DAR AL ISLAM - MALAYSIA: SHACKLES ON RELIGIOUS FREEDOM

Malaysia's shackles on religious freedom
David Hodgson

Can Islam be compatible with religious freedom? I certainly hope so, but doubts are raised by a decision of Malaysia's highest court, given a month ago. Lina Joy is a 43-year-old Malay woman who became a Christian some years ago and wished to marry a Christian man.

As a Malay, at the age of 12 she had received a national identity card specifying her religion as Islam. As long as her identity card stated she was a Muslim, she could not obtain a marriage licence to marry a Christian.

She applied to the National Registration Department to have her designation as a Muslim removed. The department required a certificate of apostasy from an Islamic court before this would be done.

Malaysia has civil and Islamic courts, the latter having jurisdiction over Muslims in religious and family matters. In most states of Malaysia, apostasy from Islam is punishable as a criminal offence by order of an Islamic court. Certificates of apostasy are very difficult to obtain. If Joy and her Christian boyfriend had children without marrying, the children could be taken from them to be raised as Muslims.

Before the court's decision Joy and her boyfriend had received death threats and were in hiding.
As a member of the United Nations, Malaysia is committed to the Universal Declaration of Human Rights, which states that: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief", as well as providing that "without any limitation due to race, nationality or religion" men and women have the right to marry and have a family. Malaysia's constitution provides that every person has the right to profess and practise his religion; although it does also provide that civil courts have no jurisdiction over matters within the jurisdiction of Islamic courts. Interpretation of the constitution is a matter for civil courts and, ultimately, for Malaysia's Federal Court.

By a 2-1 majority, the Malaysian Federal Court decided that the department's requirement of a certificate of apostasy was lawful. The two judges of the majority were Muslim and included the Chief Justice of Malaysia. The dissenter, Justice Richard Malanjum, is a non-Muslim.

According to the majority, the question whether Joy was or was not a Muslim was a decision for the Islamic courts, which had been given jurisdiction over issues of conversion to Islam and, by implication, had jurisdiction over questions concerning conversion from Islam. The Chief Justice was quoted as saying: "If a person professes and practises Islam, he should be following Islamic laws including his conversion or renunciation. That is what is meant by adopting and practising Islam. What the [department] did was to ascertain whether Lina [Joy] had renounced this religion. I do not see this as an infringement to freedom of religion. No one is stopping her from marrying. She is merely required to fulfil certain obligations, for the Islamic authorities to confirm her apostasy, before she embraces Christianity."

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And now infidels, become familiar with what Hudud & Qisas laws are, Mr. Hodgson didn't provide you with enough information:

Here are a couple of excerpts that describe what Hudud Laws are and their respective punishments, pay special attention to WIKIPEDIA's missing pieces about Hudud Laws concerning fornication amongst unmarried individuals & how they are applied to rape victims:

Hudud ( Arabic حدود, also transliterated hadud, hudood; plural for hadd, حد, limit, or restriction) is the word often used in Islamic social and legal literature for the bounds of acceptable behaviour and the punishments for serious crimes.

In legal terms (Islamic law being usually referred to as Sharia, شريعة) the term is used to describe laws that define a level of crime classification. Crimes classified under Hudud are the most severe of crimes and carry severe punishments. The punishment prescribed for murder is beheading; for theft, the amputation of the right hand; for blasphemy, stoning, and for drunkenness, severe flagellation. These punishments can be better understood in the context of the time they were introduced: the society in Arabia where Islam was first established was almost entirely lawless and blood feuds, which carried on for generations, were a widespread result of disputes. The method with which Islam brought these disputes to an end was straightforward retaliation (qisas) against the guilty parties. This may explain the name of these punishments - hadh - limitation [of feuds]. The Qur'an and hadith instruct that hudud punishments be used sparingly and only when the offender had been accused by four eyewitnesses of spotless moral character or has confessed to the crime.

There are minor differences in views between the four major Sunni madhhabs about sentencing and specifications for these laws. It is often argued that, since Sharia is God's law and states certain punishments for each crime, they are immutable. However, with liberal movements in Islam expressing concerns about hadith validity, a major component of how Islamic law is created, questions have arisen about administering certain punishments. Incompatibilities with human rights in the way Islamic law is practised in many countries has led Tariq Ramadan to call for an international moratorium on the punishments of hudud laws until greater scholarly consensus can be reached[1]. It has also been argued, that the Hudud portion of Sharia is incompatible with humanist understanding of human rights.

