The Malaysian government is of the opinion that Arrifin Mohamad aka Ayah Pin is a threat to national security. The Malaysian Islamic Development Department (Jakim) declares him a 'deviant' - a charge serious enough to warrant prison time for him and his followers.

There are those who are drawn to what they deem as inclusive and multi-religious tenets where one is not compelled to reject one's own faith in order to participate in activities organised by Ayah Pin. Such gatherings have seen Muslims, Hindus, Buddhists, Christians, and animists come together to celebrate festivities. There are even some who consider Ayah Pin a reincarnation of a variety of deities and prophets.

For all of Ayah Pin's dreams and 'visions', the Terengganu state Syariah Court convicted and sentenced him to eleven months imprisonment, sparking off an emotionally-charged court battle for freedom of belief in Malaysia.

In 1992, four disciples of Ayah Pin were convicted under Section 69 of the Council of the Religion of Islam and Malay Custom, Kelantan Enactment 1966 for contravening the customs and practices of Islam, i.e. for "deviant practices inconsistent with Islamic teachings."

Daud Mamat, 62, Kamariah Ali, 51 (photo left), her husband Mohamad Ya (who has since passed away in October 2003), and Mad Yacob Ismail, 62 were sentenced to two years imprisonment.

They appealed and in 1996, the Syariah Court of Appeal upheld their conviction but amended their sentence to that of a bond of good behaviour for a period of three to five years. At the same time, they had to report every month to the office of Kadi Jajahan to repent.

In October 2000, these four people were again brought before the Syariah High Court for not complying with the order to repent. It was at this trial that they informed the Syariah High Court that they had renounced Islam under the Statutory Declaration Act 1960 in August 1998. The Syariah High Court chose to ignore their declaration and the four were convicted again and sentenced to three years' imprisonment.

Apostasy charge

A month after they were sentenced, they were brought yet again before the Syariah High Court on a new charge of attempting apostasy. This charge remains pending until today.

The four were not deterred. While serving their sentence, they filed their habeas corpus applications and sought declaratory relief at the Kota Baru High Court, which not only dismissed their applications, but ruled that the four were still Muslims until ruled otherwise by a Syariah Court. The High Court further claimed it had no jurisdiction over their case as they were, in their eyes, still Muslims.

The four continued to pursue their case and filed their appeal with the Court of Appeal in March 2001. Here, the issue centred on whether Section 102 of the Council of the Religion of Islam and Malay Custom, Kelantan Enactment 1994, which gives the right for the Syariah Court to confirm whether one could opt out of Islam, contravenes Article 11 of the Federal Constitution.

In August 2002, the appeal was dismissed. They were released from prison in November in the same year.

A final appeal was filed with the Federal Court and leave was granted in November 2002. The full bench of the Federal Court, presided by Chief Justice Ahmad Fairuz Sheikh Abdul Halim heard the appeal which asked the following:

(1) Whether Article 11 (1) of the Federal Constitution is applicable to a Muslim who renounces his or her religion;

(2) Whether existing state laws, which restrict a person's right to freedom of religion, are inconsistent with Article 11 (1) of the Federal Constitution, and therefore invalid; and

(3) Whether restrictions under Section 102(1), (2) and (3) of the Council of the Religion of Islam and Malay Custom, Kelantan Enactment 1994, when read with the definition of 'Muslim' in Section 2 of the Enactment were inconsistent with Article 9, Article 11(1) and (5) and Article 74 of the Constitution, and therefore invalid.

It took the Federal Court nine months to decide that the three questions were not relevant to their appeal (of contempt of court in 2000), making the issues raised academic and, as such, the questions need not be answered.

This leaves the four in legal limbo. With one additional pending charge of apostasy, they may find themselves behind bars once again.

However, it is the increasing reluctance of the Federal Court to clarify fundamental questions on the right to personal faith, especially in light of obvious contradiction between state Islamic laws and the Federal Constitution, that troubles human rights advocates. It is becoming the norm for the civil courts, citing jurisdiction, to avoid having to adjudicate over what they consider delicate questions such as religion (in particular Islam) and pass the buck to the state religious courts.

Death sentence

Ultimately, it is those who wish to practice the religion of their choice who pay the price with their liberty - for now. In the states of Kelantan and Terengganu, laws have been enacted by both state legislatures, where the act of "leaving Islam" is penalised with the death sentence.

The Federal Constitution offers clear guarantees the freedom of thought, conscience and religion of all persons in Malaysia under Article 11(1), that "every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it."

Yet, this liberty has been sorely tested in recent years and the legal conundrum is compounded by the judiciary's reluctance to rule on such cases.

Daud Mamat, Kamariah Ali, her late husband Mohamad Ya, and Mad Yacob Ismail were told their belief was outside of mainstream Islam in Malaysia. They decided the only option left for them was to leave Islam in order to be true to what they believe. Not only were they told such an option was unavailable to them, it was deemed a criminal act to leave the religion, and thus they had to be severely punished.

Minister in the Prime Minister's Department Abdullah Mohd Zain said in the October session of Parliament that the government considered Ayah Pin and his followers a threat to Muslim society and national security, comparable to that of militant groups such as al-Arqam and al-Maunah, and added that the Internal Security Act could be used on them.

In a malaysiakini report on Oct 11, 2004, Abdullah was quoted as saying that "the teachings of Ayah Pin are dangerous because [some] followers have declared themselves to have come out of Islam, even though the government has not recognised them as having done so."

In short, the government has taken upon itself the right to regulate and decide on which religion or faith its citizens can believe in.

The judiciary's lack of clarity and decisiveness in playing their role and fulfilling their obligations as guardians of the Constitution and fundamental liberties have resulted in an increase in cases where justice is not only overlooked, but undeniably absent.

ELIZABETH WONG is Hakam secretary-general. This article is an excerpt from the Suaram Human Rights Report 2004, to be launched tomorrow at 10am, Selangor Chinese Assembly Hall, Kuala Lumpur.