08 May, 2008

Syariah court allows convert to return to Buddhism

Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.

That’s what Article 11(1) guarantees all of us.

Including Tan Ean Hung.

In January 2006, in an interview by theSun, I was asked : There have been some calls for non-Muslims to seek redress through the syariah courts since Kaliammal’s case. Is this one way to resolve the issue?

My reply :

This call read in conjunction with the submission by the senior federal counsel in Moorthy’s case that even if the widow was left without a remedy, the civil court must refrain from entering upon the dispute as it lacked jurisdiction, is firstly, in my view, untenable in law and secondly and more importantly, a very dangerous suggestion which must be resisted at all costs.

It is legally untenable for non-Muslims to seek redress through the syariah courts because the 9th Schedule of the Federal Constitution confines the jurisdiction of the syariah courts to ‘only over persons professing the religion of Islam’. This jurisdiction cannot be enlarged by submission.

It is also very dangerous because non-Muslim litigants confronted with issues as in the Moorthy case may, out of frustration with the self-inflicted impotence of the civil courts, go to the syariah court for relief. The syariah court may give the relief sought in some cases, and may refuse in others. It is unlikely that jurisdiction is going to be challenged. Any orders obtained in the syariah court, if challenged in the civil court, will probably meet the same fate as in Moorthy’s.

In time, it will be argued that by the doctrine of custom and usage, as Prof De Smith puts it ‘the ultimate grundnorm’ has shifted.

[Editor's note: 'Grundnorm' is a German word that means 'fundamental norm', and is used to denote the fundamental order that forms a legal system's underlying basis].

The push to make this an Islamic state may [then] have been achieved.

My views remain unchanged.

- Haris Ibrahim.

A Malaysian court has accepted the request of a woman convert to Islam to return to Buddhism, her original religion. The sentence is the first of its kind in recent months, which has seen progressive closure on the part of judges regarding cases of citizens who want to leave Islam, the nation’s majority religion. The case was reported by Ahmad Munawir Abdul Aziz, lawyer for the Council of Islamic Affairs for Penang state.

According to the lawyer, the tribunal granted permission to Siti Fatimah Abdullah to re-embrace Buddhism, which she had left in 1998 in order to marry a Muslim of Iranian origins.

A rising number of disputes about religious conversions has sparked anxiety among minorities — predominantly Buddhist, Christian and Hindu — because in the past courts virtually always ruled against people seeking to leave Islam.

"I am very happy," Tan, a 39-year-old ethnic Chinese cake seller, said. "I want to go to the temple to pray and give thanks."

Malaysia's dual court system with civil courts for non-Muslims and syariah courts for Muslims. In interfaith disputes involving Islam, the syariah courts typically get the last word, which has upset non-Muslims who fear they cannot get justice in such courts.

Court disputes that ended in favour of Muslims have caused minorities to worry that their rights have become subordinate to those of ethnic Malay Muslims, who make up nearly 60 per cent of Malaysia's 27 million people.

Political observers say religious grievances contributed to the governing coalition's poor performance in the March general election, in which the coalition lost its two-thirds majority in Parliament.

Khalid Abdul Samad, the PAS MP who sparked a controversy earlier this year when he entered a Catholic church in Shah Alam, offered a very different view, however.

As I understand the issue, how I believe it should be, the question of faith or religion is not enforceable by the religion. You cannot force a person to be Muslim or non-Muslim by faith.

“The laws that have been created or enforced are more aimed at preventing people who have actually lost faith in Islam and declaring murtad. It's a law which prevents a person from declaring murtad whether he's left the faith or otherwise,” opined Khalid, who cautioned that his views were his own and not yet reflective of his party's stance.

“I do not believe it (apostasy) is something that can be prevented by law. Firstly, it is a question of faith. Secondly, it doesn't give a good meaning of Islam. Thirdly, it keeps people who are seen to be Muslims, declared to be Muslims but are not in the fold of Islam. For these 3 reasons, that's why I don't see the value of the law,” he continued.

Khalid clarified that the great Islamic apostasy debate that is still going on today is because of historical origins. In the days of the caliphs, politics and religion were intrinsic. Professing one's allegiance to Islam was synonymous with professing one's loyalty to the caliphs, and by default, leaving the religion was perceived as treason against the ruler.

Today's political and religious climate, however, has changed tremendously. For Khalid, faith is a very private, individual affair.

“Let Islam flourish in an unbridled manner. ... When Islam is reduced to set rituals, there is no meaning anymore ... Muslims lose out; they can't see the relevance of religion in worldly life. This leads to disenchantment and a loss of faith and putting up with laws that are helping ... to create mediocre Muslims.

“I myself, when I hear this, I am saddened by it but it is a question of faith. The solution to this lies in a sincere effort by Umno and the BN to release Islam from its current imprisoned status. ...

“Personally, as far as the lady (Siti Fatimah Tan Abdullah née Tan Ean Hung) is concerned, whether she is Muslim or not, the fact remains she did not practise Islam and has reverted to Buddhism. The best course would have been to advise her about the teachings of Islam, but if she insists (that she doesn't want to be one) then allow her to leave. To convince her not by force but by example in the hope that one day she'll join (Islam) again,” he said.

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