The following is a Question & Answer on Hudud and Qisas as found in Malaysia and other Islamic nations, they even mention how Hudud and Qisas Laws apply to non-moslems if they are in the minority. Please pay special attention to how these Islamic sources do not spare the details as WIKIPEDIA does:

Q & A on the Hudud and Qisas Enactment (from ALIRAN)

1. What is the Hudud and Qisas Law?

Hudud and Qisas laws deal with offences and punishments that are interpreted by Muslim juristic scholars to be derived from the Qur’an and the Sunnah (of the prophet). Hudud literally means limit. According to some scholars, the word “hudud” is not used in the Qur’an specifically in terms of punishment. However juristic opinion has reduced hudud to mean mandatory punishment. Under Hudud law, theft, robbery, illicit sex, alcohol consumption and apostasy are considered offences. Punishment for these offences are corporal in nature, involving whipping, stoning to death and amputation of limbs.Qisas (law of retaliation) refers to offences that involve bodily injury or loss of life. The punishment is death or imprisonment, but compensation in the form of a sum of money or property (diyat and irsy) is accepted if the guardian of the victim forgives the offender. In Malaysia both Hudud and Qisas offences are contained in the set of legislation known as the Syariah Criminal Code Enactment. In Kelantan the law is formally called the Syariah Criminal Code (11) Enactment 1993 and was passed on November 25, 1993. In Terengganu the Syariah Criminal Offences (Hudud and Qisas) Bill was passed on July 8, 2002.

2. What offences are covered in the Kelantan and Terengganu Enactments?

Six offences are recognised under the Enactment as Hudud offences, namely:

1) Sariqah (theft)
2) Hirabah (robbery)
3) Zina (unlawful carnal intercourse)
4) Qazaf (accusation of zina which cannot be proved by four witnesses)
5) Syurb (drinking liquor or intoxicating drink)
6) Irtidad or riddah (apostasy) The second set of offences refer to homicide and bodily injury and listedunder Qisas.

3. What are the punishments prescribed for the offences?

Syurb - is consumption of liquor or other intoxicating drinks. The act ofconsumption in itself regardless of whether a person is intoxicated by it, is punishable with whipping of not less that 40 stripes for first offenders, 80 stripes and imprisonment for repeat offenders.

Sariqah (theft) - is punishable by the amputation of the offender’s righthand. For a second offender, amputation of his left leg and for a third andsubsequent offender imprisonment as deemed fit by the court. However the offender shall not be liable for the above punishments if amongst others, the value of the stolen property is less than a prescribed sum, the owner of the stolen property failed to take adequate steps to protect his property, the property is freely available or the property is valueless in Islam e.g. liquor or entertainment equipment.

Hirabah - For the crime of armed robbery, the punishment is: death and thereafter crucifixion if the victim is killed and his or another person’sproperty is taken; or death if the victim is killed but no property is take; or amputation of the right hand and left leg if the victim is not killed or injured.

Zina - is categorised under the Bill as: illicit intercourse by an unmarried person with another person the punishment for which is whipping of 100 stripes and 1 year imprisonment; and adultery; the punishment for which is stoning until death.

Qazaf - The Qur’anic injunction against qazaf is to prohibit the accusationof chaste women of zina (illicit intercourse). Under the Bill, any person who accuses another of illicit intercourse without bringing forth 4 adultmale Muslim witnesses, is to be punished with whipping of 80 stripes. Section 9 specifically states that any person complaining of rape in a case where such rape is not proven shall be deemed to have committed qazaf. In relation to married couples, zina may be proven by unrebutted sworn allegation of a person against his/her spouse.

Liwat - is defined under the Bill as sodomy by a man with another person who is not his wife. Liwat is to be proven in the same manner as zina.

Irtidad or Riddah - The punishment for blasphemy or apostasy by anunrepentant offender is death and forfeiture of property.

4. What evidence is needed to prove Hudud offences?

Every offence except zina must be proven by the testimony of 2 adultprincipled male Muslim witnesses who have not committed any major sins nor continue to commit minor sins. Zina is to be proven by the testimony of 4 adult principled male Muslim witnesses. Zina can also be proven by pregnancy of or birth of a child by a woman not then married unless she brings proof to the contrary. In the event there is insufficient evidence for the purposes of meting out hudud punishments, then the offender may nevertheless be punished by the court with non-hudud punishments. This is known as ta’zir punishment.

5. Can Hudud punishment be reduced and adjusted?

Hudud punishment is mandatory. Section 50 of the Terengganu Enactmentprovides that hudud punishments may not be reduced, substituted, stayed or in any way varied. Nor can the offender be forgiven.

