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Interfaith dialog: Muslim Response to the MCCBCHS Memorandum
Tuesday, August 23 @ 15:29:49 MYT
 

by Baharuddeen Abu Bakar

The IFC proposal cannot be understood without first reading and understanding the memorandum prepared and submitted by the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS) to various organizations to gain support and resolution of its alleged grievances. The version of the MCCBCHS memorandum which was sent to the Bar Council is now reproduced below in bold together with the covering letter to the Bar Council Human Rights Subcommittee. The Muslim response is in brackets.( )

OUTLINE OF PROBLEMS FACED BY NON-MUSLIMS IN PRACTISING THEIR RELIGION

(This is, at least, an accurate statement of the law on the scope of religious freedom: “Every person has the right to profess and practice his religion…”Article 11 (1). There is no right to complain on behalf of others or to make demands against the teachings of a religion one does not belong to; it is doubtful if there is such a right even against one’s own religion. To the extent that the memo is couched in terms of Article 11, it is an acknowledgement that this is indeed the correct position; whether the complaints are in fact about one’s right to practice one’s religion remains to be seen.)

Submitted by Majlis Perundingan Malaysia Agama Buddha, Kristian, Hindu dan Sikh to Bar Council Human Rights Subcommittee organizing a conference on freedom of religion.

 

A. PERSONAL LIBERTIES

1 Non-Muslims are being unconstitutionally considered as Muslims

1.1 Paragraph 1 of the State List in the Federal Constitution states that State Assemblies can make laws relating to “personal Islamic law of persons professing the religion of Islam.”

(This is inaccurate. The significant opening words of the 9th Schedule, List II-State List are:
“1. Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to…” (then follows a list of personal law subjects).( Article 74 (4)

It is a well-established rule of statutory interpretation that where the word ‘including’ is used followed by a list of items, it means ‘in particular but not limited to’. This is borne out by the opening words- ‘Islamic law’ followed by ‘and’. In other words, State Assemblies may enact any Islamic law provided they are within the 2nd list or, if the subject is within the federal list (1st list), it has been transferred to the state list by the Federal Government; Article 76A. And, significantly, if a state gives its powers to the Federal Government.

The suggestion implied by the memo that the scope of Islamic law in the Malaysian legal system is restricted to personal law matters is, therefore, not true The opening words are not: “....Islamic law on… (followed by a list of personal law subjects”.

It is very important for Muslims to understand the scope of Islamic law-making powers of the legislative branch of government because it is being increasingly asserted by the enemies of Islam in this country that Malaysia is a secular country. Islamic law, covering only a few personal law subjects of Muslims, is thought of as a political sop to the Malays; a part, as it were, of Malay Privileges and not intended to last long, as the newly-discovered Social Contract is supposed to have it, too. This is the view of those who ignore history; R. J. Wilkinson wrote: “Islamic law would have become the law if English law had not intervened.”

Islamic law is the pre-existing law as it is the law that prevailed before the imposition of English law; the Basic Law in the sense of the law that would remain if all written laws were removed; it is the law of the land as acknowledged by the British- while English law could be legitimately imported only by legislation, Islamic law does not require any-it is the autochthonous law- as the native population had embraced Islam, Islamic law became as much a part of the country as its very soil and its native population. )

1.2 However, provisions in most state Islamic law enactments define Muslims widely, including that a person is Muslim if either of his parents are Muslims when he is born and so on. [see e.g. s.5 Islamic Family Law (Federal Territory) Act1984; s.2(1) Administration of Islamic Law( Federal Territories) Act 1993 )

(Are such enactments inconsistent with the Shariah? If so, non-Muslims have no right to complain. To be unconstitutional, as alleged, the MCCBCHS will have to show that the enactments have imposed Islam on persons who are not Muslims at all. Is the MCCBCGS insisting that Islamic law should not apply to such Muslims? even if Islamic law deals with such persons?)

1.3 This is a very serious social problem, especially among Indians. Non-Muslim women have children with Indian Muslim men, who then go back to India or just leave them. The children are brought up at home in the religion of their non-Muslim mothers, but officially they are treated as Muslims and taught Islam in school and therefore suffer mental turmoil.

(The conduct of a Muslim father who does not give his children a proper Islamic upbringing (except for their Muslim name), and also deserts his family is worthy of condemnation. However, knowing their children’s religious identity, the non-Muslim mothers should not interfere with the religious education the children receive in school. If they do, there are as much to blame as their absentee husbands. Non-Muslim women should not affect innocence of the consequences of their liaisons, and, in fact, this problem vindicate the requirement of Islamic law that non-Muslims who marry Muslims must embrace Islam so that they do not feel any aversion about raising their children as Muslims. The MCCBCHS should advise such mothers that for the sake of their children’s future at least they should raise them as Muslims. as they are aware of their children’s religious identity from the time of the registration of their birth.)

