Report On The State Of Religious Liberty In Malaysia
For The Year 2007 Continued from Part 1
Under the Mahathir administration in the early 80s, the political objective of establishing an Islamic State demanded by certain quarters and the Islamist party PAS was countered by the assimilation of Islamic values policy. The policy promoted as the inculcation of universal values25 was unsurprisingly not objectionable. It however became the platform for various quarters to drive an Islamisation policy and initiative, aiming to institutionalise Islam, its system of government, its laws and its structures with attendant marginalisation and alienation of non-Muslims.
The Pak Lah administration sought to introduce his vision of a nation governed by the principles of Islam Hadhari26. He declared that the doors of ijtihad must remain open and that there should be dynamic interpretation well suited to the context and developmental needs of today. He also called for the recognition of the need to change mindset among the Ummah, at the same time assuring the people that the implementation and approach would not cause anxiety among any groups in the context of our multiracial and multi-religious country. Notwithstanding this, Islamisation initiatives, policies and practices along orthodox lines continue unabated and are perceived to have heightened and to be virtually untrammelled.
25 identified as: trust, responsibility, honesty, dedication, moderation, diligence, discipline, cooperation, honourable behaviour and thanksgiving
26 This can be roughly translated as “civilisational Islam”.
3.1 Enforcement Of Islamic Moral Code
3.1.1 In June, two restaurants in the affluent Bangsar were visited by the officers from the Department of Islamic Development (Jakim), Kuala Lumpur City Hall (DBKL) and the Domestic Trade and Industry Ministry. Pictures of Mecca, Quranic verses and Hindu deities were confiscated from Aiswaria, a Muslim restaurant, and Seetharam, a Hindu restaurant. The notice issued to Aiswaria stated that it did not have the Jakim halal certificate and Muslim workers. Both restaurant owners were outraged and found such actions ridiculous.
3.1.2. In July, Chinese dailies reported that all female students in Universiti Utara Malaysia (UUM), including non-Malays, were compelled to wear baju kurung (Malay traditional female costume). However, the UUM deputy vice chancellor, Assoc Prof Dr Ahmad Faiz Hamid, denied the allegation, saying that there was no such ruling on dress code and that it was merely a misunderstanding arising from the posters released by the university.
3.1.3. In the same month, a 24-year-old Malay club singer and four band members in Ipoh was detained by the Perak Religious Department (JAIP). Siti Noor Idayu Abd Moin was also charged for “revealing her body” and “promoting vice” under the Perak Syariah Penal Code. She was wearing sleeveless top and long pants when JAIP raided the entertainment outlet. The officers were reported to be rude and accusatory. JAIP later dropped the case against Siti and band members.
3.1.4. In September, a member from the Islamist party PAS rebuked the Subang Jaya Municipal Council for banning circus show during the month of Ramaddan, denying non-Muslims the right to watch performance. The Council ordered all entertainment activities to cease during the fasting month. The action had apparently irked the circus operators who incurred a loss in revenue and inconvenienced people who had purchased tickets in advance. PAS secretary-general Datuk Kamaruddin Jaafar suggested that circus shows be allowed but restricted to non-Muslim audience. Although circus performance was not an immoral entertainment, Muslims must give priority to religious activities during Ramadan, he said. He also chided the Council for imposing a ban on the circus while allowing entertainment outlets such as karaoke lounges, pubs, night clubs and video arcades to stay open.
3.1.5. In October, parents of several non-Muslim students from SMK Datuk Setia Raja in Rembau, Negeri Sembilan, were upset with the school’s decision compelling students to wear baju kurung, baju melayu and songkok in certificate presentation ceremony. They submitted a memorandum to the Negeri Sembilan Education Department which subsequently denied that such order was ever issued.
3.2. Interfaith Conference
In May, the Government banned an interfaith conference due to be chaired by the Archbishop of Canterbury, Dr Rowan Williams. It was called off with just a two-week notice. The Building Bridges Conference, the sixth in a series, was intended to foster dialogue between the Christians and Muslims. It was set up in the wake of September 11 and meant to be an annual get-together of Christian and Muslim academics in an attempt to find theological understandings that might help prevent future terrorist attacks. The government however allowed Dr Williams into the country to preach at the consecration of a new Anglican bishop.
