civil Courts
Read here for more

1. Firstly, the Syariah Courts have always been separate from the secular courts, dealing only with specific matters of syariah law that have been legislatively placed within their jurisdiction.
   
   
2. Secondly, the constitutional amendment of 1988 NEVER had the effect of 'elevating' the status of the syariah courts. Article 121 (1A) merely states that the secular courts referred to in Clause (1) 'shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts’.
   
   There is NOTHING in the language of Article 121 (1A) that would allow for a construction that the status of the syariah courts was being thereby altered.
   
   
3. Thirdly, Article 121 (1A), again by its very terms, does NOT raise the stature of the syariah courts to a position equal with the secular civil court system. This postulation, by implication, accepts that prior to the amendment of 1988, the syariah courts were, at least vis-a-vis the secular High Courts and Federal Court, INFERIOR.
   
   This implication, in my view, is correct and, for the reasons that follow, I contend that the syariah courts today continue in that status, that is, inferior courts.

The judicial arm of the government of the federation of Malaya, at the time of independence, was intended to comprise only the courts created under the unamended Article 121 (1) and (2).

These were the Federal Court and the High Courts of Malaya and Borneo. These were the superior courts created by the constitution.

The constitution allowed for the creation of inferior courts by federal or state law. These would include the inferior courts referred to in Article 121 (1) or the syariah courts referred to in Item 1, List II, 9th schedule of the constitution.

Later, the constitution was amended to include a new List IIA to the 9th schedule wherein, Item 13 allows for the creation of native courts by the legislative assemblies of Sabah and Sarawak.

These native courts, too, like the syariah courts created by state legislative assemblies pursuant to Item 1, were NEVER intended to form part of the judicial arm of the government of the federation.

Inferior tribunals

The enabling provisions of the constitution for the statutory establishment of courts have, since independence, been extensively utilized.

What has been put in place is an array of inferior tribunals adjudicating within a limited and often specialised jurisdiction, which may be conveniently divided into three categories.

1. The first category are those inferior tribunals ... (the statute) does not make any provision for appeal, but also expressly prohibits, by a privative clause, the decision of that tribunal from being questioned in any court.
   
   Such tribunals are the Industrial Court established under the Industrial Relations Act, 1967 and the Consumer Tribunal established under the Consumer Protection Act, 1999. Let us call this the ‘No Appeal’ category.
   
   
2. Secondly, statutory provision for an appeal process from those tribunals to an appellate tribunal of a similarly limited and specialised jurisdiction.
   
   An example of is the Rent Tribunal established under the Control of Rent Act, 1966 (CRA) which deals with rent control of premises completed before 31/1/1948. The CRA provides that appeals from any decision of the Rent Tribunal shall be to an Appeal Board whose decision is, again by way of a privative clause contained in the CRA, ‘final’ and cannot be questioned in any court.
   
   It is my contention that the Syariah Courts come under this category, provision being made in the relevant state and federal legislation creating the Syariah Lower and High Court to an Appeal Committee. Let us call these the ‘Specialised Appellate Tribunals’ category.
   
   
3. Finally, there are the Magistrates and Sessions Courts, established under the Subordinate Courts Act, 1948, whose decisions are appealable to the secular High Courts. Let us call these the ‘secular High Court Appeal’ category.

As stated above, the secular High Courts stand as the appellate courts to the Magistrates and Sessions Courts.

Additionally, the secular High Courts exercise supervisory powers of judicial review over the tribunals in :

• the ‘No Appeal’ category and
  
  
• the ‘Specialised Appellate Tribunals’ category (include the Syariah Courts).

The narration above clearly illustrates that since the inception of the federation, the Syariah Courts created pursuant to the enabling provisions of Item 1, List II, 9th schedule were part of the numerous inferior tribunals that adjudicated within their respective limited jurisdiction.

That the syariah courts were inferior tribunals and susceptible to the supervisory powers of judicial review of the secular High Courts is borne out by the decision of Mustapha Hussain J in Abdul Rahim Bahaudin v Chief Kadhi, Kedah (1983) 2 MLJ 370, where the High Court issued a writ of Prohibition to prohibit the syariah court from proceeding with criminal charges against the applicant, an acknowledged Ahmadia, following upon confirmation by the Fatwa Committee that the Ahmadia were NOT Muslim, so that the applicant was OUTSIDE the jurisdiction of the syariah court.

