In Support of Revathi's Freedom of Faith
Revathi, an ethnic Indian woman, has been held in a rehabilitation center run by Islamic authorities since January 2007 because she wants the State to acknowledge she is a Hindu and not a Muslim.
Revathi was born to Indian parents who had converted to Islam before her birth. She claims she was raised by her grandmother as a Hindu. She and Suresh were married according to Hindu rites in March 2004. Revathi was advised by the Malacca Islamic Religious Department to make an application at the Malacca Syariah High Court to confirm her status as a Hindu. She did as she was told.
Revathi was born to Indian parents who had converted to Islam before her birth. She claims she was raised by her grandmother as a Hindu. She and Suresh were married according to Hindu rites in March 2004. Revathi was advised by the Malacca Islamic Religious Department to make an application at the Malacca Syariah High Court to confirm her status as a Hindu. She did as she was told.
However, the Syariah Court ordered her detained in a rehabilitation centre in Ulu Yam, Selangor
under Melaka's Syariah criminal laws for 100 days. This detention was extended in Revathi's absence for a further 80 days supposedly because she had not "repented". In the meanwhile, Revathi's Muslim mother obtained a Syariah Court order granting her custody of Revathi and Suresh's 15 month old baby. That order was enforced on Suresh's Hindu family with the assistance of the police.
The family is now torn apart - with the mother in detention, the child with the grandparents and the father in limbo without his family.
**
Candlelight Vigil:
Please attend the following peaceful candlelight vigil in support of Revathi, and many others like her, who are unable to fully exercise their Constitutionally-guaranteed freedom of faith. The vigil is an initiative of civil society organisations including MCCBCHST (the Malaysian Consultative Council on Buddhism, Christianity, Hinduism, Sikhism and Taoism) and various women's rights groups (All Women's Action Society (AWAM), Sisters in Islam (SIS), Women's Aid Organisation (WAO), Women's Centre for Change, Penang (WCC) and Women's Development Collective (WDC)).
Date: Tuesday, 19 June 2007
Time: 8 p.m.
Venue: Dataran Merdeka (at the flagpole)
Time: 8 p.m.
Venue: Dataran Merdeka (at the flagpole)
Please come to show your support in affirming the supremacy of the Federal Constitution and its protection of our fundamental liberties, including the freedom of belief.
Please bring candles, candle-holders and banners.
Please bring candles, candle-holders and banners.
posted by ooiheng at
6/15/2007
3 Comments:
Untangling the knotty Lina Joy case
Kim Quek
Jun 13, 07 11:47am
http://www.malaysiakini.com/opinionsfeatures/68545
The final judgment on the Lina Joy case has brought to head the increasingly controversial and divisive issue of religious freedom in Malaysia.
In an apparent attempt to skirt a potential confrontation between the civil court and the syariah court, both the Court of Appeal and the Federal Court (the nation’s highest court) had narrowed the case down to one of pure administrative issue – whether the National Registration Department (NRD) acted legally in rejecting Joy’s application to delete the world “Islam” from her identity card (IC).
That attempt to avoid confrontation has obviously failed, for the Federal Court judgment in rejecting Joy’s request to delete the word “Islam” aroused even greater consternation, this time attracting world-wide publicity, most of which is adverse to Malaysia’s image.
It is not difficult to understand why the Federal Court failed, for the bottom line of the Lina Joy case is not one of mere technicality involving only the NRD, but one that touches on fundamental issues relating to the Constitution as well as those surrounding religious faith.
When confronted by this case, the first question we must ask ourselves should be: Is Joy a Christian or a Muslim? The answer to this question is vital, for if Joy is not a Muslim, then according to NRD regulations, she needs not stipulate her religion to the NRD, and the court should therefore readily grant her request.
Joy is a Malay woman, born in 1964 and brought up by her family as a Muslim. In her statutory declaration, she said she had never professed or practiced Islam since birth, and that she had embraced Christianity in1990. She wanted to marry a Christian, but marriage between Muslims and non-Muslims are prohibited in this country. That prompted her to have her religious status of Islam in the IC deleted.
In any society, she would have been deemed a Christian. But obviously, the Malaysian courts do not think so, hence the prolong controversies which threaten to split the country, mostly along religious and racial lines.
