COMMENT | The continuation of religious conflicts among the human race is the reflection of the extreme literal approach taken by the vast majority of believers of the religions. This literal interpretation predictably results in an impasse in a multi-religion society.
As a matter of discussion, any society nowadays, in general, comprises of multiple ethnicities and religions due to two major factors. Firstly, it is due to colonialism whereby, for example, in Malaysia, the British brought labourers from foreign lands in order to materialise the mission of industrialisation.
Secondly, it is a result of globalisation where people move from one place to another to work and gain citizenship from their adopted countries.
As a result of this phenomenon, some religious scholars seek to explore more progressive ways to find amicable solutions over religious matters. The progressive ways include “context-based” interpretations - when the law of the land and structure of the social system of the community become a priority without eliminating the fundamental elements of the religion.
Nevertheless, the outspoken literalists have been dominating the discourse, refraining the former from playing their role in resolving the conflicts.
In a recent conflict in Malaysia, the Federal Court in the case of Syarifah Nooraffyzza Binti Wan Hoesn v Director of Jabatan Agama Islam Sarawak (Jasi) held that the Sarawak syariah court had jurisdiction over an apostasy case although there is no specific provision in the syariah ordinance dealing with the renunciation issue.
The decision impliedly obliged the Sarawak syariah court to set up a particular legal provision dealing with the procedure for an apostasy application.
The move sounds controversial, but as a matter of fact, several states in Peninsular Malaysia have already enacted their respective procedures under the jurisdiction of their syariah courts for more than ten years now.
In Negeri Sembilan, Perlis and Selangor, the application to leave Islam basically begin with a process of counselling and advice by an appointed committee before a decision is made by the syariah court to declare the applicant as no longer Muslim.
In Negeri Sembilan for instance, Section 119 Administration of The Religion of Islam (Negeri Sembilan) Enactment 2003 under the chapter of “Renunciation of the Religion of Islam” has scrutinised in detail the rules and procedures for applications to leave Islam.
Section 119 (4) of the Enactment says “after receiving an application under subsection (2), the Syariah High Court judge hearing the application shall -
(a) advise the person to repent, and if the judge is satisfied that the person has repented in accordance with Hukum Syarak, shall record the repentance of the person; or
(b) if the person refuses to repent, before making any order against the person, adjourn the hearing of the application for a period of 90 days and at the same time require the applicant to undergo a counselling session for the purpose of advising him to reconsider the religion of Islam as his religion.
Section 119 (7), (8), and (10) of the enactment underline the procedure specifically for the applicants who still refuse to repent. The clauses say as follow:
(7) If after the expiry of the period of 90 days specified in paragraph (4)(b), the person still refuses to repent, the Pegawai Perunding Cara Aqidah shall prepare a report as soon as possible and bring him/her before the Syariah High Court.
(8) If, after receiving a report under subsection (7), the court is of the opinion that there is still hope that the person may repent, the court may adjourn the hearing of the application under subsection (2) and at the same time order the person to undergo further counselling sessions for a period not exceeding one year.
(10) If after the expiry of the period ordered under subsection (8) the person still refuses to repent, the person who is responsible for him shall prepare a report as soon as possible and bring him before the Syariah High Court and the court may make a decision to declare that the person has renounced the religion of Islam.
The research conducted by Prof Madya Dr Siti Zubaidah Ismail which was published in her paper “Syariah Court’s Practice on Declaring the Religious Status in the Case of Applications to Renounce Islam : A Case Study in Negeri Sembilan Syariah High Court” made a reference to the 45 case files of apostasy in Negeri Sembilan which recorded four categories as to the status of the applicants.
The first category refers to those who are born Muslim, second are newly converted Muslims (muallaf), third are those brought up by a non-Muslim guardian and fourth are those who are non-Muslim in the first place but have a Muslim name.
The research showed that the highest number of applications came from the third category (24 cases), followed by the second category (18 cases), the first category (two cases) and finally from the fourth category (one case).
The procedure to leave Islam in Perlis is specifically stated under Perlis Islamic Faith Protection Enactment 2000 where the Aqidah Rehabilitation Centre will be given a role to advise the applicant to repent.
