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April 15, 2006
Malaysia: Highest Court To Decide Powers Of Islamic Courts
We described in January the case of Lina Joy, a woman who was classified under Malaysia's bizarre religious profiling as a Muslim. She decided in 1998 to convert to Christianity, but found herself unable to legally call herself a Christian. She had been named Azlina Jailani, when she was a Muslim, but changed her name to Lina Joy when she converted.
She took the case to a Syariah Court (Sharia or Islamic court) but was told she could not become a Christian, as reported in NECF Malaysia and Religioscope. A pdf document on her case can be downloaded HERE. Her cases are described in a graphic, available by clicking HERE.
The problem for Lina Joy stems from a flaw in Malaysia's constitution, which in effect makes it impossible for anyone to convert out of Islam, and is in breach of acceptable standards on human rights. The flaw is created by Article 121 (1A) of the constitution, which was introduced as an amendment in 1988. This article declares that "civil courts have no jurisdiction on "any matter" which falls within the jurisdiction of the Syariah (Sharia, Islamic Law) courts.
Issues of conversion and apostasy are covered by the Syariah courts, and therefore, no court can challenge any decision made by Syariah courts. These courts are run by fanatical Muslims, who regard apostasy as something they refuse to endorse. In fact, no living person has ever been able to be declared a "convert" by their rulings.
The only person ever to be allowed to officially apostasise is Nyonya Tahir, aged 89 years, (pictured above), who had lived as a Buddhist for more than sixty years. During her lifetime, Nyonya had tried repeatedly to be allowed to call herself a Buddhist, but her requests had been refused. It was only after she died on January 19 that the Syariah courts relented, and following an appeal by her family, she was allowed to be buried as a Buddhist. Her request to be allowed to be identified as a Buddhist was something she was never able to see during her lifetime.
Disingenuously, Muhamad Burok, president of the Malaysian Syariah Lawyers Association stated after Nyonya's case: "It shows that our two court systems - the Civil Court and Syariah Court - can exist in harmony, so the issue that the Constitution should be amended does not arise. The decision shows that everyone can get protection from all the courts."
As well as having a constitutional article, which pushes all decisions into the hands of the extreme fanatics of the Syariah courts, the problems for converts are compounded by the Malaysian system of identity cards, which are issued to people from the age of 12 onwards. These state which religion a person follows. The body which authorises the cards is the National Registration Department, and any changes to a person's stated faith on one's cards must be dome with approval from the Syariah courts.
Lina Joy first applied to the National Registration Department to have her status as "Muslim" altered to "Christian" in February 1997. In August that year, she was told that she could not change her status, and that she was still a "Muslim", because she did not have the necessary permission from the Syariah courts. In 1998, she was allowed to change her name to Lina Joy, but could not change her official status as a "Muslim."
In 2001, when she made her first case to the Syariah courts, High Court Judge Datuk Faiza Tamby Chik told her "As a Malay, the plaintiff exists under the tenets of Islam until her death." Malays are automatically deemed to be Muslim, and the ruling is obviously racist. Judge Faiza stated that he could not make a ruling on the case, and the issue had to be dealt with by the Islamic courts. This is because of Article 121 (1A). Only Syariah courts can rule on issues of apostasy, marriage, divorce and inheritance. It also can rule on issues of burial.
In October 2004, Lina again took her case to the Court of Appeal once more, to try to have the name "Muslim" removed from her card.
With the Islamofascism rampant in Malaysia, Lina Joy cannot marry anyone outside her faith. And as her faith is officially "Muslim", she cannot marry a Christian under the law.
Malaysia pretends to be a moderate Muslim nation, propagating the concept of Islam Hadhari, or "progressive Islam". In practice, the case of Lina Joy and others proves that its version of Islam is totalitarian and inflexible. The 1988 amendment which created Article 121 (1A) is in total contradiction of other Articles in 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. Article 11 of the constitution guarantees Malaysian citizens the right to adopt the religion of their choice.
The issue of whether an Islamic court can make a ruling on a person who refuses to profess Islam is perhaps not even legal, as Malaysia's Constitution, Schedule IX, List II, limits the scope of the Syariah courts to "persons professing the religion of Islam."
Lina Joy had argued in 2001 that she did not "profess" Islam, and therefore was not subject to Islamic Law. Islamic law professor Shad Faruqi stated in the Straits Times on October 11, 2004 that "the requirement for official approval of conversions was a legal safeguard. Without it, Muslims could evade sharia law by leaving their faith whenever they were charged with a religious offense".
Now, according to a ruling made on Thursday (13 April) in relation to Lina Joy's case, there may be some hope on the horizon. Malaysia's highest court, the Federal Court, has agreed to take up the issue of whether those who renounce Islam are still to be subject to Islamic Court rulings. The news is carried by CBS News, from Associated Press sources, and carried by the Guardian and numerous other press outlets.
