I caught a snippet of the radio news on Aug 30 reporting that the incoming prime minister Abdullah Ahmad Badawi said there is freedom of worship under the constitution and he called upon Malaysians of all faiths to remain unified.

The news in English said "worship". Article 11 of the Federal Constitution talks about freedom of religion.

I had just sent off an article to Insaf - the journal of the Malaysian Bar - on what I call freedom of religion impasse and powers of the High Court and I wondered if Pak Lah and I are referring to the same federal constitution?

I had mulled for over two years to send this article I first wrote in early 2001. There were and still are, too many hard questions. Revisions of the article do not make the problems disappear.

The Human Rights Commission, or Suhakam, has received at least two memoranda on the issue of freedom of religion.

Lawyer Lim Min Choon sent a memorandum on the treatment of apostates to Suhakam on April 22, 2000. This memo among others, argues for the protection of the freedom of converts to Islam to return to their previous faith as a fundamental right.

There was very little coverage or publicity of Lim's memo even among lawyers, although I was told that a similar memo, or a copy of the original one, was submitted by Lim to the Bar Council of that year.

Perhaps the current Bar Council or any sub-committee thereof should pick it up, study the matter and make a response.

The body of the Bar in any case, may raise the matter at the next annual general meeting (AGM) in 2004 or put a resolution on the same.

On Sept 25, 2000, a memorandum was submitted to Suhakam by a 29-member delegation of Muslims complaining about the Faith Restoration Bill for the Federal Territory which among others prescribes a one-year period of rehabilitation for Muslims.

The Sept 25 memorandum contends that the proposed rehabilitation law would discriminate Muslims who are not followers of the Ahli Sunnah wal-Jamaah.

Question of plurality

It thus raised the question whether Article 11 allows a plurality of Muslim beliefs or practices that may not subscribe to the 'official' school of belief, the Sunni-Shafii school of thought.

State Muslim laws in Malaysia allow persecution for among others deviationism and apostasy. State Muslim laws are allowed criminal sanctions of a maximum of three years or a fine up to RM5,000 or whipping up to six strokes or a combination of these.

Parliament had to pass a special law for this, called the Syariah Courts (Criminal Jurisdiction) Act 1965. These are the pre- rehabilitation laws and are still in force.

Hudud state laws of Kelantan and Terengganu passed at state level, which are not enforced due to glitches in the constitutional lay-out of law-making powers between the state legislature and Parliament, prescribe for death for apostasy.

The Sept 25 memo caught the government's attention. Within that same week in September, the Barisan Nasional government through the de facto law minister Rais Yatim announced that the government would not pass the rehabilitation law for the federal territories "until further study".

Prime Minister Dr Mahathir Mohamad was subsequently reported as saying that the rehabilitation law would not be passed and that a similar law in Perlis would not be enforced.

There is no announcement of whether rehabilitation laws already passed in other states would not be similarly enforced (passed under various titles).

These laws are in the statute books of most states. If these laws are not to be enforced, the proper mechanism would be a repeal.

Automatic conversion

Recently, lawyer R Sivarasa informed me that the state law provision on the 'automatic conversion' of minors to Islam where one parent (to a civil law marriage) has become Muslim, in the Selangor Administration of Muslim Law Enactment (AMLE) did not survive passage when AMLE was repealed.

I remember that the provision in question which came as an amendment to AMLE in 1989 led to fierce debates in the Selangor state assembly led by DAP assemblypersons. There were excellent accounts of these in the print media.

There is one important lesson in this and the Sept 25 memo to Suhakam and that is public concern, debate and press coverage on important issues of concern, matter. Free speech (and action) and free press, support other freedoms.

A coalition of women's organisations have expressed concern of minor children (born out of a civil law marriage) being converted to Islam by the parent who has also become Muslim.

The conversion of minors to Islam unilaterally by the Muslim parent offends the civil liberties of the non-converting spouse.

The civil family law, the Law Reform (Marriage and Divorce) Act, 1976, despite some very strong High Court pronouncements obliging the converted Muslim spouse to fulfil the obligations under the civil law marriage upon the conversion, instead of jumping jurisdiction, cannot cover all the cracks in the laws.

There is inadequate media coverage of the continued persecution of Muslims for deviationism and apostasy.

'Deviant Sunnis'

We know for a fact that Muslim Shite (a sect which grew out of the "Partisans [Shite] of Ali', in an uprising for political leadership after the death of the Prophet) have been detained and some are still detained under the Internal Security Act (ISA). The first reports of their detention were in October, 2000.

The leaders of the Darul Arqam suffered arrests on Sept 2, 1994 and detained under the ISA. They were released on Oct 28 after "confessions" publicised over national television on Oct 20.

Their arrests were made pursuant to a fatwa (religious ruling) issued by the National Fatwa Council of Aug 5, 1994. The Home Ministry then declared the group unlawful under the Societies Act 1966.

