Sabtu, 10 April 2010

Matters Are Determined According To Intention

There are five major legal maxims in Islam. One of them is matters are determined according intention. Under this kind of legal maxim, all the behaviors and attitudes of everyone are depends on their intentions. This is a comprehensive maxim that has implications that Islamic scholars have discussed in various areas, including devotional matters, commercial transactions and crimes. The element of intent often plays a crucial role in differentiating, for example, a murder from unintended killing in criminal. Every action of human beings must stem from their will, i.e. their choice for such action. The will geared in its turn towards an act for a specific purpose, which is the intent. (1)

Bases of the maxim
This legal maxim was based by Al Quran and As Sunnah. Allah the Almighty said;
“It is not for any soul to die, save by the leave of God, by His decree, a prescribed (kitāban, here a verbal noun, that is, God has prescribed this) term, that is to say, [a term fixed] in time, neither brought forward nor deferred, so why did you retreat [in defeat]? Defeat does not ward off death, nor does standing one’s ground sever life. And whoever desires, by his deeds, the reward of this world, that is, his requital in it, We will give him of it, what has been allotted to him, but he shall have no share in the Hereafter; and whoever desires the reward of the Hereafter, We will give him of it, that is, of its reward; and We will requite the thankful”. (2)

On the authority of Abu Hafs, Umar Ibn al-Khattab, who said: ‘I heard the Messenger of Allah:
“The actions are Innama (only, certainty) tied to the intentions and every person will earn that which he intended. Therefore, he whose migration was for Allah and His Messenger (s.a.w), then his migration will be for Allah and His Messenger; and he whose migration was to achieve some worldly gain or to take a woman in marriage, then his migration will be for that for which he migrated.” (3)

Meaning of the word An-Niyyah
Linguistically, An-Niyyah means ‘intention.’ Therefore one’s Niyyah is ‘to do something’. An-Niyyah is also used to describe the direction or the place that one intends to go to, or the meaning that one intends to deliver. It is also used to describe the heart’s intending an action or planning to do an action. In Islamic terminology, there is NO special meaning for the word “An-Niyyah”. Giving a special meaning to the word An-Niyyah in the Islamic Terminology has no proof. An-Niyyah is one’s intention of the heart to perform an action. In other word, the meaning of intention, therefore, is the will directed towards the action. (4)

According to some jurists, intention is divided into five phases. Firstly, Al-hajis or the first impact of the intention upon the heart. Secondly, al-khatir, where intent permeates in the heart. Thirdly, hadith al-nafs, where a person oscillates between the thought of committing the act and that of refraining from it. Fourthly, al-hamm, where the intention to commit the act overshadows the thought of refraining from it. Lastly, al-‘azm, where the intention is solidified by the will and the determination to implement the act. The first two stages are not included in the category of the will or the choice of action; therefore they do not carry liability. The third stage does not carry a liability of either, according with the prophet saying,” My people may be excused for their self-talk.” A person is also not answerable for the fourth stage in compliance with the prophet said: “A resolve (hamm) to do well is registered as a pious deed, while a resolve to commit evil is not registered as an evil”. But the last stage was a matter of controversy into which we shall not go and commit. (5)

Many examples of usage can be taken as a guide. There are two ways of examples as follows;

1. Use that involves the observance, practice and custom.
Involving the use of this category are many and wide. Even we can see many things in life that touches the human being and as a Muslim. What is meant with the touch of life as a man who is involved the practice of the habit or custom. When things that touches as a Muslim, it focuses more to practice or observance of “ta'abbud” to Allah. For an example, “Wudhuk” and bath have various purposes. It may be aimed at soothing the body and to clean the body of any types of impurity. On the other hand, it also can be act of the worship with the purpose or intention to lift the “hadas” or ritual impurity. Also when a man is sitting in the mosque, the aims to be at rest and may also “iktikaf”. All depend on the intention and purpose. (6)

2. Involving the use in legislation and judicial.
Through examples and finding of the case, we can ensure that the extent to which intention play an important role for the Court when judge are making their decisions.

i. In the case, Zainurin bin Mohammad vs. Fatimah binti Hj.Ismail (7), Plaintiff has filed a legitimate request for a divorce. Plaintiff has pronounced divorce against defendant on 23 Ogos 1997 with "I divorce you with a talaq". On 22 September 1997, plaintiff with the words and deeds has been referred back (ruju’) to the defendant. However, on 23 September 1997, Plaintiff has called the defendant by phone and has said that "our past rujuk was invalid, you are not my wife". Had the same problems arose through Plaintiff words; the second divorce would still be valid between the parties. Meanwhile, after the first divorce, plaintiff gets back with the defendant and they had sex for several times. The Court decided that the 23 Ogos divorce is valid. But for the second words of divorce, court finds that it was invalid. It is because the words were in the form of kinayah. Under this kind of talaq, the husband must have the intention to divorce. Plaintiff however cannot determine his own intention whether he has intention for divorce or not. Normally intention is referred as qarinah or circumstantial evidence that leads to the meaning of divorce. In this case, Judge Dr. Hj. Mohd Naim bin Hj. Mokhtar has listed 4 kinds of circumstantial evidence to endorse that the intention of the divorce does not exist in second pronouncement.

ii. In the case Syarie Public Prosecutor of Pahang vs V.V. Aboo (8), the judge said that he was satisfied that the offender was entering the casino with intention to gamble with two circumstantial evidence, firstly, offender wearing “batik” and secondly offender was caught in the casino. In addition, the judge said, intention was in their heart so as human, we cannot determine other people’s intentions, but we can assume their intention with “qarinah” or circumstantial evidence.

iii. In the case Syarie Public Prosecutor of Kelantan vs. Yusundy bin Josan (9), court have gave their ruling for the case of intoxicated as below:-

“Two bottles of Carlsberg, two glasses and payment bills should be accepted as “qarinah” or circumstantial evidence. It was strong evidence with the corroboration of evidence by witnesses”.

