APOSTASY - THE MALAYSIAN LANDSCAPE

The Federal Constitution of Malaysia declares Islam as the ‘official religion’ of the Federation.^[788] While freedom of religion is constitutionally guaranteed, there are significant restrictions arising from general laws relating to public order, public health and morality.^[789] Restrictions also result due to the primacy given to Islam, particularly in the context of blasphemy and apostasy.

The Federal Constitution divides legislative power between the Parlia­ment and State legislatures.^[791] Islam and Islamic law fall under state jurisdiction.^[792] Without getting into the technicalities, this jurisdictional tension from the division of is one of the reasons that the hudud enactment has been stalled for so many years. However, as noted above, segments of Malaysian society are now calling for its implementation.^[793] Section 23 of the Hudud Bill addresses apostasy and defines it as:

... any act done or any word uttered by a Muslim who is mukallaf, being an act or word which according to Syariah law, affects or which is against the aqidah (belief) in Islamic religion, provided that such act is done or such word is uttered intentionally, voluntarily and knowingly without any compul­sion by anyone or by circumstance.^[794]

Anyone found guilty of apostasy is required to repent within a period of three days, failing which the court can pronounce the death sentence.

Scholars have identified numerous problems with the Hudud Bill, but this chapter only addresses the two major criticisms touching upon the issues of apostasy and blasphemy. First, the Hudud Bill is problematic in that it neglects the view that apostasy may not be a hudud (prescribed) but a ta’zir (discretionary) offence. This is a body of opinion among the ulema that has existed ever since the early days of Islam, and it is founded on the fact that the death punishment for apostasy is not a Qur’anic mandate. Secondly, the punishment fails to differentiate between apostasy simpliciter, which is neither hostile nor contemptuous, and apostasy combined with treason (hirabah).

Consistent with the classical view, the Hudud Bill incorporates apos­tasy as one of the six hudud offences.^[795] Several prominent modern Muslim thinkers, such as Mohammad Hashim Kamali and Salim el-Awa, have argued that apostasy should not be part of the Hudud Bill at all, as it is a ta’zir (discretionary) rather than a hadd (prescribed) offence. The word hudud is the plural of the Arabic word ‘had’, which means prevention, restraint or prohibition.^[796] It is a restrictive and preventative ordinance of Allah concerning things lawful (halal) and things unlawful (haram).^[797] According to Abul A’la Maududi (d. 1979), the hudud consist of certain principles, checks and balances, and specific injunctions in different spheres of life, that have been prescribed in order that man may be trained to lead a balanced life.^[798] These ordinances are intended to lay down the basic framework within which man is free to legislate, decide his own affairs and frame subsidiary regulations of his conduct.^[799]

Over the course of Islamic history, a basic development occurred in Islamic fiqh with respect to hudud whereby the term hadd came to signify a fixed and unchangeable punishment.^[800] For hudud offences, the penalty was thought to be explicitly prescribed, either in the Qur’an or Hadith, and therefore there was little room for interpretation.^[801] Con­sequently, the foundational texts of Islam, the Qur’an and sunna, must be consulted to analyse the categorization of apostasy properly as a hadd offence.

As we noted above in the discussion on blasphemy, the Qur’an sets out basic principles, not detailed legislative prescriptions. In the Qur’an, apostasy (al-riddah) is often mentioned expressly and occasionally by import.^[802] According to juristic consensus (ijma), it is not possible to derive the death penalty for apostasy from a study of the Qur’an alone.^[803] In fact, a study of the relevant verses suggests that punishment is postponed to the Hereafter, in the same way as that for original disbelief.^[804] There is absolutely no mention in the Qur’an of temporal punishment for defection from the faith, except in the form of deprivation of the spiritual benefits.^[805] It is revealed, for example, that ‘Surely those who disbelieve after their (profession of) belief and then increase in disbelief; their repentance will not be accepted. These are they who have gone astray.’^[806] Commentators note that the words of this verse are inclusive of Muslims who renounce Islam and then, by insistence on their disbelief, intensify it.^[807] Not only does this specific provision fail to prescribe any temporal punishment for an apostate, it envisages a natural death in his condition of disbelief.^[808]

