The Malaysian Constitution on Apostasy

The second part following this article.

The conclusion is that due to the complex social, political and racial considerations in Malaysia, a person cannot unilaterally renounce Islam without an official body to investigate and assess the situation and the consequences. Basically, the special privileges of Malays may be challenged, which could lead to social unrest.

Therefore and however, note that this does not apply to renunciation of any other religion. As the writer says, in Malaysia freedom of religion is not absolute.

Also, read Joshua Hooi’s blogging on the Christian viewpoint on mixed-religion marriages.

My comments in [italics and square brackets].

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Much abridged excerpts from full article in The Star 3 May 2007:

Respecting the Constitution

Reflecting on the Law: By SHAD SALEEM FARUQI .

Freedom of religion is not absolute, but subject to general laws relating to public order, public health or morality. Part 2 of a two-part article. 

THE right to convert out of one’s faith and to adopt another is an implicit part of freedom of conscience in all developed constitutional states.  

But in the special context of Malaysia, where there is a unique, fascinating link between Islam and Malay identity, apostasy arouses deep emotions. Any attempt by a Muslim to renounce his faith is seen as a threat to the whole community.  

How many murtad (apostates) there are in the country is not known. Some religious leaders have made wild allegations of hundreds of thousands.  

But data gathered by UiTM scholar Dr Azam Adil gives some indication. He found that from1994 to 2003, Syariah Courts in Negri Sembilan granted renunciation certificates to 16 applicants, most of whom were former converts to Islam.  

Till the 1980s Muslim Law Enactments in several states recognised apostasy by imposing a simple registration requirement on all who enter the faith and all who exit from it. But in the 80s with Islamisation catching on, the unilateral right to register a renunciation was repealed.  

In some states, legislation was enacted to require anyone seeking to convert out of Islam to be subjected to compulsory counselling and rehabilitation procedures for prescribed durations.  

In other states, a Muslim’s membership of the ummah was regarded as irrevocable. Any attempt at apostasy was an insult to Islam and punished criminally. 

The second approach does not harmonise with other rules of the legal system.  

First, in all states, the syariah authorities possess a power to excommunicate Muslims from the fold. From time to time, state religious authorities have brought down the axe on the Qadiyani, the Ismaili, the Ahmadiya and the Ithna Ashari.  [See these links for info on the Qadiyani, Ismaili, Ahmadiya and Ithna Ashari.]

Obviously, one’s status as a Muslim is not eternal. It can be lost or forfeited.  

Second, the criminalisation approach violates the freedom of conscience clause in the Constitution. The civil courts are near unanimous that under our basic charter, a Muslim does have a right to convert. But he cannot do it unilaterally. He must first obtain a Syariah Court certificate of renunciation.  

The problem is that most syariah courts fail to act on such applications and would-be converts spend years in legal limbo.    

When our document of destiny was being drafted, no consideration was given to the idea of a theocracy (supremacy of God’s law). Instead, a supreme Constitution was adopted by Article 4(1).  

Islam is the religion of the Federation, but other religions may be practised in peace and harmony (Article 3(1)).  

However, though Islam is the religion of the Federation, Malaysia is not an Islamic state. The syariah is not the basic law of the land. The Constitution is supreme. The syariah applies only to Muslims and that, too, in areas demarcated by the Constitution in Schedule 9, List II, Item 1. 

Further, Article 3 (on Islam) does not extinguish any thing else in the Constitution. Article 3(4) provides that “Nothing in this Article derogates from any other provision of this Constitution”. This means that Article 3 cannot be employed to challenge the validity of a drug trafficking law on the ground that some of its provisions were un-Islamic (Che Omar Che Soh (1988)).  

According to Article 11(1) “Every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.” The guarantee of Article 11(1) applies to all persons including Muslims.  

In Minister vs Jamaluddin Othman (1989), a preventive detention order on the ground that a convert out of Islam was involved in propagating Christianity among Muslims was held to be illegal. [Vice versa is not considered a disturbance of the peace.]

Freedom of religion is, of course, not absolute. All religious freedom is subject to general laws relating to “public order, public health or morality” (Article 11(5)).  

What about State laws criminalising apostasy? They are not protected by Article 11(5) because apostasy per se is not condemned anywhere in the Constitution.  

One must remember that Article 3(4) clearly indicates that the provision on Islam does not derogate from any other provision of the Constitution: “The criminal law power of the states applies against persons professing the religion of Islam. If a person of sane mind and legal capacity formally declares that he no longer professes a faith, it is constitutionally difficult to subject him to the religion he has renounced. All that can be required is a formal procedural requirement of renunciation.”

It is a flagrant violation of the Constitution as drafted in 1957 to imprison someone for his religious belief. Any argument to the contrary is a radical, revisionist and medieval re-interpretation of our cherished basic charter.  [Note, however, that the law on deviations from mainstream Islam seem to supercede this; see Kerajaan Langit for one example.]

Anyone who stands in the shade of the Constitution has to concede that under the present constitutional order apostasy per se cannot be criminalised. But prosecution of belligerent apostates who disturb the peace or cause offence under section 298 of the Penal Code is perfectly constitutional. [Again, what constitutes disturbance of the peace is not exactly chiseled in stone…]

In the special circumstances of Malaysia, apostasy has significant legal, political, social and economic consequences. A Muslim apostate will lose his Malay status. His marriage will be dissolved. Painful questions of custody and guardianship and of Malay privileges will arise. [See for the definition for why this is so.]

It is reasonable, therefore, that a unilateral act of renunciation is not enough. A formal application for change of status must be made followed by a mandatory procedure for investigation, counselling and consultation (but not adjudication).  

But the syariah authorities must be required to complete the investigation and counselling within statutory time frames so that the applicant can get on with his life and not remain suspended in a legal limbo. If the intending apostate cannot be won over through love, then the apostate should be ex-communicated and this should be recorded and registered.  

Dr Shad Faruqi is Professor of Law at UiTM.