Upholding Our Secular Constitution: Part Two

Core issues in choice of religionTHE death of Mount Everest climber Sgt M. Moorthy last month and the subsequent tussle for his body between the Federal Territory Islamic Affairs Council and his Hindu widow led to "confusion" on the remedy available or not available within the country's laws -- particularly the Federal Constitution and syariah law -- regarding matters of conversion. The syariah court had ruled Moorthy was a Muslim but his wife had sought a declaration that he was a Hindu. Husna Yusop talks to Syariah Lawyers Association President Muhamad Burok to get a clearer picture.


theSun: The prime minister said matters on religious conversion must be spelt out plainly in the Federal Constitution and other laws to prevent confusion among Malaysians. What is your comment?

Muhamad: Firstly, is there really confusion? If there is, why is that so? Which part is confusing? We have the Federal Constitution which clearly provides for our rights, with respect to the right to follow the religion of our choice. Why do we say there is still confusion or some vague matters here? Tell me where is the confusion so we can tackle the matter specifically. All this while, we have written laws and there has been no confusion all along. But suddenly, Moorthy's case came up and because of this one single case, because some people are playing up the issue, now everyone is saying there is confusion. This is really disappointing.


Where does the law stand regarding conversion?

Since 1988, this issue has been clearly spelt out in the Federal Constitution. The court had dealt with many conversion cases before. Why is it suddenly a problem now? Article 121(1A) clearly divides the power between the civil and syariah laws. Both these systems have been in harmonious existence all this while, working with each other well. They run parallel to each other although we have yet to see the converging point. And we have specific sections and enactments on conversion. Under the Syariah Court Civil Procedure (Federal Territories) Act, 1998, for example, we have a specific chapter on conversion to Islam. This is the written law which specifically gives jurisdiction to the syariah court regarding conversion to Islam. It is very clear. It does not cause any confusion, does it?


There have been calls for an amendment or repeal of Article 121(1A) as it is said to negate the rights of a non-Muslim who is involved in a marital relationship with a Muslim convert.

Article 121(1A) is the demarcation of jurisdiction from syariah court and civil court. The article is actually the umbrella section or principle. It says since the power regarding conversion to Islam lies within the syariah court, the civil court has no jurisdiction over it. That is what it is. The power regarding conversion to Islam has been given to syariah court, not to civil court. Unless and until it is given to civil court, we stick to it. So, why do we say there is confusion? I cannot see where the confusion is.


How about the case of Muslims wanting to leave the religion? What are the core issues here?


It is regarding Islam, the hukum syarak (syariah law) itself. What are our rights under the Constitution? First, to choose our religion. Second, to practise what is taught by the religion. These are the two rights. So, if you choose Islam, you have to abide by the Islamic practices. Why would you want to choose a religion and later defy its teachings? That is where the problem lies. Do not choose a religion which you do not want to comply with. If that is the case, it is better for you to become an atheist -- do not choose Islam, do not choose a religion for that matter.


But in the case of a born Muslim, he did not choose his religion. What if he feels like leaving Islam for another religion?

To leave the religion, there are certain guidelines and methods under Islamic law. If we are born Muslim, fortunately or unfortunately, we are Muslims. Since we are born as Muslims, we are obliged to follow the Islamic law. According to the law, there are means to leave the religion. One can go to the syariah court and submit his application for this.


But it is not possible for a Muslim to renounce his religion, right? Are we trying to allow it?

It is possible. There are ways to do it. We are now in the process of preparing the methods to deal with such applications. I am not saying we allow it but there are ways for it to be done. The court will hear the case and decide whether he can leave the religion or not. We will impose certain conditions. He will be called before the court and we will question him on his intention to leave.


So if he fulfils all the conditions, he can leave Islam? But in Islam, the penalty for apostasy is death.

We have yet to come across such a case, so I dare not say whether he can leave the religion or not. The matter is being updated and an announcement will be made later. It is still at the drafting stage. It may not be specific for those born Muslims or Muslim converts but there will be a method for Muslims to apply to leave the religion through the syariah court. It is not meant to allow Muslims to become apostates. In the process, we will try to tarbiyah (educate) them so they will remain in the religion. We will continue to try to rehabilitate and reform their faith in Allah. I have looked through the proposed method in the draft and I would think it is fair.


But this is like forcing someone to continue in a religion which he does not have faith in.

The principle is, in Islam, once we are in, we cannot leave. That is binding among all Muslims. It is a matter of aqidah (faith). This is a serious matter.


But this might scare away a non-Muslim who is interested in Islam, a potential Muslim. He may not dare to embrace the religion.It is better that way. Do not embrace Islam just for the sake of embracing the religion.


It is better to really get to know what Islam actually is. Learn about Islam first before deciding to change your religion. Do not decide to become a Muslim just so that you can have it stated in your IC. Or for other worldly purposes. This is a matter of faith. You are changing your faith. Changing what you believe in. Do not embrace Islam just because you want to marry a Muslim. This is the problem now. When someone converts to Islam not because of their faith in the religion, he will continue to do things contrary to Islamic teachings. He will keep it a secret from his family. But why? By doing this, by hiding the fact he is now a Muslim, he is actually tarnishing the religion.