Former deputy prime minister Anwar Ibrahim called the act of banning the conference “a disservice to Islam,” a blow to the country’s reputation for religious tolerance. Prime Minister Dato’ Seri Abdullah Ahmad Badawi later clarified that the seminar was not cancelled but postponed and that the government would find another suitable date. Many however were perplexed as the seminar was not a government function but private and its approval was not necessary.
3.3. Islamic Values Used As Benchmark
Mounting pressure for a clean and transparent election led the Election Commission to propose a special indelible ink to be used on election day to prevent cheating. In August, the National Fatwa Council gave its approval after finding that the ink contained no elements that would affect Muslims performing their religious duties.
3.4. Islamic State
3.4.1. On 12 March, PAS president Datuk Seri Abdul Hadi Awang reportedly said that the non-Malays had no reason to reject the concept of an Islamic state since they accepted capitalism, socialism and other Western ideologies. Speaking to reporters after a four-hour close-door meeting on “strategies for the next general election”, he said the party would continue to uphold the Federal Constitution despite pushing for an Islamic state. He added that while Islam could be used for politics, one could not be forced to convert to Islam. “Ask any non-Malay living in Kelantan and Terengganu if he has ever been victimised by Muslims while under the PAS rule,” he challenged. He blamed the media for sending the wrong message to non-Malays.
3.4.2. On 3 June, at the PAS assembly, it was reported that PAS wanted the Syariah enactments amended to make apostasy a crime in the Federal Territories. Among the five resolutions passed was the imposition of heavier penalties to deter Muslims from renouncing their faith. Dewan Pemuda delegate Abdullah Karim, who tabled the resolution, said that action should be taken immediately as the Federal Court’s decision on the Lina Joy case had made it clear that apostasy was the sole purview of the Syariah court.
3.4.3. In July, Deputy Prime Minister Datuk Seri Najib Razak said that Malaysia had never been a secular state but an Islamic state that protected the rights of the ethnic minorities. His remark drew reactions and protests from various quarters. The storm led the government to ban mainstream media from reporting on whether the country was an Islamic state. To further pacify the critics, the Prime Minister was forced to make a stand. On 4 August, he said that Malaysia was neither a secular state nor a theocratic state but a country that practised parliamentary democracy.
However, responding to a question raised on social contract at the Dewan Rakyat on 27 August, Abdullah in his written reply said that “Malaysia is not a secular or theocratic nation. It is an Islamic nation/state (Negara Islam), governed by Islamic tenets but adhering closely to democratic principles in line with the highest laws of the land, the Federal Constitution… This unique formula has been successfully tested and I do not see why such a government cannot continue to rule… I reject all claims that our method of governing is in conflict with the social contract agreed to by our past leaders.” His statement was made in Bahasa Malaysia.
As in previous years, the one under review saw further curbs on fundamental religious liberty. In many respects, however, 2007 saw a culmination of the tightening regime with the Federal Court’s landmark cases such as Lina Joy and Subashini. These effectively abrogated the constitutional responsibility of the civil courts to hear and decide on the petitions of former converts and believers. For these people, and those closely associated to them such as spouses and children, they have no means of legal redress except from the courts of the religion that they are seeking to leave. Meanwhile, religious authorities continue the practice of incarcerating would-be apostates and snatching the bodies of deceased converts (or alleged converts) from their loved ones. These acts have done more to cause public discontent and stir up negative perceptions about the religion than any speech or writing that can be deemed seditious. State governments, for reasons best known to them, continue to demolish places of worship, while federal government agencies pursue a course of confiscating religious literature and prohibiting the use of certain words in religious publications.
It is clear that that there is a great deal of dissatisfaction with the state of religious liberty in this country; the authorities however do not want to be seen as being responsive to discontent as this would be seen as caving in to ethnic minorities. This is as tragic as it is unfortunate. Religious liberty is a fundamental right granted by the Federal Constitution to all Malaysians and not a bargaining chip or a gift of political largesse. Given the dour reluctance to engage in any kind of meaningful discourse and given what can only be interpreted as stonewalling to rectify the consistent and systematic infringements of this right, it would seem that all right-thinking Malaysians have no avenues of recourse but to take their protests to the polling booths. If this occurs to any significant extent, the ruling coalition, which has traditionally prided itself on accommodating the widest possible interests, will be seen to be a myth and there will be no one to blame but itself.