1.4 They cannot marry a member of the same religion or other non-Muslims. They are subject to arrest for various acts which are offences under Malaysian Syariah law, but which are lawful for non-Muslims.

(It is difficult to understand why these, albeit nominal, Muslims cannot marry other Muslims. As it is not the right of a Muslim to marry a non-Muslim, this is hardly a complaint. The qualification of the Syariah as ‘Malaysian’ is incomprehensible. It is not clear whether the “various acts” of non-Muslims are also not violations of their own religious teachings though Malaysian civil law may not punish them.

Most seriously, what right do non-Muslims have to complain of these matters; as the parties are Muslims and the issues involve Islamic law which does not apply to non-Muslims. It is indeed strange of non-Muslims to complain of such matters having prefaced their memo as dealing with non-Muslim rights to practise their religions.)

2 Cannot convert back to former religion.

2.1 Soon Singh’s case decides that only the Syariah Court has implied jurisdiction to determine whether or not a person is no longer a Muslim.

2.2 BUT- there is in most cases either

2.2:1 no statutory provisions governing conversion out of Islam; or

2.2:2 provisions implicitly or expressly prohibiting conversion out of Islam completely [e.g. the Administration of Islamic Law (FT) act 1993, sections 90(2) and 91(1) and (2) where it is stated that once you have converted to Islam, you should be treated for all time as a Muslim; or

2.2:3 statutory provisions criminalizing ‘apostasy’ [e.g. s.13, Syariah ( Crimes) Enactment Perak 1992]; or

2.2:4 statutory provisions or proposals calling for the detention of the convert/apostate for ‘counselling’ [e.g. Perlis Protection of Aqidah Bill (Act?) 2000]- anecdotal evidence suggests that this counseling is already done outside the law and involves intense and torturous brainwashing)

2.3 Non Muslims are affected by this because in the majority of cases the converts out of Islam are in fact returning to their former religion after a failed marriage with a Muslim or because the intended marriage to a Muslim did not occur or because their conversion into Islam was not a true conversion in the first place (too young, did it for ulterior motives, etc.)

(Islam prohibits apostasy; in appropriate circumstances it is punishable with death. In any case, it is a grievous wrong which will most certainly be punished in the Hereafter. In view of the Syariah position, it is unthinkable that the enacted Syariah should treat it as anything except as a reprehensible act which the would-be apostate should be dissuaded from carrying out.

The decision in Soon Singh is correct; not only because the matter of a Muslim’s aqidah is governed by the Syariah exclusively but also because the amendment to the Constitution-Article 121 (1) 1 A- takes away the jurisdiction of the civil court.

Conversion to Islam is not a frivolous matter. The Syariah administering bodies always take care to ensure that the convert acts voluntarily; indeed Islam prohibits forced conversions, and also advise the would-be convert that having accepted, he cannot leave the faith.

The emotions felt by non-Muslims do not give them any legal rights; this is a matter concerning Muslims and the Syariah. Non-Muslims cannot claim a legal interest in the matter only because it involves former non-Muslims. Muslims regard this as an interference by non-Muslims in the teachings of Islam.)

3 National Registration Act

3.1 The stating of one’s religion as a Muslim on one’s identity card poses problems for those non-Muslims who are treated as Muslims, and converts out of Islam. This also promotes disunity.

3.2 The former name of a person must be shown on the reverse side of the identity card according to the recently amended National Registration Regulations-again, disunity for the converts to Islam as well out of Islam(where this is done by some means), and non-Muslims who are treated as Muslims.

(Muslims are in no need to hide their identity, and do not need any one’s efforts on their behalf, do so. To suggest that the religion of a Muslim should not be stated on his identity card is not the right of non-Muslims.

Who are the non-Muslims who are treated as Muslims? If it is a requirement of the Syariah, the non-Muslims have no right to object. If there is a category of persons who even the Syariah does not regard as Muslims by birth but have been registered as Muslims then this must be a bureaucratic mistake which can be rectified within the existing legislation without making such heavy weather about it.

To the extent that the Syariah-administering authority has allowed, and only such bodies may allow it, a person to correct his religious identity, the fact of one’s Muslim name being shown on the reverse side should not pose any problems. However, the words, “where this is done by some means”, admit a questionable or underhand process or official oversight is involved, and the difficulty to the person concerned is self-inflicted. The law does not assist a person who has defrauded the public administration, and has the galling nerve to complain about the law. It is rather like the person, who killed his parents, pleading with the court to have mercy on him because he is now an orphan!