For Muslim converts, is it in the law that they have to inform their family about their decision?

It is not in the law. But perhaps, we can make it an administrative requirement. I would like to suggest that we provide a column in the application form to become a Muslim. Ask the applicant whether his family has been informed or not. If yes, well and good. If no, we should call him and ask him why. We listen to his explanation. If we are satisfied with his answer, we accept it. Otherwise, we tell him this is not a wise thing to do. Either you inform your family or we do it for you. We do not mean to scare him away. We respect his decision but we want to ensure there are no complications later, like in the case of Moorthy.


So, you are proposing it?

Yes. One should be proud to declare he is a Muslim. He should even have a ceremony for that. Why not? This is a noble act, a good decision. There should be no problem. We are free to choose our religion. It is not like he was underage to make such a decision. In addition, a Muslim convert must be given continuous tarbiyah and training to enhance his knowledge in the religion. The religious authorities must not leave him alone. And, it is also important for Muslims to give more information to non-Muslims about the religion, so that there is no confusion.

We Muslims should not echo them when they said there is confusion in the religion. We should make an effort to explain to them. But first, we have to ensure we are well-versed about our own religion, otherwise we will only be echoing or parroting what they are saying. As Muslims, we should be clear on the religion. We must know, apart from the written man-made laws, we are also obliged to abide by the teachings of Al-Quran and Sunnah. As Muslims, there should not be any confusion.


So, the confusion is actually among the non-Muslims?

Yes, and Muslims are echoing them. Instead, they should explain and impart their knowledge. Muslims have this responsibility towards their non-Muslim brothers.So, there is no need to amend the law or anything as the confusion can be tackled by giving out the right information?Yes. The purpose of the enactments, the laws, the articles in the Constitution is clear. And they had been interpreted by the highest court of the country. What else do you want to change? If we amend or abolish the 121(1A), it means we are abolishing the syariah court. Before 1988, the jurisdiction of syariah court has always been monitored and intervened by the civil courts.


So, the article is fundamental to the syariah court.Can a non-Muslim get justice from a syariah court?

Of course. Basically, Islam is a religion of justice. Justice for all. It is against cruelty. Section 244 of the Syariah Court Civil Procedure (Federal Territories) Act 1998 says you got the inherent power for so long as you want to mete out justice. For the purpose of meting out justice, for the purpose of preventing injustice, use your inherent powers although it is not written in the act. Every court glorifies justice, not only syariah courts. But, in addition to this, the syariah court is being fortified by the hukum syarak. Section 245 of the Act says in matters not expressly provided for in the Act, the syariah court will apply the Islamic law. And what is the Islamic law? It is the Al-Quran and Sunnah. But, unless and until you are a Muslim, you do not read the Al-Quran. And even if you are a Muslim, not necessarily will you read or understand the Al-Quran. So, go deeper into what the Islamic law provides you, then only you will understand.


So, a non-Muslim can engage a syariah lawyer to represent him in the syariah court?

Yes. In the Al-Quran (Al-Maidah: 42), Allah has told the Muslims, if the non-Muslims come to you to get a judgment, you must deal with their case fairly. In our syariah court, a non-Muslim can tell the court, 'yes, I want to come under your jurisdiction and will abide by your decision'. So, the judge will then ask him, do you want to conduct yourself or you want a syariah lawyer? The court will then appoint a syariah lawyer for him if he asks for one. So, it is possible for the syariah court to hear a case brought forward by a non-Muslim.


How do we create this awareness that all Malaysians, not only Muslims, can get justice from the syariah court?

The most important thing is to teach and to learn about Islam. The problem is, Muslims do not seriously make an effort to learn from those in the know, and those in the know do not bother to teach those in the dark. Since independence, we have declared Islam as the religion of the federation but what have we done as a Muslim and as a Muslim-run government, to give explanation on Islam to the non-Muslims?

Obviously, what is happening now is our failure in carrying out our duties as Muslims. I am not pointing fingers at anybody but I blame myself, too. We Muslims, including the government, including the ulama, are not doing enough to make sure people know Islam and love Islam. In the end, because of our failure, now Islam has become the subject of abuse. We must admit this failure, this weakness, and remedy it.


So, there is no constitutional crisis here but only a matter of misunderstanding about the religion and the laws?

Yes. There is no such thing. Everything is clear actually. Going back to the case of conversion, we have in the law a section which said when a person converts to Islam, his or her spouse who has not so converted may petition for divorce. The spouse has the right to ask for a divorce if he or she does not want to convert. This can be done within three months after the conversion as stated in Section 51 of the Law Reform (Marriage and Divorce) Act, 1976. The Muslim convert does not have the right to petition for divorce but the other party who refuses to convert is given this right by the court. The law says it.


But divorce is not a good solution in marriage.

That is why when a person wants to convert to Islam, he must be fully convinced about his decision. He must think of everything, and everyone, which will be affected. It should not be an easy decision to change one's faith. Although ideally, we should not delay the process of conversion, the best thing is we should make sure one really understands the religion first before he declares his intention to embrace it. If we do it in haste, we are taking a risk. Complications might arise later.