1.Malaysiakini.com （http://www.malaysiakini.com）
Practical answer to 'abandoned convert' issue, 14 May 2008
by Abdul Rahman Abdul Talib
I refer to the Malaysiakini report Syariah Court allows convert to renounce Islam.
I also managed to watch the interviews with the Syariah lawyer representing Siti Fatimah, Ahmad Jailani. It can be viewed here and here.
What I’ve learnt from the interview can be summed up in these points:
a. Siti Fatimah applied for her Islamic Faith status to be annulled on the grounds that she never practiced Islam and never believed in the Islamic faith.
b. Siti Fatimah took the right step by referring to the Syariah Court.
c. There was no malice on the part of Siti Fatimah or the Syariah court. The case was decided on merit.
d. The Penang Syariah court decided that Siti Fatimah was never a Muslim, to start off with, and that her conversion did not meet the standard of a Muslim.
e. Never is this a decision by the Syariah court to support apostasy or a change of religion.
I see this as a major step forward and the precedence can be applied to solve many of the ‘apostasy’ problems in Malaysia. In my analysis, most of the applications for ‘apostasy’ are made by converts who convert on the basis of marriage only.
Many of these converts never practiced or never believed in the Islamic faith. Their respective spouse was also irresponsible as they did not make any effort to educate or train their spouses in the Islamic faith.
In the event of a divorce, these ‘converts’ were left in a limbo. They don’t believe in their newly- converted to religion, but at the same time, they cannot go back to their original faith. The Penang court decision provides a legal exit for these converts. This would mean that they can go to their respective Shariah courts and get their Islamic declarations annulled.
If anything at all, the Shariah Court should punish their respective ex-spouses for not taking care of their newly converted ex-wives/husbands. There are those in our community who thinks that the solution to this problem is by disrespecting the Shariah Courts.
May I remind them that the Shariah courts in Malaysia still maintain the respect and trust of the Muslim population of Malaysia. None can equate them with the corrupted judiciary of the Malaysian civil courts where judges are up for sale at the highest bidder.
The statement from the Bar Council and I quote: ‘It should be the high court which decides on this issue as some states in Malaysia do not provide for converting out so the high court remains the best place to sort this out’is not only arrogant, but also ignorant.
Why do I use the word ignorant? Until and when the Syariah courts issue a decree nullifying the Islamic faith of an individual, that particular ‘Muslim’ is subjected to the Islamic laws and regulations, thus the Syariah courts.
In conclusion, the ‘abandoned-convert’ problem is a real problem. And the Penang Shariah court ruling provides a practical solution to a real problem. The call to battle by some are nothing more than maneuvers by ideologues trying to capitalise on public insecurity in their effort to promote their secular liberalism ideology. Mind you that the secular liberal’s stand on religion is 100% contradictory to Islam. This is a fact.
The Penang Shariah court ruling also proves that Malaysian Shariah court, while maintaining their discipline to the Islamic teachings, is also flexible and able to solve real problems of the day. It’s actually the function of ijtihad.
2. Disquiet (www://malikimtiaz.blogpost.com)
Of Religion And Choice, 15 May 2008 (Malay Mail, 13th May 2008)
By MALIK IMTIAZ SARWAR
It may be wise to pause for breath before rushing out to celebrate the decision of the Penang syariah court in the Siti Fatimah case. Though welcome, not least for the fact that it allows Siti Fatimah to carry on with her life, we must ask ourselves whether it really sets the required precedent that the issue of apostasy requires.
I do not think it does.
The first difficulty I have with the decision is its basis in law. The syariah court has jurisdiction only over persons professing the religion of Islam. Siti Fatimah claimed, and still claims, that she was not such a person and that she converted only for the purpose of marriage. Let us say for purposes of argument that at the time of her conversion, and in the period she wished to remain married, she was for all purposes a Muslim. It is apparent that at some point prior to her petitioning the syariah court, she ceased being one and was, as such, no longer a person professing the religion of Islam.
How then did the court assume jurisdiction?
This brings me to the second difficulty. There are two distinct polar views concerning the issue of renunciation. At one end, there is what I call the pro-choice view that allows every person, without qualification, a freedom to determine of their own right their choice of religion. The Federal Constitution guarantees this choice in Article 11 which vests the freedom in ‘every person’. At the other extreme, there is the view that the choice of leaving Islam is one that can only be exercised through, and as such by, the syariah court. I call this the pro-regulation view.
It is apparent that the pro-regulation view renders illusory the right to choice of religion. For persons who happen in law (as opposed to ‘in fact’) to be a Muslim, the decision of which religion to profess is no longer theirs. If they wished to leave Islam they would have to go on bended knee to the syariah court, uncertain that the syariah court would ultimately agree with their petition. In the legal fiction perpetuated by those who espouse the pro-regulation view, a group that includes those judges of the Federal Court who formed the majority in Lina Joy, a person is a Muslim until such time as that person is declared a non-Muslim. It does not matter that the person may not in fact profess Islam any longer. Though an incredible perspective, it has nonetheless informed constitutional jurisprudence as of late and entrenched a mind-set that has resulted in grave injustice to persons unfortunate enough to have had to confront the issue.
It is on this precarious premise that the syariah court of Penang assumed jurisdiction over a person it ultimately declared as being not a Muslim. Our celebrating of the decision would as such be a celebration of a wrongful seizing of jurisdiction and wielding of power by a court not empowered to do so in law. It would also be, where Muslims are concerned, a commending of the vesting of the right to choose in a third party agency, leaving in tatters the fundamental liberty so painstakingly provided for in the Constitution.
Regardless of the convenience of the Siti Fatimah decision, it cannot be a good thing. Media reports suggest that the Penang syariah court was swayed by Siti Fatimah not having been given proper advice about Islam by her former husband and the Islamic authorities. This means that the court could take a different view of those who were born into the faith, such as Lina Joy, or those who made a decision to embrace Islam after due consideration. The court would after all be at liberty to do so if it were vested with a discretion.
I am concerned that the decision may distract from meaningful and coherent efforts aimed at ensuring a just and constitutional solution to the issue of apostasy. We should not lose sight of the fact that before a grossly misconceived decision of the Supreme Court handed down in 1999 (Soon Singh), Muslims were not required to obtain an exit-order from the syariah courts. They left the faith, declaring the fact by deed poll and carried on with their lives in relative privacy. The public face of Islam was left unscarred and the religion was not made a victim in a way that it has been of late.
・Malik Imtiaz Sarwar is a leading Malaysian human rights lawyer and activist and the current president of the National Human Rights Society (HAKAM). Through HAKAM and a coalition of NGOs callled Article 11 (after the constitutional guarantee of freedom of religion) of which HAKAM is a member, he has been actively involved in efforts to promote the rule of law and constitutionalism, particularly in the face of worrying trends of Islamization and race politics in government and wider society. He further actively promotes a civil rights discourse both in and outside court. In August 2006, a poster declaring him to be a traitor to Islam and calling for his death began circulating in Malaysia.
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