RELIGION-MALAYSIA: No Freedom of Worship for Muslims Says Court

By Baradan Kuppusamy Reprint | | Print |

Baradan Kuppusamy

KUALA LUMPUR, May 31 2007 (IPS) - The stunning decision by Malaysia’s highest secular court this week that freedom of worship, a constitutional guarantee, does not apply to Malay Muslims is a major blow to freedom and constitutional democracy, lawyers and human rights activists say.

The stunning decision by Malaysia’s highest secular court this week that freedom of worship, a constitutional guarantee, does not apply to Malay Muslims is a major blow to freedom and constitutional democracy, lawyers and human rights activists say.

The Federal Court also reaffirmed that the civil court had no jurisdiction over any Islamic matters, even when non-Muslims are involved.

Wednesday’s verdict does not end the Muslim, non-Muslim divide, but may cause it to worsen as the tussle for primacy between inherited secular guarantees and a resurgent Islam demanding pre-eminence for Shariah laws continues, said observers.

Non-Muslim leaders – both political and religious – reacted with shock and disbelief after the apex court ruled in a majority 2-1 decision that a Muslim cannot rely on Article 11 that guarantees freedom of worship to leave Islam but must go to a Shariah court to get a certificate to turn apostate.

Ironically, Shariah law does not permit Muslims to become apostate but instead prescribes punishment with fines, forced rehabilitation or jail term.

The ruling, which is binding on all lower civil courts, will affect at least a dozen cases of apostasy pending in civil courts, mainly involving Muslim converts who want to return to their former religions.

It will also impact negatively on many cases where non-Muslims are fighting for justice such as custody of children, sharing of matrimonial wealth, maintenance and dissolution of civil marriage – after one partner converts to Islam and relies on Shariah law to settle contentious issues.

“The judgment does not end the Muslim, non-Muslim divide but has instead widened it by introducing Islamic principles into secular, constitutional matters,” opposition leader Lim Kit Siang in an IPS interview.

“A political solution is urgently needed to resolve this potentially dangerous disquiet,” he told IPS. ‘’It is necessary for the government to take immediate steps to promote and protect the supremacy of the constitution,” Lim said.

Sisters in Islam, a prominent rights group for Muslim women, said it was disappointed the constitution had not been upheld. “For us, the dissenting judgment is significant,” said Zainah Anwar, executive director. “The Federal Court, the apex court of the country, is divided over this issue, as the country is divided on it.”

‘’There is a strong dissenting judgmentàthis issue is not over yet,” said Malik Imtiaz Sarvar who handled several apostasy and other related cases in court.

‘’This decision reflects a growing trend of decisions in the courts where civil courts are abdicating their responsibility of providing legal redress to individuals who only seek to profess and live their religion according to their conscience,” said Bishop Paul Tan of the Christian Federation of Malaysia.

‘’It is pressing for the government and lawmakers to revisit the relevant legislation and to reinstate the jurisdiction of the civil courts so that equal protection of the right to choose and express one’s religion is accorded to all Malaysians, as enshrined in Article 11,” he said in a statement.

The ruling threatens to polarise an already polarised society with non-Muslims seeing the verdict as a confirmation that “creeping Islam” is eating into constitutional guarantees to religious freedom.

Muslims however see the verdict as a victory and final confirmation that Shariah is superior to secular laws that are based on English common law foundation.

Yusri Mohamad, the head of a coalition of about 80 Muslim NGOs called Pembela (Protector) that strongly campaigned for supremacy of Shariah, said justice had been served by the verdict. “The verdict is just and a relief to all Malaysians, Muslims and non-Muslims,” Yusri told about 300 Muslims gathered outside the court. “It should not be perceived as a victory for Muslims and a loss to non-Muslims,” he said.

The verdict centred on a Malay woman, Azlina Jailani, 43, born a Muslim, who converted to Christianity in 1989 and changed her name to Lina Joy. She fell in love with an Indian Christian cook and wanted to marry in a civil ceremony and raise a family of her own.

But Joy’s national identity card referred to her as a Muslim although she had embraced Christianity. She fought the Islamic authorities and the national registration department for nine years to change her religious identity officially and move on.

Joy’s struggle became a test case for religious freedom in Malaysia with Muslims and non-Muslims rallying to her cause, especially her right to freedom of worship.

“There was widespread hope that the Federal Court would stand firm and uphold the constitution especially Article 11, but that is not the case,” said a prominent human rights activist who did not want to be identified fearing persecution. “It is a sad day for freedom and judicial independence,” she said.

Chief Justice Ahmad Fairuz Abdul Halim, who delivered the main judgment, held that Muslims cannot join or leave a religion according to their “whims and fancies.”

Muslims, he said, ‘’have to follow the requirements of their religion which is a complete religionàa way of life.”

Joy, who is believed to be in hiding, through her lawyer Benjamin Dawson expressed deep dissatisfaction at the verdict.

“I am disappointed that the Federal Court is not able to vindicate a simple but important fundamental right that exists for all persons; namely, the right to believe in the religion of one’s choice and equally important, the right to marry a person of one’s choice and to raise a family,” she said.

“The Court has not only denied me that right but to all Malaysians who value fundamental freedoms,” she said. “It is extremely difficult to exercise freedom of conscience here now.”

“Freedom of religion here is an illusion,” said Leonard Teoh, a lawyer for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism which also campaigned to protect Article 11.

Lawyers feel that outside of a political solution, there is little else that activists can do after the court ruling. “A political solution has to come from the office of Prime Minister Abdullah Badawiàhe has to lead the way to protect the constitution and the rule of law,” said Lim Guan Eng, secretary general of the Democratic Action party, the biggest opposition party in parliament.

“When the courts have failed, parliament has to step in and make legislative changes to clarify issues and uphold secular rights which are the basis for a legal and modern society,” Lim told IPS.

But Badawi’s ruling National Front government has a stranglehold on parliament controlling 90 percent of the 217 seats – a massive majority that can steamroll any opposition.

“Ultimately the solution is in the hands of the voters,” Lim said. “Whether they speak up or remain silent.”