Posts Tagged ‘Apostasy’
No Joy for Lina
May 30th, 2007
Crucial decision in Lina Joy case
May 30th, 2007By SHAILA KOSHY
KUALA LUMPUR: The Federal Court judgment today on the Lina Joy appeal will be a historic one with legal and social repercussions, whichever way the decision goes.
This decision by the apex court will affect one’s constitutional freedom to choose one’s religion as well as who one can marry, especially for those who want to renounce Islam and for people who convert to Islam but later want to revert to their former religion.
The judgment, which was reserved on July 4 last year, will clarify whether conversion is a religious matter or a constitutional matter.
Lina Joy, 42, who was born to a Malay Muslim couple, became a Christian when she was 26.
The sales assistant has taken her case all the way to the Federal Court because unless the government recognises her conversion, she cannot get married under civil law.
While Lina managed – the second time around – to get the National Registration Department to change her name from Azlina Jailani in 1999, accepting that she had renounced Islam, it refused to remove the word “Islam” from her MyKad.
The NRD said it could not do so without a syariah court order certifying she had renounced Islam.
As long as the word “Islam” remains on her identity card, Lina cannot marry her Christian boyfriend, a cook, under the Law Reform (Marriage and Divorce) Act 1976.
In 2001, she took her case against the NRD director-general, the Government and the Federal Territory Religious Council to the High Court.
She lost – Justice Faiza Tamby Chik held that Malays could not renounce Islam because a Malay was defined in the Constitution as “a person who professes the religion of Islam,” adding it was the syariah court that had the jurisdiction in matters related to apostasy.
Lina appealed to the Court of Appeal and lost again, this time in a majority decision – Justices Abdul Aziz Mohamed and Arifin Zakaria upheld the decision of the NRD but Justice Gopal Sri Ram said it was null and void.
In 2006, she got leave to appeal to the Federal Court and asked the panel comprising Chief Justice Ahmad Fairuz Sheikh Abdul Halim, Chief Judge of Sabah and Sarawak Richard Malanjum and Federal Court Justice Alauddin Mohd Sheriff these questions:
While Datuk Cyrus Das appeared for Lina Joy, Senior Federal Counsel Datuk Umi Khaltum Jamid appeared for the NRD director-general and the Government and Sulaiman Abdullah appeared for the religious council.
Report on Kg Medan – UUM study
May 14th, 2007“”Just as we have Mara for Malays, we should establish something for non-Malays. We must make sure they have a fair shot at getting educated.”
hmmm…
In short, help the poor..all of them; not just some of them based on race.
Spotlight :Poverty led to Kg Medan clashes By : Aniza Damis
http://www.nst.com.my/Current_News/NST/Monday/National/20070514081411/Article/index_html
The troubles of the past few days seem distant for this Malay woman and her Indian friend as they cycle past policemen in Kampung Medan in Petaling Jaya on March 14, 2001.
For such a multiethnic country, Malaysia has been blessed with little ethnic strife. In 50 years of independence, the country has had only three big ethnic clashes. The first — May 13, 1969 — a ‘wake-up call’, is the elephant in the room that no one talks about. The second, Kampung Rawa in 1998, was upsetting, but relatively non-violent. The third, Kampung Medan in 2001, resulted in six deaths. A study, five years later, on Kampung Medan has just been completed. And, as ANIZA DAMIS finds out, these ethnic clashes are symptoms of poverty and social neglect THE story of Kampung Medan is a sad one. On March 9, 2001, a social disagreement between two groups, Malay and Indian, led to racial clashes that took three weeks to calm down. The final tally of that incident: Six dead and more than 400 detained. For Malaysians, who pride themselves on being multiethnic, tolerant and more than happy to celebrate the festivities of other races, the flare-up in Kampung Medan was a blip that marred the country’s harmony. To the outsider, the incident at Kampung Medan is but an example of the “undercurrents” that run beneath the country’s multiethnic makeup, ready to be let loose by those who would let go of their self-control and revert to the laws of the jungle. But is the issue really about racial differences, and are Malay- sians inherently racist? Associate Professor Dr Mansor Mohd Noor doesn’t think the problem is racial.. The problem, he said, was poverty. “If you are poor, you have the same problems. This is our problem, not a Malay or Indian problem,” he added. Having led the Universiti Utara Malaysia team into two studies on the Kampung Medan incident — the first time soon after the incident, and the second time at the end of last year – Mansor said Kampung Medan was a socio-economic problem that manifested itself in racial terms. “Even though the conflict seem-ed to be racially-based, issues of urban poverty, marginalisation and social neglect were the factors that caused the conflict,” said last year’s report, commissioned by the National Unity and Integration Department. “Kampung Medan was a chain of problems, not just one problem,” said Mansor, who is UUM’s Public Management and Law faculty deputy dean. Poverty and marginalisation, he said, led to a