Other verses in the Qur’an even contemplate repeated apostasies and reversions to the ‘true’ faith on the part of an individual:^[809] ‘Those who believe, then disbelieve, and then (again) believe, then disbelieve, and then increase in disbelief, Allah will never pardon them nor will He guide them the (right) way.’^[810]

This is a striking pronouncement that is almost conclusive against the thesis that an apostate must be put to death after his defection from the faith. It lends support to the opinion that the act of apostasy is a sin and not a crime, for if an apostate had to be killed for his first defection, he could not possibly have a history of renouncements and reacceptance.^[811]

There is strong basis to argue that in matters concerning the individual conscience, the Qur’an places no fetters on free choice.^[812] The appeal of the Qur’an is to history, observation and reason, in support of its invitation to the path of faith and rectitude.^[813] Even to those who deny the truth, the Qur’an issues a challenge to adduce evidence to sustain their assertions:^[814] ‘Say: Bring forth your proof, if you are truthful.’^[815] This rational approach runs like a golden thread throughout the fabric of the Qur’anic teachings.^[816] To compel allegiance by force runs counter to these directives and admonitions.^[817]

The principle hadith advanced to support death for apostasy is narrated by Ibn’ Abbas: ‘Whosoever changes his religion, slay him.’^[818] To this hadith reported as authentic in Sahih-al-Bukhari is annexed the story of Ali burning to death a number of heretics, and Ibn ‘Abbas, on being informed of the incident, reportedly remarked that he would not have burnt them but merely killed them, for the Prophet had forbidden the burning of human beings.^[819] Although classical jurists accepted the authenticity of this hadith, there are differences between them as to its meaning.^[820] This difference is rooted in the fact that this hadith was a general (‘amm) command that was in need of specification (takhsis).^[821] According to the rules of interpretation, as expounded in usul al-fiqh, once a decisive (qat’i) has been specified in some respect, the part which remains unspecified becomes speculative (zanni) and, as such, becomes open to further interpretation and specification.^[822]

Imam Shafi’i and Ibn Hazm are reported to have expressed the view that the words of the hadith being general, it would apply even to a disbeliever who changes his faith.^[823] On the contrary, the majority of the ulema, including Imam Malik, held the opinion that it is confined to Muslims who become renegades from Islam.^[824] In support of this opinion, it is pointed out that the logical result of the view held by Imam Shafi’i and Ibn Hazm would lead to the absurd proposition (from the perspective of Muslims) that even a disbeliever who adopts Islam ought to be killed for his change of faith.

Considering the nature of the evidence emanating from the Qur’an and hadith, there is considerable difference of opinion among jurists as to whether the punishment for apostasy is prescribed (hadd) or discretionary (ta’zir).^[826] Shafi’is and Zahiris believe there are seven types of crime for which there is a hadd punishment, one of which is apostasy (riddah).^[827] On the other hand, a number of prominent ulema, across the centuries, have subscribed to the view that apostasy is not a hadd offence because hudud (prescribed) penalties cannot be established on the basis of a Ahad (solitary) hadith, like the one reported by Ibn Abbas.^[828]

Moreover, according to the renowned Hanafi jurist, Shams al-Din al-Sarakhsi, apostasy is not an offence for which there is a prescribed punishment, because the punishment for it is suspended when the apostate repents.^[829] Penalties for hudud offences are generally not suspended because of repentance, especially when they are reported and become known to the head of state.^[830] Al-Sarakhsi goes on to recount the punishments for all the hudud offences, but leaves apostasy out altogether from the list.^[831]

The Maliki jurist, al-Baji (d. 494 A.H.), also observed that apostasy is a sin that carries no prescribed penalty (hadd), and that such a sin may be punished only under the discretionary punishment of ta’zir.^[832] The renowned Hanbali jurist, Ibn Taymiyyah, also categorically agrees on this latter punishment for apostasy.^[833]

By incorporating apostasy as a hudud offence, the Hudud Bill com­pletely neglects the view that apostasy may not be a hudud (prescribed) but a ta’zir (discretionary) offence. In the case of apostasy therefore, the Fuqaha (jurists) acknowledge generally that no punishment is prescribed in the Qur’an.^[834] Their principle evidence for the view that apostasy must be punished with death is on a hadith that was a general (‘aim) command and that was in need of specification (takhsis).^[835] Based upon an interpretation of these sources, a number of prominent ulema, across the centuries, have subscribed to the view that apostasy is not a hadd offence because hudud (prescribed) penalties cannot be established on the basis of Ahad (solitary) hadith.