6. What is the difference in the notion of crime between Hudud and anysecular penal code?

Under secular laws, an action is considered criminal if it brings aboutserious harm or death to another party or when there is victimizationinvolved. The violation of private property rights, including bodily rights(as in physical assault and rape) is also construed to be a crime. Although Hudud and Qisas are informed by these premises, there are additional areas in the Islamic law which are outside the bounds of these justifications. For example, under secular law, a sexual relationship between consenting adults is not a crime as it does not bring injurious harm to another party. Drinking of alcohol is not a victimizing act, hence it is also not a crime. However, drunken driving is, as it can potentially cause serious harm toanother party. The right to renounce one’s religion is also not a crime asit is considered a human right to religious freedom, with no repercussionsof victimization. In contrast, Hudud law “criminalizes” all of these actions, namely, sex outside marriage, drinking of alcohol and therenouncement of the Islamic religion. Hudud proponents say that these laws are divinely ordained by God. However, the codification and formalization of these laws are mediated by human actions and subjected to human interpretations.

7. How can Hudud be subjected to human interpretations?

The hudud provisions have been formed through the opinions of jurists inMuslim jurisprudence. The methodology of interpretation that is usedinvolves ijtihad (independent reasoning) and qiyas (analogy). Their viewsare further subjected to sanctions through a politico-legal process of ijmaor consensus of the jurists or through majority opinion (jumhur). Thefounding of the four schools of jurisprudence by the four great imams (AbuHaniffa, Malik ibn Anas, Shaf’i and Hanbal) were all in the Abbasid period, stretching from the 8th to the 13th century, or 100 years after the Prophet’ s death.

8. What other countries have a similar law?

Hudud laws were introduced in Pakistan in 1979 under the rule of General Zia ul-Haq. In Sudan President Numeiri introduced Hudud by replacing the old Penal Code of 1974 with the new Penal Code of 1983. In the new Penal Code of Sudan, Hudud offences such as adultery are unlawful and the punishment will vary for Muslims and non-Muslims and whether one was married or unmarried. In Nigeria the northern state of Zamfara was the first to introduce the Hudud law in January 2000. Nine other Muslim-majority states in Northern Nigeria have subsequently adopted the Hudud to a lesser or greater extent.

9. Is Hudud only applicable to Muslims?

In countries with a population that are not predominantly Muslim (e.g Nigeria and Sudan), the laws are not applicable to non-Muslims. In countries where non-Muslims are of very small minority or non-existent and where an Islamic state is established (such as in Saudi Arabia, Iran), Hudud offences and punishments are incorporated into the law of the land and apply to all citizens.

10. Is there a chance that Hudud may overstep the legal rights of non-Muslims?

In all likelihood it will. As Malaysia is a plural society and where theconcentration of one ethnic community is not necessarily confined to oneregion or state there are bound to be clashes and overlaps in application. For example in any crime the victim and perpetrator may be of different religions. If the alleged rapist is a Muslim and the victim is a non-Muslim, there will be the question as to under what law the charge would be brought about. Under Hudud the alleged male perpetrator may stand to gain because of the impossibility of getting the testimonies of four Muslim male witnesses. Under Hudud, Muslims who commit robbery of property that is valueless in Islam e.g. liquor or entertainment equipment will have a chance of escaping any prosecution. In another worst-case scenario, such as in an incident of gang-rapes, where there are multiple perpetrators and victims (comprising Muslims and non-Muslims), eye-witness accounts of the rapes which may be offered by the victims would not be admissible as evidence as they may not be Muslim and male. In all of these hypothetical cases non-Muslims will stand to see justice taken away from them.

11. What effect will Hudud have on race relations?

The bleak scenario is that Muslim and non-Muslims will be forcibly divided not just in the cultural and social sense but in a legalistic sense too. Aparallel legal system established exclusively for Muslims will lead to theenhancement of structural discrimination, where race and religion (and gender) can be legally invoked to justify unequal treatments and other unfair provisions in society. Eventually it will also lead to a geographical divide between Muslims and non-Muslims where one can expect an exodus of non-Muslims to more “non-Muslim” states or even emigration abroad.

12. What effect will Hudud have on gender relations?

Like race relations Hudud will also setback the struggle for gender equality in society. Many provisions in the Hudud discriminate against women. Women are not accepted as witnesses and women are also most likely to be prosecuted for slander if they are not able to prove rape. In cases of adultery, women on account of them being pregnant will immediately be charged for the offence while it will be impossible to charge the male partner because of the requirement of four male Muslim witnesses.

Evidence for rape is ocular evidence of four adult male witnesses orconfession of the accused. The victim’s own statement has no testimonial value. Even if medical examination is taken and a sexual act has been proved to have taken place, the accused can still be acquitted. The woman is then convicted of zina. The onus is upon the victim to prove that she was not a consenting party to her rape. Even minors can be convicted of zina, unlike what is provided in the existing penal code, where consent of a minor is immaterial and statutory rape is applicable. In Pakistan, even twelve-year old victims of rape have received punishment for zina. In Pakistan today, there are hundreds of women in jail on charges of Hudud offences. This number is rapidly increasing and there is even a new jail in Larkana especially built for women.

