Depolitising Conversion: The Case Of Religious Freedom In Malaysia
Hermen Shastri
Introduction
Malaysia is a multi-racial and multi-religious country of 25 million made up of Malays, Chinese, Indians and indigenous groups. Religiously 60% of the population are Muslims, 19% Buddhists, Christians (9%), Hindus (6%), and 6 % comprising others which includes Sikhs, Taoists, Bahais, tribal faiths and those who profess no religious affiliation.
When Malaysia gained its independence as a nation in 1957, after years of colonial rule by the British, it immediately faced the onerous task of forging a nation whose strength would lie in its multiethnic and multireligious make-up. The Federal Constitution which was drawn up, based on a referendum referred to as “ The Reid Commission”, took into consideration the aspirations of all ethnic and religious group, and it became a document of “shared destiny” that all parties could identify with. It was based on an understanding of a binding “social contract,” that although Muslims made up the majority population at the time of independence, the Federation of Malaysa then, would be governed as a parliamentary democracy where the fundamental rights of its citizens would be protected by provisions contained in the constitution. As inferred to in Article 4, the Federal Constitution would remain as the “supreme law of the land”, and provide the basis upon which the plurality of its national composition would be guided and managed. Although Islam would be referred to as “the religion of the Federation”, no where in the Constitution is it stipulated that the country would be referred to as an “Islamic State”. Matters related to the administration of Islam was delegated to the various states where Shariah laws and courts would deal with matters related to personal and family laws, marriage, inheritance, and welfare of Islamic institutions.
Since the eighties, Malaysia has seen the resurgence of Islam manifesting itself not only in the political rhetoric, but also in government administration, the construction of mosques and other Islamic Institutions and in personal attire and life styles. The non-Muslim population of the country has monitored the trends, and found solace in constitutional fundamentals which guarantees the freedom of all citizens based on secular law.
In recent years, the interface between the aspirations of the majority Muslim population (60 percent) and the rest ( 40% percent), has come under pressure as the issue of religious freedom took center stage. A series of high profile court decisions has put to test the guarantee of religious freedom under the Constitution vis.a.vis the growing demands of Islamic administration and control.
The most prominent of court cases had to do with an individual by the name of Lina Joy, who as a Muslim, asserted her constitutional right to choose a religion, dictated by her individual conscience, and as a right fundamentally, guaranteed to her under the provisions of the Federal Constitution.
Constitutional Provisions For The Freedom Of Religion
In respect of freedom of religion, Article 3(1) states that Islam is the religion of the Federation, but it goes on to say that all other religions may be practiced in peace and harmony. The mention of Islam as “ the religion of the Federation” was meant to assure the Malays, who by constitutional definition were also considered as Muslims, did not in any way impede the right of any citizen to choose a religion based on individual conscience. But as was envisaged, Islamic theorists in the country emphasized that the freedom of religion as formulated by the Constitution implies freedom of religion for non-Muslims only but not for Muslims.
The freedom of religion as stipulated in the Federal Constitution ( Art.11) guarantees every person the right to three things: to profess, to practice and subject to Art.11(4) to propagate his/her religion. The exception of Art 11(4) stipulates that no proselytisation of Muslims is allowed by adherents of other religions. The preaching of other religious doctrines to Muslims are regulated by state law.
Many non- Muslims complain that this amounts to unequal treatment under the law. It is one of the pre-independence compromises between the Malays/Muslims and the non-Muslims against powerful proselytising forces that had been prevalent during the British colonial administration. In other words, ethnicity and religious identity became merged as far as Malay/Muslim identity was concerned, and the freedom of religion provision as contained in the Constitution was seen by them as applying to the non-Muslim only. The renunciation of Islam would automatically mean, as some argue, abandoning the Malay community because Islam is one of the defining features of a “Malay” in Article 160(2).
The Right To Convert: Lina Joy’s Case
The right of a Muslim to convert out is not mentioned explicitly in the Federal Constitution, but scholars argue that the Constitution is equally silent about the right not to convert out. Every citizen under the Constitution has a right to choose his/her religion and to practice it. In public discourse, this right is alluded to by Malaysia’s endorsement of Article 18 of the UN’s international Covenant on Civil and Political Rights of 1966 and Article 18 of the Universal Declaration of Human Rights.
The prevailing Muslim view in Malaysia is that as Islam is “ the religion of the Federation” by constitutional definition, all Muslims are to be governed by Syariah laws (regulated by State laws) when it comes to apostasy. The nation that freedom to believe includes the freedom not to believe is rejected by Muslims, not until the Syariah allows it.
Lina Joy is a Malay/Muslim woman who converted to Christianity in 1990 and was baptised to the Catholic faith in 1998. She took the name Lina Joy and discarded her earlier Muslim name of Azalina binti Jalini. Since 1997, Lina made multiple applications to the National Registration Department (NRD) to have her name changed to reflect her new-found faith. Her application for a name change was approved in 1999, and she was issued a new identity card. Her identity card, however, stated that she was still a Muslim according to a new policy that came into force requiring all Muslims to have their religious identity reflected on their new identity cards, The NRD refused to change her religious status and insisted that she obtain an order from the Syariah court stating that she had become an apostate.
After several court hearings her case was referred to the Federal Court, the apex court of the country, to decide on whether the NRD had the right to reject her application to take out the word” Islam” as stated in her new identity card.
