Francis Loh looks at the controversy surrounding the competing civil-sharia jurisdictions in the light of the Lina Joy decision and other recent similar cases as well as the forthcoming 50th Merdeka celebrations. He argues that it is time to push for debate within our own religions and promote a wider notion of unity.
Malaysia celebrates 50 years of Merdeka, 50 years of Independence and Freedom, this year. There is much to celebrate indeed. We have witnessed much political stability and economic development as compared to many of our neighbours. Except during a brief period of Emergency between 1969-71, we have practised a Westminster form of democracy and lived under civilian rule. Rapid economic growth has also led to declining absolute poverty rates.
That said, we face new challenges as well. Maintaining the same rate of economic growth will become increasingly difficult – not simply because of a highly competitive globalised environment but also because the quality of our human resources needs to be upgraded, rapidly and comprehensively. Moreover, as the Ninth Malaysia Plan revealed, socio-economic disparities between states and regions have widened. Yet other studies report widening intra-ethnic disparities too. In part, the disparities are due to the increasing adoption of neo-liberal economic policies, including privatisation of our utilities and services, which has led to rising costs for the poor.
Rapid development has also resulted in unprecedented destruction of our environment. Our forests are getting depleted, our cities crowded and noisy, and our waters and air more polluted. In Kuala Lumpur, boasting ‘the tallest twin towers in the world’, flash floods create havoc every time there is a heavy downpour, even one lasting just a few hours, as we witnessed in mid-June. A heavy stench, the source of which is still unclear, welcomes visitors as they approach the Penang Bridge, ‘the longest in Asia’.
A major problem concerns the maintenance of not only our public buses and LRTs, but also highways and high-rises. Indeed, the brand new government complexes in Putrajaya have not been spared, what with ceilings collapsing! So, too, brand new hospitals and schools, which are deemed unsafe, even before they can be used.
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Other problems include corruption, rising crime rates and abuse of police powers. All these physical, environmental and even administrative problems threaten the well-being of Malaysians as the nation approaches middle-age. But they can be fixed.
Tensions between Muslims and non-Muslims have also been rising, most recently caused by a series of controversies surrounding competing legal jurisdictions between the civil court and the Sharia court, highlighted most recently in the Federal Court’s decision in the Lina Joy case. It is understandable that many Muslims welcomed the decision while many non-Muslims felt the reverse. The 2-to-1 court decision epitomises this fault-line. In fact, because our religions are embedded in our ethnicities, the Muslim-non-Muslim fault-line reinforces the Malay-non Malay divide too.
The Lina Joy case and other related cases, however, should not be viewed through religious or ethnic lenses – nor even in terms of technical legalism as to the meaning of Article 121 (1A), introduced through a 1988 constitutional amendment. Rather, the Lina Joy case and other recent conversion controversies should be viewed in terms of our rights and responsibilities as citizens, as enshrined in the letter and the spirit of our Constitution. In turn, this Constitution is meant to represent our standing as a free and independent nation.
A living document
In this regard, it is important to remember that the 1957 Constitution, indeed any Constitution, is meant to be a living document. In Malaysia’s case, the 1957 Constitution was both a legal document and a political document. The Constitution does provide guarantees for civil and political rights including the fundamental freedom of conscience. It also talks about checks and balances for the Westminster variant of democracy that was adopted, division of legislative and financial powers between the federal and state governments, and how to run elections.
The Constitution also granted special status to the royalty, to Islam as the official religion, and to the Malay language as the sole national language, as well as ‘special rights’ for Malays. Why, the states of Sabah and Sarawak were also accorded ‘special safeguards’ when the Constitution was amended to accommodate their interests in accordance with the Malaysia Agreement, 1963.
These provisions are actually a recognition of group rights. In fact, it might even be argued that those rights accorded to non-Muslims and non-Malays to learn, use and promote their languages, cultures and religion are a recognition of the group rights of minority groups whose rights might otherwise be trampled upon by majority rule.
Individual versus group rights
Viewed in this light, the Lina Joy and other conversion controversies highlight an emerging problem between the rights of citizens as individuals versus group rights. Any democracy worth its name must guarantee the fundamental rights of individuals. In Malaysia’s plural society, there is also a need to recognise groups rights to ensure multiculturalism and inter-group harmony. (Elsewhere, the poor and the downtrodden or discriminated lower castes are also accorded special rights sometimes).
It is therefore pertinent to ask, where do individual rights end and where do group rights begin? The interface between the two is often blurred not least because it shifts over time. For this reason alone, a Constitution must be a living document.
In Lina Joy’s case, the Federal Court in a 2-1 decision ruled that Lina Joy does not have the right to move in and out of her religion at her own whim. Apparently, that undermined the rights of Muslims as a group.
In fact, Lina Joy had brought the matter to court after she had converted to Christianity more than 10 years ago. She was now seeking removal of her designation as a Muslim in her Identity Card in order to marry the person of her choice, also a Christian. She was not acting on any whim or fancy.