breakdown in society. “The people of Kampung Medan had no social life and no social activity. If you reach that level, it will explode. “The people who were involved in that incident came from the low-income group. They had poor self-esteem, no social activities, no link between them and the government, and no link with the community.” What’s even sadder, he said, was that the residents were “double victims”. Not only were they poor, jobless and marginalised, but they were also the victims of violent ethnic conflict. The study — by a team comprising Mansor, Associate Professor Dr Puvenesvary Ravantharanathe Muthiah, Mohd Ainuddin Iskandar Lee Abdullah, and Mohd Dino Khairi Sarifuddin — surveyed the racial unity of residents of Kampung Medan. Among others, the survey looked at problems in daily life and at the national level to see whether the problems that the residents faced were ethnic-based, or whether they were problems that they all shared, irrespective of ethnicity. A questionnaire was answered by 87 Malays and 57 Indians. Most were from the low-income group. Out of seven problems the two ethnic groups faced in their lives, cost of living was the primary concern for both races. Racial problems featured sixth for Malays, and fifth for Indians. National problems that concerned the respondents were corruption, social problems, joblessness and leadership crisis, not religious issues or racial problems, which were considered unimportant. And problems that plagued the village consisted of social problems among youth, lack of infrastructure and poverty.
And in challenges in daily life, although cost of living and welfare and schooling of their children were a worry, dealing with the government was the greatest problem for both ethnic groups. Although the percentage of those who reported these problems might only comprise between 20 and 30 per cent of the Kampung Medan population, the report surmised that the existence of these problems meant that respondents lived in an environment of poverty, with a culture of being poor and marginalised from mainstream society. “This was a millstone around the neck of these residents, which prevented them from achieving social mobility,” said the report. “This might result in this neglected group becoming anti-government, with a tendency (kecenderungan) to solving their problems in an extremist and militant manner.” Although the incident was linked or attributed to ethnicity, it did not involve the Chinese community. This, the study said, “shows that the country’s success in developing the nation to the extent that poverty management among Malays and Chinese has reduced the risk of conflict between the two ethnic communities”. Mansor said rich Malays, Chinese and Indians could use the public space to deal with their problems, but poor Malays and Indians did not have access to this luxury. So, instead, they expressed themselves in terms of ethnicity and religion. In a multi-ethnic community, those who are poor, jobless and marginalised tend to resort to ethnic grouping to defend their own interests. As a result, the ethnic dimension is raised, leading to tension and violence. So, it is this problem of development that is considered to be the cause of the ethnic conflict, and not ethnicity itself. “(The) Kampung Medan (incident) is a problem of the urban poor,” said Mansor, adding that the potential for discord could be shared by other places with the same socio-economic problems as those faced by the residents of Kampung Medan. In Malaysia, a social conflict can turn to an ethnic and religious conflict, starting as a misunderstanding, then escalating and triggering rage that will end in violent conflict. Because of this, said the report, attention needed to be given by the government. Mansor said: “To have national unity, order must come first. We need to aim for zero conflict. But to have zero conflict, we must solve the problem of poverty.” A strong government policy was needed to tackle poverty.
Building low-cost flats and relocating squatters to them is a superficial solution that doesn’t address the problem of pulling the poor out of poverty. “If we want social stability, the poor must be managed. There must be access to education, community-based activities and micro-credit.” The only way to tackle this, he said, was that there must be government sponsorship. “The government must support education for the poor, perhaps by providing boarding schools for them. “Just as we have Mara for Malays, we should establish something for non-Malays. We must make sure they have a fair shot at getting educated.” In addition, a community-based approach should be implemented to make sure the poor have access to social activities and recreation, and opportunity for healthy interaction. On this, Mansor said, the National Unity and Integration Department was “on the right footing” by introducing Rukun Tetangga branches and keeping an eye out on conflict areas. But, he said, tackling social problems like Kampung Medan required the help of all government agencies, especially the Women, Family and Community Development Ministry and the Youth and Sports Ministry. For Mansor, race and ethnicity were not stumbling blocks or problems. “Don’t look at it in black-and-white. The tremendous colours that Malaysia has indicate harmony rather than conflict. We should celebrate diversity.”
