APOSTASY LAW, CASES, AND PROJECTED STANDARDIZATION
There is a moral panic in the majority Malay Muslim community that large numbers of murtad (apostates) are prepared to flee from Islam. I have often heard and felt the panic conveyed in Friday prayer sermons (khutbah) and mosque religious talks (kuliah masjid) and in discussions with some of my interlocutors in various cities in Malaysia.
However, the figures I received from the sharia judicial departments did not reflect the high numbers of murtad mentioned in these contexts. Half of the state sharia departments from which I requested data did not include any figures of Muslims trying to leave Islam. The three states that did—Melaka, Negeri Selangor, and Negeri Sembilan—reported only 227 Muslims trying to leave Islam over roughly the first decade of the twenty-first century. There were 12 from Melaka between 2000 and 2010, 83 from Negeri Selangor between 2003 and 2010, and 177 from Negeri Sembilan between 2000 and 2010. Sharia court officials in Kelantan and Kedah told me in interviews that they had only a few cases over roughly that same period. However, judges in the Federal Territories Shariah Court reported that there were numerous requests from Muslims asking to convert out of Islam. These cases are heard in the Shariah High Court. I sensed that murtad was a problem about which court officials, especially in Kuala Lumpur, felt uncomfortable sharing any official figures. Granted, any number of murtad is disheartening to the Muslim faithful; nevertheless, the numbers disclosed hardly amount to a deluge of Muslims trying to leave the faith or to change their religious status. Yet, many people may be deterred by the difficulty and dangers of approaching a sharia court to request a declaration of their status as a non-Muslim. In fact, one of the judges who used to work as a researcher at a sharia court told me that he found there were over fourteen thousand Malay Muslims across Malaysia trying to convert out of Islam in 2004. He was convinced there were many more when we discussed this in 2011.I also broached the topic of apostasy in my discussion with legal experts during my excursion to JAKIM. Regaining the floor in part of our group discussion, Zawati said:
I am not going to touch on marriage.... Maybe we can look at the provision of the convert out from Islam. In other states you have a provision that under the High Court in the states, they have a power to declare the status of religion of somebody. They have drafted it differently in Negeri Sembilan. The procedure is much more clear. They state in the provision the complete procedure of what the person has to follow to apply to convert from Islam. But other states don’t have that provision in their law.... In the other cases, perhaps, the judge can practice their ijtihad because they don’t have the clear procedure... to handle that kind of matter when someone wants to convert out of Islam.
Halimah (2009, 30–32) reports that there are three types of laws concerning converts out of Islam across the states of Malaysia. In Perak, Melaka, Terengganu, Pahang, and Sabah apostasy is a kesalahan, or crime with a definite punishment. Perak and Terengganu have laws punishing murtad with fines and/or prison sentences. Pahang has the strictest punishment, set at the three-five-six limits of discretionary punishments for sharia offenses: three years of imprisonment, a fine of RM 5,000, and/or six strokes of the cane. Melaka, Kelantan, and Sabah have the second type of law, which requires people attempting to commit apostasy or to be murtad be held at the Center for Correcting Akidah (religious beliefs), for not more than thirty-six months in Kelantan and Sabah and six months in Melaka. Negeri Sembilan has the third type of law, and the only one that provides a “remedy” for those who want to convert out of Islam. It requires the person to request a declaration from the sharia court that they are outside of Islam. While the court is considering the request, it may advise the person to attend counseling and to bertaubat (repent for the sin of apostasy).
Halimah states that eighty-nine people requested such declarations in Negeri Sembilan from 1994 to 2003 and sixteen obtained them. The records I received from the Negeri Sembilan Shariah Judicial Department indicate that from 2003 to 2010 there were a total of 142 cases of people requesting declarations that they were outside of Islam and nineteen people obtained them. There were still eighty-three cases pending, and the others had been rejected, canceled, withdrawn, or mentioned (but encountered problems with proceeding). Selangor, Kedah, Sarawak, Perlis, Penang, and the Federal Territories do not have any laws pertaining to murtad in their administration of Islamic law acts. However, even without clear laws in their specific legal codes, sharia court judges in these states and in the Federal Territories do consider making a ruling on the religious status of a Muslim or whether a person can convert out of Islam as being within their jurisdictions. They can also decide to adopt the clear law within the Negeri Sembilan Administration of Islamic Affairs Enactment of 2004, which is what happened in some cases discussed below.“From my research on the variations on the laws of converting outside of Islam, I read that there are three different types of murtad laws in Malaysia.... Are you working to bring those into a general form, or has your department decided to just leave that to the states to manage?” I asked.
