Monday, July 02, 2007

29/06: Damned had Lina won or lost....who’s damned?
[print] Category: General
Posted by: Raja Petra

Dr Dzulkifli Ahmad

Director, PAS Research Centre

Having penned ‘Jurisdiction Fault-Line: Who’s to Blame’ (Malaysiakini, 12 April, 2007), I knew fully well that it wouldn’t be my last on this ‘jurisdictional conundrum’. After the Federal Court, being the apex court of the country, returned a 2-1 verdict against the three prayers of Lina Joy, I religiously followed literally every ranting and raving by everyone I could afford to, from both divides, I hasten to add.I have absorbed enough, to think that I now deserve my say. I would like to have the last word but it may be a bit vain, perhaps too wishful. Like me, you may have vouched not to read or write anymore on this subject. But, with the title I coined above, you can't help wanting to read further my piece.The writer is not into any critique of the judgment proper. He would conveniently side-stepped the issue as he felt that it is neither useful nor necessary. Why? The judgment has never been the real bone of contention in this long-drawn judicial debate. It never was.

But by the twists and turns of events, the judgment has however been reduced to almost as an administrative and purely a technical matter. The High Court and later the Court of Appeal were judged as right in determining that the NRD was correct in asking Lina Joy to obtain a decree from the Syariah Court affirming her apostasy. Time and time again we have avoided confronting critical issues of the nation, head-on. For failing to take the bull by the horn, we are under the false impression that we have solved the problem.

Frankly, we have not. If anything, we have exacerbated the problem. For the record, there are pending cases in the pipeline awaiting trial and judgment, each with its attendant grief and untold sufferings. The writer is not going to mince his words but will try his level best to remain intellectually fair. Lina Joy et al weren't the cause of this fiasco but very much instrumental in highlighting its sinister existence to the fore.

It has become more evident recently, that the nation deliberately chooses and insists on going down this confrontational path and plunging herself headlong into the abyss of self-destruction, of widening the religious divide and deepening existing racial fault-line.True enough, at the centre of this acrimonious debate are constitutional issues that are as divisive as this much embattled nation. While each divide may be fiercely advocating and championing its respective causes, believing it to be the “be-all and end-all’ of their raison detre’, little did they realize, their actions smacked only of persistence arrogance perhaps ignorance at times and worse still, now perceived as sheer defiance of some established legal practices in the country.

In this sense, the title chosen for this piece is most apt. Whether the verdict was a 2:1 majority for or against Lina Joy’s prayers, the nation chooses to be damned! The purpose of this writing therefore, plainly put, is about how to avoid the nation be continuously ‘damned’ by the ever-increasing inability to mutually understand, acknowledge and respect ‘the other’, within the ambit of a parliamentary democracy that practices a dual or parallel judicial system. It supposedly was instituted, catering for our unique demographic make-up that celebrates our God-given religious plurality. It has little to do with the long-drawn dialectic or dichotomy of whether the nation is Islamic or Secular.

That ‘damning’ contestation frankly, has turned out to be more of a bane than a boon to this nation.At the heart of this debate is the constitutional issue, of whether or not ‘a Muslim is allowed to apostasies or renounce his or her faith’, as an expression of his/her fundamental right to profess and practice his/her religion (Article 11).

At the outset, it's important to determine as to which court or authority takes precedence in presiding over such cases. As it clearly pertains to apostasy committed by a Muslim (not persons of any other religions), either born, converted or reverted later, the case rightly and perfectly falls within the jurisdiction of the Syariah Court. Could there be any doubt about it? Pressing for any other avenues or forum to seek justice, amount to wanting a ‘backdoor exit’ out of Islam. Yes someone could have renounced Islam ages ago, but the fact remains that if they were born Muslim or consciously reverted to Islam (for whatever reasons), under no duress or compulsion, the Syariah Court, having been delegated power by the Act of Parliament in 1965 to legislate on criminal Islamic matters, must adjudicate, should they seek for a legal redress.

If they disappeared into oblivion for fear of retribution, both social and legal, perhaps the issue doesn't arise at all. But could they or would they? That's quite tricky.Why Syariah Court? The state legislative assembly has the right to legislate on Islamic matters as set out in List II of the Ninth Schedule of the FC. The state legislative power is a primary power and may create offences and provide punishment of offences‘by persons professing the religion of Islam against the precepts of that religion, except in regard to matters included in the Federal List.Parliament in 1965 passed a federal law to demarcate the powers of Syariah Courts in criminal matters by allowing state to legislate on criminal Islamic law. This Act of Parliament is the Syariah Courts Act (Criminal Jurisdiction), 1965, was later revised in 1988 (Act 730) and made applicable to all states. The 1965 Act which extends to Sabah and Sarawak provides a ceiling on punishment of criminal offences in the Syariah Court that could not exceed the magical limit of ‘3, 5 and 6’, stipulated by the 1965 ie imprisonment not exceeding three years or with any fine not exceeding five thousands ringgit or with whipping not exceeding six strokes or with any combination thereof’. Though attempted by both state governments of Kelantan and Terengganu under PAS, state legislature has no power to introduce the Islamic hudud laws.In June1988, Article 121 of the FC was amended to include Article 121 (1A). Article 121(1A) stipulates to the effect that the ‘High Court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts’.Could we now come to an agreement, however inimically, that matters pertaining to Islamic law must be referred to the Syariah Court, as it has been entrusted by the Parliament the power to dispense justice according to the precepts of Islam. Any attempt at rejecting this established fact, smacks of not only defiance but equally invites a looming ‘constitutional crisis’.