13. Is Hudud law presently being implemented in this country?

Although the Kelantan State Assembly has passed the Syariah CriminalEnactment in 1993 it has yet to be implemented. So far nobody has beencharged for the Hudud or Qisas offence.

14. Is the law constitutionally legal?

Criminal law is in federal hands. But the power to create and punishoffences against the precepts of Islam has been assigned to the states bySchedule 9, List 2, Item 1. However, this power is still subjected toseveral restrictions. Syariah courts only have jurisdictions over personsprofessing the religion of Islam. Syariah courts also do not havejurisdiction in respect of offences “except in so far as conferred byfederal law”, and also state authorities can only legislate for Islamicoffences “except in regard to matters included in the Federal List”.

As one legal expert Dr Shad Faruqi opines, this has made the Constitution“..hopelessly ambiguous”. He states that, “In Schedule 9, List 1, Item 4 itassigns the entire field of criminal law and procedure to the federalParliament without specifying the areas permitted to the states.” As itstands now it appears that the states can enact laws for residual matters as khalwat, zina, drinking, not fasting or missing Friday prayers. But in the last two decades the state legislatures have also interpreted their powers expansively by enacting laws against homosexuality and apostasy. Law on apostasy is nevertheless a violation of the constitutional guarantee offreedom of religion in Article 11. Because of the ambiguous nature of the Constitution and irregular precedence set before, there is no clear legalopinion as to whether the Kelantan and Terengganu Enactments are outright unconstitutional. Until and unless the Hudud is enforced and challenged on constitutional grounds there will be no basis to conclude on the validity or invalidity of the law.

15. What is the part in Hudud which violates the principles of the Malaysian Constitution?

Article 11 is interpreted to mean freedom of religion and therefore issupposed to be a guarantee against prosecution on the basis of choice ofreligion. Article 8 provides that every citizen is equal before the law,hence the discriminatory nature of the Hudud against non-Muslims and women can be interpreted as being unconstitutional. Hudud also regulates and controls private and consensual activities unlike secular law which generally does not legislate on “private matters”, especially on activities that are not injurious and “victimizing”. Hudud also specifies punishments that cannot be substituted or lessened at the discretion of the judge. There is no such finality in secular law as law reforms are an ongoing concern, and adjustments are made in accordance with changing place, time and current sensitivities.

16. Is there a difference between a ‘PAS’ Hudud and an ‘UMNO’ Hudud?

It will be hard to imagine the difference between a “PAS” Hudud and analleged “UMNO” Hudud. Perhaps in the UMNO case, the standards andrequirement of evidence will be modified so as not to appear toogender-biased and discriminatory against non-Muslims. Perhaps certainoffences such as drinking and the renouncement of Islam (apostasy) will not be subjected to harsh punishments, but with more emphasis on “forced rehabilitation”. Until UMNO is prepared to present its own version of the Hudud, we cannot be sure that it will be “more just”. Whatever it is, Hudud in whatever form is already a manifestation of an imminent parallel legal system aiming to separate the rights of Muslims from non-Muslims. In the worst-case scenario all citizens will be subjected to the sovereignty of one (most likely, Islamic) law. Ironically, in the best-case scenario this maylead to the creation of a non-Muslim nation alongside a Muslim one. We may be heading for a constitutional crisis if this delicate issue is not handled decisively.

17. What is to be done?

It will be difficult to repeal any law once passed. The strategy of stallingthe implementation of Hudud (in the Kelantan case) is only temporary. If PAS manages to win the overwhelming support of the Malay electorate there will be less of a reason to postpone the implementation of the law.

On a long-term basis the struggle to repeal Hudud law must involve the struggle to repeal all draconian and unjust laws, whether passed underreligious or secular guises. All laws that violate the principles of humanrights and equality must be abolished. The movement to institute humanrights is not necessarily western-oriented. It is as much a cultural need towant human dignity to be protected as it is a universal obligation toappreciate the rights of a community to cultural and religious practice.

However, ultimately we must recognize that the greatest rights worthdefending are rights that are invoked purely on the basis of us beinghumans. Which means equal treatment, equal access to opportunities and equal dignity for all, regardless of religion, race, class, nationality andgender. The only viable movement in this direction would be to restore ourdemocratic institutions and push for a genuine regime of human rights.



Pertinent Links:

1) Malaysia's shackles on religious freedom

2) Wikipedia - Hudud

3) Q & A on the Hudud and Qisas Enactment (from ALIRAN)