Fundamental questions
Arising from these controversies, are a host of fundamental issues that beg for answers. These relate to personal conscience, religion, the Constitution, Syariah laws, and peculiar to this country, the unique relationship between the Malay race and Islam. I will attempt to explore some of these by asking the following questions:
1. How do you define a Muslim? When is the point of entry and when is the point of exit? When is a Muslim considered having left his religion?
2. Is there or isn’t there religious compulsion in Islam? If negative, shouldn’t Muslims be allowed to leave the religion as their conscience dictates? Are punitive apostate laws then contradicting the religion?
3. Article 11 of the Constitution states: “Every person has the right to profess and practice his religion.” Does this include Malays and Muslims?
4. Article 8 of the Constitution proclaims all persons are equal before the law and prohibits discrimination on the ground of only religion, race, descent etc in any law. It does not, however, prohibit any provision regulating personal law. “Personal law” is understood to include family matters such as marriage, divorce, inheritance etc. Does it also include religion?
5. Islamic laws are legislated in the state assemblies and enforced by the Syariah courts. The scope of such legislation is prescribed in Schedule 9: List 2: para 1 of the Constitution. Among the items prescribed, which generally relate to family matters and administration of Islamic institutions, is one which empowers punishment on Muslims breaching the “precepts” of Islam. There is however no mention of apostasy. Does this “precepts” include apostasy?
6. In 1988, Article 121 of the Constitution was amended whereby civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” Arising from this amendment is the question of whether it is possible to have a clear-cut dividing line demarcating the boundary between the jurisdiction of the civil court and the jurisdiction of the Syariah court. What if the contending parties are Muslims vs non-Muslims – which jurisdiction does the case fall? What if there is a perceived conflict between the Syariah laws and the Constitution, or between the Syariah court and the civil court – which should reign supreme?
7. Should the Syariah system of justice be interpreted as parallel and independent of the Constitution and the civil courts?
It will be seen that the above questions tend to touch the base lines of the present conflict. Divergent views to these issues are expected due to differing backgrounds. However, I strongly believe that if we discourse with rationality and good conscience, considerable common grounds can be established among conflicting parties. I will start the ball rolling by volunteering some answers to them.
Answers
Islam and Muslims
A person who believes in and consciously follows Islam is a Muslim.
As for entry and exit, other than those born to Muslim families, Muslim converts have to go through a well defined ceremony just like most other religions. However, unlike other religions which treat religious drop-outs as non-events, Islamic apostasy is taken more seriously; but Islamic opinions on apostasy vary widely, ranging from the extreme of those advocating for punishment by death to those in favour of peaceful exit. As in all religions, leaving Islam is not so well marked as at the time of entry. For instance, in Malaysia’s Federal Territories, where Joy used to reside and where her apostasy case might have been handled, the Islamic laws there (Islamic Administration Act) have no provision regulating the leaving of Islam, though apostasy is considered catastrophic for Malays.
The reason for not highlighting the leaving of any religion is simple – when one ceases to believe, that religion doesn’t exist in him any more. Why beat the drum about it?
Religious compulsion
In spite of the fact that the name of Islam has been contaminated by contemporary violence around the globe, I still believe that main stream Islam is for peace. Similarly, I think main stream Islam accepts the concept of non-compulsion in religion as mentioned in the Quran. The question I want to ask Malaysian Muslims is: why is apostasy treated with such severity in this country, subjecting apostates to state punishment and social ostracisms, not excluding threat to lives? Aren’t Malaysian Muslims in main stream Islam?
Article 11
The wordings in this article of the Constitution guaranteeing freedom of religion to every person in this country are clear and unambiguous. There is no “if” or “but”. The only exception is the empowering of state legislatures to enact laws controlling or restricting the propagation of other religions to Muslims.
So, I don’t see any reason why Malays and Muslims in this country should not enjoy the same protection of the Constitution to have their religious freedom.
If indeed religious freedom is not meant for Muslims and Malays, wouldn’t our founding fathers and drafters of the Constitution have inserted words to this effect in this article?