Intention from the Western Legal Maxims
In criminal law, mens rea– the Latin term for "guilty mind"– is usually one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase; actus non facit reum nisi mens sit rea, which means that "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). The Criminal Law does not usually apply to a person who has acted with the absence of mental fault; this is a general rule.

The exception is strict liability crimes (in the civil law, it is not usually necessary to prove a subjective mental element to establish liability, say for breach of contract or a tort, although if intentionally committed, this may increase the measure of damages payable to compensate the plaintiff as well as the scope of liability). Quite simply therefore mens rea refers to the mental element of the offence that accompanies the actus reus. In some jurisdictions the terms mens rea and actus reus have been superseded by alternative terminology. (10)

In the case of Pendakwa Raya lwn Mohan Dass a/l Ganesan, Abd Halim PK held-
“(3) The words in s 302 of the Penal Code stipulates the words mens rea to be proved fully, ie, the accused must be proven to have an intention in the beginning to kill the deceased. One should not just be convicted as a result of negligence, dangerous action, or just by having knowledge. There must be direct intention and need to be proven beyond reasonable doubt. From what was gathered from the witnesses’ evidence, it is difficult to prove the existence of means rea on the part of the accused (see para 25)

(4) The court therefore held that the prosecution had failed to prove a prima facie case against the accused on a charge under s 302 of the Penal Code. However the court held that there was a prima facie case against the accused for a charge under s 304(a) of the Penal Code successfully proven by the prosecution. Therefore the court ordered that the charge against the accused be amended and the accused had pleaded guilty to the said amended charge (see paras 32,34). (11)

From the general rule above, we can find another legal maxim as follows;

1) In Contracts effect is given to intention and meaning and not words and Forms
The rule above means that any contracts refers to its meaning and purpose, not to words and forms or acceleration. (12) The Meaning of the rules is that the assumption lies in the “akad”, its meaning and purpose and not to forms and words. (13) That means, in any valid contract in which there is a distinction between the intention and purpose of the covenant that is seen through words or what is remarked upon in the contract.

Ibn Rusyd explains in his al-Muqaddimat wa al-Mumhidat that the rule is recognized with the rules: Where the laws are for the meanings. In other word, something in the contract takes approximate purposes and meanings of words in the contract and its goal and not forms of the word. Therefore the words in the form of a contract must use a certain word or intention to become legitimate. (14) An example, if there are two people who do a contract with word to give a good that has been provided with payment and has received a good before the price is fixed. The contract is a sale and purchase contract. This is because the final contract to buy or sell was intended by them or both of the contracts and not as a meaningless verbal contract.

In the case of Keng Soon Finance Bhd. vs. M. K. Retnam Holdings Sdn. Bhd. & Anor, [Privy Counsel Appeal No. 2 of 1986] 6 March 1989, Lord Oliver of Aylmerton said:

“the question whether covenants are to be held dependent or independent of each other is to be determined by the intention and meaning of the parties as it appears on the instrument, and by the application of common sense to each particular case; to which intention, when once discovered, all technical forms of expression must give way.” (15)

2) In principles, word shall be construed according their real meaning
The words “al-haqiqah” according to the language of rights means something when it was fixed to the word itself. According to the original meaning is the term given to something words of speech and have the same term or any term conversation of syara'. (16) For example, according to a conversation such as the use of the words murder is intended to kill or destroy the life or spirit. And as an example the term of syara' the use of word “wasiat” is an ownership or what have given after “pewasiat” died.

The words “al-Majaz” also intend to reverse the fact that the meaning given to words of speech. Thus can be understood is the words Al-haqiqah is the fact that the desired from the words itself with the purpose and intent. The words “majazi” is the meaning behind the fact. This is based on qarinah or the speaker showed signs that it wanted and intended meaning is not the al-haqiqah but the majazi meaning. (17) For example the word court, according to the understanding and meaning is the place where the trial was held. However, when the speaker intended meaning and desire is the judge, the judge was the meaning.

Thus, that means some words or speech should be referring to the real meaning. This is consistent with the legal maxim: “The right of speech was taken to the fact.” The fact is that the reverse majazi is unclear or different than the usual. However, sometimes the facts of the majazi is still there when the relationship between words has qarinah or signs that show the meaning which is not true. So that, based on the implementation of this rules, the person who did the “akad” should be brought words intrinsic to the meaning of the fact unless there are signs or the meaning intended to majazi words. (18)

Formulation of this understanding rules, speech or word can be deciphered or conclusion according to the intrinsic meaning and also majazi, the intrinsic meaning (al-haqiqah) should be held and accepted use. An examples, if a person should constitute his house into a waqf for the benefit of his sons, if he should have sons and grandsons at the time of his death, the grandsons would not be entitled to any benefit because the real sense of the Word "sons" does not include grandson. (19) Because the real purpose of word walad for children only, wald al-sulb and not the grandson.

3) When the real meaning cannot be applied the metaphorical sense may be used.
The rules is means that when the intrinsic difficulty can not be understood or implemented the use of majazi. Each word or any speech was given rights from the point of fact, because some of them basically can be used and carried out according to the essential. (20) However, if the fact of the words can not be implemented, the implementation will move to the majazi. This follow the rules below:

1) The Origin of the word al-haqiqah, and if there is suffer to the word al-haqiqah, move to understanding majazi.

2) The origin of words al-haqiqah when speech is the fact in the form of absolute, and once in a while to exchange it with the understanding majaz by intention.

3) The origin of words al-haqiqah when the fact is inescapable, and it should not be taken to the understanding of majaz but with proof.

