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January 15, 2006

Malaysia's Constitution: Muslims And Non-Muslims To "Have Redress"

Malaysia, as we have been describing recently, has been undergoing a major constitutional crisis, with contradictions written into the constitution. Article 3(1) of the constitution states that 'other religions may be practiced in peace and harmony in any part of the Federation. However, Article 121 (1A) of Malaysia's constitution states that civil courts have no jurisdiction on "any matter" which falls within the jurisdiction of the Syariah (Sharia, Islamic Law) courts.

The lack of power of the civil courts to make rulings on issues supposedly governed by the Syariah courts, such as issues involving apostasy (abandoning faith, i.e. Islam), have been dramatically highlighted by two court cases. On December 8 a Syariah court ruling that a Hindu man in a coma had "secretly converted" to Islam, despite protestations from his wife, was upheld by a civil court after his death. Kaliammal Moorthy (pictured below, right) had taken a challenge to the High Court, to request custody of her husband's body. The court ruled that the affair was under the jurisdiction of the Syariah courts, and her husband's body was immediately taken away for a Muslim burial.

The case of so-called Muslim "heretic" Ayah Pin and his followers from the Sky Kingdom Sect has also been brought back to national attention. A widow and member of the sect, Kamariah Ali officially tried to abandon Islam seven years ago. Her local Syariah court in Terengganu state had refused to accept her apostasy, and prosecuted her repeatedly for being a "heretic". They even imprisoned her and other members of the sect for "belittling Islam".

On December 31, she went to the High Court to get a ruling that the constitution allowed her freedom of speech under Article 11, which gives citizens the right to profess and practise any religion they choose, and Article 3(1). The judge, Justice Mohamed Raus Sharif, (who also ruled in Kaliammal Moorthy's case) ruled that this issue was about apostasy, and therefore was out of his jurisdiction. Because of Article 121 (1A), he had "no power" on the matter.

Malaysia likes to pride itself as a paragon of "moderate Islam" but these recent cases have coincided with another piece of legislation which appears to strengthen a more formalised version of Islam and abrogates the rights of women.

The Islamic Family Law Bill was passed in the Malaysian Parliament's upper house, the Dewan Negara on December 22. This bill, whose full title is "The Islamic Family Law (Federal Territories) (Amendment) Bill 2005 (IFL 2005)" has been widely criticised for its poor treatment of women in divorce cases, allowing a man to sell the family home in a divorce case, and even to have a wife or her children's assets frozen.

Under its Section 107A, a husband is allowed to obtain an injunction preventing the disposition of property by a wife or a former wife. In Section 23(9)(b) it allows a man to lay claim to a share of his wives' assets before he gains a new wife or has a divorce.

Last week, this controversial bill was "put on hold", awaiting a discussion and review.

The combination of all these factors coming at once has led to many observers claiming that a slow creep of Islamisation into all areas of life is happening, and is unavoidable. This is because the constitution allows it and also because the government appears not to want to upset any Muslims by curtailing the powers of the religious courts.

Yesterday's Asia Times and Thursday's Inter Press Service News Agency report that an alliance of non-Muslims has been formed to attempt to preserve their rights, and halt the encroachment of Sharia Law into their lives. 30 Hindu groups have formed Hindu Rights Action Force (HRAF) to protect the rights of minorities to religious freedom, which has petitioned Malaysia's king, and constitutional head.

In effect, two parallel societies -- Muslim and non-Muslim -- have gradually replaced what was a pluralistic, secular Malaysian society, based on common law that was the legacy British colonials handed over on a platter on independence in 1957.

Indigenous Malays, nearly all of whom follow Islam, form 60 percent of Malaysia's 24 million people while Chinese, who are mostly Buddhists, make up 30 percent and the largely Hindu Indians another eight percent. There are smaller racial groups such as Eurasians.

Malay is the official language and Islam the official religion but the constitution guarantees freedom of worship, although this provision, according to the minorities, has been gradually and systematically eroded.

Yesterday's New Straits Times announces that the deputy prime minister, Datuk Seri Najib Razak (pictured above, left), has said that any change in the way the courts handle cases involving Muslims and non- Muslims will take into account the interests of both parties.

He states that this "potential change" will not diminish the status nor the administration of Syariah thoughout the country. "Our principle, in future cases, is to give redress to all parties involved. The Prime Minister's Department is looking into this and we are doing something that can satisfy all and which does not threaten the administration of Islamic law."

Najib's statement came after eight Muslim groups made a joint declaration on Thursday, condemning any possible repeal of Article 121 (1A) of the constitution (even though this was only written into the constitution as an amendment in 1988. The opposition leader, Lim Kit Sang, has called for Article 121 (1A) to return to its pre-1988 wording.

The groups who have insisted on retaining the contentious amendment included the Malaysian Muslim Scholars Association and the Malaysian Muslim Youth Movement, who have made a strange proposal which they see as a gesture of compromise. They state that instead of allowing civil courts to have power over Shariah issues, they have suggested that non-Muslims should be able to benefit from going to Shariah courts. This would certainly mark the start of a slippery road to an Islamofascist state.

Deputy Prime Minister Najib seems to have been aware of the furore and the injustice surrounding the Moorthy affair, and even seemed to be embarrassed by it. He personally met with Kaliammal and ensured that her husband was posthumously promoted to a higher rank, which would entitle her to a greater income from her army widow's pension.

Other organisations, such as the Malaysian Consultative Council on Buddhism, Christianity, Hinduism and Sikhism, have denounced Article 121 (1A) as it prevents non-Muslims who are entangled in cases which involve Islamic affairs from being able to gain legal redress. This situation would arise, for example, if a Muslim and a non-Muslim were married.

Bernama.com states that following the case of Kaliammal Moorthy, which drew international criticism, the Cabinet had directed the chambers of the Attorney General to make a study of existing legislation, and the wording of the constitution. Such an investigation should ascertain if there was a need for a change or a clarification.

This would also, according to the agency report, include whether laws did not exist to allow civil courts to take cases which involved Islam, or if they did exist, but judges were reluctant to utilise these powers.

A well-put together article can be found in Pakistan's Daily Times, entitled "Can Malaysian 'moderation' protect minorities?", by Farish A Noor. After discussing the case of the Islamic Family Law bill, Noor describes the case of Mrs Moorthy:

The affair has raised questions about the Malaysian constitution and the status of Malaysian civil law in relation to Islamic law. Which law is meant to prevail and will the rights of Muslims be put ahead of the rights of other religious communities? The Moorthy case has aroused the fear and anger of a wide section of non-Muslims in multi-religious Malaysia, and as with the case of the new Muslim family and marriage laws, forced those affected by it to reflect on their status in the country.

It is clear, however, that despite these setbacks Malaysia remains firmly on the map as 'flavour of the month'. While its economic record has been little cause for cheer, its commitment to the anti-terror campaign orchestrated by Washington's neo-cons means that it remains in the good books of at least the White House. But this means that Malaysia's standing as a 'model moderate Muslim state' has less to do with its brand of Islam and government-promoted Islamisation and more with realpolitik geopolitical concerns.

An informative review of Malaysia's religious freedoms was published on November 18 2005 by the US State Department, entitled Malaysia: International Religious Freedom Report 2005. Compiled by the Bureau of Democracy, Human Rights, and Labor, it makes fascinating reading matter.

Posted by Giraldus Cambrensis at January 15, 2006 10:10 PM

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