Discrimination
Article 8 of the Constitution prohibits discrimination on the basis of race or religion but makes exception to those within the ambit of “personal law”. Do the latter include religion? I leave it to people well versed in law to advance their opinions.
The answer to this question is relevant to the Lina Joy case, in that a negative answer would mean that NRD could not discriminate against Muslims by forcing them to declare their religious status in their IC while non-Malays are exempted from doing so. And that means it is illegal for NRD to reject Joy’s request to have the word “Islam” deleted from her IC.
"Religious precepts" and apostasy
The Constitution, under Article 74 (2), empowers state legislature to enact Islamic laws as prescribed in Schedule 9, among which is one pertaining to punishment for breaching “religious precepts” but with no mention of apostasy.
Is apostasy included in “religious precepts” for punishment? If it is, does it not contradict Article 11, rendering such legislation ultra vires the Constitution? If it is not, from where do the state legislatures derive its power to enact such apostasy laws?
Amendment to Article 121
In a country where almost half the population is non-Muslims, creating a Syariah legal system which has the appearance (though not in fact) of a parallel system on par with the civil courts is an invitation for trouble. And that is what the 1998 amendment to Article 121 has done.
Legal experts should be able to tell that these two systems are in fact not parallel (in fact they converge somewhere), neither are they on par. This is because, Syariah laws are enacted in the state assemblies, and the latter derived its law making power from the Constitution, which is the supreme law of the land. And who administers the Constitution? The civil courts, of course. So naturally when a Syariah law contradicts the Constitution, the civil court has to step in. So is the case when a Syariah court judgment conflicts with the Constitution – the civil court must over-rule the Syariah court judgment.
If that is the case, why should there be so much confusion and turmoil arising from Muslim vs non-Muslim legal conflicts. The problem lies with the wording of the amendment as well as the timidity of Muslim judges to adjudicate over issues involving Islam.
Take another look at the amendment, which is introduced through inserting the complete sub-clause (1A), which reads in full:
“The courts referred to in Clause (1) (meaning the civil high courts – insertion mine) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”
Without qualifying the limitation to this division of jurisdiction, this sub-clause tends to mislead the reader who is not well versed in law into thinking that, Syariah courts have absolute jurisdiction over matters related to Islam even when their adjudication may come in conflict with non-Muslims’ constitutional rights or contradict fundamental provisions of the Constitution.
Unfortunately, even learned judges in the civil courts who are Muslims (who dominate our judiciary) also fall into this trap, therein lies the fermenting ground that gives rise to incessant inter-religious legal conflicts. It is no coincidence that in the Lina Joy case, both the Court of Appeal and the Federal Court return a 2 –1 verdict that splits along religious lines, with two Muslim judges voting against the lone non-Muslim judge. Though in this case, the split is influenced less by lack of legal knowledge than by religious sentiments.
Islamisation
The increasing phenomenon of Muslim judges abdicating their jurisdiction to Syariah courts, or lacking courage or intellect to deliver a verdict free of religion as called for by the Constitution can be traced to one major cause. And that is the trend of Islamisation that has set in since the early eighties.
There are indications that the fundamentalists have rapidly gained the upper hand under the weak leadership of Prime Minister Abdullah Ahmad Badawi, (who ironically has advocated his pet Islam Hadhari to reverse the fundamentalist trend), as evident by the spate of suppression of discourse and dialogue promoting religious harmony such as the proposed inter-faith commission, Article 11, and the most recent abrupt cancellation of the World Christian–Islam dialogue, held annually since 9/11 and participated by top scholars of both faiths. These suppressions bear the unmistakable hallmark of religious intolerance, and bode ill for the future of this multi-racial, multi-cultural and multi-religious country.
The demographic make-up of this country is such that if Malaysia were to survive as a nation it has to overcome its ever worrisome religious and racial fault lines. But that may be a bit of wishful thinking under a decadent political power that is hell bent to exploit racial and religious fissures for its own political survival.