The decision of the court has stemmed directly from the case of Lina Joy, She is now 42, and has been wanting to marry a Christian for some time, but the Catch-22's of Malaysia's legal system have prevented her from marrying her sweetheart.
On Friday her lawyer, Benjamin Dawson, said: "This case should be viewed in the larger context of Islamization and the erosion of constitutional rights." He said that the constitution does not state that a person needs approval to convert out of Islam. He said that if a Shariah court did have that authority, it would never allow a Muslim to convert because it does not "believe that anyone can change from Islam."
That much is true. The case of Nyonya Tahir is the only time anyone has been allowed out of the clutches of Islam, as it is dictated by the Syariah courts. And Islamification of the country is a very real fear. In January, even a Senator, Kamaruddin Ambok, was hauled before the Islamic courts, for not divorcing his wife under the aegis of the Syariah Courts.
On December 22 last year, a controversial Islamic Family Law Bill was pushed through parliament. This law made it easier for a man to divorce his wife, and also to bring in extra wives in Islamic polygamy. It even allows a man to gain control of funds belonging to his wives and offspring if he is planning a new marriage or a divorce.
The Islamic courts have recently been on an offensive, attempting to set up vigilante snitch-squads, ready to inform on people caught kissing in parks, or breaking Islamic rules in other ways. The Federal Territory Islamic Department in Putrajaya state announced in January that it had formed a 75-member "Islamic Council Volunteer Squad" whose duty was to snoop on Muslim citizens and report their activity to the Islamic Department. The government moved to disband the vigilante squad.
As well as having federal law and Islamic law governing people's lives, there is also State Law. As we mentioned in March, many states have adopted a controversial Control and Restriction Bill, which allows fines of 10,000 ringit or $2,653 and terms of imprisonment for up to one year for anyone guilty of "persuading, influencing a Muslim to leave Islam for another religion."
The Law Minister in the Malaysian government, Mohamad Nazri Abdul Aziz, declared in March that for anyone who was non-Muslim and acted in too critical a manner by "belittling Islam", he would invoke the Sedition Act against them which can allow a person to be imprisoned for three years.
The rulings of the Syariah courts have led to heartache for those trapped under their fanaticism. The ethnic Malays, who constitute almost all of Malaysia's Muslims, constitute 60% of the population. Other minorities, such as Buddhists, Christians and Hindus, feel threatened by the increasing encroachment of Islamism into their lives. 30 Hindu groups have banded together to form the Hindu Rights Action Force (HRAF) to protect themselves against the effects of Sharia law on their lives. Many Hindus have been shocked by the Moorthy case.
The supreme authority of the Syariah courts over issues of burials led to a Hindu mountaineering hero, Manian Moorthy, being declared in his last weeks of life as a Muslim by a Syariah court, while he was in a coma. The court had been been told by an informant who claimed to be Lieutenant Corporal Moorthy's friend, that he had converted to Islam, and the Syariah court took this statement over that of his wife Kaliammal, who strenuously denied the allegation. When her husband died, she took her case to the High Court. Justice Mohamed Raus Sharif told her he had no power to alter a decision of the Syariah Court, and her husband was taken away and given Muslim burial rites.
The cases of those who are regarded as "heretics" against traditional forms of Islam are equally distressing for those involved. We reported in January on a lonely widow called Kamariah Ali, who has tried to apostasise from Islam for years, but has been consistently refused that right.
She was a member of the Sky Kingdom sect, and had renounced official Islam seven years ago. Her husband was also a member of the sect, whose charismatic leader, Ayah Pin, who declared Christians, Muslims and Buddhists are welcome to worship with his followers. Kamariah Ali's husband, Mohammed Ya, had been imprisoned for two years for "insulting Islam". He died shortly after he was released from jail.
On December 31, Kamariah, aged 54, went to the High Court, to fight her right to apostasise. Her case was reviewed by Justice Mohamed Raus Sharif, who ruled against Mrs Moorthy. Similarly, he said he had no legal powers to infringe the jurisdiction of the Shariah courts.
It is hoped that the Federal Court will once and for all make a ruling that allows people to "apostasise" or convert from Islam. Not to allow a person to do so is an infringement of basic human rights.
An appraisal of Malaysia's religious freedoms, or lack of them, was produced by US State Department's Bureau of Democracy, Human Rights, and Labor on November 8, 2005. It was written before the Islamic Family Law Bill was passed, and does not factor in recent ominous statements from the Law Minister from the ruling UMNO party. But it is revelatory nonetheless. Called the International Religious Freedom Report 2005, it can be found by clicking here.
Posted by Giraldus Cambrensis at April 15, 2006 12:19 AM
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