Moreover, prominent scholars such as Al-Sarakhsi and Ibn Taymiyyah have subscribed to the view that apostasy is a sin that may only be punished under the discretionary punishment for ta’zir.^[836] This conclu­sion finds further support in the sunnah, as neither the Prophet himself nor any of his Companions ever compelled anyone to embrace Islam or convicted anyone to death for mere renunciation of faith. In fact, the practice of the early leaders of Islam, particularly the Pious Caliphs, was consistently guided by the Qur’anic norms that seek to protect the integrity of the individual conscience.^[837]

Given the dearth of evidence supporting the punishment for apostasy in the Qur’an and the debateable position based on Hadith, the Hudud Bill can essentially be viewed as a product of undiluted imitation (taqlid). By categorizing apostasy as a hudud rather than a ta’zir offence, and thereby failing to make necessary adjustments to the pre-modern position on apostasy, the Hudud Bill poses an unnecessary impediment to the realization of religious freedom. The very philosophy of ta’zir is that the government is within its rights to introduce legislation that might seek to regulate the proper application of punishment, when and where neces­sary. By giving discretion to the sovereign with regard to the appropriate combination of deterrent and reformative measures, ta’zir facilitates the possibility of true religious freedom and tolerance.

The second major criticism of the Hudud Bill's treatment of apostasy is that it fails to differentiate between apostasy simpliciter and apostasy combined with high treason (hirabah) or severance of allegiance to the state. Mohammad Hashim Kamali, for instance, argues that apostasy was a punishable offence in the early years of Islam ‘due to its subversive effects on the nascent Muslim community of the state’.^[838] The law of apostasy was developed at a time and in circumstances that differ radically from today.

This broader political context was also considered by several promin­ent Muslim scholars in the twentieth century, including Abul A'la Maududi, Rashid Rida and Yusuf al-Qaradawi, and many of these scholars attempted to introduce limitations to the pre-modern position. The most obvious limitation introduced by these thinkers was that apostasy was punishable by death only where it was accompanied by treason, hostility towards the Muslim community or severance of allegiance to the state.^[841] In fact, the Pakistani scholar Abul A’la Maududi (d. 1979), in his major work on the punishment of apostates, justifies the punishment of death on the grounds that the Qur’an, hadith and the ulema all regard apostasy as an act of high treason (hirabah).^[842] For Maududi, belief in Islam is not simply a personal matter. Rather, it suggests membership in the social order implemented by the state. Thus, a change of faith is tantamount to treachery, making such a traitor an enemy of the state.^[843] In this respect, Maududi argues, Islam prescribes capital punishment for apostasy just as many modern nation states consider high treason a major crime punishable by death.^[844]

Maududi addresses the moral difficulty of executing the apostate for privately rejecting the religion of Islam for another by expanding the definition of religion. In doing so, he transforms the concept of religion by equating religion with the state. For Maududi, Islam is a complete ordering of life. As such, the organizing of society and the shape of government are all part of Islam. According to Maududi, an organized society that has chosen the form of a state can hardly provide a place within its sphere of activity for people who differ from it in fundamental matters, such as the foundations on which the order of the society and the state are established.^[845]

It is true that Maududi’s view of Islam as a state makes it difficult to accommodate the apostate within it. At the same time, however, Maududi appears to concede that when the state is not based on Islam, or where the act of apostasy cannot be equated with treason, the apostate should not necessarily be punished, for it is the rejection of a ‘divine’ socio­political order that amounts to high treason. Maududi, therefore, con­siders the historical context in which the punishment for apostasy was developed and his analysis is sharper than those who simply follow the rulings of pre-modern thinkers (taqlid) on apostasy in its entirety.