If the above narration is correct, it is my contention that the amendment to Article 121 in
1988 with the introduction of the new Article 121 (1A) :-

1) has NOT altered the status of syariah courts as inferior tribunals;

2) has NOT removed the supervisory powers of judicial review of the Article 121 high courts over the syariah courts; and

3) has NOT enlarged the judicial arm of the government of the federation to now include the syariah courts.

The amended Article 121 (1) now provides, inter alia, that the Article 121 High Courts ‘and such inferior courts as may be provided by federal law… shall have such jurisdiction and powers as maybe conferred by or under federal law’.

The supervisory powers of judicial review of the Article 121 High Courts as provided for under the Courts of Judicature Act, 1964, to this day, remain intact.

The new Article 121 (1A) states:

The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts’.

The first point to be observed is that Article 121 (1A) is not couched in terms ordinarily framed in privative or ouster clauses, where the intention is to prevent the decision of a tribunal from being reviewed.

The language of Article 121 (1A) is so plainly unambiguous that recourse to any extrinsic aid for the construction of the same is uncalled for.

In this regard, the approach taken by the Court of Appeal in Sukma Dermawan (1999) 1 CLJ 481 to refer to Hansard in construing Article 121 (1A) may have led to a construction that simply cannot be reconciled with the plain words of the Article.

The construction adopted by the Court of Appeal that the purpose of the Article was to prevent the Article 121 High Courts from reviewing the decisions of the syariah courts, unless understood to be subject to the ‘Anisminic’ principle, may form the foundation for a contention that Article 121 (1A) had the effect of neutering the supervisory powers of judicial review of the Article 121 High Courts, offending a long established and accepted principle that the jurisdiction of a superior court might only be ousted by EXPRESS WORDS in a STATUTE or by NECESSARY IMPLICATION.

Secondly, Article 121 (1A) does NOT , per se, confer jurisdiction on the syariah courts but is merely declaratory of the consequences of the conferment of such jurisdiction.

Thirdly, the intended ouster of jurisdiction in Clause (1A) is directed at all the ‘courts referred to in Clause (1)’.

This would include the ‘inferior courts as may be provided by federal law’ referred to in Clause (1). It is therefore not open to argument that ‘inferior courts as may be provided by federal law’ referred to in Clause (1) also includes syariah courts established by Parliament pursuant to Item 1, List II, 9th schedule.

The language of Article 121 (1A) is plain and unambiguous.

“The High Court, in the plain and distinct language of Art. 121 (1A), has no jurisdiction in respect of any matter within the jurisdiction of the Syariah
Courts.”

It means, abiding by the meaning of unambiguous words, that :

1. the High Court will have no jurisdiction IF jurisdiction in respect of any matter is given to the Syariah Court, and that
   
   
2. the High Court will have jurisdiction if jurisdiction in respect of any matter is not given to the Syariah Court. Any other construction, verbis standum ubi nulla ambiguitas, is not permitted.”

Jeffrey Tan J in Shaik Zolkaffily Shaik Natar & Ors v Majlis Ugama Islam Pulau Pinang & Seberang Perai [1997] 4 CLJ 70.

Jeffrey Tan J found support for his construction of Article 121 (1A) in the following pronouncement of Harun Hashim SCJ in Mohamed Habibullah Mahmood v Faridah Dato' Taib [1993] 1 CLJ 264: “It is obvious that the intention of Parliament by Art. 121 (1A) is to take away the jurisdiction of the High Court in respect of any matter within the jurisdiction of the Syariah Court”.

Apostasy: What is Really Written in the Koran and in Schedule 9 of the Federal Constitution

by

Azmi Sharom

Quote:

I can see the logic of having some sort of system to determine whether a person is a Muslim or not.

However, that process, if it must exist, must by necessity be purely administrative and automatic. It CANNOT and must NOT be punitive.

Because once it is punitive as it is in this country, (after all leaving Islam can mean imprisonment) in effect you are denying a person their freedom to choose their religion as enshrined in Article 11.

Once the element of force comes into the picture, be it in the form of fines, imprisonment or ‘rehabilitation’, then religion ceases to be about the spiritual and becomes instead a matter of power.

I cannot accept that the religion I was born into, and my children are raised in, is about anything as crass as power.

The Koran, after all, does mention the LACK OF COMPULSION in religion.

Furthermore, the Koran does NOT prescribe any worldly punishment for apostasy.