Pressing communal ‘disunity’ into service to support the non-Muslim cause does not at all assist; non-Muslims championing the cause of Muslims cause disunity between Muslims, and between Muslims and non-Muslims, perhaps we should all unite as Muslims!)

4. Marriage

4.1 The Registrar of Marriages cannot register the marriage of a “Muslim”.

(Are they saying that the powers of the kadhi and the Syariah administering authority should be removed and given to the Registrar of civil marriages who now has power only to conduct non-Muslim marriages? By what right are they interfering in the way marriages between Muslims are conducted?)

4.1 It should be entrenched in law that whether or not a person is a Muslim depends on what that person professes i.e. what he tells the Registrar. If the person says he is not Muslim, that should be the end of the matter.

(By this suggestion, Muslims are to be given the right to deny they are Muslims so that the Registrar may marry a Muslim to a non-Muslim without the conversion of the latter to Islam. With that the role of the Syariah itself will be eliminated.)

4.2 When a non-Muslim and a Muslim fall in love and want to marry,

4.2:1 Usually, the non-Muslim is forced to convert to Islam if he wants to marry the Muslim.

4.2: 2 Alternatively, and very rarely, the Muslim wants to convert out of Islam. She is not allowed to. (see Lina Joy v Majlis agama Wilayah Persekutuan (18.04.2001) KLHC OS No. R2-24-30-2000, unreported so far)

4.2:3 There are also cases where the Muslim managed to change her name in her IC before the regulation requiring the notation of ‘Muslim’ on an IC was gazetted, and so a marriage be5tween the two under the Law Reform ( Marriage and Divorce) Act was registered.

(This is an expression of what non-Muslims say should be the law for Muslims; they would impose it on us if they could.)

Children were born with non-Muslim names. Then, the formerly Muslim mother is charged for Syariah offences (such as apostasy and bearing a child out of wedlock) and fined or imprisoned. Prior to conviction, some form of detention and attempts at brainwashing the ‘apostate’ to return to Islam is attempted, usually not very gently. The non-Muslim husband is also pressurized to covert to Islam.

(This is a problem that some Muslims have brought upon themselves by violating laws that have been clear for more than1400 years, and they serve only as grist to the anti-Islam cause of some non-Muslims.)

5 Divorce

5.1 a person pretends to be a Muslim in order to get out of a marriage and the spouse is left in the lurch.

(If by this is meant that some men (it can only refer to men) covert to Islam only because Islam provides an expeditious and inexpensive divorce procedure, then the question to ask is: what is wrong with the non-Muslim form of divorce? It is ironic, and embarrassing to non-Muslims, to criticize the Islamic form of divorce, and then take advantage of it.

The left- in- the- lurch condition is not peculiar to non-Muslims, it is an unfortunate consequence of all divorces, and, to a certain extent, appropriate: being married and divorced cannot be the same emotionally. If it were, why should any one marry, and having married, why should we try so hard to remain married?)

5.2 A person who converts to Islam will be given custody of his children by the Syariah Court.

(Is it fair only if the non-Muslim parent is given custody? Isn’t the Muslim parent also entitled to raise the child in his religion?)

The child will be Islamised and taken away from the converts wife with very limited or no visitation rights by the Syariah Court without the non-Muslim wife being able to say anything.

(Why is the civil court not allowed to entertain an application by the Muslim spouse for dissolution of his civil marriage to a non-Muslim, and for related remedies such as custody? Is it because, as the Ong Commission Report had it, conversion to Islam can only be for wrong reasons, and is to be taken as a matrimonial offence? Non-Muslims have been rather happy all this while that the Law Reform (Marriage and Divorce) Act (sec. 52), excludes the Muslim spouse from its jurisdiction, so that the non-Muslim who has the children may simply by not going to court at all, turn her possession of the children into de facto custody, take them out of country even, and wait till the children are adults, to apply for custody, by which time it would be fait accompli?e.g. the Shamala case.

It is in order to avoid such a situation that the Muslim spouse goes to the Syariah Court, the only one he can go to, for custody of the child and to enable him to exercise his right to raise his children in his religion as in the Shamala case.)