Rashid Rida makes a similar distinction between the apostate who abandons Islam privately and one who revolts against Islam or otherwise poses a danger to the ummah. According to Rida, the latter should be put to death, if captured, while the former should not. Rida’s position is established on the grounds that the pre-modern ijma’ (consensus) on the execution of the apostate is not based on a clear text of the Qur’an; therefore, it does not need to be binding, but may be persuasive given the existing facts.^[846]

Yusuf al-Qaradawi, one of the most prominent neo-revivalist scholars, has similarly argued that apostasy is a crime punishable by death only where the apostate subsequently declares an open revolt against the state in such a manner that threatens the solidarity of the Muslim com­munity.^[847] However, the death penalty can be implemented only by the proper authorities after due process of law prescribed by Shari’ah.^[848]

The Hudud Bill defines apostasy as ‘any act done or any word uttered by a Muslim who is a mukallaf, being an act or word which according to Syariah law, affects or which is against the aqidah (belief) in Islamic religion’.^[849] The Hudud Bill further provides that the acts or words that affect the aqidah must be such that concern ‘the fundamental aspects of Islamic religion’ and that are deemed to have been known and believed by every Muslim, pertaining to pillars of Islam (Rukum Islam), pillars of belief (Rukum Iman) and matters of halal or haram.^[850]

The expressions used to define apostasy in the Hudud Bill are problematic insofar that they are too imprecise and broad to form the basis of definition.^[851] In fact, the definition of apostasy in the Hudud Bill is confusing because it includes a variety of different concepts such as blasphemy, apostasy, disbelief (kufr) and heresy (bid’ah), all under the same definition.^[852] There exists substantial overlap between these terms, which is rooted in the fact that the Qur’an and Hadith did not provide specific definitions for such terms.^[853] Specific definitions for these terms were subsequently developed through the use of interpretation, including ijtihad. As a result, many Muslim scholars of the early period were naturally reluctant to declare other Muslims to be unbelievers and to exclude them from the community on the basis of differences of opinion often based on ijtihad alone.^[854]

The definition of apostasy in the Hudud Bill is also vague and imprecise, and does not differentiate between apostasy simpliciter and apostasy combined with high treason (hirabah). The sum total of this approach is that there is no difference, for the purpose of enforcing the death penalty under this bill, between a simple conversion that is neither contemptuous nor hostile and one that inflames the masses of Muslims and is capable of causing bloodshed and uncontrollable civil strife. In this regard, the Hudud Bill functions as a product of undiluted imitation (taqlid), adhering blindly to the pre-modern position on the punishment for apostasy. It relies on the ijtihad of pre-modern jurists, without giving adequate consideration to either the degree of authoritativeness of this pre-modern ijtihad or the changed conditions of the modern period.

The punishment for apostasy was developed at a time where the world was essentially divided into dar-al-Islam and dar-al-harb. In theory, dar-al-harb was permanently in conflict with dar-al-Islam;^[855] during the early years of Islam, those who abandoned the faith often became hostile towards the fledgling Muslim community. Over time, however, these distinctive features of dar-al-Islam and dar-al-harb have changed radic- ally.^[856] Unlike the communities that existed during the advent and early expansion of Islam, modern nation states are not politically organized strictly on the basis of religion. Moreover, among Muslims, the centrality of Shari’ah to today’s Muslims’ State ranges from absolute to non­existent.^[857] As such, it is considered acceptable for individuals to remain loyal citizens of the political unit regardless of their religious affiliation. In this context, pre-modern Islamic law on apostasy, premised upon the symbiosis of religious identity and political community, loses much of its meaning. Therefore, by failing to differentiate between apostasy simplic­iter and apostasy combined with high treason (hirabah), the punishment for apostasy potentially conflicts not only with the foundational sources of Islam and modern Muslim scholarship, but also with the contemporary realities of Malaysian society and even international norms.

III.