In the example we have cited just before, if the constituter of the waqf had made his sons the beneficiaries had no sons and grandsons but at the time of his death, the word sons would be construed to mean grandsons by way of metaphor because it is impossible to apply the real literal meaning and the grandsons would be entitled to receive the income of the property. (21) In the case of Hooi Chuk Kwong vs. Lim Saw Choo, (F) High Court Penang 23 October 1957, CJ Thomson said:

“In considering that provision there are two points to be observed. The first is that the tenant (or some person occupying the premises under him) must have committed a breach of certain laws affecting the premises. It is the tenant and not the landlord who must have committed the breach. The second point is that the breach committed by the tenant must "expose" the landlord to a "penalty, fine or forfeiture." We listened to a great deal of argument supported by quotations from a number of standard dictionaries as to the meaning of the word "expose". In my judgment much of that argument is beside the point. The word "expose" considered in isolation is probably not capable of very exact definition, particularly when used, as here, in a metaphorical sense. Its meaning must depend on the context in which it is used. In the present connection the question is, who is exposed to what and in what circumstances? The answer clearly is that it is the landlord who is exposed to "any penalty, fine or forfeiture" by reason of a breach of certain laws on the part of the tenant”. (22)

The Hanafi jurists have divided speech from the point of view of connotation into two categories. Firstly, explicit, is that speech which conveys a definite and clear meaning. Secondly, metonymic, is that speech in which intention is hidden and requires explanation for proper understanding, and is deduced from the wording of the text or its references or implications. Similarly, explicit speech is opposed from another side by meanings which are implicit in certain situation. (23)

For an example, most school sanction bay’al-ta’ati which is sale by actual exchange indicating acceptance. Its means, the purchaser pays to the seller the price and receives the commodity without either of them uttering a word. In this case, the implicit meaning of the facts has fulfilled the functions of offer and acceptance. (24) Another example, when the husband divorces his wife in kinayah word such as “You and I are separated”. In this situation, the judges shall ask a husband about is intention or related his word from the evidences. We also can see in the case, Soon Singh s/o Bikar Singh vs Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah and Anor, the judges use the implicit meanings to determined jurisdictions of Syariah Court involving a “murtad” jurisdictions. The judges remarked;-

From the analysis of the State Enactments, it is clear that all State Enactments and the Federal Territories Act contain express provisions vesting the syariah courts with jurisdiction to deal with conversion to Islam. On the other hand, only some State Enactments expressly confer jurisdiction on the syariah courts to deal with conversion out of Islam. In this regard, we share the view of Hashim Yeop A Sani CJ (Malaya) in Dalip Kaur that 'clear provisions should be incorporated in all State Enactments to avoid difficulties of interpretation by the civil courts,' particularly in view of the new cl (1A) of art 121 of the Constitution which as from 10 June 1988 had taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the syariah courts. Be that as it may, in our opinion, the [*502] jurisdiction of the syariah courts to deal with the conversion out of Islam, although not expressly provided in the State Enactments, can be read into them by implication derived from the provisions concerning conversion into Islam. It is a general rule of construction that if the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication and the court may draw inferences or supply the obvious omissions.”

The judges also stated in their judgment that-
“In the instant case, in our opinion, the general rule of construction applies and the court can have recourse to a construction by implication. Implication may arise from the language used, from the context, or from the application of some external rule. They are of equal force, whatever their derivation (Bennion's Statutory Interpretation (2nd Ed) p 362).” (25)

This is affirmed by Federal Courts in Lina Joy vs. Majlis Agama Islam Wilayah Persekutuan & Anor, (26) two of Federal Court judges, Ahmad Fairuz Chief Justice and Ahmad Alauddin FCJ concurring as follows:-

Mengenai kritikan peguam terpelajar perayu atas rujukan yang dibuat oleh Mahkamah Persekutuan kepada Craies on Statute Law dan kes Albon v Pyke, saya hanya perlu tekankan bahawa Tindal CJ juga gunakan [*616] perkataan-perkataan implikasi perlu (necessary implication). Justeru itu Mahkamah Persekutuan berpendapat bahawa adalah sejajar dengan logik untuk Mahkamah Syariah, yang telah dengan jelasnya diberi bidang kuasa untuk mengadili perkara-perkara yang berkaitan dengan pemelukan agama Islam adalah, secara implikasi perlu, juga mempunyai bidang kuasa untuk mengadili perkara-perkara yang berkaitan dengan keluarnya seorang Muslim dari agama Islam atau kemurtadan. Saya tidak nampak sebarang kecacatan dalam taakulan penghakiman Mahkamah Persekutuan itu. Oleh demikian saya tiada lain pilihan melainkan menjawab soalan ketiga itu dengan mengatakan bahawa kes Soon Singh telah diputuskan dengan betul."

4) A Word Should Be Construed As Having Some Meaning Rather Than Being Disregarded.
This method means that a speech or words which may be translated from its meaning must be used and accepted with that meaning. (27) That is to say, if any particular meaning can be attributed to a word it may not be neglected as devoid of meanings. (28) Sometimes, each word or speech we used can give us clear objectives or intentions on its meaning. Thus, if the word was clearly meant, it must be used and accepted with their original meanings or intentions. For example, in divorce problems, if the husband divorce his wife with one talak means it is clear that his wife had divorced with one talak.

