The courts should not get involved in apostasy cases in order to adhere to the spirit of the constitution, said Universiti Institut Teknologi Mara (UiTM) law professor Shad Faruqi.

According to him, state legislatures in the 1970s provided for registers to record the number of converts into as well as out of Islam. This reflected the recognition then of Muslims leaving the faith.

However, Shad said today there are calls for apostasy to be punished.

"I think the law should just discreetly stay out of this area, as it did up to now. For nearly 40 years, it has done fairly well.

"Staying out of it falls within the spirit of the constitution," he told malaysiakini in a recent interview at his residence in Kuala Lumpur.

Shad was commenting on assertions by legal academics at a seminar last week that the constitution provides for action to be taken against Muslims who seek court declaration of their conversion out of Islam.

At the seminar, another constitutional expert from the International Islamic University (IIU), Professor Abdul Aziz Bari ( photo ), said religious freedom as articulated by Article11 is qualified by Article 3(1), which conferred a special status to Islam as the official religion of the Federation, and thus should be interpreted through the yardstick of Islam in the case of Muslims.

Personal liberty

Commenting on this, Shad said Article 3(1) committed the state to build mosques, promote Islamic education, generally promote Islam as a religious, moral, social, and economic force.

"Article 3(1) was meant to permit the use of tax-payers money for Islamic purposes and to promote Islam. In the United States, the state was not allowed to do so. Article 3 in Malaysia was meant to demolish that church-state separation," he added.

However, he said Article 3(1) did not signify the abrogation of fundamental rights contained in Articles 5-13 which include the freedom to association.

"There is personal liberty in Article 5. There is freedom of association in Article 10. That also means, don't forget, the freedom to disassociate. There is also freedom of speech in Article 10. There is also the dimension of Article 12(3), which says no person shall be forced to receive instruction or take part in any ceremony or act of worship other than his own.

"I don't think Article 3(1) was meant to truncate fundamental rights or eclipse Articles 5-13. Article 3(1) was not meant to eclipse an entire chapter on fundamental liberties," he noted.

As for those who use Article 11(4) providing for restrictions against propagating to Muslims, Shad explained that the clause says nothing of one who desires to study and profess another religion out of his own volition.

"Article 11(4) is about people going out to others to preach. Article 11(4) does not talk about profession itself. It doesn't talk about a person himself studying and wishing to profess another faith," he said.

Shad also cited the view of legal writer Andrew Harding, who said Article 11(4) was written into the constitution as a compromise during the 1956-57 period to level the playing field of religious proselytizing.

The professor said Muslims at that time were concerned about the organisational and financial power of Christian missionaries during the colonial era, as these missionaries came together with British merchants and the British military.

"That's why Article 11(4) was put in: to protect Muslims from the influence of British proselytisers, those who were better financed, better oiled, better heeled, and enjoyed better mechanisms. At that time, it was not a level playing field (for Muslims)," he added.

'A hybrid state'

Shad also said as long as Articles 3(4) and 4(1), which relate to the integrity and supremacy of the constitution, are in effect, the other laws cannot be interpreted Islamically through Article 3(1) as would they would in an Islamic state.

"Malaysia is not a full-fledged Islamic state and was not meant to be one in 1957. There is the problem with Article 3(4) which says nothing in Article 3 relating to Islam derogates from anything else in the constitution. In other words, nothing in Article 3 overrides the other articles of the constitution.

"As long as there is also Article 4(1), which says this constitution is the supreme law of the federation, Malaysia will not be a full-fledged Islamic state," he added.

However, Shad said this does not mean that Malaysia was strictly secular or un-Islamic.

"I would be loathe to say that. Malaysia is rather a 'hybrid' state. There is rigorous enforcement of Islamic law, (but only) on Muslims. There are currents and cross-currents," he explained.

The most cogent argument, according to Shad, related to claims that List 2 of Schedule 9 in the constitution provides for state legislation against those who commit offences against the precepts of Islam.

He said as profession of one's religion had already been covered by Article 11's freedom to profess one's religion, state law has no jurisdiction over the matter of an individual's conversion.

"Schedule 9, List 2 item1 did not confer a blank check power. It is a residual power in those areas where the law had not spoken. Where federal law had not spoken, Islamic law can come in relation to Muslims only," he added.