Thursday, June 28, 2007

Lina Joy

An interesting article that is purportedly written by a Muslim law student in the University of Malaya.
What a refreshing and perceptive view, whatever the origins of the author, whatever the actual legalities behind the circumstances!

A Muslim View on Lina Joy's Case

Azmi Sharom, Faculty of Law,
U.M Jun 4, 07 3:34pm

This letter is a reaction to the decision of the Federal Court in the Lina Joy case. Taking heed of the prime minister's concerns, I have two unemotional points to make. Firstly the Federal Constitution should guarantee the rights of all Malaysians to choose their religion. Secondly, 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 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 unacceptable 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.

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 can not 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.

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 worldly punishment for apostasy. Therefore this entire issue is the result of human interpretation of the Koran. It is thus surely open for debate.

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. 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. 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.

1 comment:

Gerald said...

Dr.Chris Anthony is absolutely correct,there is no place for force in the exercise of religious beliefs or faith thus no place in this modern age of Jihad or Holy War of the Koran or the Bible or the Talmud or whatever Religious Book ! The Malaysian Constitution sustain the Freedom of Worship as obtained also in the US Bill of Rights on the First Article of the Separation of Church and State,the state or nation cannot interfere with the Freedom to Worship unless it conflicts with the Crminal Law or where Force is use to convert people,thus even the Federal Judges or any Institutions cannot force any defectors from any religion to recant or accept punishments from their former religion like Islam or Catholic or whatever. Therefore the Malaysian Federal Supreme Court is wrong to force Lina Joy to do anything she doesn't want to do its an individaul free will to exercise the choice of religious beliefs! What crime has she committed by leaving Islam ?

Gerald Heng/Boston/MA/USA
LLB[London,UK] Doctor of Jurisprudence ABA ATLA member
Peguam Chara dan Bela

Teacher's Day 2017

  You made the difference To all our teachers Wherever you may be, existing and departed. Thank you to each and everyone...