According to Imam Taj al-Din al-Subky, what is meant by this is some intention or objective from our greeting or words is in the middle of their objectives whether it may be implemented or ignored. However, if the speech is hanging or suspended or it is not complete or in the form of a question, the situation is not included in this method. Thus, it is preferred not to be applied in greeting. For example, if someone says "I donate a garden”. According to Jumhur, this speech and word cannot be implemented and not valid. The reason being this is not clear and is still hanging or suspended. (29)

In addition, it can be understood from the above method that if the word does not give a clear meaning or intention about things, then to use for the word or speech is more important than ignoring it. This means, use of the word is more suitable than to ignore it. For example, in the charitable case, someone has donates his property to their children where as all the children were die but he had only his grandchildren. Regarding this method, the charitable property belongs to the grandchildren. (30) This opinion affirmed by al-Rafi'i because it is so difficult to give a right or true intentions or objectives to the statement and avoid from the use of the word. (31)

Fraction of the Method
Another legal method exist apart from the above method which can be divided into four portion as below;-

1. If no meaning can be attached to a word, if it is disregarded altogether.
This means; if any word or speech is blurring or doesn’t have their meanings or purpose whether it is from hakiki or majazi, the word or speech should be abandoned or unimplemented. (32) It also means that it is abandoned when the speech is useless. (33) That is to say, if a word cannot be construed in either a real or metaphorical sense it is neglected as being devoid of meaning. (34) There are several obstacles facing this method where the words or speech can be divided into two as follows;-

a. In hissi or reality obstruction and the majazi or symbolic obstruction. As one example of each, firstly, Obstruction in hissi, when a husband makes an admission that his wife is his daughter while his wife is elder than him and came from a different lineage. Hissi and a clear recognize of reality and logic is not and cannot be accepted. It's clear that his wife is from another lineage and the other reason is; children are much younger than their father. Secondly, Obstruction in majazi, if the husband makes an admission that his wife is his daughter with intension she is his granddaughter and then that admission is far from reality and even less logic. (35)

b. Because of prohibition by hukum syarak such as a men claimed that her female relatives is received two portion or double in the inheritance more from him. The claim is clearly not acceptable and may not be entertained because hukum syarak determined that inheritance is the men received two portion from the female portion and the female must received half from the men portion. Similarly, if the majazi, like as bringing a meanings of inheritor to the wills. It is also cannot be acceptable because the heirs may not receive the wills and indeed cannot give testament to the heirs. (36)

If the real and the metaphorical meanings should conflict and the former were derelict, effect should be given to the latter. But there existed a difference of opinion concerning which meaning is to be preferred when in some localities the metaphorical meaning has been predominant by force of custom. Firstly, Imam Abu Hanifah said that effect should be given to the real. His companions Abu Yusof and Syaibani, al –Ghazali and other jurist held that preference should be given to the metaphorical and the customary if they continuous and predominant. (37)

2. Creation of a basic rule or originate is more important rather than strengthen.
It means, if some of the word or speech are meaningful and understood whether the word means to create a basic rule or make a new start or to strengthen or build up the word, then in this situation the word means to create a basic rule or make a new starter should be more important rather than strengthen the word. In other words, if the word or speech is possible to function as ta'sis and also as ta'kid then become the main virtue or necessity of the word or interesting speech to function in ta'sis. (38) The laws include in this method, if a man said to his wife: "I divorce you, I divorce you", without any intention to repeat his word. According to Jumhur, it should mean as the beginning of a speech or make a simple base, there cannot be and not mean speech utterance consolidate the earlier. (39)

3. A reference to part of an indivisible thing is regarded as a reference to the whole.
The purpose of this law is if only to bring in any hidden matters or in the hidden affairs or in any circumstances that are so difficult to understand the instructions, it should get an assessment from the point of syarak as a proposition that can be used for something basic to the provisions of law. (40) The laws included in this method is for example, life of a Bank employee who works out or deal with affairs in the incoming money for any banks is found living with the luxury, have a big house, luxury car, or while the source of wealth that cannot be determined or not clearly known source. (41)

The situation has become a dilalah or validity that corruption occurs there or the workers makes something’s unlawful against the bank or during its work. Based on the evidence, the employee can be arrested, and investigated or removed or dismissed from his work and all his property from a source of income that are not clear or may be doubtful are obtained. (42)

4. Describe a differences that existed before as not legitimate, and un-existed is accept.
This method means a situation where someone giving opposite specific nature to the things in front of them, so this nature is invalid and unacceptable. But, if that situation is opposite where the given natures are un-existed in front of them, so it is acceptable. (43) A description with reference to a thing present is of no consequence, but the contrary is the case such thing is not present. (44) Some laws which built up from this method are a person wants to sell a red car where it is exist in front of him while sale and purchase took place and he said; “I sell this white car” and show it simultaneously. In this situation, a sale and purchase are acceptable but the nature of the car is invalid. But if the opposite situation happens, where he wants to sell the car which is not with him and he claims that it was a white car but exactly it is a red car, so the sale and purchase are unacceptable and invalid. (45)

In cases where the object of sale is present, its characteristics are apparent and need no elucidation. If the description is erroneous, it has no effect. But if the object of sale is not present, its characteristics are presumed to be unknown and therefore require exposition. Thus, the meanings of words and adjectives differ according to different circumstances and occasion. (46)

Understanding the meaning and implications of Islamic legal maxims is a necessity; in fact, an obligation of every Muslim researcher and practitioner. Knowledge and understanding are so intertwined for successful implementation of an endeavor that a Muslim researcher or practitioner must take it seriously to have proper understanding of the maxims. Review and analysis of the maxims above is very important to be implemented in judiciary and legal profession in syariah or civil fields in Malaysia.

