Respecting 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 But in the 80s with Islamisation catching on, the unilateral right to register a renunciation was repealed.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.