Green is okay, yellow is worrying, red is dangerous
IS the measure of unity to be found in peace, where a nation’s multiethnic citizens do not fight, or is it to be measured by friendship?
Some sociologists would argue that the polarisation over which we wring our hands, is in fact not polarisation at all, but just the status quo.
“Polarisation is when people who were once together are now apart. But, if you look back at the patterns of Malaysian society, you will see that Malays have always grouped with Malays in their residential and social arrangements, and so too with the Indians and Chinese,” said National Unity and Integration Department director-general Datuk Azman Amin Hassan.
This arrangement, he said, might not be some people’s idea of unity, but was relatively peaceful. And this is the basic level of unity.
“There are other sociologists who believe that Malaysians should mix, that is, live in mixed neighbourhoods, go to schools which are mixed — and eventually, be in mixed marriages. This is another way of looking at unity.
“Neither theory is right or wrong, but each requires a different approach.”
For a long time, unity was measured according to the perception of whether people thought that they were united.
But, said Azman, the instrument for measurement of perception had always been a problem: How do you measure perception?
This is why the department is now focusing on conflict.
“Conflict is easier to measure,” said Azman.
The department has set up a “Traffic Light” system of measuring and pro-actively managing conflict.
In the system, there are three levels of conflict: Green, yellow (amber) and red.
Green is when an issue is raised, but there is nothing to be alarmed about. People might have disagreements, and there might be minor physical altercations.
Yellow is when an occasion has been boiling for some time, or it occurs several times in a short period. At this level, the physical altercation might result in serious injury.
If a situation reaches yellow, then the department will intervene, usually by having Rukun Tetangga (neighbourhood watch) step in, mediate and calm the situation.
The system, which is part of the National Unity and Integration Action Plan, has been up since June.
“As much as possible, we don’t want it to even reach yellow,” he said, adding that the issue that concerned the department involved the controversy over apostasy and religious conversions, which lies between green and yellow.
Finally, the extreme is red. This is when there is serious injury or someone is killed.
In using this tracking system, the department relies on Rukun Tetangga.
“It is not easy for the government to just come in when there is trouble.
“That is why Rukun Tetangga works so well, because it is made up of locals, and who are known to the residents,” Azman said.
Kampung Medan, for instance, did not have an RT branch before the 2001 incident, but it does now.
In the recent Kampung Medan study, it was found that Rukun Tetangga was one area of community activity that drew the most active participation from Malay and Indian residents.
Interview with Maximus Ongkili, Minister in charge of National Unity in PM’s Dept
May 13th, 2007Sunday Interview/National unity and integration: Behind closed doors, sometimes By : PATRICK SENNYAH
http://www.nst.com.my/Current_News/NST/Sunday/National/20070513075933/Article/index_html
Racial unity in the country has come a long way since May 13, 1969. Though the foundations are strong, more can be done to strengthen it. PATRICK SENNYAH speaks to Datuk Dr Maximus Ongkili, the Minister in the Prime Minister’s Department in charge of national unity, on the issue
Q: How would you describe racial unity now?
A: I have been in this job for the last three years. Coming from Sabah where the level of inter-racial tolerance is high, I have seen some very positive developments in the peninsula also.
In fact, the relationship among the Malays, Chinese and Indians has never been better. People are more conscious now and aware of the importance of racial tolerance.
Nobody wants a repeat of May 13. I have visited Kampung Medan five times and believe the people there have learnt from the bitter experience. However, I have noticed that in urban areas, Malaysians are much more vocal these days and speak openly when they come across obstacles to national unity.
Even the media is allowing people to comment and discuss certain issues more openly.
The problem is sometimes when people are allowed to express views, sometimes competing ones, it tends to look like they are disunited.
This is not so. People are just more open these days and comment more freely. It does not mean that the core of unity is under threat.
They should be allowed to speak openly for it builds maturity. It is better for people to voice their opinions and grievances openly rather than have demonstrations and riots.
We (Prime Minister’s Department) encourage people to speak out. We welcome people of all races to sit together and speak out and resolve any misunderstanding or differences.
The only way to come to an understanding or resolve anything is to speak freely and openly, sometimes, behind closed doors.
However, things must be within limits. People must talk sensibly to build better relations and not talk nonsense.
People must be careful about what they say. Sometimes words uttered by certain groups or people may cause others to react.
That is why sometimes the government has to impose certain restrictions, like when we curtailed open discussion on Article 11 of the Federal Constitution. Some issues are sensitive and only those with the relevant knowledge should speak.
