Thursday, June 14, 2007

This is an article of reasons which touch a cord of which I identify myself with? Zainah Anwar wrote in her perspective on the issue of Lina Joy of which I promise not to touch anymore sadly I have to break my vow for this article is worth reading
Mediation the wiser path to take

IN August 1998, the Sheikh of Al-Azhar University caused a stir in Malaysia when he publicly declared that Islam recognises freedom of religion and Muslims are free to leave Islam as long as they do not harm the religion.
Dr Muhammad Sayyed Tantawi believes that there can be no compulsion in Islam. He asked what was the point in forcing those who wanted to leave Islam "to stay as this will only make them hypocrites". "It’s probably Allah’s will to save us from worse harm which these people could have caused if they had remained in Islam," he said.His opinion was supported by many others, including the then minister in the Prime Minister’s Department Datuk Dr Abdul Hamid Othman who reiterated that the government had no plans to take any punitive action against those who peacefully changed their religion.As could be expected, the Pas mursyidul am, Datuk Nik Aziz Nik Mat, expressed disbelief. He questioned the accuracy of the translation of the Sheikh’s Arabic speech.
He did not believe that a scholar of Tantawi’s stature could believe that apostasy was not a crime in Islam. If indeed Tantawi believed in freedom of religion, then Nik Aziz cautioned Muslims not to believe in any Islamic ruling based only on a person’s status and authority.Many foreigners are surprised at the depth of confusion on freedom of religion in Malaysia. To many Muslims living in other parts of the Muslim world, Tantawi’s position is a given. Freedom of religion is explicit in the Quran. They don’t understand how Muslims could force someone to remain a Muslim if he does not believe in the religion anymore. What good does it do to Islam and to Muslims to force someone against his will to believe when he does not believe? "How does that serve the interest of Islam and the Muslim world?" they ask, puzzled at the seeming insistence by many Malaysian Muslims to use force in matters of faith.
Faith cannot be faith when it is adduced through coercion seems fundamental to others, but not, it seems, to many of us in Malaysia.In 1999 and for a few years afterwards, Pas tried to introduce a private member’s bill in parliament demanding the death penalty for apostasy. Of course, in a parliament dominated by Barisan Nasional, the bill got nowhere.
In 2000, Perlis adopted a model statute drafted by the federal Islamic authorities called the Islamic Aqidah Protection Bill, which provided for one-year mandatory detention without trial in a faith rehabilitation centre for those who attempted to change their faith. The bill, which was to be introduced in parliament, was withdrawn because of public opposition.This still-born effort by the government to deal with demands that apostates be punished led to another round of consultation when a team from Islamic Development Department (Jakim) visited several Arab countries.
The late Justice Tan Sri Harun Hashim told me how surprised the Malaysian delegation was to meet scholar after scholar who believed in freedom of religion in all the countries visited. He was shocked, he said, to find that the Arab ulama who were reputed to be conservative were far more enlightened than the Malaysian ulama.In my years as Suhakam commissioner, freedom of religion cases were raised persistently in our visits to the states.
It is no wonder that these cases are now reaching the judiciary as the state apparatus insists on an exit certificate from a religious authority that is unwilling to co-operate. The cases range from those born Muslim who want to renounce Islam; those born Muslim but brought up as non-Muslims; those who converted to Islam in order to marry but now want to renounce the faith because of the collapse of the marriage; those who challenge the alleged conversion of their dead children or spouse to Islam, claiming that their loved ones had all along led the life of a non-Muslim; and in the latest case, a young man accidentally switched at birth and brought up by Muslim parents and who now wants to go back to the religion of his biological parents.
All these cases involve heart-wrenching stories of lives and relationships damaged, put in limbo, and the right to family, marriage, children, even the right to domicile in your home country denied because of state intervention in the right to freedom of conscience.Given the public divide over this most fundamental of rights, no amount of court judgment, swaying from one side to the other, over the past years has resolved the matter.What is needed now is political will, guided by clarity in thinking, compassion for the lives of those affected by this indeterminate state of affairs, and wisdom in reconciling the conflicting interests of different stakeholders.
Let us go through some of the key questions, one by one.Is there freedom of religion in Islam? The government has on its side some 20 verses in the Quran on belief and disbelief that do not prescribe any form of temporal punishment for apostasy. It has Article 11 in the Federal Constitution and Article 18 in the Universal Declaration of Human Rights. It has a whole range of juristic opinions from the earliest period of Islam to the contemporary period to support freedom of religion.
The one hadith that proclaims "Kill whoever changes his religion" is regarded by many scholars as a weak hadith that cannot validate capital punishment. Nor is there any Tradition where the Prophet Muhammad sentenced anyone to death solely for renunciation of faith.Except for Pas and its diehard supporters, few rational-minded Malaysian Muslims would support death to apostates or mandatory detention without trial to those who attempt to leave Islam.
The second and more tricky question, then, is should this freedom be absolute or should it be regulated? Constitutional lawyers and many liberals would argue that freedom of religion is a fundamental right guaranteed by the Federal Constitution and human rights principles. Faith is a private matter between the believer and his God and the state has no role to play in intervening to determine whether a citizen is a good, bad or non-believer. A free conscience is fundamental to being human.
However, there are also many Muslims who believe in freedom of religion, but given the particular context of an ethnically divided Malaysia where the status of being Malay is constitutionally linked to being Muslim, any attempt to leave Islam should, they believe, be regulated.This effort at establishing official procedure for Muslims who wish to leave Islam is not meant to thwart freedom of religion, but to mitigate the deep concerns and sensitivity of certain segments of the Muslim community about one of their own wanting to leave that community.
This procedure is only to establish that the person wants to leave Islam out of his own free will and choice, and not out of coercion, and he has considered all the legal, social and economic implications of that change of faith.Negri Sembilan is the only state which provides for a procedure for a person to leave Islam. And it has not opened the floodgates to thousands wanting to leave the religion. Between 1994 and 2003, it was reported that only 84 applications were submitted to leave Islam. The procedure requires the person to apply to the Syariah High Court judge and specify the grounds on which he intends to renounce the religion. Any hearing will be adjourned for 90 days, during which the judge requires the applicant to undergo a counselling session for the purpose of advising him to reconsider Islam as his religion. A report will be submitted to the judge at the end of the 90 days and should the judge feel there is hope for repentance, the person can be directed to undergo further counselling up to a maximum period of one year. Should there be no repentance, then the court declares that the person has renounced Islam.
While for some, the time period for counselling is too long, this Negri Sembilan provision nevertheless sets a time frame for some certainty in outcome. It could form a basis for the government, faith groups, the Bar Council and human and women’s rights organisations, to begin to work out an acceptable compromise which will respect a citizen’s right to freedom of conscience, and at the same time assure the Muslim community that all effort has been taken to verify that this was a genuine change of faith.If there could be agreement on procedure for a way out, then the third question arises over the contentious issue of jurisdiction. Given the divided opinions over civil or syariah jurisdiction, and the lack of confidence in a judicial process, it could be decided that a more neutral civil institution like Suhakam could be the platform for mediation, negotiation or conciliation for applications for a change of religion.In the interest of peaceful co-existence in a plural society, dispute resolution on matters of faith should go to an adversarial open court process only in the last resort. Given the continuing controversy, many more Muslims are beginning to feel that mediation is the wiser path to take to find a peaceful and just resolution to enable those personally affected to get on with their lives.


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