On May 30th, 2007, a three judge panel delivered a 2-1 majority decision that the NRD had the right in requiring Lina Joy to produce a declaration from the Syariah court stating that she is no longer a Muslim. While the majority decision based its argument on the fact that apostasy is within the jurisdiction of the Islamic law and the Syariah court and therefore the civil court cannot interfere, the minority decision, however, asserted that it would be unreasonable to force Lina Joy to go to the Syariah Court, knowing that apostasy is a criminal offence under the Syariah law and she would be punished. The Minority judgement stipulated further: “ Legislations criminalising apostasy or limiting the scope of the provisions of the fundamental liberties as enshrined in the Constitution are constitutional issues in nature which only the civil courts have jurisdiction to determine”
Ecumenical bodies in the country expressed grave concern over the court’s decision. The Council of Churches of Malaysia stated that, “Lina Joy and all other former Muslims who have chosen to convert out of Islam will find no redress in the country’s civil courts, and therefore be denied of their fundamental right as guaranteed under the Federal Constitution.”
The Christian Federation of Malaysia noted with much concern that the majority decision reflects a growing trend of decisions in the courts where “ civil courts are abdicating their responsibility of providing legal redress to individuals who only seek to profess and live their religion according to their conscience.”
The statement went on to say; ”it is now more pressing for the government and lawmakers to revisit the relevant legislation and to reinstate the jurisdiction of the Civil Courts so that equal protection of the right to choose and express one’s religion is accorded to all Malaysians”
The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism issued a statement entitled, “ Unity Threatened by continuing infringements of religious freedom.” (15th June 2007). in which it pointed to the worrying trends of an increasing Islamization of law and public policy in the country. It stated; ‘This creeping Islamization process has created a sense of fear amongst non Muslims comprising Buddhists, Christians, Hindus, Sikhs, Taoist and others, who form 40% of the population of the country. Many Malaysians from all races and religions are frightened how easily the safeguards entrenched and enshrined 50 years ago in our Federal Constitution are being eroded through the back door.” The Statement highlighted the legal impediments non-Muslims were facing by exercising their right to find redress in civil courts as a result of cases of apostasy and dissolution of civil marriages due to the conversion of spouses to Islam.
Depolitising The Right To Convert
As is shown, part of the difficulty in understanding the social and religious interaction in Malaysia is the politicisation of ethnic differences where religious, linguistic and cultural cleavages tend to coincide. Because religion largely coincides with ethnicity, inter-religious relations are greatly affected by perceptions of others in the political and social spheres. Championing the cause of Islam appeals to the majority Muslim electorate and it reinforces the perception that the protection of the interest of the Malays in synonymous to maintaining the preeminent position of Islam in national governance.
In order to diffuse the sensitivities of inter-racial and inter religious relations, inevitable in a plural framework, the way forward seems to be the task of reinforcing constitutionality. Citizenship should transcend ethnic barriers, where each citizen is assured of fundamental liberties guaranteed under a secular constitution. For that reason, the recent judgement of Lina Joy to consider the position of Syariah courts as being on par with the civil laws of the country is worrying. The secular state as envisaged by the Federal Constitution is seen as a bulwark to resist the imposition of an Islamic State.
Conversion is a contentious issue not only for the Muslims but also for the faith traditions. Christian conversion activities are perceived with suspicion by other faith communities as they see themselves” targeted” and bombarded with the zealous “marketing” of religion that tends to denigrate the spiritualities of others. In a country where ethnic identity is pronounced, losing converts to Christianity directly diminishes the numerical strength of each respective community.
The Christian Federation of Malaysia, in its undivided commitment to inter-religious harmony, felt it important to draw up a “code of conduct” in order to clarify its position on conversion. The statement on “ An Affirmation on Christian Witness” adopted in 1996. prescribes a standard of practice that denounces “unethical means” and denigrating tendencies in seeking to convert others. The following are emphasized;
“FREEDOM OF RELIGION is specified and safeguarded in the Federal Constitution. It is fundamental human right. From a Christian perspective, every right presents us with a solemn responsibility: that we value it for every human being, we protect and defend it, we practice it for the common good and in a spirit of fairness to all, and that it is not abused and taken unfair advantage of.
OUR LORD JESUS CHRIST prescribes the golden rule that “ In everything do to others as you would have them do to you...”(The Sermon on the Mount, Matthew 7:12). Due consideration must therefore be given to the other person and the same rules of conduct must apply to both parties.
IN SHARING THE GOSPEL OF JESUS CHRIST, unethical means do not justify a righteous end. In spreading religious faith and introducing religious pratices, everyone ought at all times to refrain from any manner of coercion or persuasion that could be regarded as dishonourable or unworthy since such action would be an abuse of one’s right and a violation of the rights of others. Unethical means can only bring poor and temporary results, shame, guilt and ill-repute to the Christian Faith. In this matter, we appeal to heads of churches and senior Christian leaders to help Christians under their charge to adopt only wholesome approaches to sharing the Gospel.”
By making such a declaration the Christian community in Malaysia is prepared to be responsible and mutually accountable in its relations with other faith communities in the country.
Continued harmony among the people of different faiths is integral to the happiness, welfare and harmony of Malaysians as a whole. It is imperative that laws, policies and administrative action consciously advance and promote unity and harmony. Regard needs to be paid to the rule of law and the supremacy of the Constitution. There must be integrity in the way laws are applied, in a non-religious way intended by civil laws subservient, to a constitution upon which a secular state is established. It must give due regard to Malaysia as a nation made up of diverse races, religions and cultures in which the national destiny of all the people are entwined as one.
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Dr. Hermen Shastri is the General Secretary of the Council of Churches of Malaysia and co-moderator of the WCC's Faith and Order commission.