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.