The non-Muslim wife has no recourse to a court of justice because the High Court will decline jurisdiction and the Syariah Court has no jurisdiction to hear the non-Muslim wife’s application. (See the facts and decision in Genga Devi a/p Chelliah lwn Santanama/l Damodaram [2001] 1 MLJ 526, Rahmah Hussain H)

(In the Shamala case, the non-Muslim wife went to the High Court and was heard on her application for custody of the children, which she was given, though the Muslim husband had converted them to Islam long before that. He was given visiting rights but she defeated that simply by not turning up in court and keeping their whereabouts unknown.

These problems occur not because of the Syariah, but because the Muslim spouse is not allowed to go to the civil court, unless the non-Muslim does so, and there is no requirement even then that the right of the Muslim spouse to raise his children in his religion should be taken into account.)

6 Death

6.1 The non-Muslim relatives of a convert to Islam lose their rights pursuant to the Distribution Act 1955 to the convert’s estate upon his death.

(Non-Muslims are known to use their greater testamentary power to cut out family members from their will for converting to Islam. Yet the complaint is made that non-Muslims cannot inherit from Muslims.

However, in view of the, until recently, unlimited right given by the law of succession of non-Muslims to will away their estates to whoever they liked to the exclusion of their family, it is difficult to consider the matter in terms of rights. Only the Inheritance (Family Provisions) Act reduces this testamentary ‘freedom’ of non-Muslims.

This vindicates Islamic law of succession in that it does not allow the family from being excluded by will, and also reduces the extent to which family members may be favoured.

As a result a convert to Islam may, and is encouraged to, favour his non-Muslim parents to the extent of one-third of his estate. As Islamic teachings are replete with family values, converts to Islam are encouraged to look after their non-Muslim parents and “to keep them company in this world’s life” (.Surah Luqman and ahadith).

6.2 The corpse of a convert to Islam who has not converted out of Islam ‘officially’ before his death (usually because there is no way he can do so without being detained or subject to harassment) will be taken away from his family(at times in a manner that causes great distress to his grieving family) and Islamic rites are administered over him.

(Given the consistent hostility of non-Muslim families to any of their members embracing Islam, and confident that the dead person is not likely to deny that he has renounced Islam, non-families are known to maintain their opposition to one of them converting to Islam till even after his death, and would, at least, try to bury him as a non-Muslim.

It would be difficult for the Islamic department officials to take the word of non-Muslims, and would quite reasonably prefer to rely on their own records.

The matter is no less distressing to Muslims that a non-Muslim family should be unrelenting in its opposition to Islam until the very end.)

 

(SUMMARY:

The MCCBCHS position, though stated to be about the right of non-Muslims to practice their religion, is simply opposition to Islam:

1 Muslims particularly converts must have the right to reject Islam, no matter what the Syariah position may be. Though non-Muslims like to boast about the freedom given by their religions to choose any religion at all, they still object to any of their members becoming Muslim, presumably, because as Islam does not allow apostasy, it can only be a one-way street. They have only their religions to blame for the situation.

2 The Syariah- administering authorities should not attempt to prevent apostasy.

3 All Muslims, not just converts, should be entitled to marry non-Muslims without conversion to Islam.

4 All Muslims, not just converts, should have the right to deny they are Muslims at any time and for whatever purpose. A person is a Muslim only if he says so, not otherwise.

5 A Muslim’s Identity Card should not disclose his religion to facilitate the situations in items 3 and 4 above.

6 A person does become a Muslim because either one of his parents is Muslim i.e. by operation of the Syariah.

7 The current legal position that a spouse who has converted to Islam has no right to go to the civil court for the dissolution of his civil marriage should remain.

8 In the situation of item 7 above, he should not go to the Syariah court for any remedy consequent upon his conversion to Islam.

9 In the situations of items 7 above, he should continue to maintain his non-Muslim spouse.

10 If the converting spouse is the wife, as her civil marriage cannot be dissolved by the Syariah court, and she cannot enter the civil court for the same purpose, she must remain the wife of a non-Muslim and allow him to enjoy his conjugal rights, including sexual relations even if it is zina.

11 In the event of the death of a convert to Islam, his non-Muslim family members should remain entitled to inherit from his estate notwithstanding their implacable hatred towards him while he was alive for converting to Islam

12 Upon the death of the convert to Islam, the say-so of his non-Muslim family that he had ceased to be Muslim at some time while he was alive is all that matters to determine that he is to receive a non-Muslim funeral service, and be buried in a non-Muslim graveyard.

CONCLUSION:

The MCCBCHS memorandum is not about the right of non-Muslims to practise their religions. It is about how any connection, encounter or conflict with non- Muslims, is to be resolved in favour of non-Muslims so that the gain to Islam in converting non-Muslims is ultimately a defeat to Islam and Muslims in this Muslim country.)

 

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