“Actually, this matter is under the purview of the Attorney General’s Chambers, and they are still [deciding] whether we should have that kind of law regarding converts out of Islam or not,” Zawati replied. “We should not have that kind of law, because as we know in Islam... there should be no law to regulate that because Allah prohibits us from becoming murtad. So it is still under review in the AG’s Chambers.”
According to classical Shāfi’ī, Ḥanbalī, and Mālikī schools of jurisprudence, apostasy (ridda, irtidād) is one of the ḥudūd crimes with a fixed punishment mentioned in the Qur’an and/or hadith, and the punishment prescribed is death (Peters 2005, 64–65).
Much of the deliberation in the Malaysian Attorney General’s Chambers will likely revolve around deciding how to legally establish the status of a person as Muslim or not, and whether and how to recognize any difference in status between Malay Muslims (and other “born” Muslims) and Muslim converts. In fact, the reasoning of sharia judges in several exemplary cases and my interviews with government ulama indicate the way the Malaysian sharia judiciary is leaning in deciding these matters related to apostasy.Several cases in which sharia judges decided that people registered as Muslims were not Muslims show that they review and evaluate evidence relating to their family background and whether they ever actually embraced and practiced Islam in their everyday lives. In the case of Janisah binti Abd Rahim alias Bigul heard at the Shariah High Court in Keningan, Sabah, in 2004, Janisah asked the court to declare that she was not a Muslim and that she never embraced the religion of Islam. She filed this request because of the confusion that ensued when she went to the Department of National Registration in Keningau as a non-Muslim with her and her father’s name appearing like those normally used by Muslims. The court heard statements presented by witnesses that told the story of Janisah’s father helping a Muslim traditional healer treat the illnesses of people in the village. This healer invited her father to become a Muslim, but according to the witnesses he never actually embraced and practiced Islam and never filed any conversion of himself or his daughter to Islam with the Registrar of Muslim Converts. Therefore, the Shariah High Court decided and declared that Janisah was not a Muslim and had never embraced Islam (Jurnal Hukum 2006b). Similarly, in the case of Mohammad Shah alias Gilbert Freeman heard at the Shariah High Court in Seremban, Negeri Sembilan, in 2009, Mohammad Shah requested that the court declare that he was not a Muslim and never was a Muslim, so that he could clear up the contradiction between the religion of his family life, which is the religion he practices, and the religion on his national identity card.
The petitioner’s father was a Muslim and his mother a Christian. According to a witness statement, his parents lived together and had several children but never had a marriage registered with the civil or sharia court. Mohammad Shah never knew his father: when he was around two years old his father left them and they did not know where he went. He was baptized as a Christian when he was three years old, and there was no evidence his mother ever converted to Islam. Based on the statements of non-Muslim witnesses, the Shariah High Court decided he was not a follower of the religion of Islam.Two recent cases in the Federal Territories Shariah High Court also reflect similar logic as the Janisah and Mohammad Shah cases. In the case of Surath A/L Maniram v. the Islamic Religious Council of the Federal Territories in Kuala Lumpur in 2010, Surath asked the court to change the religion listed on his national identification card from Islam to Hindu as quickly as possible. Following the procedure outlined in the legal code of Negeri Sembilan, the court ordered the plaintiff to attend three months of counseling. But after only four sessions the counselor concluded that Surath never practiced Islam because his father was a murtad when he was only six years old. The counselor also stated in his report that the plaintiff had been given information and knowledge about Islam in these sessions, but he maintains his determination to remain outside of Islam. The plaintiff testified that his father was a Muslim for a time when he lived with a Muslim family that took care of him, but after members of this family passed away he married the plaintiff’s mother, who was a Hindu. His father tried to change his own name and religion and after several years succeeded, but only after fathering two children. Surath was five years old when his father officially changed his religion to Hindu. The statements of two non-Muslim witnesses supported the plaintiff’s testimony. Based on this evidence about his background, the judges decided he never practiced Islam in his life, declared he was not a Muslim, and granted him permission to change his religious status on his identification card, which is under the jurisdiction of the Department of National Registration. Likewise, in the case of Faridah Ching binti Amin v.