Therefore this entire issue is the result of HUMAN interpretation of the Koran.

When faced with two contesting human opinions on the ‘precepts’ of Islam, one which is harsh and one which is merciful, I choose the latter.
-Azmi Sharom

EXCERPTS: READ HERE full article by Azmi Sharom in Malaysiakini

I have two unemotional points to make (on the Lina Joy case).

1. The Federal Constitution should guarantee the rights of all Malaysians to choose their religion.
   
   
2. This issue of apostasy in Islam is far more open to interpretation than what the orthodoxy claims.

Article 11 of the Federal Constitution is very clear.

Every person has the right to profess and practice his religion. They can propagate it as well if they want, unless the state laws say you can’t propagate to Muslims.

It is also clear by Schedule 9 of the Constitution that whatever Islamic laws that we have is to be made by the state legislature (with the exception of the three Federal Territories). These Islamic laws are to be judged by the Syariah courts, whose jurisdiction is only over persons who profess to Islam.

The types of Islamic laws that the state legislature can make and that Syariah courts enforce are also listed in Schedule 9. To summarise, they cover issues of family, inheritance and the administration of Islamic institutions and charities. There is NO mention at all about apostasy.

Where then does the state legislature get the authority to punish Muslims who declare that they wish to leave the religion?

Where does it say in the constitution that you can fine, jail or ‘rehabilitate’ people who have chosen to believe differently?

This ‘authority’ comes from a line in Schedule 9 that says states can make laws punishing Muslims who act against the ‘precepts’ of the religion. I must repeat here that apostasy is NOT expressly mentioned, therefore everything hinges on the question as to what makes up the ‘precepts’ of Islam.

The Federal Constitution on Freedom of Religion

The constitution is NOT any mere legal document.

• It is NOT like an ordinary contract where you can have express terms and implied terms.
  
  
• It is a GUARANTEE that the Government and the Law will NOT take away our fundamental rights as a human being.

As such, it is UNACCEPTABL E that a right as vital as the freedom of religion can be taken away with anything less than an EXPRESS clause saying in NO uncertain terms that this can be done.

The Federal Court Ruling

Justice Ahmad Fairuz, in his judgment, made the point that one can’t leave one’s religion on a whim and religious bodies would naturally want to have procedures to regulate this.

This may be true, especially in this country where being Malay by definition means being Muslim and if one were to renounce Islam then legally speaking one can’t be Malay.

Therefore all the special Malay privileges won’t apply to you any more. In that sense, I can see the logic of having some sort of system to determine whether a person is a Muslim or not.

However, that process, if it must exist, must by necessity be purely administrative and automatic. It cannot and must not be punitive.

Because once it is punitive as it is in this country, (after all leaving Islam can mean imprisonment) in effect you are denying a person their freedom to choose
their religion as enshrined in Article 11.

Is Apostasy a Crime in Islam?

The opposing argument to mine is that conversion out of Islam clearly goes against the ‘precepts’ of the religion. Apostasy is a crime that has to be punished. The degree of punishment ranges depending on which Islamic scholar you wish to quote, but the harshest is execution.

This is NOT a universally accepted view.

The Koran, after all, does mention the LACK OF COMPULSION in religion. The verse does NOT come with explanatory notes as to the extent of this statement.

There are opinions that say it means no compulsion to join the religion, but once in, there are compulsions aplenty, one of which is that you can’t leave.

There are others that say that it means exactly what it says, you can’t force religion on anyone and that once this is done religion can have no meaning.

Furthermore, the Koran does NOT prescribe any WORLDY punishment for apostasy.

Therefore this entire issue (as in the Lina Joy case) is the result of HUMAN interpretation of the Koran.

It is thus surely open for debate.

Koran on Slavery

Let me provide an example of how changing times and values have affected how Muslims view the verses in our holy book.

The Koran is ambivalent about slavery. It does not say that slavery is a sin. Neither does it encourage it. But there are verses that describe what one can do to one’s slave.

In this day and age, you would be hard pressed to find a Muslim who will say that slavery should be reintroduced. Yet it seems to be allowed in the Koran.

I am not being facetious. I do not believe that Islam, taken as a whole, encourages or even condones slavery. The verses were meant for a particular time in history when such practices did occur.

The Koran and Changing Times

But the point here is that if the values of the ‘ummah’ can change to the point that practices which are allowed in the divine Koran won’t be accepted anymore, why then can’t we do the same for what is essentially the mere opinion of human Islamic scholars on the issue of freedom of religion?