(1) Mahmassani, Falsafah al-tashri’ fi al-Islam, Translated By Farhat J. Ziadeh, Open Press, Kuala Lumpur, 2000, page 159.
(2), date: 23 Mac 2009, time: 10:52pm
(3) Sahih al-Bukhari and Muslim.
(4) Mahmassani, Falsafah al-tashri’ fi al-Islam, Translated By Farhat J. Ziadeh, Open Press, Kuala Lumpur, 2000, page 159.
(5) Ibid, page 159-160.
(6) Qawa’id Fiqhiyyah, Haji Muhammad Salleh bin Haji Ahmad, Pustaka Haji Abdul Majid (2002), pg 576.
(7) Jurnal Hukum, Jld. Xlll Bhg ll, pg. 247-252.
(8) Jurnal Hukum, Jld Vll, Bhg. ll, pg 235.
(9) Jurnal Hukum Jld IX Bhg ll, pg 206
(10), date on 23 Mac 2009, time: 11.15pm.
(11) 4 MLJ 87, 89
(12) Ustaz Abdul Latif Muda & Ustazah Rosmawati Ali @ Mat Zin, Perbahasan Kaeadah-kaedah Fiqh, Edisi Pertama, Pustaka Salam,Oktober 2000.
(13) Ibid.
(14) Ibid
(15) CLJ_1989_1
(16) Ustaz Abdul Latif Muda & Ustazah Rosmawati Ali @ Mat Zin, Perbahasan Kaeadah-kaedah Fiqh, Edisi Pertama, Pustaka Salam,Oktober 2000.
(17) Ibid.
(18) Ibid.
(19) S.Mahmassani, Falsafah al-tashri’ fi al-Islam, Translated By Farhat J. Ziadeh, Open Press, Kuala Lumpur, 2000.
(20) Ustaz Abdul Latif Muda & Ustazah Rosmawati Ali @ Mat Zin, Perbahasan Kaeadah-kaedah Fiqh, Edisi Pertama, Pustaka Salam,Oktober 2000.
(21) Mahmassani, Falsafah al-tashri’ fi al-Islam, Translated By Farhat J. Ziadeh, Open Press, Kuala Lumpur, 2000.
(22) Current Law Journal, LNS_1957_1_27.
(23) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 164.
(24) Ibid.
(25) [1999] 1 MLJ 489, 502.
(26) [2007] 4 MLJ 585, 615-616.
(27) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise, page 349.
(28) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 163.
(29) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise, Ibid, pages 349-350.
(30) Ibid, halaman 350.
(31) Imam Jalaluddin Abdul Rahman al-Suyuti, Ashbahu Wa Al-Nadhair Fi Qawaid Al-Fiqhiyyah, Penterjemah, Haji Mardiya Mukhtar, 1999, Penerbitan Darul Iman, halaman 282.
(32) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise halaman 351.
(33) Penterjemah Md. Akhir Haji Yaacob,Al-Ahkam Al-Adliyyah, Undang-Undang Sivil Islam, 1994, Dewan Bahasa dan Pustaka, Kuala Lumpur, halaman 19.
(34) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 16.
(35) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise halaman 352.
(36) Ibid. Penterjemah Md. Akhir Haji Yaacob,Al-Ahkam Al-Adliyyah, Undang-Undang Sivil Islam, 1994, Dewan Bahasa dan Pustaka, Kuala Lumpur, halaman 19.
(37) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 163.
(38) Imam Jalaluddin Abdul Rahman al-Suyuti, Ashbahu Wa Al-Nadhair Fi Qawaid Al-Fiqhiyyah, Penterjemah, Haji Mardiya Mukhtar, 1999, Penerbitan Darul Iman, halaman 296.
(39) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise, halaman 351.
(40) Ibid, halaman 35.
(41) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 163.
(42) Ibid, halaman 353.
(43) Ibid, halaman 353 – 354.
(44) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 16.
(45) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise, halaman 354.
(46) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 163


Rabu, 3 Februari 2010

Freedom Of Religion Under UDHR, ICCPR And Islamic Law: Comparative Analysis

The freedom of religion is a universal human right. It started become an issue with adoption of Universal Declaration on Human Rights (UDHR) in 1948 and The International Covenant on Civil and Political Right (ICCPR) were finally adopted by the General Assembly on 16 December 1966. However, this instrument was not binding on members of the United Nations. But this is not a reason to belittle the position of religion in respect, especially in matters such as the basic right to human life. In the beginning, some of Muslim countries take a position against the entitlement. This is not something extraordinary because at the same time the State-socialist countries joined a similar position in a few other issues that touch their ideology.

In our country, right to freedom of religious is clearly provided under article 11(1) of the Federal Constitution. It seems to be applicable to every person, including Muslims. To grant to religious groups the right to be governed with their religious rule, especially in matters involving religious sensitivities may be necessary in the establishment of a just and equitable society. This magnitude may be attached to the provisions on freedom of religion under the Malaysian Federal Constitution. However, the application of the provision thus far is still shrouded on mystery and contradictions, especially when it involves the Muslims right to freedom of religion.

Interpretation of Freedom of Religion
UDHR clearly stipulates that freedom of religion includes the right to convert to another faith. If we are to go by what the UDHR provides for, the logical conclusion is that laws restricting Muslims from converting out of Islam could be challenged as going against human rights norms. Article 18 of the UDHR provides-
“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

However, the more detailed provisions regarding freedom of religion can be found in ICCPR, Article 18 which is provides -
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Unlike UDHR there is no provision in ICCPR expressly recognizing the right to change religion. The ICCPR is silent in this respect apart from the implicit statement that there is ‘freedom to have or adopt a religion of his choice’. The prevailing opinion is that the absence of ‘right to change religion’ in the ICCPR is primarily due to the demand by Muslim countries in the drafting of the instrument. Another improvement of the ICCPR is that unlike UDHR limitations to freedom to manifest one’s religion are allowed, such as is necessary ‘to protect public safety, order, health, or morals’.