丽娜乔案的改革契机 文：欧阳文风 牧师
我国联邦法院裁决丽娜乔必须到伊斯兰教宗教法庭申请脱离伊斯兰教，及删除其身份证内「伊斯兰教」字眼，由于此案涉及宪法诠释，还有宗教法庭权限问题，意义重大，对大马司法界、宗教界与民间带来的震撼与影响，可想而知。
宗教与种族，是当今世界最敏感的课题之一，在许多国家是冲突与暴动根源；再加上在我国宗教与种族又和政治脱离不了关系，个中问题，更是复杂。所幸大马人有一种难得的含蓄(这点可好可坏)，虽然有人叫嚣，但并未发生任何肢体冲突。如果此案能突显在我国一直压抑了很久的问题，提醒国人在独立５０载后，问题再棘手，也要以理性消敏，不应逃避现实，将不失其意义。本文尝试藉此案谈我国宪法对宗教自由的保障与伊斯兰教对改教的观点，从此再谈伊斯兰教在现代社会的思想革新前景。
宪法的宗教自由保障 --
马来西亚宪法第３条（１）赋于伊斯兰教为我国官方宗教的地位，这一不表示大马是伊斯兰教国家，二不意味任何与伊斯兰教宗教法冲突的法律等于违宪。大马宪法专家Lionel Astor Sheridan教授认为，伊斯兰教作为大马官方宗教，表示国家官方礼仪的制定，必须与伊斯兰教保持一致。
大马宪法第１１条保障每一个人在我国拥有宗教自由。宗教自由基本有两大意义，一是指信仰或改变宗教的自由，二是实践其宗教与信仰的自由。前者是一种内在的自由，一种选择信仰与皈依任何宗教或拒绝皈依任何宗教的自由，这是一种属于思想选择的自由，后者是生活实践上表现其宗教信仰的自由。在宪法中，此条文明指每一个人（every person）都有此自由；换言之，无论是大马公民与非公民，无论是马来人或任何种族的人，都包括在内，唯一的例外是，１８岁以下的人，必须在获父母或监护人的同意之下，才可改变宗教。我国宪法在这点上是非常明确的。联邦法院在丽娜乔案的判决令许多人失望，在于其中两名法官并未力挺宪法第１１条，拒绝明确地肯定宪法所赋于丽娜乔的宗教自由。不过，这也不完全意味联邦法院绝对否定丽娜乔的宗教自由，盖联邦法院不过是裁决丽娜乔必须回到宗教法庭处理改教事宜与删除身份证中的「伊斯兰」字眼。只是，联邦法院的判决令丽娜乔的改教困难重重，因按过往宗教法庭对改教案的处理，改教者前途并不乐观。职是之故，联邦法院此判决，无疑是间接打击丽娜乔的宗教自由。
伊斯兰的改教观 --
伊斯兰做为一个宗教，其宗教界对改教事宜并未有一致的看法，有关对改教者的看法与刑罚，亦是不一而足。１９４８年，沙地阿拉伯驻联合国的代表曾大力抗议公民与政治权利的国际联盟规约（ＩＣＣＰＲ）中第１８条款赋于人人有改变宗教的自由，他指此条款违反伊斯兰法。可巴基斯坦的代表Muhammand Zafarullah Khan 却以古兰经中允许人选择相信与不相信，来支持其条款。之后，联合国条约中类似第１８条款的宗教自由，亦获得许多穆斯林国家签署，包括伊朗、伊拉克、阿富汗、约旦、埃及、利比亚、苏丹、摩洛哥等。
在伊斯兰教中，改教（riddah）、冒渎（sabb Allah及sabbal-rasul）、异端（zandaqah）、假冒伪善（nifaq）和不信（kafr），是几个类似但不尽相同的观念，其刑法也不同，有些观念是否重叠，是否可以与改教一起处理，伊斯兰法学者亦是议论纷纷。伊斯兰教中逊尼派中共有四大派的法学家，Hanafi, Maliki,Shafii,和 Hanbali，对如何处置改教者有不同说法。基本上，根据前现代（pre-modern）的伊斯兰法律，穆斯林如果改教，死刑（qatl）是其唯一下场。古兰经并未明言如此，当时人其实是根据hadith所说：谁改变宗教，就杀了他。可是Hanafi派却认为这只限于改教的男性，改教女性则应监禁与鞭打，一直到她认错回归伊斯兰教或死亡为止。他们的理由是穆圣一向来禁止穆斯林杀害女性。但Maliki, Shafii,和Hanbali派的法学家则强调改教女性必须在３天内悔改，否则面对死刑，不过Maliki法学家则认为如果有关女性要哺乳，死刑可以拖延。