As Islam, is provided a very limited space in the FC, it will be defended at all cost by Muslims. To them, it’s almost like rock-bottom, to have their right to practice and profess their religion as enshrined in the Federal Constitution. Hence, to incite that article 121(1A) and List II of the Ninth Schedule ultra-vires the Federal Constitution or specifically Article 4, (as cited by a few writers and prominent speakers) are immensely regrettable, from their standpoint.Having established that, it is in the best interest of the nation that it be accorded its due regards and respect as an internal legal problem of the Muslims.

No mediation, conciliation or negotiation, however well-meaning, would be welcomed by the Muslim constituency, lest it will be regarded as an intrusion to the religious practice of Muslims, by adherents of other faiths or religions. In this regard, the ‘siege mentality’ of some Muslims may be unfortunate yet perfectly understandable.Incidentally the recent research findings of Professor Patricia Martinez of the Malaya University on Muslims’ perceptions on related religious issues, are in consonant with the observation above.

While 77% endorsed the Article 11, ie the right of every citizen to profess and practice the religion of their choice, 99% returned a ‘No’ on the question of whether Muslims could renounce their religion. In this sense, Article 11 (5) may be invoked to perspective in the light of understanding the Federal Constitution.

The writer is not at all in his proselytizing mood to be preaching on why apostasy is such a heinous crime against God Almighty. Suffice it is to reiterate emphatically that Islam indeed provides for the greatest religious freedom in matters of faith and conviction. Allah categorically says in the Holy Quran (Chapter of Al-Kahfi: 29)“Truth is from God Almighty. Whosoever wills believe and whosoever wills disbelieve”.In a more well-known verse of the Chapter of Al-Baqarah verse 256, the Holy Quran announces that “There is no compulsion in religion”. However, one having chosen Islam and becomes a Muslim, willingly and consciously out of conviction, under no duress and coercion, ceases to have the freedom to opt out of Islam as renouncing Islam, tantamount to renouncing and declaring war against the Almighty Allah and His Deen (religion).

Hence the underpinning reason behind the criminalization of this act of apostasy as provided by an authentic tradition of the Prophet in Sahih Al-Bukhari (Vol. 9, No 57) and as well severely reprimanded in the Holy Quran (Al-Baqarah 2:217).The Muslim community however, must be realistic in their expectation of how much this Hadhari Islam's government is willing to commit in criminalizing this offence. While criminalizing an offence is always the easiest way out, it has never been proven to be the most efficacious in preventing apostasy.

As faith is a matter of one’s conviction in the Almighty, good education and sound upbringing are still the most effective, in safeguarding one's belief, regardless of faith or religion.Be that it may, it is the aspiration of the Muslim constituency to see that the correct teaching of Islam, as propounded by the Holy Quran and the authentic tradition of the Prophet, may be peace be upon him, be put in place. It is for the Umno-led government to openly and correctly propound that the criminalization of the act of apostasy doesn't run contrary to the provision and not ultra vires Article 11 of the FC or any other international ratifications.

Should there be persisting ‘lacuna’ as a result of the implementation of the Article 121(1A), the like of directing Non-Muslims to seek remedy in the Syariah Courts or for that matter any loopholes not envisaged before the implementation of such proviso, it must be redressed immediately. No one should be denied remedy if they truly possess the right be that in the Civil or Syariah Courts.

While we appreciate and empathise with the anxiety and agony these have caused, it is not an excuse or reason though, to be ruined by the confrontational nature of our engagement.The nation, on the verge of celebrating her 50th independence, deserves a mutually respecting citizenry, celebrating our multi-cultural heritage and our religious plurality, so as to enhance our effort at national unity and integration.Moreover, given the multitude of very challenging crisis at hand, from the endemic corruption that plagued the entire government machinery, to the sky-rocketing of the crime rate and the unending woe of our much besieged environment, we have already been unduly burdened by this regime that has overstayed their welcome.

Most ironically however, every time a quagmire like this comes on stage, the real culprit (read the ruling regime) escapes scot-free, while the rest of us (read the opposition parties and the civil society) are embroiled in endless bickering, enmity and dissension.If we insist on going down this dark alley of self-destruction, we do it at our own peril and have only ourselves to blame. Are we reaffirming that had Lina Joy won or lost, as a nation we're damned? You make your choice!

My Comment

Why I choose this piece to paste here is due to the fact I wish to highlight the growing chasm between the Malay Muslims and the Non Muslims in interpreting the Federal Constitution(FC). Professor Martinez studies show that when it comes to their religion the Malays are emotive lot! At one end they believe in the freedom of religion yet at the same time they believe (99%) that Muslim must not be allowed to leave their religion. These fear of a siege mentality is prevalent only among the Malays. After years of indoctrination, their precondition mind is frightened of others religion and yet not knowing why? They were taught since young to follow a set way of thinking and anything deviant to it is regarded as wrong or blasphemous. Any critical thinking is not encourage thus they are not allowed to question beliefs which they regard as faith, blinded by the fact that belief has nothing to do with faith.

This is the dilemma facing the Malay race in Malaysia, their counterpart from Indonesia has no such baggage. They are confident of they are and stand tall among the races of the world but not the Malays here. They have been fed with lies and half truth that they can't distinguish what is right anymore. They were not like these eons back, during the infancy of our nationhood they hold much promise but now it is just memories. Whom am I to blame the education system that favours the Malay? No, I believe it is the implementation which is at fault. In their haste to increase Malays in the academic field they forget to mould the minds of the Malay properly. In V.S. Naipul Among the Believers, the author document his journey in Muslim countries. In Malaysia he met a Malay who long for the old simple ways, where values of honesty, piety etc is part and parcel of the Malay Psyche but now modernisation seems to erode them. It is a work of fiction but base on facts and it is true the longings of the Malay he describe, for I too long the days of yorn. Ihave to go now my coughing is acting up again I need my rest.


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