Often, when the view is put forward that there is no compulsion in Islam and that if a person wants to leave they should be allowed to, there are the usual cries that such attitudes are the result of liberal, Western influenced minds. In all honesty, that is probably a fair ‘criticism’ of someone like me.

However, Abdurrahman Wahid (Gus Dur), the Indonesian cleric and ex-president as well as the mufti of Al Azhar in Egypt are just two examples of people who also share this view. They can’t possibly be described in the same way.

Cruelty of Religious Compulsion

At the end of the day it is simply quite cruel to not allow someone to believe what they want to believe.

It is not a decision made lightly and as can be seen in Lina Joy’s situation, one that can lead to misery and heartache.

Just as I am sure many converts into Islam face misery and heartache from their respective community. It’s hard enough to face being ostraciced from family and friends without having to face legal persecution as well.

When faced with two contesting human opinions on the ‘precepts’ of Islam, one which is harsh and one which is merciful, I choose the latter.

Religion is one path towards personal peace and spiritual fulfilment. It is also something which depends entirely on faith. Even if the religion is a ‘way of life’, a term commonly used to describe Islam; it still needs belief and faith.

How can one be forced to follow a ‘way of life’ if one simply does not believe in it?

Once the element of force comes into the picture, be it in the form of fines, imprisonment or ‘rehabilitation’, then religion ceases to be about the spiritual and becomes instead a matter of power. I can not accept that the religion I was born into and my children are raised in is about anything as crass as power.

And it is my right to believe that.

It is Our Sorrow as Muslims in Making Lina Joy's Life Very Difficult

by

Dr. Azly Rahman
(DR AZLY RAHMAN is born in Singapore, raised in Johor Baru. Dr. Azly holds a Doctorate in International Education Development from Columbia University, New York City, and Masters degrees in four areas: International Affairs, Education, Communication, and Peace Studies. He is a member of The International Honor Society in Education. He has taught in Malaysia and the United States in a multitude of settings and in diverse fields such as Politics/International Relations, Education, American Studies, Philosophy/ Humanities/Cultural Studies, and History/Foundations of Civilizations.)

Quote:

"... In the history of Islam, its beloved Prophet Muhammad (Peace be Upon Him) had an uncle Abu Talib who NEVER converted to Islam.

All the same the Prophet of peace loved him and prayed that he would be blessed and given the righteous place in Paradise.

Why did we do (as we did, and ) as such to Lina Joy? Why criminalise her and make her path to wisdom difficult?

Has not Islam evolved to become a religion that tolerates the understanding of other people's beliefs and be able to learn from the different levels of understanding about the Universal Creator?

To Lina Joy, removing the word ‘Islam’ from her Mykad is meaningful and something deeply personal. That's her name, that's her identity card.

She does not believe that a Malay must necessarily be associated with a Muslim.
-Azly Rahman

Excerpts of Dr. Azly Rahman's essay. Read here for more

"Where I live - 30 minutes’ drive from New York City - a local newspaper has a story on the individual formerly known as Azalina Jailani. This paper normally would not carry stories of people wishing to delete designations/words they find meaningless in an identity card. But because international news picks up ‘anomalies of culture and/or religion’ as creative elements and sensational items to help sell, Lina Joy is a newsworthy item.

To me, those following the case and affected by the decision of the Federal court are not reading about Lina Joy the person, but actually reading about themselves as ‘scripts of a social text’.

What ails us as a nation and what then must we do? Is Lina Joy a mirror of our sorrow?

Lina Joys' challenging the conventions of her culture is indeed an example of radical form of creativity.

.... Lina Joy did not wish to see her condition as hopeless. Lina Joy is inviting us to "reconstruct and re-invent reality" as how we want it to be.

There is the notion of the human condition ..on the relationship between the individual and the society.

This is what Lina Joy is demonstrating to us - a human being or a human agency that HAS A CHOICE through her own realisation of existential selfhood.

We produced Lina Joy out of our own shortcomings in our education system.

Had our (education) system taught our children how to explore the beauty of each religious tradition and find universal themes of peace and justice in each, we would NOT have denied Lina Joy her fundamental rights to carry her religious designation as how she would prefer.

Names are a powerful signs and symbols of ones own existence, as any scholar in biosemiotics would agree.

