The Federal Constitution protects the fundamental liberties of non-Muslims, but does Islamic law afford the same protection?

On the one hand, the fundamental liberty of all who "profess and practise his religion" is guaranteed by the constitution. But state Islamic enactments govern "persons professing the religion of Islam".

Is there a conflict in terms of who is and who is not a Muslim?

K Shanmuga, secretary in the legal think tank of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism, said there is no mention of the word "Muslim" in the constitution.

Noting that "all references to believers of Islam are to persons professing the religion of Islam", he explained that Malaysian case-law defined "profess" as "to affirm one's faith in or allegiance to (a religion, principle, God or Saint, etc.)".

"In its ordinary meaning therefore, a person professing the religion of Islam must mean a person who himself says and acknowledges himself as a believer of Islam."

Piety no guarantee of fair leader

He said if the current definitions of a "Muslim" in the various state enactments are in line with the syariah, there will be a significant number of people who will be denied their basic freedom of religion.

"[This is] because they will be wrongfully considered as Muslims even though they themselves profess to be believers of other religions or non-believers on any religion," he said on 'Minority rights in Islam? A non-Muslim perspective' at a recent seminar in Dungun, Terengganu.

More than 70 representatives of civil society and women's groups as well as members from PAS and its legal bureau attended the one-day event organised by Era Consumer Malaysia.

In the paper which represents his own views, Shanmuga posed the question of whether non-Muslims' religions are truly free.

Unfortunately, he said, most non-Muslims take as example of an Islamic state the repressive regime of the now deposed Taliban in Afghanistan.

"All moderate Muslims have condemned the Taliban's interpretation of Islam, the demolition of ancient Buddhist statues (in that country) and the alleged requirement for non-Muslims to wear a yellow star."

He said the Taliban reigned supreme in Afghanistan for many years and would have continued to do so if not for the Sept 11 attacks in the US.

Historically, he said, the oft-quoted Muslim leaders, Akbar and Aurangzeb, in their rule of the Moghul Empire in India are examples of how the syariah cannot ensure that a country is ruled justly all the time.

(The former was benevolent and tolerant whereas the latter was cruel and intolerant to his non-Muslim subjects.)

"No matter what system of laws and norms are put in place, justice and good governance can only be achieved if the person appointed to lead the state is just, though not necessarily pious, and the mechanisms are put in place to ensure that such a ruler does not succumb to the temptations of power."

Merely putting the syariah laws in place does not guarantee that there will not be abuses because the biggest abusers of Islam like the Taliban, said Shanmuga, have claimed that they were the most pious devotees of Islam and were acting according to Islam.

Drawing a hypothetical scenario where syariah law is made the supreme law, he posed a series of questions, starting with whether Sikhs will still be banned from using the word 'Allah' in their own language when praying, as in Selangor.

Prevalent injustice no reassurance

Noting that the Al-Kitab, the Bible in Bahasa Indonesia, is currently banned in Malaysia, he asked whether Christians learning the Bible would be able to read it in Bahasa Malaysia and whether Christian youngsters would risk arrest in using words like 'Nabi', 'Allah' and 'Injil' during religious discussions.

"These questions are asked because of legislation in some Malaysian states that ban the use of words that are Islamic by members of non-Muslim religions in relation to their own religion.

"For example, section 9 of, and the schedule to, the Selangor Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988," he added.

His other questions were whether Chinese and Indian Malaysian restaurant owners would be penalised for selling takeaway food to Muslims during Ramadhan; whether double standards will be practised in airing religious propagation programmes; whether Catholics would still be able to build a church in Shah Alam (after planning approvals were revoked twice) and whether Hindu temples will still be demolished after being relocated (as was reported in Selangor recently).

On non-Muslims' freedom of expression, Shanmuga said legal precedents and the interpretation of syariah law does not allow them to oppose laws such as the cutting off of limbs or the stoning to death of someone; this is on arguments that they are improper punishment in a modern world.

"Under current Islamic law as it stands in most states in Malaysia, there is an offence the substance of which is the questioning of any duly issued fatwa," he said, citing Kelantan Menteri Besar Nik Abdul Aziz Nik Mat's statement to that effect in 1999, in relation to the death sentence for an apostate.

He also asked whether non-Muslims could vote, form political parties, be a witness, be a judge, and whether victims and criminals of Muslims and non-Muslims will be treated differently.

Other issues raised by Shanmuga are whether the exclusion of non-Muslims from meaningful participation in legislative bodies affect the spending of state funds and whether non-Muslim dependents of a dead Muslim convert will be able to inherit his estate.

He said the non-Muslim relatives of a Muslim convert lose their rights to the convert's estate upon his death pursuant to the Distribution Act 1955 as found in a very recent court case.

On whether non-Muslim women must wear a tudung (headscarf) whenever they leave home, he cited the example of the International Islamic University of Malaysia in Gombak which required all female students to comply the Islamic dress code.

In conclusion, Shanmuga said his questions were intended to highlight concerns raised by the myriad interpretations of Islam, just as there are numerous interpretations of all religions.