Islamic Views

The most important rights guaranteed by the religion of Islam are the right of freedom of religion and worship. These rights shall be maintained and protected by the Muslims against all humanity. In the religion of Islam, every person is free to embrace religion and faith respectively. He would not be forced to leave and hold other beliefs and not be pressured by what way though so he turned to the religion of Islam. This does not practice in Islam because compulsion in religious matters. This is explained by Allah in Al-Qur’an as follow-

{لاَ إِكْرَاهَ فِي ٱلدِّينِ قَد تَّبَيَّنَ ٱلرُّشْدُ مِنَ ٱلْغَيِّ فَمَنْ يَكْفُرْ بِٱلطَّاغُوتِ وَيْؤْمِن بِٱللَّهِ فَقَدِ ٱسْتَمْسَكَ بِٱلْعُرْوَةِ ٱلْوُثْقَىٰ لاَ ٱنفِصَامَ لَهَا وَٱللَّهُ سَمِيعٌ عَلِيمٌ

There is no compulsion in religion. The right direction is henceforth distinct from error. And he who rejected false deities and believeth in Allah hath grasped a firm handhold which will never break. Allah is Hearer, Knower . (Surah Baqarah: 256)

وَلَوْ شَآءَ رَبُّكَ لآمَنَ مَن فِي ٱلأَرْضِ كُلُّهُمْ جَمِيعاً أَفَأَنتَ تُكْرِهُ ٱلنَّاسَ حَتَّىٰ يَكُونُواْ مُؤْمِنِينَ

And if your Lord willed, all who are in the earth would have believed together. Would you then compel people, to do what God did not will that they do, until they are believers? No! . (Surah Yunus: 99)

Ibn Kathir has argued that do not force anyone to embrace Islam. This is clear enough clues and evidence, so there should be no compulsion for anyone to enter it. In the history of Islam, there are also illustrates the freedom of religion, especially for the ahl-dhimmah. This is as true in the agreement Khalid al-Walid with Anat population which have the following notes-
".... They have the right to ringing the bell in the church on time anywhere they like, day or night except at prayer time of Muslim, and also their right to carry out the signs of the cross in the days of their celebration.

Generally, freedom of religion including the right to remove it and worship is guaranteed in Islam. Indeed, the religion of Islam gives to every human freedom to choose the religion of their choice. There are at least three verses in the Qur'an which give the guarantee specifically:

{ لاَ إِكْرَاهَ فِي ٱلدِّينِ قَد تَّبَيَّنَ ٱلرُّشْدُ مِنَ ٱلْغَيِّ فَمَنْ يَكْفُرْ بِٱلطَّاغُوتِ وَيْؤْمِن بِٱللَّهِ فَقَد ٱسْتَمْسَكَ بِٱلْعُرْوَةِ ٱلْوُثْقَىٰ لاَ ٱنفِصَامَ لَهَا وَٱللَّهُ سَمِيعٌ عَلِيمٌ

There is no compulsion in religion. The right direction is henceforth distinct from error. And he who rejected false deities and believeth in Allah hath grasped a firm handhold which will never break. Allah is Hearer, Knower . (Surah Baqarah: 256)

{ وَقُلِ ٱلْحَقُّ مِن رَّبِّكُمْ فَمَن شَآءَ فَلْيُؤْمِن وَمَن شَآءَ فَلْيَكْفُرْ إِنَّا أَعْتَدْنَا لِلظَّالِمِينَ نَاراً أَحَاطَ بِهِمْ سُرَادِقُهَا وَإِن يَسْتَغِيثُواْ يُغَاثُواْ بِمَآءٍ كَٱلْمُهْلِ يَشْوِي ٱلْوجُوهَ بِئْسَ ٱلشَّرَابُ وَسَآءَتْ مُرْتَفَقاً }

Say: (It is) the truth from the Lord of you (all). Then whosoever will, let him believe, and whosoever will, let him disbelieve. Lo! We have prepared for disbelievers Fire. Its tent encloseth them. If they ask for showers, they will be showered with water like to molten lead which burneth the faces. Calamitous the drink and ill the resting-place!. (Surah al-Kahfi: 29)

{ لَكُمْ دِينُكُمْ وَلِيَ دِينِ }
Unto you your religion, and unto me my religion . (Surah Al-Kafirun: 6)

In discussing the freedom of religion rights, there are two difference views. On the one views respond spearheaded by the traditional scholar, freedom of religion rights is not absolutely. For example in apostasy, Islam prohibited people to get out from religion of Islam. The freedom of religion rights for this group is for people except Muslim. People are not justified to get out from their religion to become a Muslim. But if someone had been converted to Islam, the freedom of religion right to get out from Islam can no longer obliged. The punishment for apostasy is prescribed in the following Hadith of the Prophet:

عن ابن عباس رضى الله عنه قال : قال رسول الله صلى الله عليه وسلم : من بدل دينه فاقتلوه
Meaning: It is narrated by Ibnu Abbas r.a that the prophet said: " Whose ever changes his religion (from Islam to anything else) bring end to his life.”

The modernist scholar view, the freedom of religious right is absolutely. Because, each individual is given the same option is adopted or rejected the Islamic religion. Moreover, as there was someone that embraced Islam or not is linked tightly with the guidance, and is often repeated many times in the Qur’an. In view Abdulaziz A. Sachedina, people may reject this guidance, even without any refusal reason. If we refuse the guidance, as a result he would be in wrong way. But precisely because of their choice, people must take responsibility for their choices of religion. In fact, people who left Islam, in view of the traditional scholar should be punished. The effect also to their marriage are cut off automatically because Islamic family law require both husband and wife must be Muslim, except the wife of the scribes. Accordingly, the inheritance and property rights also affected.

Absolute religious freedom in Islamic countries also intends not at all to force an individual to profess Islam. This caused every individual has the right of each to adopt a preferred reason. History also proves Word press Prophet never force people not to embrace Islam religion. He runners only God, bring people into the right path. He invited and picks only infidels converted to Islam, far away at all to use violence and force them to accept Islam. By the way, the majority scholar of fiqh views that is not valid if a person is Muslim generated by forcing.