Appendix A – The Subashini Case
On 13 March, the Court of Appeal dismissed Subashini’s appeal against the High Court’s decision to set aside the interim injunction granted to her in 2006. The injunction intended to stop her Muslim-convert husband Saravanan from converting their children to Islam and to forbid him from commencing or continuing with the proceedings in the Syariah Court, with respect to dissolution of their civil marriage and custody of children.
In a 2-1 majority decision, Justices Suriyadi Halim Omar and Hasan Lah dismissed Subashini’s appeal while Justice Gopal Sri Ram dissented.
Justice Hasan, in his written judgement, said Subashini could seek recourse at the Syariah court rather than asking the civil court to review the Syariah court’s decision. He held that Subashini could have applied to the Syariah Appeal Court to exercise its supervisory and revisionary powers to make a ruling on the legality of her husband’s application and the interim order. She could do so on the grounds that the Syariah court had no jurisdiction over the matter as she is not a person professing the religion of Islam. Justice Hasan added that the Registrar of Muallafs had determined the date of Saravanan’s conversion. It was not for the civil court to question such decision but to accept it.
Justice Suriyadi, in his judgement, held that Saravanan’s application for dissolution of marriage at the Syariah court was purely administrative in nature. Subashini’s objection merely on the grounds that the Syariah court was constitutionally set up only for Muslims made no sense. “To grant an injunction based on this flimsy ground would certainly be an abuse of the costly process of court”. Since the Syariah court had granted Saravanan an interim custody order of the eldest son, an application to review or appeal against such order must be done through the same court. Justice Suriyadi was of the view that Subashini faced an uphill battle in her attempts to stop Saravanan from exercising his constitutional rights of choosing the Syariah court over the civil court.
“By so wanting the civil court to deal with her problems, [Subashini] had attempted to convince us that a civil court has the jurisdiction and knowledge to deal with her matter, even though imbued and intertwined with thick strands of Islamic elements. In short [Subashini] wanted the civil court to arrogate the function and duties of the Syariah court, regardless of [Saravanan’s] right of choice, let alone he already had made his decision.”
Justice Gopal Sri Ram in his dissenting judgement said for a true interpretation of the Constitution, a Syariah court, whether in a state or in a Federal Territory, only has jurisdiction as may be conferred upon it by State or Federal law. Section 46(2)(b)(i) of the Administration of Islamic Law (Federal Territories) Act 1993 confers jurisdiction on a Syariah High Court in civil matters only where all the parties are Muslims. “Any other interpretation would, in my respectful view, produce a manifest absurdity and visit an injustice upon non-Muslim spouses,” he said.
On 27 December, the Federal Court three-member panel in a 2-1 decision ruled against Subashini’s appeal on legal technicality – that her divorce petition was prematurely filed under the Law Reform (Marriage and Divorce) Act 1976 (LRA) and therefore deemed null and void. According to the LRA, Subashini could only file for divorce three months after the date of Saravanan’s conversion to Islam. Justice Nik Hashim and Azmel Maamore found that Subashini’s divorce petition, was filed two months and 18 days after the husband’s conversion to Islam, that was, short of the required three months. However, the three Federal Court judges unanimously agree that those who contracted civil marriages are bound by the LRA in respect of divorce and custody of the children of the marriage. Hence, the civil court continues to have jurisdiction over Saravanan, notwithstanding his conversion to Islam.
Justice Nik Hashim was of the view that by embracing Islam, Saravanan and his eldest son were subject to Muslim personal and religious laws. Hence, it was not an abuse of process for Saravanan to seek remedies in the Syariah High Court. Anyway, the dissolution order of the civil marriage by the Syariah High Court by virtue of conversion would “have no legal effect in the civil High Court other than as evidence of the fact of the dissolution of the marriage under the Islamic law in accordance with Hukum Syarak.” This is because the Syariah court only has jurisdiction over persons professing Islam. The Federal Court also interpreted Article 12(4) of the Federal Constitution as to mean that the religion of a person under the age of 18 years shall be decided by a single parent. It follows that either spouse has the right to convert a child of marriage to Islam and either party cannot refrain the other from doing so.