If I no longer wish to carry a Mykad with the designation ‘pagan’ as my religion, it is my fundamental rights to change it, as I will be carrying ‘paganism’ as my religion.

If I do not wish to sign the fascistic Surat Akujanji of Universiti Utara Malaysia and pledge loyalty to something I do not believe in, it is my fundamental right to not sign it, since I will be carrying something throughout my career that will tell me that I will be discriminated against by those who has abused power.

In the history of Islam, its beloved Prophet Muhammad (Peace be Upon Him) had an uncle Abu Talib who never converted to Islam. All the same the Prophet of peace loved him and prayed that he would be blessed and given the righteous place in Paradise.

Why did we do as such to Lina Joy?

Why criminalise her and make her path to wisdom difficult?

Has not Islam evolved to become a religion that tolerates the understanding of other people's believe and be able to learn from the different levels of understanding about the Universal Creator?

To Lina Joy, removing the word ‘Islam’ from her Mykad is meaningful and something deeply personal.

That's her name, that's her identity card.

She does NOT believe that a Malay must necessarily be associated with a Muslim.

There will always be non-Muslims - Jews, Christians, Catholics, Buddhists, Hindus, atheists, etc. - who wish to learn about Islam. This is the American attitude towards knowledge, always eager to expand the horizon of learning. The challenge for me is to present the teachings of the Prophet of Islam as objectively and passionately as possible without alienating those new to the religion and WITHOUT having Muslim students devalue the opinion of others.

There is no room for criticism of any religion, I remind my students at each introductory lecture. I would begin by saying that "Like other religion, Islam believes in the …universal message of peace, social justice, and salvation. … Each one of us evolve differently according to the level of consciousness we possess as evolutionary beings".

Let us advocate a peaceful resolution to this issue, fundamentally through education for peace. The way to lift the veil of ignorance is through knowledge and the deep engagement and exploration of it.

Religion must be approached from a philosophical standpoint in order to draw out the best of what it can offer to help humanity understand multiple ways of knowing the Creator - the Universal God that reveals itself in the consciousness of Humanity by many names.

For, unto God we shall return. "
-Dr. Azly Rahman

The International Herald Tribune: Lina Joy Case - Bad Decision for Malaysia

Read here full article by Philip Bowring in International Herald Tribune

Quote:

"...The ruling will be seen in most of the rest of the world as an example of Muslim arrogance, intolerance and obscurantism, which are particularly out of place in a country where more than 40 percent of the population is not Muslim.

Are Malays in Malaysia (unlike Indonesia) INCAPABLE of making their own decisions on religion?

The ruling is as much about the politics of race as it is about religion.

The ruling will be seen in most of the rest of the world as an example of Muslim arrogance, intolerance and obscurantism, which are particularly out of place in a country where more than 40 percent of the population is not Muslim.
-Philip Bowring

Excerpts: Read here for more

Two decisions on the same day on Wednesday have delivered huge to blows to liberal, plural democracy in Thailand and Malaysia, two relatively prospering and open Southeast Asian societies.

Both decisions have been given the appearance of being judicial, but both are highly political and represent efforts by entrenched interests to maintain political control.

The dissolution of Thai Rak Thai, the party of Thaksin Shinawatra, who was deposed as prime minister of Thailand by a coup last September, has caught more headlines. But given the volatility of Thai politics, this may prove less enduring than a decision in Malaysia to deny a woman the right to convert from Islam to another religion.

The highest court in Malaysia ruled that it had no jurisdiction over the Muslim Shariah courts, even though the Malaysian Constitution, which the civil courts are supposed to uphold, guarantees freedom of religion.

The Shariah courts have been adamant that "apostasy" cannot be allowed; Muslims CANNOT become non-Muslims.

The ruling will be seen in most of the rest of the world as an example of Muslim arrogance, intolerance and obscurantism, which are particularly out of place in a country where more than 40 percent of the population is not Muslim (and non-Muslims are a majority in some states).

But the ruling is as much about the politics of race as it is about religion.

The Malay elite is less noted for piety than for its determination to cling on to the economic and political privileges it has awarded itself through the United Malays National Organization (UMNO), the party that has dominated the political process since independence 50 years ago.

All Malays are deemed to be Muslims; thus religion has become a means of reinforcing the racial basis of politics.

The elite will not disavow it, partly to protect the privileges and partly to avoid being outflanked among Malay voters at election time by the more fundamentalist Parti Islam.

