Both Muslims and non-Muslims say current laws restrict religious freedom.
March 15, 2006 (Compass) -- Two significant legal developments have left Malaysians hotly debating religious rights and Islamic law (sharia).
The first measure was the enactment of a new Islamic Family Law in December that made it easier for Muslim men to acquire up to four wives. These men no longer have to prove their financial capacity or ability to treat all four wives equally. The law also made divorce far easier and gave husbands the power to freeze the bank accounts of their former spouses.
The second was the burial of a national hero, Moorthy Maniam – who once climbed Mt. Everest – as a converted Muslim.
Moorthy, along with his wife Kaliammal Sinnasamy and their 9-year-old son, appeared in a television program on October 31, 2005, as they celebrated the Hindu festival Deepavali. Less than two weeks later, on November 11, Moorthy – who was paralyzed in a 1998 accident – fell from his wheelchair and went into a coma.
On December 1, a senior official from the military camp where Moorthy worked informed Moorthy’s wife that he had converted to Islam. If he died, the official told her, he would therefore be given a Muslim burial.
On December 21, a day after Moorthy’s death, Kaliammal filed a case in the Kuala Lumpur High Court, asking that Moorthy’s body be released to her and cremated according to Hindu burial rites.
Kaliammal argued that Muslim officials could produce no documents proving Moorthy’s conversion. His national identification card had not been changed to reflect his conversion; neither had he informed his wife nor any other relatives about his conversion. He had attended Hindu religious rites and continued to eat pork and drink alcohol – both forbidden to Muslims – until he fell into a coma on November 11.
Seeing the urgency of the case, the High Court agreed to a hearing on December 29.
On December 22, however, the Kuala Lumpur Sharia High Court declared that Moorthy had embraced Islam and must be given an Islamic burial. By announcing Moorthy’s conversion to Islam, the sharia court effectively ended any further jurisdiction of the civil courts over Moorthy’s case.
In response, the High Court brought forward the hearing date to December 27. When Kaliammal’s lawyers asked for documented evidence of Moorthy’s conversion, the Islamic Religious Affairs Council (IRAC) and the government argued that it was not necessary, since the High Court could not question the decision of the sharia court.
Justice Dato Raus Sharif read out the decision at 10 a.m. on December 28. By 3 p.m., the IRAC had buried Moorthy as a Muslim. Kaliammal and her son did not attend the funeral.
A public seminar on religious freedom and constitutional rights, held last Sunday (March 12) in Malaysia, exposed the problems many non-Muslims face under a dual legal system that gives wide powers to courts. Until then, the government had not allowed public debate over conversion issues, saying it would cause “social disharmony.”
A Malay participant interviewed by the Malaysiakini newspaper said he had not realized how serious the issues were. Conversion out of Islam had become a virtual impossibility for ethnic Malays who were legally considered Muslims for life – and identified as such on their national ID cards.
Rights for Christian Converts
In the case of Lina Joy, a former Muslim who converted to Christianity in the late 1980s, Malaysia’s Court of Appeals ruled last September that she and all other would-be converts must apply to a sharia court for permission to legally renounce Islam.
The court said Joy, 41, was constitutionally free to practice the religion of her choice. In practice, however, the Muslim designation on her identity card prevents her from marrying a Christian and places other restrictions on her everyday life.
Joy – known as Azlina Jailani before she converted – first approached the National Registration Department (NRD) in 1997 asking for permission to change her name and religious status. The NRD permitted the name change, but refused to change her religious status on the grounds that only the sharia court had jurisdiction over these matters.
When Joy appealed this decision to the High Court, it ruled in 2001 that as an ethnic Malay, she would “exist under the tenets of Islam until her death.”
According to Malaysian lawyers, the sharia courts have never granted permission for a Malay Muslim to convert out of Islam. (See Compass Direct, “Malaysian Court Says ‘No’ to Change of Religious Status,” September 29, 2005.)
This problem affects many other Christians, who prefer to remain silent converts rather than take their battle to the sharia courts. Under sharia law, apostasy or conversion out of Islam is a serious offense, punishable by whipping, fines, imprisonment and – in the most extreme application – death.
A Question of Jurisdiction
Moorthy’s case highlights a legal dilemma faced by non-Muslims throughout the country, according to Lee Min Choon, chairman of the Religious Liberty Commission of the National Evangelical Christian Fellowship of Malaysia (NECF Malaysia).
The federal government allows each of Malaysia’s 13 states to create their own dual legal system, with one set of laws applying to all citizens, and Islamic or sharia laws covering a restricted set of circumstances for Muslims only. Since the sharia court has jurisdiction over all things Muslim, people who wish to leave Islam – or who are declared Muslims by the sharia court – are left with no redress in the civil court system. They are effectively stranded between both systems.
This was not always the case. The High Court had jurisdiction over a person’s religious status until 1988, when a new clause was inserted into Article 121 of the Malaysia Constitution. Article 121(1A) stipulated that the civil courts could no longer intervene in any matter falling within the jurisdiction of the sharia courts.
In the landmark case of would-be convert Soon Singh in 1999, the High Court ruled that only the sharia court had jurisdiction over cases involving conversion out of Islam.
The Moorthy ruling effectively increased the jurisdiction of the sharia courts, giving them power to declare whether or not a deceased person had become a Muslim.
High Price to Pay
NECF Malaysia’s Lee is also a member of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS). The Council recently appealed to Prime Minister Dato’ Seri Abdullah Ahmad Badawi, asking him to urgently address the problems non-Muslims face as a result of the dual legal system.
MCCBCHS sent a memo to Prime Minister Abdullah asking that the 1998 amendment to Article 121(1A) be repealed and urging greater freedom of religious choice for all Malaysians.
The Council also sent a letter to the Human Rights Commission of Malaysia, pointing out that the dual legal system causes serious family and social problems.
For example, if a husband converts to Islam, he can leave only a third of his property to his wife and children. The rest is administered – and sometimes confiscated – by Muslim authorities. His children are automatically deemed Muslims; and Islamic authorities can designate a Muslim custodian to replace the surviving non-Muslim spouse. The non-Muslim spouse cannot contest a sharia court decision.
Members of several minority religious groups testified of these difficulties at the forum on Sunday, providing strong evidence that constitutional reform is needed.
As S. Arulchelvam, general secretary of the Socialist Party of Malaysia, said in an Asia Times Online article on January 4, “Unless the deep-seated issues of racism and religious freedom are openly discussed and resolved, Malaysians will continue to live in fear and suspicion of one another.”
Lee himself argued that faith should be a matter of what a person professes him or herself to be –not a matter for the courts to decide.
“If one is to have free choice,” he added, “then there must be mechanisms for peaceful entry and exit from religions.”
Copyright © 2006 Compass Direct