Nonetheless, for the Chief Judge, Lina Joy needed to seek the permission of the Sharia court before she could leave Islam to marry a Christian. The Chief Judge obviously thought that the rights of Muslims as a group superseded Lina Joy’s rights as an individual citizen. She needed first to appear before the Sharia court – for technically, she was deemed a Muslim. Put another way, in matters of conversion, Muslims have no automatic rights as individuals. Article 11, which provides for the freedom of religion, therefore pertains only to non-Muslims.
However, for Lina Joy, now a Christian by conviction, there was no reason to submit herself to the Sharia to be recognised as an apostate especially since in most states apostasy is considered a crime requiring rehabilitation if not punishment. Justice Richard Malunjum, the dissenting judge in the Lina Joy case, had stressed this point in his decision.
In view of how the matter had generated such strong emotions among Muslims and non-Muslims, it has been suggested that all remain calm and the matter be laid to rest. Some suggest that the authorities ought to strengthen public confidence towards the Sharia courts not only to reassure Muslims that there is no attempt to belittle the importance of these courts but also to assure non-Muslims (or those wishing to leave Islam such as Lina Joy) that if and when they need to come before the Sharia courts, they should not fear recrimination since there is no compulsion in Islam. This is easier said than done in view of the decisions of the Sharia courts in several earlier conversion controversies.
Denial of Justice?
But there is a critical difference between the Lina Joy case and several other recent conversion controversies. Whereas the Lina Joy case highlights the conflict between individual versus group rights, the custody cases involving Shamala Sathiyaseelan and R Subashini, whose respective husbands had embraced Islam and converted their children as well, point to a denial of justice to the two women who had married their husbands under civil law. They were required by the civil court judges to seek redress over the disputed conversions of their children in the Sharia court. Being non-Muslims who feel that they do not need to submit to the Sharia, they have been denied their constitutional right.
Then there are the cases involving the burials of Moorthy Maniam @ Mohammad Abdullah and Rayappan Anthony, whose bodies were claimed by the Islamic authorities on the grounds that they were converts. To reclaim their bodies, their families appealed to the civil courts, which ruled that they had to submit before the Sharia courts instead. In these instances again, there was a denial of justice under the civil courts. More than that, the authorities concerned displayed a complete lack of compassion over the plight of the families, contrary to the teachings of our religions. Given these recent incidents, it will not be easy to instil confidence among non-Muslims in the Sharia.
At any rate, it is still unclear whether non-Muslims have locus standi in the Sharia courts, whether they can take part actively and be represented. Contrasting views have been expressed by different Muslim jurists.
The latest twist to these conversion controversies concerns the case of Revathi (born Siti Fatimah to Muslim parents but who was brought up as a Hindu by her Hindu grandmother). Upon the advice of the Malacca Islamic Religious Department, she applied to the Sharia court to confirm her status as a Hindu as she had lived most of her life as a Hindu and had married a Hindu man. Instead, she is now being held in an ‘Islamic rehabilitation camp’ to persuade her to return to Islam. Meanwhile, she has been separated from her husband while her Muslim mother has obtained a Sharia court order granting her custody of the couple’s 15-month-old baby. Needless to say, the family is now torn apart.
More cases in future?
To a certain extent, the occurrence of these conversion controversies is new. It is likely, however, that more cases will emerge in the future. There are two related reasons for this.
First, there has been an expansion of the Islamic legal system and the related Islamic bureaucracy under the auspices of Pusat Islam in the federal government since the 1980s. This followed the launch of Malaysia’s Islamisation policy under then prime minister Dr Mahathir Mohamad and his deputy Anwar Ibrahim. Apart from this, Islamic banking and insurance schemes were established; Islamic values were introduced in administration; and various missionary activities were launched.
As a result of the establishment of the International Islamic University and several Islamic think tanks, and the expansion of Islamic studies in the public universities, thousands of Islamic Studies graduates from local (and overseas) universities were produced. To a certain extent, these are the people who are involved in the expansion and consolidation of the Islamic legal system and the related Islamic bureaucracy. It is only with an understanding of the growth and consolidation of this parallel legal and administrative system, and its fusion with the civil one in strategic areas, that we begin to appreciate why these controversies have occurred and why it is likely that they will occur more frequently in future.
In essence, the laws of one religion, namely Islam, have increasingly assumed the authority of the civil state’s laws. From this point of view, Dr Mahathir’s proclamation of Malaysia as an Islamic state in September 2001 is not that far-fetched.
Second, the expansion and consolidation of this parallel Islamic legal and bureaucratic machinery in Malaysia is also related to the Islamic resurgence globally.
Initially, this resurgence was related to concern for the plight of the Palestinians, then the Iranian Islamic revolution and the Soviet invasion of Afghanistan. Moreover, during the Cold War, the United States sponsored Islamic groups as a bulwark against communism.