现代一般支持以死刑对付改教者的穆斯林以古兰经５：５４、５：３７、１６：１０６支持死刑，但这３段经文并未明言死刑，死刑其实是这些人对有关经文的诠释，其它法学家未必认同。现代法学家对改教刑罚之所以争论不休，在于对刑罚的规类意见不同。伊斯兰法将刑罚规３类处理，第一种属指定式的刑罚（hadd），第二是报应式的刑罚，有以牙还牙之意（qisas），第三则是可改变的刑罚（ta'zir）。明显的，第二类刑罚不适用于改教者，现代法学者多争论其刑罚应属ta'zir 而非hadd。如果刑罚属于hadd ，则世世代代不能更改，死刑是其下场；但如果是qisas，则可因时代变迁而有所不同。
明显的，我国法学家一般是倾向于视改教的刑罚属于qisas而非hadd。但回教党的聂阿兹在９０年代在吉兰丹执政时，大力提倡以死刑对付改教者，这虽遭内阁反对，但我国对改教者的刑罚依然不轻。１９６５年宗教法刑事罪法令规定改教者可被监禁不超过３年或罚款５千，或鞭打６鞭，或其中二者或三者兼施。
伊斯兰与现代化：
伊斯兰与世界所有的伟大宗教一样，难免经历现代化的洗礼。中世纪的天主教会亦曾以圣经申命记１３章６至７节，和利未记２４章１６节等支持以死刑对付改教者。天主教甚至曾经一度仇恨改革的基督教，强调天主教会以外没有救恩，所有基督教会都是错误的。但二十世纪６０年代第二梵蒂冈大会后，天主教会在许多方面做出极大的改变，令人瞩目。伊斯兰教界如今针对改教与其刑罚的争论，意味宗教在面对现代化，不能不重新诠释古兰经。无论是犹太教的Torah，基督教的圣经、伊斯兰的古兰经，都是产生于前现代，如今无一可能避免现代化与科学和理性思潮的冲击，而在诠释经典时，有所改变。甚至连极保守的回教党亦强调改教者的其中一个定义，必须是mukallaf，回教党对此字的定义是１８岁以上和思维正常者。这种定义其实不符合原始伊斯兰教对mukallaf的理解，因为mukallaf在伊斯兰初期是指青春期，即１２或１３岁，或有因人而异的例外，但绝不应定义为１８岁，这是一般现代人对成年人的定义。这种微妙改变说明了连最强调传统与拘泥字面解经的回教党，其实随著时代的改变，亦不能不在诠释经典时做出适当改。由是观之，我对宗教改革的前景充满信心。虽然过程可能缓慢或艰辛，但并不是不可能。我国如今面对的挑战，是在现代化中如何肯定人性的尊严与落实公义的价值观，确保宪法赋于人人宗教自由的保障不只是一种门面装潢；同时亦肯定宗教的价值，确保回教的法定地位与尊严受保护，但又不违反或牺牲理性与普世性的人权价值观。政客会煽风点火，宗教顽固份子不会轻易改变，但如果老百姓明思慎辨，拒绝让民族或宗教等大而无当的概念埋葬理性，我国如今所面临的危机亦是我们迈向全球，见证伊斯兰做为一个文明与伟大的宗教，可以与现代化发展融合的契机，可以向西方世界见证伊斯兰的文明力量。我希望我国有更多接受专业伊斯兰神学训练的开明穆斯林，有坚忍与说不的道德勇气，因为宗教的改革，始终还是必须由教内人去推动；我希望马来人敦厚善良的民族性，在改革路上发挥一定的影响力；我盼望华裔印裔同胞，选择站在正义一边，而非袖手旁观，维持宪法与国格于不坠，以懔然大义为天下倡。这是我做为一名基督教牧师在丽娜乔案后的祈祷。
馬來西亞：法院裁決損害伊斯蘭形象 新聞自由再成焦點
撰文 Ioannis Gatsiounis
2007/06/13, 週三
http://www.atchinese.com/index.php?option=com_content&task=view&id=35173&Itemid=110
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