However, there are differing opinions of Muslim jurists on the punishment for apostasy. The noted Maliki jurist, al-Baji, observes that apostasy is a sin which carries no prescribed or had penalty, and that such a sin may be punished under the discretionary punishment of ta’zir. The renowned Hanbali hurist, Ibn Taimiyyah, also agrees categorically that the punishment for apostasy is ta’zir. He was of the view that the crime referred to in the hadith is that of High Treason (hirabah) and not apostasy (ridda) as such. His observation is supported by the fact that the Prophet (SAW) never put anyone to death for apostasy alone.

Freedom Of Religion In Malaysian Position

In the Malaysian context, Federal Constitution clearly declares that, “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation” . It implies that the practice of religion must not disturb peace and harmony. The most important provision in respect of freedom of religion is Article 11 Federal Constitution stated below-
“11. (1) every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
(3) Every religious group has the right—
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable purposes; and
(c) to acquire and own property and hold and administer it in accordance with law.”

Limitation on religious freedom
Article 11 (4) provides for the restriction of the propagation of any religious doctrine or belief (that implies any missionary activity) among Muslims. The rationale here is to protect Muslims against proselytism by well-organized and well-funded international missionary activities. It could be argued that the restriction in Article 11 (4) has tension even with Article 18(1) of the ICCPR which recognizes “freedom to manifest one’s religion” . This means that religious freedom in Malaysia is not precisely equal. However, one of the main reasons such provision has been included in the Federal Constitutions is to maintain social stability. By virtue of Article 11(4) , ten State Legislatures have enacted the following laws to control and restrict the propagation of non-Islamic religions. There are Terengganu , Kelantan , Kedah , Malacca , Perak , Selangor , Pahang , Negeri Sembilan , Johor and Perlis .

Only Pahang have enforce the enactment in case, PP v Krishnan a/l Muthu the complainant, Maziah Jusoh had known and was in love with the accused, a married man, for seven years. As the complainant did not have a place to stay, she asked permission from the accused and his wife to love with them. The accused and the complainant had a series of arguments which resulted in physical fights. There was an instance the accused issued threats against the complainant to leave Islam and embrace Hinduism. The complainant was also asked to make an oath at the Hindu temple and was prevented from proving as a Muslim. Two charges were filed against the accused in the Magistrate’s Court. The accused was convicted and fined RM 2,000 under section 325 of the Panel Code. The accused was also convicted under section 4(2)(i) of the Control and Restriction of the Propagation of Non-Islamic Religion (Pahang) Enactment 1989, fined RM 1,500 and imprisoned for a period of 20 days.

Article 11 (5) of the Federal Constitution seems to create a restriction on religious freedom. According to the article, religious activities can be freely carried out but must not go against the general law, public order, public health and morality. It states-
“11. (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.”

There are at least four restrictions on religious freedom under Article 11(5). First, religious freedom is subject to the general law. It means that the government is empowered to enact or introduce laws that restrict or control religious activities including profession, practice and propagation. Second, public order is the second restriction. Because of the importance of the state to ensure the maintenance of public order and preservation of order in a society, the government can restrict the given religious freedom. The government through Article 11(5) of the Federal Constitution could restrict pursuance of freedom of religion if it perceives a threat to public order. The third and fourth restrictions are subject to health and morality. It means that any acts that are claimed to be religious but contradict morality or health could be restricted and may be banned by the government.

Section 298 of the Penal Code also makes it an offence to wound other people’s religious feelings with deliberate intent. In Mamat bin Daud & Ors v Government of Malaysia , although the Supreme Court recognized the competency of Parliament to restrict the right of practice of a religion on the ground of public order. It states-
298. Whoever, with deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.

Furthermore, section 298A of the Penal Code which criminalizes any act that cause or are likely to cause disharmony in the practice of religion is nevertheless void because such power is only specifically confined under the state’s jurisdiction and out of the framework of the Federal Constitution . It states-
298A.(1) Whoever by words, either spoken or written, or by signs, or by visible representations, or by any act, activity or conduct, or by organizing, promoting or arranging, or assisting in organizing, promoting or arranging, any activity, or otherwise in any other manner-
(a) causes, or attempts to cause, or is likely to cause disharmony, disunity, or feelings of enmity, hatred or ill-will; or
(b) prejudices, or attempts to prejudice, or is likely to prejudice, the maintenance of harmony or unity,
on grounds of religion, between persons or groups of persons professing the same or different religions, shall be punished with imprisonment for a term of not less than two years and not more than five years.

The Issues of Freedom of Religion
The constitution of Malaysia provides for the legislative lists of the Federation and the States. List I of the Ninth Schedule of the Federal Constitution is the 'Federal List' containing matters over which the Federal Parliament may make laws. List II is the State List containing matters over which the State Legislatures and the Federal Parliament in respect only of the Federal Territories, may make laws, all of which, in this paper, will be referred to as 'State Legislatures'. The Federal Constitution has also conferred a wide discretionary power on state assemblies and, in respect of the Federal Territories, the Parliament, to deal with matters concerning the religion of Islam.

According to Aziz Bari, by virtue of Article 160 (2) of the Federal Constitution, Malays cannot renounce Islam. If Malay renounces Islam, he/she cannot be regarded as Malay since Malay and Islam are much attached. A Muslim who is an apostate could be considered as deviant, which consequently, allows some sort of punishment and rehabilitation. Detaining an apostate or a Muslim who intends to leave the Islamic faith for repentance and education purposes is meant to ‘persuade’ him to return to being Malay. In Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor , the learned judge said that “a person as long as he/she is a Malay and by definition under Article 160 clause (2) a Malay, the said person cannot renounce his/her religion at all. A Malay under Article 160 (2) remains in the Islamic faith until his or her dying days.” The Court held that the appellant must first get the declaration from the Shari’ah Court and the regulation imposed by the National Registration Department on that matter was constitutional. This was affirmed by the Federal Court.