Back in Sabah, about 80 years ago, we were hunting each other’s heads.
However, after sitting down together and speaking our minds and understanding each other, we have learnt tolerance and today we live in harmony.
I believe in Malaysia, unity strongly exists. What we need to work on is the integration part.
Overall, the situation is fine. The police don’t get many race-based complaints, just about 300 per year.
Q: Could you elaborate on these race-based complaints?
A: Sometimes it is over a woman, like the last such complaint in Cheras two months ago.
However, there have been no major incidents. People are sensible enough to get to the root of the problem without getting at each other’s throats.
Each year, I visit every state at least three times and I have noticed that there is strong harmony between the three main races in smaller towns, even in Kelantan.
Based on reports from our Rukun Tetangga beat bases, there is no problem of racial unity and tolerance in small towns. The problem is in bigger towns, and especially among the middle-class.
Sometimes sentiments are triggered by some Bumiputera middle-class intellectuals who feel strongly and speak openly on the fact that other races cannot question their rights.
This is not necessary and everything can be explained and clearly understood in a more conducive and less tense situation. In fact, other races strongly respect Bumiputera rights.
At the end of the day, we should all move towards working hand in hand.
With a ruling party like the Barisan Nasional, multiracialism should form the cornerstone of our strength and no one race should belittle or look down on the other.
Q: What is the aim of the National Unity and Integration Action Plan?
A: The thrust of the plan is to co-ordinate the responsibilities of all ministries and government agencies concerned.
With the plan, we hope to inculcate unity and get all people to celebrate diversity.
Q: How will the RM100 million allocated under the Ninth Malaysia Plan be used to strengthen national unity and racial integration?
A: The money will be used for infrastructure development. We need money to build community halls, meeting areas and other facilities where people can meet and interact.
More and more people are living in flats these days where, with no meeting rooms and playgrounds, there are few opportunities for interaction.
We have raised this with the local governments and have asked them to ensure all flats and high density areas have facilities for people to mingle and organise activities.
In countries like Singapore, the ground floor is for residents to hold activities.
Our government is also going to make it compulsory for open spaces and community halls in housing areas.
We need the money to organise sufficient programmes to prevent repeats of the Kampung Medan incident. We need to spend to increase the buffer of tolerance.
Q: Was there any follow-up on the proposals submitted by the Young Lawyers Committee?
A: I have submitted the proposal to the National Unity panel that will meet next month to study it. There are some bright ideas from this group of young, bright professionals.
The proposal includes, among others, visible multiculturism in the civil service and private sector.
They (Young Lawyers’ Committee) are also doing a survey on hindrances to national unity.
Q: What has been done to ease tension in certain hotspots, such as Kampung Medan?
A: There is a high level of crime, drug abuse, unemployment and congestion in these hotspots. All these elements create tension.
Under such conditions, the smallest incident can cause tempers to flare.
And when this happens, people tend to take matters into their own hands.
Worse, there is a high concentration of illegal immigrants living in these areas.
Many of these illegals look like Malaysians and sometimes when they misbehave, we think it is actually the work of one of our people.
One way to defuse the situation would be to set up more Rukun Tetangga beat bases in these hotspots.
There are 230 such hotspots nationwide, mainly in Selangor, Penang and Johor.
We are also working closely with the police for more RakanCop projects in these areas.
There are plans for more dialogue sessions to give residents in these areas a suitable avenue to speak out.
The Youth and Sports Ministry is also organising more events for the youth in these areas.
Sometimes, there is not much for these youths to do and when their minds are idle, all kinds of negative thoughts come to them.
Q: What are the efforts to enhance racial harmony among schoolchildren?
A: The National Unity panel will focus on racial polarisation in all public and private institutes of higher learning. We will also focus on all national schools to ensure students begin mingling at an early age.
Our aim is to make national schools more multiracial and have more teachers of various races. We want to get rid of the perception that preference is given to Malays.
The problem is some teachers on their own are exuberant and because of this, we label the whole school.
If parents feel their children are not being treated fairly, they should use all available avenues to voice their grievances. We have so many avenues, including Suhakam.
In fact, the Students Integration Plan for Unity (Rimup) will go into full gear in July under the leadership of Education Minister Datuk Seri Hishammuddin Hussein.
This plan will ensure students from both national and vernacular schools share common activities and mingle at an early age.
Another integration programme called E-Integrasi was introduced in Penang recently where students use an e-module to learn the background and cultures of each other.