Those arrested were not charged under any state Muslim law or civil law. Their deviationist views were not proven in a court of law.

The ISA is the parent of all rehabilitation laws so to speak.

The Darul Arqam group was probably perceived as "deviant Sunnis". Presumably this is not so detrimental as being Muslim Shites.

At some point, Pak Lah was reported as saying that the Shites held under the ISA were not detained for their religious beliefs. We have only Pak Lah's word on this as no one Shite Muslim so detained has been tried in a court of law.

We can only surmise that unlike the Darul Arqam followers, the Shites are not persuaded to confess their "sins" or they refused to 'convert out' of Shite Islam. The Shites languishing in the Kamunting Detention Centre have not sought to challenge their detention as a contravention of religious freedom.

'Captive audience'

Perhaps Suhakam should think of providing legal literacy to the "captive audience" (phrase helpfully suggested by lawyer Charles Hector at a recent sub-committee meeting of the Bar) in detention centres like Kamunting.

Certainly at the time of writing, I would not think that Pak Lah as the home minister, would allow human rights groups or even the Bar to do this, but there is always the possibility of a first challenge.

I have been informed by local undergraduates, over casual teh tarik chats, that there is a witch-hunt for Shite Muslims on some campuses. I have no information if this is officially sanctioned by the state. Students are mostly reluctant to talk about this and other inter-religious and intra-religious "incidents" in campus.

The University and University Colleges Act, 1976 (UUCA) and similar laws for institutions of higher learning not under the UUCA strike fear in most. Even as isolated events by overzealous university administrators, the religious intolerance in campus are matters of much concern for the freedom of religion.

The question whether a Muslim's right to religious freedom includes the right to practise his/her Muslim belief freely as for example by adopting beliefs of variant schools and sects other than the Sunni school remains moot.

In Malaysia, the Sunni school is privileged in state Islamic law enactments although there is a diversity of schools of thought (and practices) in the Muslim world and in Muslim jurisprudence.

A question may be posed to our High Court in adjudicating freedoms under the constitution: should Article 11 privilege the Sunni school or recognise the reality of diversity of beliefs and practices among Malaysians who still choose to be called Muslims?

Hard cases, according to lawyer-philosopher Hart (1961), make bad law.

We have very little information on what has happened to Lim Min Choon's memorandum on apostates. It may be quietly gathering dust in a Suhakam filing cabinet under its 'X' files.

Suhakam has not come up with a report on freedom of religion despite the two memoranda in 2000.

Apostasy

Lim Min Choon (1999) has otherwise written a very comprehensive account of problems faced by Christians in the worship and practice of Christianity under the freedom of religion clause of the federal constitution.

"Worship", according to Lim is part of the wider understanding of religion.

Lim (1999) also sets out stories and problems of converts to Islam who wanted to leave Islam. Some of these cases do not enter the legal system because of the legal difficulties posed by existing laws or interpretations placed upon them.

The word apostasy is most used with reference to "born Muslims" leaving Islam and converts to

Muslim who choose to revert to their previous belief or another faith.

In the case where Sunni Islam is privileged to The Other, then arguably, to be able to be a Shite Muslim or to adhere to other Muslim schools of thought, one may have to "apostasise". This is of course quite ludicrous as we are all believing Muslims. The acceptance of other schools should be fluid.

The High Court decisions so far have not clarified if apostasy is part of religious freedom. Cases however, appear to support the principle that one is not a Muslim if that conversion to Islam is coerced.

My point is, if we are unhappy about compelling someone to embrace Islam, we should find it similarly reprehensible to compel a person to remain in the religion. The point to be served in religious freedom is protection from coercion.

One should be protected by the courts of law (if not from the madding crowd), from fear of hindrance or reprisals in the practice of one's belief.

State (Islamic) laws criminalise apostasy but not conversions to Islam.

If privileging Islam (and Sunni-Islam) in Article 11 of the chapter on fundamental freedoms, is part and parcel of the meaning of "Islam as religion of the federation" in Article 3 to the constitution, it makes the freedom of religion illusory as these situations show.

Notes

Abdullahi A An-Naim (1999), 'The Cultural Mediation of Human Rights: The Al-Arqam Case in

Malaysia' in Bauer et al (eds), 'The East Asian Challenge for Human Rights', Cambridge University Press, UK. An Internet pdf copy is available via Prof Dr. An-Naim's webpage . See also An-Naim's articles on apostasy.

Hart H, (1961) 'The Concept of Law', Oxford, OUP.

Lim Min Choon (1999), 'Freedom of Religion', Kairos Research Centre Sdn Bhd., Kuala Lumpur.

Poh-Ling Tan (1999), 'Paying the Price of Religious Freedom, A non-Muslim Perspective', in Wu Min Aun (ed), 'Public law in Contemporary Malaysia, Malaysian Law Series', Longman, Malaysia.

Salbiah Ahmad (2003), 'The freedom of religion impasse and powers of the High Court' (as yet unpublished).