Islamic Religious Council of the Federal Territories heard in the Shariah Appeal Court in Kuala Lumpur in 2012, the plaintiff filed a request to have the religious council recognize her as outside of Islam and to change her name to Ching Lee Yen. She originally filed this request with the Shariah High Court in 2007, but after sending her to counseling and considering the evidence presented the court decided to reject her application in 2011, and subsequently she appealed its decision in the Shariah Appeal Court. Similar to Surath’s case, Faridah’s father was a Muslim and her mother was a Buddhist when she was born. However, her father was not in the process of trying to change his name and religion. The fact that he was still a practicing Muslim at the time of her birth led the High Court to decide that she would obtain her religious status from her father. Thus, even if she has been practicing Buddhism all her life, her religion would descend (nasab) from her father, since he was still apparently a practicing Muslim (and not a murtad like Surath’s father was when he was born). This posed a complex problem for the Shariah Appeal Court to figure out. The three judges hearing Faridah’s appeal considered when the father converted to Islam and the status of her parent’s marriage in relation to the time of her birth. They concluded that her father converted to Islam five years before she was born but her mother continued to be a Buddhist. According to sharia law, three months after he converted to Islam, the ‘iddah period of the plaintiff’s mother, any children born from this union would get their nasab or descend from the mother because the marriage was no longer valid. Therefore, the appellate court judges ruled that the High Court decision that the plaintiff was a Muslim, based on the interpretation that her father was a Muslim when she was born, could not be defended. They also heard statements from four witnesses who were relatives or friends of the plaintiff and could vouch for the fact that she has always practiced Buddhism, not Islam. The Shariah Appeal Court decided that the plaintiff was not a Muslim from the time of her birth. In all these cases, the sharia court judges ruled that these petitioners were not Muslims based on certain aspects of their family backgrounds—such as having at least one non-Muslim or murtad parent and an invalid marriage of their parents—along with evidence that they had never embraced or practiced Islam in their lives. Through considering this sort of information about the applicants’ lives, these Muslim jurists were able to discern that they were not “born Muslims” with valid descent from a Muslim parent and at no point in their lives did they become Muslim.On the other hand, there are many other cases when reasoning about this sort of information about the lives and experiences of petitioners asking to leave Islam results in the decision that they are Muslims and therefore are not allowed to be murtad. The most well-known example of this is the case of Lina Joy discussed in chapter 2. It is important to note here that she was born into a Muslim family and therefore had a valid line of descent of Islam from her Malay Muslim parents. The fact that at some point in her life she began to embrace and practice a different religion means that she was trying to move from Islam to another religion or to become a murtad, which is prohibited according to traditional Islamic jurisprudence. This logic would also apply to non-Malay Muslims who had a valid line of descent from one or two Muslim parents when they were born. On top of this reasoning about nasab or lineage, many Malaysian jurists consider the fact that Malays are defined as Muslims in the Federal Constitution as placing an additional restriction on the movement of Malays out of Islam. On the other hand, we must consider cases in which applicants are not born Muslims but at some point in their lives converted to Islam. For instance, the case of Muhamad Ramzan Maniarason heard in the Pahang Shariah High Court in Kuantan, Pahang, in 2005 involved a man who was born into a Hindu family in Penang in 1973 and decided to convert to Islam in Terengganu at the age of twenty. His conversion to Islam took place in the kadi’s office and was later registered at the Terengganu Department of Islamic Religious Affairs. Subsequently, still as an unmarried man, he moved to Pahang and worked as a taxi driver living with other Indian men. After twelve years of being a Muslim convert, he approached the Pahang Shariah Court and requested to leave the religion of Islam. Without representation by a sharia lawyer and without any supporting witnesses, he testified that he wanted to leave Islam and return to the religion of his father, Hinduism, because he had lost interest in Islam and did not have a good understanding of it. In consideration of this case, the judge noted that Article 11 of the Federal Constitution provides the right of religious freedom to Malaysian citizens from non-Muslim backgrounds to choose a religion of their liking, but it does not give them the right to change religions willy-nilly. After the applicant was a Muslim for twelve years, the court could