Malaysia mired in a holy
quandary By Baradan Kuppusamy
KUALA LUMPUR - After a landmark Malaysian
Superior Court decision downgraded secular law and
constitutional guarantees against Islamic rules, a
storm of protest has been building up as
government and civil society rush to find a
solution to the religious impasse.
The
verdict held that the constitutional right to
freedom of worship does not apply to Muslims and
the civil court has no jurisdiction over Islamic
matters.
The verdict denied official
recognition to Lina Joy, a Muslim who
converted to Christianity a
decade ago, and told her to appear before a sharia
(Islamic law) court to renounce Islam, ironically
an offense in Malaysia punishable with three years
in jail.
After the verdict, neither judge
nor politician was willing to enter the fray to
unravel the dilemma and ease the great disquiet
that has gripped this multi-ethnic society.
Malay Muslims form close to 60% of
Malaysia's 26 million people, and their civil,
family, marriage and personal rights are governed
by sharia courts. The personal laws of ethnic
Chinese, Indians and others who form the remainder
are administered by civil courts. However, the
constitution is vague on what happens to converts
such as Joy.
Failure to correct the
imbalance created by the new verdict, legal
experts said, will crack the system founded on
secular law that guarantees religious freedom for
all Malaysian citizens.
"It is a clash
between individual rights on the one hand and, on
the other, a growing Islamization of Muslims and
their sense of siege fueled by wars across the
world and by active Christian proselytizing," one
independent constitutional expert said but
declined to be named for fear of persecution.
"The judgment has ignored the supremacy of
the constitution ... the only solution is to
reassert that supremacy," the legal expert said.
"We need to constitutionally reorder society."
On independence from Britain 50 years ago,
Malaysia's founders found it convenient to deem
the country a secular state in order to foster a
multi-racial society while making Islam the
official religion to take care of the interests of
native Malays. However, this solution has proved
problematic, with Malays beginning to look on
their religion as a mark of their distinct
identity.
One solution that could
accommodate individual interests, suggested
privately by some experts including Muslims, is to
provide a proper and legal exit for Muslims
wishing to follow other religions.
However, the mere suggestion of such a
solution, which would require amendments in the
existing sharia laws, would spark Muslim anger,
and no political leader from Prime Minister
Abdullah Badawi downward is willing to take the
risk.
Even opposition icon Anwar Ibrahim,
who has promoted moderate Islam far longer than
any other Malaysian leader and is trying to make a
political comeback after six years in prison, is
unwilling to grab the bull by the horns.
In a statement, Anwar, to whom many
Muslims and non-Muslims look up to for alternative
leadership, took the position that Muslims can
only renounce Islam through the sharia court and
Islamic laws.
"The verdict is not about
compelling Lina Joy to return to Islam ... it is
about the rules that must be complied with when an
individual wishes to renounce Islam as his or her
religion,'' said Anwar, a religious scholar
himself. "I believe that such a matter must remain
within the jurisdiction of the sharia courts, and
whether or not such a renunciation is appropriate
is a matter for the sharia courts to decide.'
"The government has failed to deal with
this issue in a manner that would reassure
non-Muslims that their constitutional freedom in
respect of religion has not been compromised,"
Anwar said. "It is also most deplorable that
instead of demonstrating a new resolve to forge
interfaith harmony in the light of this decision,
the government is trying to gain political mileage
from it."
Critics of the verdict point out
that apostasy is already a crime in Malaysia and
punishable with jail, fine and forced
rehabilitation. Even the dissenting judge in the
2-1 majority verdict had pointed this out, noting
that asking Lina Joy to go to the sharia court to
"leave Islam" was unfair and discriminatory
because she could end up incriminating herself.
Despite reassuring statements from Muslim
leaders, widespread disquiet is on the rise as
people realize that the court failed to uphold the
supremacy of the secular constitution and its bill
of fundamental liberties.
The court also
ruled that civil courts have no jurisdiction on
Islamic matters - a sweeping decision that leaves
scores of non-Muslims in a legal limbo.
An
example is the case of Mount Everest climber
Moorthy Maniam, a Hindu by birth but buried as a
Muslim in 2005. Islamic administration officials
"acquired" the body after a headline-grabbing
tussle for it with Moorthy's wife Kaliammal,
saying he had secretly converted to Islam.
Kaliammal disputed the claim and asked the
court to declare her husband a Hindu, but the
court instead said that since one party was a
Muslim, the court had no jurisdiction to hear the
case.
Kaliammal has appealed to a higher
court to exhume her husband's body and dispose of
it according to Hindu rites and customs.
But with the apex court ruling that civil
courts have no jurisdiction in Islamic matters,
aggrieved citizens like Kaliammal remain without a
remedy, a situation that is intolerable in any
society respecting justice and rule of law.
"The decision has a devastating effect on
issues of fairness and justice. Citizens will
rightly wonder whether the judiciary is capable of
delivering justice for those who turn to it,"
Aliran, a social-reform movement, said in a
statement.
In an interview, opposition
leader Lim Kit Siang said: "The judgment does not
end the Muslim-non-Muslim divide but has instead
worsened it by introducing Islamic principles into
secular, constitutional matters.
"A
political solution is urgently needed now to
resolve rising disquiet," Lim said, urging Prime
Minister Abdullah to take steps to satisfy
non-Muslim fears of "creeping Islam". Abdullah
"must take immediate steps to promote and protect
the supremacy of the secular constitution and its
bill of rights", Lim said.
Outside of a
political solution there is little anybody can do
now that the high court has ruled, said opposition
lawmaker Kulasegaran Murugesan. "The verdict is
binding on all the lower courts."
"A
political solution is urgent and must come from
Badawi, who espouses a moderate form of Islam,"
Kulasegaran said, urging the prime minister to
amend relevant parts of the constitution to
clarify the issues and uphold the supremacy of the
constitution.
"Badawi must make it clear
that non-Muslims should not be subjected to sharia
law," he said. "Even a political statement on
these lines will help to ease non-Muslim fears."
Abdullah Badawi's ruling National Front government
has a stranglehold on Parliament, controlling 90%
of the 217 seats - a massive majority that can be
used to make or change laws.
Referring to
a general election widely expected this year, Lim
said: "Ultimately the solution is in the hands of
the voters."
Abdullah strongly denied the
verdict was "a political decision", but public
belief is that the judges made their ruling with
an eye to their political masters and Muslim
sensitivities.
"They must have a hole in
their head. I have never ... coerced the judiciary
into making a political decision," an exasperated
Abdullah said when refuting charges that the
verdict was manipulated to satisfy one section of
society.
While Abdullah insists that the
constitution remains supreme, public confidence in
his pronouncements have taken a beating after many
promises remain unfulfilled.
With
dissatisfaction among non-Malays growing over this
and other issues, Abdullah is under pressure to
smooth out things before facing voters, 45% of
whom are non-Muslims.
One government
suggestion that may be pursued is the creation of
a multi-ethnic "religious commission" to receive,
arbitrate and resolve religious issues and
disputes.
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