Appendix B – The Lina Joy Case
On 30 May, Lina Joy lost her final round of appeal when the Federal Court dismissed her appeal against a ruling that the National Registration Department was right not to allow her to remove the word “Islam” from her identity card. Chief Justice Ahmad Fairuz Sheikh Abdul Halim and Federal Court judge Justice Alauddin Mohd Sheriff delivered the majority decision dismissing her appeal. Chief Judge of Sabah and Sarawak Justice Richard Malanjum dissented.
Ahmad Fairuz held that renunciation of Islam was a matter of Islamic law and therefore the National Registration Department (NRD) adopted the policy of requiring the determination of some Islamic religious authority before it could act to remove the word “Islam” from a Muslim’s identity card. He was of the view that the Syariah court, which has been expressly conferred with jurisdiction to adjudicate on matters relating to conversion to Islam, should be necessarily implied as also having jurisdiction to adjudicate on matters concerning conversion out of Islam (apostasy). He further stated that a person professing and practising Islam should follow Islamic law which prescribes the mode of conversion and renunciation of Islam. He also opined that Article 11 could not be interpreted as being so wide as to invalidate all laws that require a Muslim to conduct his or her Islamic religious responsibilities or prohibit him or her from engaging in matters prohibited by Islam. This was because the position of Islam in the Federal Constitution was different from the positions of other religions.
On the other hand, Justice Richard Malanjum said that apostasy involves complex questions of constitutional importance especially when some states in Malaysia have enacted legislations to criminalise it. The question of fundamental rights is a constitutional issue and therefore it is of critical importance that the civil superior courts should not decline jurisdiction by merely citing Article 121 (1A). Legislations criminalising apostasy or limiting the scope of the provisions of the fundamental liberties as enshrined in the Constitution are constitutional issues in nature and only the civil courts have the jurisdiction to determine. In addition, he was of the view that the doctrine of implied powers must be limited to those matters that are incidental to a power already conferred or matters that are necessary for the performance of a legal grant. In the matters of fundamental rights, there must be as far as possible an express authorisation for curtailment or violation of fundamental freedoms. No court or authority should be easily allowed to have implied powers to curtail rights constitutionally granted.
On 19 September 2005, the Court of Appeal decided that the NRD director-general was right in refusing Lina Joy’s application to drop her religious status from her IC on the grounds that the Syariah Court and other Islamic religious authorities did not confirm her renunciation of Islam.
Appendix C – The Dilemma of 10 Siblings
On 24 February, The Star and The New Straits Times reported that 10 siblings in Penang were seeking to have their religion listed as Islam on their MyKad changed to Hindu. The ten – five men and five women – are children of a Muslim-born man, Ibrahim Noyah who married a Hindu M. Nagamah without registering their marriage. All the 10 siblings were given Muslim names but they were raised as Hindus and eventually got married to Hindus but they did not register their marriages. On 16 February, the 10 siblings submitted individual sworn declarations at the Magistrate’s Court in Jawi, South Seberang Prai, claiming that they had been practising Hinduism since birth and praying at Hindu temples. In their declaration, they said that they wanted to change the status of their religion from Islam to Hindu. They also said that they were married to Hindus – although they did not have their marriages registered – and took part in Hindu celebrations, including Thaipusam. Their children were also given Hindu names. Out of the 30 grandchildren of Ibrahim Noyah, three of them did not have birth certificates due to the confusion of their religious status. The birth certificates of other grandchildren were equally confusing as some had the Muslim names of the parents while in others it was stated as not applicable. The birth certificates of some of the grandchildren had only one parent’s name stated.
Subsequently, The New Straits Times reported that the Penang Islamic Religious Council had recognised Ibrahim Noyah and M. Nagamah as Muslims because Ibrahim had returned to the Islamic faith while his wife had embraced Islam in August 2004. The wife’s Muslim name was Mariah Abdullah. They later solemnised their Muslim marriage at the religious department on 11 August 2004 and had been issued with the relevant documents. However, the council also accepted the fact that the couple’s children were Hindus.