not accept his petition to return to Hinduism. The Penang Shariah High Court rejected his request to leave Islam and ordered the Kuantan Office of Islamic Religion to help Muhammad Ramzan. It also ordered the local Islamic religious office to seek the service of the Pahang Department of Islamic Religion and the Malaysian Muslim Welfare Organization to guide him (Jurnal Hukum 2006a). Similarly, in the 2012 case of Muhammad Khairil David bin Abdullah v. Majlis Agama Islam Wilayah Persekutuan, the Shariah High Court of the Federal Territories considered the request of a Muslim convert to leave Islam and return to his previous religion, Christianity. Muhammad Khairil converted to Islam in 2005 in order to marry a Muslim woman from a Dusun ethnic background. They were married in 2006 and divorced in 2010, at the request of his wife. During the time he was married, he attended several Islamic religious classes for Muslim converts. The petitioner testified before the court that he has not gone to a masjid or surau (prayer hall) to pray since 2010 because he had already requested to leave Islam.19 He also mentioned that he attended several counseling sessions and that he recently married a woman who works with him but they live apart. One of his witnesses told the court that Muhammad married a Christian woman in a village in Kota Kinabalu, Sabah, following local customs, and did not register the union. His other witness informed the court that he had seen Muhammad in a church more than once. The applicant attended four court-ordered counseling sessions, and the counselor reported to the court that the petitioner stated he only converted to Islam to marry a Muslim woman. In these sessions he was taught many core Islamic concepts but held on to his determination to request leaving the religion. The Federal Territories Shariah High Court decided that the petitioner was a Muslim, thereby rejecting his request, and ordered that he begin a six-month process of taubat (repentance) in the Selangor Center for Correcting Akidah. These two cases demonstrate that when sharia judges have evidence that Muslim converts made valid and registered conversions they will view them as Muslims, and as Muslims such converts will not be permitted to leave Islam. In sum, people whom the court recognizes as Muslims, either through descent or conversion, who want to shift from Islam to another religion fall under the rubric of apostasy.
Several sharia court judges and other government ulama have discussed and described their efforts to unify the various laws and procedures in regard to dealing with cases ostensibly connected to the issue of murtad. They often point to the complexity of dealing with the variety of people applying to be recognized as non-Muslims and to change their religion on their identification cards. Government ulama from IKIM and JAKIM informed me that the Attorney General’s Chambers is spearheading the effort to standardize the laws on apostasy-related cases across the states. Despite complaints from liberal rights activists about restrictions on religious freedom and time-consuming procedures for applying to convert out of Islam and/or to change one’s religious status, the general contours of the proposal formulated through the research of IKIM and conferences of sharia experts shows they are trying to take a middle path, upholding the general spirit of traditional Islamic jurisprudence forbidding apostasy while allowing a path to change religious status for Malaysian citizens from diverse backgrounds who have come to be mistakenly identified as Muslims. Their proposal makes several distinctions between applicants that reflect the reasoning in the sort of cases discussed above. First, there would be a law pertaining to murtad. If the petitioner is Malay, as in Lina Joy’s case—and given that the Malay category is defined as Muslim under the Federal Constitution—the person would not be allowed to convert out of Islam. The same would apply to people from other ethnic groups who were born into Muslim families. These Muslims would be arrested before they make an application in the court and charged with an offense under sharia criminal law—and if found guilty they would be ordered to attend counseling in a Center for Correcting Akidah for at least one year. The religious officials are planning to separate the more hardcore apostates in these centers from the newer converts, so as to check the spread of anti-Islamic sentiments and negative influence on mualaf who lack a strong understanding of Islam. Second, there would be a law pertaining to determining the religious status of persons who are not Malays or from Muslim backgrounds. The courts would entertain their petitions and try to determine their status through considering their practices and experiences. IKIM deputy director Dr. Zaleha stated that they are trying to convince the states to adopt this proposal and will have sharia experts well versed on these issues explain them to the sultans (Malay rulers). In 2010 she told me that trying to unify laws relating to murtad and determining religious status is a “very difficult and painful process” that may take around five to ten years to complete.20