But the decisions in most apostasy cases mainly do not suggest that Muslims are prohibited from renouncing Islam. Cases like Soon Singh , Md Hakim Lee , and Daud Mamat & Kamariah Ali affirmed the right of religious freedom enshrined under Article 11 (1) of the Federal Constitution. The learned judges had ruled that the Shari’ah Courts were the competent courts and the right forums to adjudicate the cases when matters concerning Islamic law arise. Until the Shari’a Courts decide the status of the religion of a Muslim, he is deemed a Muslim and all Islamic rules shall applicable upon him. It is very suitable and relevant with the provision of subsection 74(2) as stated-
“74. (2) For the avoidance of doubt, it is hereby declared that a Muslim shall at all times be acknowledged and treated as a Muslim unless a declaration has been made by a Syariah Court that he is no longer a Muslim.”

Conversion and proposed law on apostasy
Many states laws implicitly recognize conversion out of Islam by requiring a register to be kept of those who become murtad (infidel) or not are to be confirmed by a judicial determination. The only restriction is that, Muslims who intend to renounce Islam must first get a declaration from the Shari’ah Courts under Article 121 (1A) and List I of the Ninth Schedule of the Federal Constitution. There are almost all the states in Malaysia have provide clearly the jurisdiction in the Syari’ah Court to determine the matters of apostasy. The jurisdiction of the Syariah Court to determine this matter stated in the Administration of The Religion of Islam Enactment or Syariah Court Enacment of every states. In this enactment provides that-

“The Syariah High Court shall—
(b) in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims and the actions or proceedings relate to—
(x) a declaration that a person is no longer a Muslim;
(xi) a declaration that a deceased person was a Muslim or otherwise at the time of his death;
(xii)….; and
(xiii) other matters in respect of which jurisdiction is conferred by any written law.”

The provision in Negeri Sembilan that allows Muslims to apply for renunciation of Islam provides is that at any time a Muslim intends to renounce Islam, he shall apply to the Shari’ah Court, and after the Shari’ah Court received such an application, it shall refer the case to the Mufti. The applicant will then have counseling and education sessions for repentance purposes for 90 days. If the applicant repents at any time during the given period, the officer in-charge shall make a report to the Shari’ah Court, and the case will be dismissed. However, if he refuses to repent upon the expiry date, and the judge believes that there is still hope for the applicant to repent, he shall adjourn the case up to one year for repentance purposes.

Sensing the gravity of the problem and trying to deter apostasy in the Muslim community, both Perlis Legislative Assembly and the federal Government tried to initiate Bills to address the issue. Perlis Legislative Assembly had in April 2000 passed an Apostasy Bill and in September the same year, the Federal government drafted the Islamic Aqidah (Faith) Protection Bill 2000. The move by the Federal Government received mixed reactions from the public and was later shelved. The Perlis Bill, which has already become a law and several other proposed aqidah laws, may raise important constitutional issues.

Punishment for Apostasy
There are at least five states in Malaysia that have incorporated the punishment for apostasy either in the Islamic Criminal Law Enactments or the Administration of Islamic Law Enactments. Firstly, Pahang has made apostasy an offence in Section 185 Administration of the Religion of Islam and the Malay Custom Enactment of 1982 (Amended 1989) . Secondly, Perak also made apostasy as an offence in Section 13 of the Perak Islamic Criminal Law Enactment of 1992. Thirdly, Melaka has also incorporated the punishment of apostasy in its enactment under Section 209 (1) of the Melaka Administration of Islamic Law Enactment of 1986. Fourthly, unlike Sarawak, Sabah is the only Borneo state that declares apostasy as an offence under its Section 55 (1) Islamic Criminal Law Enactment of 1995. Lastly, Terengganu also follows the same step in introducing punishment for apostasy. Section 29 of the Terengganu Administration of Islamic Law Enactment of 1996 provides-
“Any Muslim, who attempts to renounce the religion of Islam or declares he to be non-Muslim, shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding one year or both.”

Mandatory Detention at the Rehabilitation Centre

There are also some states that provide detention for Muslims who intend to renounce Islam. This is because the respective state enactments require the persons to be rehabilitated and educated for the purpose of repentance. The general approach taken by states like Melaka is that, if a Muslim admits that he has left the religion of Islam or declares himself a non-Muslim, and the Court is satisfied that he has indeed done something that can be interpreted as an attempt to change his religion, the court should order him to be detained at the Islamic rehabilitation centre for a period not exceeding six months.

During the period of rehabilitation, he will be required to undergo a course of education and asked to repent. During this period also, the officer in charge is required to send a weekly progress report to the court. If the detainee repents and the court is satisfied about the repentance, he will then be released. Other states like Kelantan and Sabah appear to provide the same provisions except that the period of detention has been increased to up to 36 months.

Some constitutional law experts among the Muslims suggest that restrictions including punishment and detention at the rehabilitation centre for education and repentance purposes do not violate the right of individuals for religious freedom. According to Aziz Bari, the existing apostasy laws in Malaysia are constitutional. He argues that Article 11(1) which provides individual religious freedom in professing and practicing his religion does not mean that he could leave the Islamic faith easily. There must be some sort of mechanism to control the practice, since; by allowing Muslims to change their religion without any restriction would lead to social instability, particularly among the Malays.

The right of freedom of religion and worship is guaranteed by UDHR, ICCPR and the religion of Islam. These rights shall be maintained and protected by the Muslims against all humanity. The only differences between them are how the right of freedom of religion can be use and is it absolute or with some procedure. In the UDHR and ICCPR also have difference between them according the right to change religion the limitations to freedom to manifest one’s religion are allowed, such as is necessary ‘to protect public safety, order, health, or morals’. In Malaysian contexts, there are many judgments have ruled that Muslims are free to renounce from Islam. The only pre-condition applies that such application should be made before the judge in the Shari’ah Courts. Until the Shari’ah Courts determine that a Muslim has left the Islamic faith, such a person is deemed a Muslim and all Islamic rules shall be applicable upon him.