Existing legal provisions
The counselling process called “Istitabah” is similar to what an applicant in Selangor and Negeri Sembilan has to go through except for the fact that in the latter states the process is administered by the Mufti Department.
Section 10 (3) of the enactment states the Perlis syariah court judge has jurisdiction to declare an applicant as no longer Muslim and order his/her release if the applicant refuses to repent after the istitabah process has taken place. The provision says:
1. When a person is brought before the judge under subsection 1 (a) or (b), the judge shall again advise such person to repent, and if –
(a) The person still refuses to repent, the judge shall, after examining the reports submitted to him and after hearing any explanation from such person, record his refusal to repent and if –
The judge is satisfied that the person has no liability or obligation under the Islamic Family Law, declare that the person is no longer a Muslim and order his release;
In Islam, apostasy is prohibited and the Quran clearly says that the rightful punishment for them is one that will take effect in the afterlife;
“... and whoever of you reverts from his religion and dies while he is a disbeliever, for those their deeds have become worthless in this world and hereafter, and those are the companions of the Fire, they will abide therein eternally”. (Al-Baqarah : 217)
In the book Apostasy In Islam: A Historical and Scriptural Analysis (published by IIIT) by Dr Taha Jabir Al-Alwani, the dispute among scholars on the stipulated rule to execute the person who wished to leave Islam was highlighted.
Taha stated that among the early scholars who disagreed with the capital punishment included individuals of weight and influence such as companion Umar ibn al-Khattab (d. in 644 CE), Ibrahim al-Nakh’i (d.811 CE), and Sufyan Al-Thawri (d. in 777 CE) and other illustrious figures.
Taha illustrated that the Prophet’s era witnessed literally hundreds of those who believed, who then became hypocrites or committed apostasy and their apostasy reached the point where it represented a source of harm to the Messenger of God and the Muslim community.
In no case did the Prophet respond by calling for death, unless an individual was accused of a separate crime warranting such punishment.
According to Taha, any instances during the Prophet’s lifetime where any apostates were put to death, as related by a variety of sources in the hadith, were due to the individual’s participation in war crimes or murder and not due to their apostasy.
The term “freedom of religion” is essentially a freedom granted by the religion to uphold the religion; it is neither to undermine nor discredit the religion.
The verse “there is no compulsion in Islam” implies the notion that a belief due to coercion is not valid and freedom is paramount before choosing the religion. Such an understanding has been underlined as the general rule of “al-Hurriyyah Qabla Al-Syariah” – the freedom before the syariah.
To articulate further, Sheikh Muhammad Rashid Ridha explained the context of dakwah – propagating the religion of Islam, in the verse: “There shall be no compulsion in Islam, the right course has become clear from the wrong”.
This means that the core of dakwah is the relentlessness in shedding light on the religion of Allah until the right is clear from the wrong, and it is a man’s choice thereafter whether to accept or reject it. (Al-Manar Commentaries, Volume 3).
Through freedom enjoyed by the human society, the community can choose to be Muslim and practice their religion peacefully and tranquilly without any fear or threat and Dr Abu Hamid Sulayman in Crisis In The The Muslim Mind emphasised that:
“In order to realise the purpose of existence and carry out the responsibilities of khalifah, freedom of thought and intellectual conviction are basic necessities. Oppressive abuse of thought and conviction deny the meaning and responsibility of life and is unacceptable to Islam and its methodology.
“Islamic thought can only be built on the basis of commitment to the rights of freedom of worship and thought.”
The limitations or regulations stipulated by Islam are for the purpose of opening up more freedom for the Muslim society to progress, not the other way around.
The analogy that can be compared is that of two groups of children - one playing in a gated playground and the other in a non-gated playground.
The kids who play in the gated area are more free in terms of being able to roam as far as they wish since the limitations (the gates) and a safe space for them to play are within their knowledge.
But the kids who play in a non-gated area usually restrict themselves to a small circle since there are no limitations (gates) to determine a safe space for them to play.
This analogy should enlighten us to the fact that any limitation and rule underlined by Islam are not meant to stifle human thoughts but to widen the worldview of human beings to be rational, creative and progressive.
MUHAMMAD FAIZAL ABDUL AZIZ is secretary-general, Muslim Youth Movement Malaysia (Abim).
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