Appendix D – The Dilemma of Marimuthu & Raimah Bibi
On 2 April, officers from the Selangor Religious Department (JAIS) detained Raimah Bibi at her house in Kampung Baru Tambahan, Ulu Yam. Her husband, rubber tapper P Marimuthu was told that his wife of 21 years, Raimah Bibi, was a Muslim and that she and six of their seven children – aged between four and twelve – must be placed in a rehabilitation centre. The couple’s eldest son was staying with an uncle at that time.
Marimuthu claimed that an ‘ustaz’ (religious scholar) had told him to convert to Islam or be charged with khalwat (close proximity) with Raimah. JAIS placed Raimah Bibi and her children in the nearby Kampung Melayu Liga Emas. Raimah purportedly said the villagers, predominantly Malays, had been asked to keep an eye on her daily activities and prevent her from meeting outsiders, especially her husband. Marimuthu said he felt threatened by the villagers’ stares when he attempted to visit his wife and children. According to him, Raimah managed to sneak their children over to his house several times without anybody’s knowledge.
Marimuthu and Raimah Bibi got married in a temple according to Hindu rituals and he claimed that he did not know if his wife was a practising Muslim before they got married. All their children were brought up as Hindus. Raimah was adopted by an Indian Muslim family and her MyKad had stated her name as Raimah Bibi binti Noordin and her religion as Islam. The couple did not apply to the National Registration Department to have this corrected. The authorities learnt about Raimah’s ‘religious status’ when the couple enrolled their children into a school and copies of their identity cards were submitted to the Education Department.
Subsequently, Marimuthu filed a habeas corpus application against JAIS, alleging that his wife and six of their children were being unlawfully detained by JAIS. At the hearing on 2 May, Raimah Bibi agreed to live apart from her non-Muslim husband and gave him custody of their seven children after choosing to continue practising Islam. She was, however, given unlimited access to her children aged four to 14.
Appendix E – The Dilemma of Revathi
On 26 March, Revathi Masoosai’s 15-month-old daughter was taken by the Islamic Religious Department in southern Malacca and handed to the baby’s Muslim grandmother. The grandmother was given custody of the baby. Revathi, an ethnic Indian, was held in the Akidah Rehabilitation Centre in Ulu Yam, Selangor since 8 January.
Revathi, 29, was born to Indian Muslim parents who gave her a Muslim name, Siti Fatimah. However, Revathi claimed that she was raised as a Hindu by her grandmother and changed her name in 2001. She married Suresh Veerappan in 2004 according to Hindu rites and the marriage was not legally registered because Suresh did not convert to Islam. After their marriage, Revathi tried to change her name from Siti Fatimah to her Hindu name as well as religious status. She was advised by the Malacca Islamic Religious Department to make the application at the Malacca Syariah High Court. She did so in 2006 and her case was fixed for hearing on 8 January 2007. However, when she turned up for the hearing, she was detained by the court officials and was taken to the rehabilitation centre.
On 18 April, Revathi had her 100-day rehabilitation period extended for another 80 days by the Malacca Syariah High Court.
Revathi’s official identification documents stated her status as Muslim. Suresh Veerappan filed a habeas corpus application, seeking to release his wife whom he claimed was illegally detained at the Baitul Aman Faith Rehabilitation Centre. The superintendent of the centre in Batang Kali and Selangor Islamic Religious Council were named as first and second respondents respectively.
On 5 July, Revathi was brought to the Malacca Syariah High Court. The judge ruled that in Islam there is no compulsion and there is recognition of the concept of freedom of religion provided in Article 11 of the Federal Constitution. However, this freedom of religion meant that no one can be compelled to be a Muslim. Once a person has embraced Islam, that person cannot leave Islam. Then the judge dismissed Revathi’s application to renounce Islam and ordered her to be placed in the custody of her parents and that she would undergo continual counselling sessions.
In an interview, Revathi told the reporters that the rehabilitation camp was like a prison and that religious officials tried to force her to pray and wear headscarf. “Because of their behaviour, I hate (benci) Islam even now,” she added. As a result of the release, the habeas corpus application filed on her behalf in the Shah Alam High Court was dismissed.
Members of the NECF Malaysia Religious Liberty Commission:
Mr Lee Min Choon (Chairman)
NECF Executive Secretary (Religious Liberty Commission)
Mr Baru Bian
Ms Crystal Kuek
Dr David Fung
Mr Lim Heng Seng
Mr Steven Wong