Islamic resurgence is also a response to the aggressive assault of western-style modernisation upon Muslim societies. Most recently, with George Bush’s invasion of Iraq and his war against terrorism, it has become related to a feeling among Muslims, including in Malaysia, that they are under siege. No doubt, this might appear ironical to non-Muslims in Malaysia, what with these cases of conversion controversies!
Time to act
In spite of all the above, it is our belief that the tensions between Muslims and non-Muslims can also be fixed, just as the environmental, maintenance and administrative problems mentioned earlier may be remedied. Recognising the existence of this problem – rather than declaring it ‘sensitive’ and sweeping it under the carpet – is the first critical step.
The Prime Minister should convene a meeting of legal experts, Muslims and non-Muslims, from a broad spectrum who can empathise with these kinds of dilemmas. A way forward might be the setting-up of a Constitutional Court, perhaps with representation of judges from the civil and Sharia courts to act as a final arbiter. With this Constitutional Court in place, the civil court judges do not need to require non-Muslims or those who desire to leave Islam to seek a declaration from the Sharia court in matters concerning conversion.
At any rate, the law should facilitate the right of all citizens, regardless of religions, to convert from one religion to another (or to be declared an atheist), provided they have reached the age of maturity, are of sound mind, and not pressured by any person or group. The interface between individual and group rights has to shift towards the former, notwithstanding the expansion of the Islamic legal and bureaucratic machinery, if we are to tout ourselves as a democracy.
As for civil society, we have to begin to push for a permanent inter-religious organisation, whatever form it may take. Unlike the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) – with due respect to the work they are doing – this organisation must include Muslims as well. This will provide a forum where issues such as conversion controversies can be discussed and suggestions put forward to the government for action. No doubt the matter can be sensitive. But not acting is not an option either. It is in this manner, with the participation of civil society, that Muslims might begin to understand the anxieties of non-Muslims, and non-Muslims, in turn, understand why Muslims consider themselves as a people under siege globally.
The current modus operandi of conflict resolution behind closed doors has reached its upper limits especially when it comes to matters of religion. As responsible citizens, we must ask for something more formal, effective and efficient in dealing with our cultural fissures and, most of all, our faith-lines.
We also need to strengthen our democratic institutions for they offer the best protection of the rights of all Malaysians, including those from minority groups. Judges must be courageous and dispense justice without fear or favour. There is a huge credibility gap vis-à-vis the justice system among ordinary citizens (not simply because of these conversion controversies) these days which must be put right. Likewise, legislators should wake up and challenge all bills which are unjust, not just those pertaining to matters of religion. Above all, the executive must recognise the seriousness of the present situation and move fast, rather than politicise the situation. As the Raja Muda of Perak commented recently, all Malaysians – especially the political leaders – must defend and promote the integrity of the Federal Constitution and ensure that there is a place for all, regardless of creed, in Malaysia.
Finally, there is a need to broaden our understanding of national unity. It is not merely the absence of conflict. “National Unity” must be built on stronger foundations. In Aliran’s submission to the Parliamentary Select Commmittee on National Unity in July 2005 (see AM Vol 25, No 8) , we argued that national unity should be propped up by five pillars: a celebration of our diversity; a commitment to pluralism; respect for democracy; dedication to justice; compassion and solidarity with all in need.
In this regard, each of us has the responsibility to promote such values within our own religious communities. As we well know, in the midst of the recent controversies, the common knee-jerk reaction has been to close ranks and erect strong barriers to others when outsiders criticise us, as though besieged.
Instead of building walls and trying to preach across faiths, progressive-minded Muslims must reach out to their fellow Muslims, progressive-minded Christians should promote these values among their fellow Christians and so on. The interpretation of religious texts should be democratised instead of being the monopoly of conservative clerics and inward-looking scholars.
We need the Malaysian equivalents of Abdurrahman Wahid (“Gus Dur”) of Nahdlatul Ulama; Amien Rais of Muhammadiyah; Azyumardi Azra, the former rector of the National Islamic University in Jakarta; and the late Islamic scholar Nurcholis Majid of Himpunan Mahasiswa Indonesia – who have all dismissed the need to create an Islamic state in Indonesia – to speak out.
Now, more than ever before, we should allow space for progressive and critical voices to be heard within our respective religions instead of isolating and silencing them. Progressive elements should not only hold serious discussions on matters pertaining to religion (as narrowly defined) but also analyse and engage the other issues of socio-economic development and democratisation, as outlined in the first part of this article. Above all, progressives need to stress the importance of empathy, compassion and solidarity with the poor, the oppressed and those who are silently suffering for various reasons, regardless of race or creed.
These progressive elements from the various religious traditions can later build networks of solidarity with their counterparts in other religions so that the inner beauty and essence of spirituality – love, justice, compassion, deep peace, and oneness with Creation – can emerge and be the basis that underscores our pursuit of development and democracy.
On the occasion of the 50th anniversary of our Merdeka, it is time to push for debate within our own religions and promote this wider notion of unity.
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