In Wednesday's ruling, the chief justice (Tun Ahmad Fairuz) argued that one could NOT leave a religion "at whim," suggesting that it was a function of birth more than belief.

By implication, he raised this question:

Are Malays in Malaysia (unlike Indonesia) incapable of making their own decisions on religion?

The court (with the one non-Muslim judge dissenting) appeared to forget that non-Muslims who wish to marry Malays must convert to Islam. In short, the court has in effect undermined Malaysian pluralism for the sake of UMNO's political expediency.

For both Malaysia and Thailand, the rulings on Wednesday represent major setbacks in their efforts to become fully developed societies in which pluralism is enshrined in the conduct of institutions.
-Philip Bowring

Must Read: A Sober Response to the Muslim Groups on Lina Joy's Case

by

Haris Ibrahim
( People's Parliament Blog. Read Here)

In a Malaysiakini report entitled ‘Don’t court controversy, say Muslim groups’, it was reported, in relation to the Federal Court decision in Lina Joy’s case, that :

‘Muslim groups and individuals urged for such issues to be resolved in future without recourse to courts of law and before they reach the level of public controversy’.

Zaid Kamaruddin of JIM is reported to have said that such cases ’should be addressed primarily through discussions among and between the racial and religious communities’.

Yusri Mohamed of ABIM is reported to have said : “We believe the court procedure is an unhealthy one because such issues should be avoided (at the courts) as all confrontational approaches should be shunned” and then urged anyone who is “aggrieved in any way” with any part of the existing arrangement to “choose other, less confrontational and controversial approach towards change and reform”.

Let me state from the outset that I am in complete agreement.

The Lina Joy-like issues should NOT need to be taken to court and should NOT reach the level of public controversy as her case did.

This begs the question.

Why did Lina’s case end up before the courts, and

Why all the controversy?

Justice Richard Malanjum’s judgment, the full text of which can be downloaded from the Bar website, narrates the relevant facts, beginning at page 4.

On 21/2/1997 Lina applied to the IC department to change her name to Lina Lelani.

Her stated reasons: she had embraced Christianity and wished to marry a Christian.

Pause here to note 2 facts and speculate on 1 probability.

Fact 1: at this time the law did not require one’s IC to bear the word ‘Islam’ if one was a Muslim. This was only introduced in late 1999.

Fact 2: as her IC bore a Malay name, the registry of civil marriages would not have allowed Lina to proceed to register a civil marriage, assuming her to be a Muslim.

Probability: if Lina was not planning to settle down, she would not have sought the change in particulars in her IC. We would probably never have known of her.

Let’s continue with the facts.

Her 1997 application to the IC department was rejected on 11/8/1997 without any reason given.
Lina applied again on 15/3/1999, now asking her name to appear as ‘Lina Joy’. Again her stated reason in her statutory declaration was that she had embraced Christianity.

Pause just for a moment and observe that surely, up to now, the approach by Lina has been anything but confrontational.

Controversial, perhaps. If she was to have a chance to be married in law and start a family, an application for change of particulars in her IC was absolutely necessary, given the stance of the registry of civil marriages.

Lina claims that in July, 1999, she was told by an IC deparment officer that so as not to complicate her application, she should drop ‘change of religion’ as her reason for her ‘change of name’ application.

To make a long story short, she put in a fresh statutory declaration in August, 1999 stating the requested change of name was simply one of choice.

On 22/10/1999, Lina was informed by the IC department that her application had been approved and that she should make application for her new IC.

What the department did not inform Lina was that a change in the regulations in relation to particulars to appear in the ICs of Muslims was underway. ‘Islam’ would appear on the face of such ICs.

Lina applied for her new IC on 25/10/1999. The new iC issued to Lina bore her new name on the front of the card. On the reverse side, her original name appeared. Also, on the front side, the word ‘Islam’ was imprinted.

Pause just to note that the change of name did not help Lina’s hope of having a civil registry marriage approved, given the word ‘Islam’ now imprinted on her IC.

Lina now applied again on 3/1/2000 to the IC department to remove the word ‘Islam’ from her new IC. She was told that she would have to produce an order of the Syariah Court confirming that she had renounced Islam.

Pause and observe:

This woman was in and out of the IC department for almost 3 years, in the hope that she could get on with her life.

Was she confrontational?

I think she demonstrated a level of patience few of us are capable of.

Without recourse to courts of law?

Court procedure is an unhealthy one?