Q: There have been allegations that enforcement agencies, like the police, have been unfair to certain races.
A: We have not received any such complaints. If anyone feels they have been treated as such, please contact us, email us.
Q: What about the use of certain words that may upset certain races?
A: Well, that all depends on what the word is. My panel has raised this matter before and certain words deemed derogatory by the Indians have been removed.
If anyone feels any word is upsetting to their race, we will act on it.
Even in parliament, we find that some of our MPs have used certain words, though in a joking manner, which have upset other races. This must stop.
Q: What about certain ongoing issues which are race-sensitive?
A: (For instance) when one wants to leave Islam, it raises a lot of questions. This is a new experience to us.
In a way, it is good that such cases have come up for sooner or later, we will have to deal with them.
If the outcome of a case causes dissatisfaction and unhappiness among certain communities, then the government will definitely look into the matter.
If certain laws are outdated, unclear or unfair, we will clarify them and make the necessary changes to ensure they do not affect race relations.
Such cases will increase consciousness and we must resolve them on a case-by- case basis.
Q: What do you think about the recent footage on apostasy on Al Jazeera?
A: The courts must play their role. If there are no laws on certain issues, then it is the government’s duty to enact them.
I feel the judiciary has acted fairly. Issues of apostasy are sensitive to all, especially Muslims.
Before one converts to Islam, he must have sufficient understanding with the authorities. This will ensure he fully understands the nature of his conversion.
The prospective convert must be fully educated and this should be open and transparent. The convert must be fully aware of his responsibilities so that there are no future problems.
This issue of apostasy must be resolved by the relevant agencies.
People must never use religion to achieve certain goals, for example, to claim rights to their children.
I don’t think the Muslim community is happy with this as it is a clear abuse of religion.
National Service is one initiative by the government that enhances racial integration.
What is needed now is a post-National Service programme to ensure the lessons learnt during National Service are not forgotten.
Respecting the Constitution
May 3rd, 2007Respecting the Constitution
http://thestar.com.my/news/story.asp?file=/2007/5/3/focus/17612391&sec=focus
Reflecting on the Law: By SHAD SALEEM FARUQI .
Freedom of religion is not absolute, but subject to general laws relating to public order, public health or morality. Part 2 of a two-part article.
THE right to convert out of one’s faith and to adopt another is an implicit part of freedom of conscience in all developed constitutional states.
But in the special context of Malaysia, where there is a unique, fascinating link between Islam and Malay identity, apostasy arouses deep emotions. Any attempt by a Muslim to renounce his faith is seen as a threat to the whole community.
How many murtad (apostates) there are in the country is not known. Some religious leaders have made wild allegations of hundreds of thousands.
But data gathered by UiTM scholar Dr Azam Adil gives some indication. He found that from1994 to 2003, Syariah Courts in Negri Sembilan granted renunciation certificates to 16 applicants, most of whom were former converts to Islam.
Till the 1980s Muslim Law Enactments in several states recognised apostasy by imposing a simple registration requirement on all who enter the faith and all who exit from it. But in the 80s with Islamisation catching on, the unilateral right to register a renunciation was repealed.
In some states, legislation was enacted to require anyone seeking to convert out of Islam to be subjected to compulsory counselling and rehabilitation procedures for prescribed durations.
In other states, a Muslim’s membership of the ummah was regarded as irrevocable. Any attempt at apostasy was an insult to Islam and punished criminally.
The second approach does not harmonise with other rules of the legal system..
First, in all states, the syariah authorities possess a power to excommunicate Muslims from the fold. From time to time, state religious authorities have brought down the axe on the Qadiyani, the Ismaili, the Ahmadiya and the Ithna Ashari.
Obviously, one’s status as a Muslim is not eternal. It can be lost or forfeited.
Second, the criminalisation approach violates the freedom of conscience clause in the Constitution. The civil courts are near unanimous that under our basic charter, a Muslim does have a right to convert. But he cannot do it unilaterally. He must first obtain a Syariah Court certificate of renunciation.
The problem is that most syariah courts fail to act on such applications and would-be converts spend years in legal limbo.
A wide gap has developed between constitutional theory and the realities on the ground. Nevertheless, one must not lose sight of constitutional fundamentals.
When our document of destiny was being drafted, no consideration was given to the idea of a theocracy (supremacy of God’s law). Instead, a supreme Constitution was adopted by Article 4(1).
Islam is the religion of the Federation, but other religions may be practised in peace and harmony (Article 3(1)).