Zaid and Yusri, please be fair.

• Who directed her to have recourse to the courts of law, with procedure that is unhealthy?

• Who told her that her non-confrontational series of applications were insufficient?

It was not of her own choosing. It was forced upon her.

Ah, but the IC department said the Syariah Court, not the civil.

Is that how we must understand it, then? It’s confrontational and controversial if its in the civil courts; not so if its in the Syariah Courts?

Two problems to this, though. 1 legal, 2. practical.

Legal Problem

Lawyers know that the jurisdiction of the Syariah Courts is constitutionally limited to persons ‘professing’ the religion of Islam’.

Commonsense and case-law will tell you that no-one knows the religion professed by A better than A himself, barring mental deficiencies.

Lina says she professes the Christian faith. She produced a certificate of baptism. You may contend that she is ‘legally’ still Muslim without a Syariah Court order. Without conceding to the correctness of such a contention, you must surely agree that that is NOT the same as she being a person ‘professing’ the religion of Islam.

This is the legal difficulty with the direction to get a Syariah Court order.

Practical Problem

The practical difficulty was alluded to by Justice Richard Malanjum, at paragraph 70 on page 41 of his written judgment when he pointedly observed: “In some states in Malaysia, apostasy is an offence. Hence, to expect the Appeallant (Lina) to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law is in my view unreasonable for it means the Appellant (Lina) is made to self-incriminate”.

To illustrate the practical point further. We all recall the Nyonya Tahir case and how it was hailed as the solution to this recurring problem of ‘Muslim or not’?

We forget that in the Nonya Tahir case, the issue was whether to bury the dead as a Muslim or not, and not as to the religious status of a living person.

Siti Fatimah ( better known internationally now as Revathi ) also overlooked the significance of the Nonya Tahir case.

She applied to the Syariah Court in Malacca for a declaration as to her religious status. The order of the Syariah Court: detention at the rehabilitation centre in Ulu Yam.

Is this the less confrontational and controversial approach that is advocated?

Next post - why all the controversy?

Must Read ! Bar Council Response to the Federal Court's Two Muslim Judges' Ruling on Lina Joy's Case

The Press Release from the Malaysian Bar Council

The right guaranteed by Article 11 grants every person the freedom to choose, affirm, practise and profess the religion of his/her choice.

This freedom of belief is (and must be) an unqualified freedom fully protected by the law. Any law that prevents or in substance curtails the exercise of this freedom must be struck down as being inconsistent with the Federal Constitution, and as being incongruous with such a fundamental freedom.

Further, the religion that a person in fact professes must be the religion that that person states he or she professes; since there can be no evidential difficulty in ascertaining this in the case of a living person.

Asserting this right, and upholding it, in no way undermines the position of any religion under the Federal Constitution and is consistent with the position of Islam under Article 3.

The Federal Constitution is, and must remain in law, supreme. In the event of any inconsistency or conflict between the provisions of State Enactments and of the Federal Constitution, the latter must prevail.

The majority decision in the Lina Joy case pronounced yesterday runs counter to this position.

In this decision, the express provisions of the Federal Constitution were made to give way to an interpretation of some form of implied jurisdiction of the Syariah Courts.

It further clothed the National Registration Department with powers beyond that which was expressly provided for under the relevant legislation.

The implied jurisdiction approach runs contrary to the legal position that State law must confer on the Syariah Court express jurisdiction to deal with any matters stated in the State List. The majority decision has implied such jurisdiction in the absence of statutory provisions to that effect, which in any event must accord with the Federal Constitution in order to be valid.

In short the majority of the Federal Court has also proceeded to “legislate”, (which the Courts are not permitted to do) and in a manner inconsistent with the Federal Constitution.

We support the minority judgment of Justice Dato’ Richard Malanjum HMP, who stated that,

“.... jurisdiction must be express and not implied. The doctrine of implied powers must be limited to those matters that are necessary for the performance of a legal grant.

And in the matters of fundamental rights there must be as far as possible be express authorization for curtailment or violation of fundamental freedoms. No court or authority should be easily allowed to have implied powers to curtail rights constitutionally granted.” (emphasis ours)

We must further heed the warning of the learned Judge that “… to rely on implied power as a source of jurisdiction would set an unhealthy trend.”

The Judgment further noted that it was unreasonable “to expect the Appellant to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law”.

Little comfort is drawn from cases of those who wish to leave or change religion, who have faced criminal sanctions and most recently the case of Revathi in Malacca who was deprived of her liberty and access to her husband and minor child.

It is important that this minority Judgment be given careful consideration.

We are mindful that issues relating to religion will inevitably draw emotive responses.

However in a multi-religious society like ours, Malaysians must be prepared to confront these issues maturely and dispassionately, and within the framework of our Federal Constitution as the supreme law of the land.

Finally, we would commend the approach of the late Tun Mohamed Suffian in such cases where he said,

“In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.”
- (The Constitution of Malaysia - Further Perspectives and Developments).

Ambiga Sreenevasan
President
Malaysian Bar
31 May 2007

Open Letter from Women Groups on Federal Court's Ruling on Lina Joy's Case

The following letter is issued on behalf of:

1. All Women’s Action Society (AWAM),
   
2. Sisters in Islam (SIS),
   
3. Women’s Aid Organisation (WAO),
   
4. Women’s Centre for Change (WCC) and
   
5. Women’s Development Collective (WDC)

These are the five women’s groups that held a watching brief in Lina Joy’s case.

" We are disappointed with the Federal Court majority decision dismissing Lina Joy’s appeal.

The decision disregards the right of a person to profess and practise the religion of her choice as enshrined in Article 11 of our Constitution, and renders illusory this Constitutionally-guaranteed fundamental liberty.

We are deeply concerned about the implications of this judgment for individuals, such as Lina Joy, who no longer profess Islam.

Despite the clear guarantee to freedom of religion in our Constitution, the court’s judgment would require them to seek consent from religious authorities regarding the very private matter of their personal faith, before their choice of religion is recognized in civil law.

Compelling such individuals to do so is unfair as it forces them to incriminate themselves and risk criminal prosecution in those states where renunciation of Islam is a religious offence.

We are troubled that the decision will also have the effect of denying Lina Joy, and others in a similar position, various basic women’s rights, therefore infringing their human rights.

These include the right to marry a partner of their choice and to choose their country of domicile, as they would have to leave Malaysia should they wish to marry non-Muslims. Their reproductive rights are also affected in that they are denied the right to bear children within a legitimate marriage. All these rights are enshrined in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Malaysia ratified in 1995.

We are, however, heartened by the dissenting judgment of Justice Richard Malanjum, which raised several critical points that warrant serious consideration.

Article 4 of the Constitution states categorically that the Constitution is the supreme law of Malaysia.

According to Justice Malanjum, the supremacy of our Constitution means that all laws as well as “administrative, departmental and executive discretions, policies and decisions” must conform to the Constitution.

Furthermore, as stated by Justice Malanjum, the civil courts must NOT abdicate their constitutional function by declining jurisdiction on matters that involve Constitutional issues and fundamental rights just by invoking Article 121(1A) of the Constitution, which states that the civil courts have no jurisdiction over matters within the Syariah Courts’ jurisdiction.

Only the civil courts can adjudicate constitutional issues that implicate fundamental liberties.

We also agree with Justice Malanjum, whose judgment begins with the view that where issues of constitutional importance are concerned, “all other interests and feelings, personal or otherwise, should give way and assume only a secondary role if at all”.

In any event, fundamental rights guaranteed under our Constitution CANNOT be removed merely by submitting individuals to the jurisdiction granted to the Syariah courts under Article 121(1A).

The divide in our society over the issue of freedom of religion has grown due to the lack of public space for discussion and for alternative viewpoints to be expressed on this matter.

The issue remains unresolved because the constitutional and legal arguments raised by the dissenting judgment do NOT appear to have been addressed by the majority judgment.

We believe that the judgments approving the National Registration Department (NRD)’s requirement for Lina Joy to provide a certificate from the Syariah Court may open doors for abuse by allowing other agencies to impose discriminatory requirements that are not provided for in their regulations.

We believe that the Federal Constitution protects every person’s right to freedom of religion in a way that acknowledges the person’s right to harmoniously practise her personal beliefs within our society.

The denial of this right constitutes a violation of the right to equality and non-discrimination enshrined in Article 8 of our Constitution.

We urge that opportunities for open discussion be provided so that Malaysians can collectively seek just and durable solutions to the issues that impede our efforts to build national unity.

Finally, we call on the government to take urgent steps to ensure that all Constitutionally-guaranteed fundamental liberties, including the freedom of personal faith, are upheld and given effect in practice. "