The implication of Article 3 is that unlike in secular states, Federal and State governments in Malaysia may promote Islamic education, set up Islamic institutions and incorporate Islamic policies in the administration.
However, though Islam is the religion of the Federation, Malaysia is not an Islamic state. The syariah is not the basic law of the land. The Constitution is supreme. The syariah applies only to Muslims and that, too, in areas demarcated by the Constitution in Schedule 9, List II, Item 1.
Further, Article 3 (on Islam) does not extinguish any thing else in the Constitution. Article 3(4) provides that “Nothing in this Article derogates from any other provision of this Constitution”. This means that Article 3 cannot be employed to challenge the validity of a drug trafficking law on the ground that some of its provisions were un-Islamic (Che Omar Che Soh (1988)).
Nor can Article 3 be relied on to trump any other constitutional provision – whether on fundamental rights or the system of parliamentary government or Malay privileges or the position of the Sultans or the special rights of the people of Sabah and Sarawak.
The Constitution is its own justification for being and does not need validation from any other source.
According to Article 11(1) “Every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.” The guarantee of Article 11(1) applies to all persons including Muslims.
In Minister vs Jamaluddin Othman (1989), a preventive detention order on the ground that a convert out of Islam was involved in propagating Christianity among Muslims was held to be illegal.
Freedom of religion is, of course, not absolute. All religious freedom is subject to general laws relating to “public order, public health or morality” (Article 11(5)).
Who may enact these laws? Laws on public order and public health must be enacted by the Federal Parliament because these topics are in the Federal List. But laws on morality may be enacted by State Assemblies as well.
What about State laws criminalising apostasy? They are not protected by Article 11(5) because apostasy per se is not condemned anywhere in the Constitution.
Perhaps Schedule 9 List II Item 1 could envelope these aqida (articles of faith) laws? This Schedule permits State Assemblies to create and punish “offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List ?”
In relation to State powers under Schedule 9 the following factors must be taken note of:
·The Legislative Lists in Schedule 9 are subject to the chapter on fundamental rights and cannot violate Article 11;
·State powers to legislate on Islam are limited and derived and cannot violate the supreme Constitution. One must remember that Article 3(4) clearly indicates that the provision on Islam does not derogate from any other provision of the Constitution;
·The criminal law power of the states applies against persons professing the religion of Islam. If a person of sane mind and legal capacity formally declares that he no longer professes a faith, it is constitutionally difficult to subject him to the religion he has renounced. All that can be required is a formal procedural requirement of renunciation; and
·The power of the states to enact criminal laws cannot apply to matters included in the Federal List. Public order is in the Federal List and acts of belligerency by murtad must be punished under the Federal Penal Code and not under State aqida laws.
In sum, it can be stated that, looking at the Constitution as a whole, it is clear that Article 3(1) on Islam does not displace constitutional supremacy. Article 3(4) itself declares that nothing in this Article derogates from anything in this Constitution.
The power of the States to legislate on Islam in Schedule 9 cannot be exercised in disregard of fundamental rights or in transgression of Federal legislative power on public order.
It is a flagrant violation of the Constitution as drafted in 1957 to imprison someone for his religious belief. Any argument to the contrary is a radical, revisionist and medieval re-interpretation of our cherished basic charter.
Anyone who stands in the shade of the Constitution has to concede that under the present constitutional order apostasy per se cannot be criminalised. But prosecution of belligerent apostates who disturb the peace or cause offence under section 298 of the Penal Code is perfectly constitutional.
In the special circumstances of Malaysia, apostasy has significant legal, political, social and economic consequences. A Muslim apostate will lose his Malay status. His marriage will be dissolved. Painful questions of custody and guardianship and of Malay privileges will arise.
It is reasonable, therefore, that a unilateral act of renunciation is not enough. A formal application for change of status must be made followed by a mandatory procedure for investigation, counselling and consultation (but not adjudication).
There should be no detention for purpose of counselling. This is similar to the procedure for seeking dissolution of marriage.
But the syariah authorities must be required to complete the investigation and counselling within statutory time frames so that the applicant can get on with his life and not remain suspended in a legal limbo. If the intending apostate cannot be won over through love, then the apostate should be ex-communicated and this should be recorded and registered.
In matters of religion, the naked, criminal power of the state should not be employed. This is also the exquisite message of the Quran.
Dr Shad Faruqi is Professor of Law at UiTM.
Delivering the judgment to a packed gallery this morning in Putrajaya, Chief Justice Ahmad Fairuz Sheikh Abdul Halim ruled that jurisdiction remains with the Syariah court.