WARNA-WARNA KEHIDUPAN

*this is one of the papers presented at Multiculturalism and the Law Conference, University of Malaya,May,2008. I just take parts of the papers, hopefully it will be very beneficial to readers.

Conversion to Islam and the Jurisdictional Conflict – by Dr.Mohamed Azem Mohamed Adil (UiTM)

1.Introduction.

* Conversion to Islam is common in a country of multi-ethnic and religion like Malaysia. However, problem arises when the new converts die. It has always been a tough tussle in the courts in determining the status of the deceased’s religion. The next-of-kin have always argued that the deceased was a non-Muslim at the time of his death. On the other hand, the respective Islamic Councils claimed otherwise. The problem arises as the deceased converted to the religion of Islam secretly and never inform the next-of kin. The non-Muslim parties reluctantly appear before the Shari’a Court judges mainly on a simple reason, i.e that the Shari’a Courts have no jurisdiction over non-Muslim parties. At the moment S.51 of the Law Reform (marriage & Divorce) Act 0f 1976 (LRA) provides that until the non-Muslim party petitions for divorce at the Civil Court, the Muslim party, despite the fact that he/she has converted to Islam, is still considered as husband/wife in the eyes of Civil Law. This led to uncertainty as far as the status of the marriage is concerned although in the eyes of Islamic Law that the marriage is automatically `dissolved’.

2.The Concept of Religious Freedom in Islam.

* The root source of this fundamental right is embodied in verse 256 of Sura al-Baqara that clearly stated: `Let there be no compulsion in religion’. Based on this command, many jurists and scholars have postulated that the among the rights that are manifested in personal liberty is the freedom of the individual to profess the religion of his or her choice without compulsion.

* As Fathi Uthman observes `No power of any kind in the Islamic state, in this regard, is to monitor and prevent the forces which might seek to deny the people their freedom of belief’.

3. The Scope of Religious Freedom in Islam.

* The traditional approach : It is conditional, not absolute. This could be seen in the case of apostasy. Muslims are totally denied to renounce Islam. While non-Muslims are welcome to convert to Islam, Muslims who intend to leave Islamic faith for other religions are subject to death penalty. Muslims who renounce Islam are not only facing a death penalty but also loss of his/her marriage status in the ground that his/her marriage is automatically dissolved due to his/her apostasy. Other rights such as inheritance and property are also discarded.

*The Modernist approach: The notion of freedom of religion is Islam is absolute, not conditional. This is true because individuals are given freedom of choice, whether to accept or reject the Islamic faith. According to Abdulaziz A.Sachedina, `hidaya (guidance) is a fundamental feature of the Qur’an and is reiterated throughout to emphasize the fact that this form of guidance is part of human nature. Human beings can reject this guidance although they cannot produce any valid excuse for the rejection.

(I skip no.4 and 5, just elaboration of the no 3)

6. The Scope of Religious Freedom under the Federal Constitution

*Article 11(1) of the Federal Constitution provides that every person has the right to profess and practice his religion. Every person has also right to propagate his religion, but state law, and in respect of the Federal Territory, federal law may control or restrict the propagation of any religion, doctrine or belief among Muslims. According to Professor Andrew Harding, `Article 11, while safeguarding freedom of religion, draws a distinction between practice and propagation of religion.’.

* Article 11(4), the State legislation has a jurisdiction to enact legislation in controlling and restricting the propagation of non-Islamic religious doctrines and beliefs among Muslims.

* Article 11(5) of the Federal Constitution states, `This article does not authorize any act contrary to any general law relating to public order, public health or morality ‘. The limitation of this right does not only apply to non-Muslim but also to Muslims.

*Article 12(1), the Federal Constitution prohibits discrimination on religious grounds in education and scholarship.

*Article 12(2) seems to allow a certain amount of discrimination, especially in relation to the religion of Islam. The Federal Constitution recognizes the right of religious group to establish and maintain institutions for the education of children in their own religion, the same clause provides the lawfulness for the Federal and State government to establish, maintain or assist in the establishment or maintenance if Islamic institutions or other means of providing instruction in Islam.

* Article 12(3) prohibits any person from being required to receive instruction or to take part in any ceremony or acts or worship or a religion other than his own.


7. Conversion to Islam according to the States’ Enactments.

The various states’ enactments have made several requirements for conversion to the religion of Islam. S.107 (1) of the Administration of the Religion of Islam (State of Selangor) 0f 2003, for example, provides that the following requirements shall be complied with for a valid conversion of a person to the religion of Islam :
a) the person must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith (kalimah shahadah);

b) at the time uttering kalimah shahadah the person must be aware that they mean `I bear witness that there is no god but Allah and I bear witness that the Prophet S.A.W. is the Messenger of Allah’; and

c) the utterance must be made of the person’s own free will


* It is also required by the states’ law for a person who has converted to the religion of Islam to apply to the Registrar in the prescribed form for registration as muallaf.

* However, for the purpose of determination whether a non-registered person is a muallaf of the person is not registered in the Register of Muallafs, then such question shall be decided on the merits of the case in accordance with S.107.


8. Jurisdiction in Conversion to Islam: Shari’a Court versus Civil Court.

* The word `jurisdiction’ in Article 121 (1A) of the Federal Constitution seems ambiguous, there is a need for a proper construction of its interpretation by the Federal Court. It has led to conflicting judicial decisions on the question of which court has jurisdiction when conversion cases arise.

First approach – suggests that the Syari’a Courts have no jurisdiction whatsoever in matters relating to conversion in a case where there is no express jurisdiction conferred in the State Laws.

* The view that postulates State Legislatures need to expressly confer jurisdiction on the Shari’a Courts was affirmed in Ng Wan Chan v Majlis Ugama Agama Islam Wilayah Persekutuan & Anor. In this case, the plaintiff was the widow of Lee Siew Kee who died on 2nd May 1991. One of her seeking orders was a declaration that her late husband was a Buddhist during his lifetime and at the end of his death on 2nd May.
- The first defendant later filed an application to set aside a writ and claim of the plaintiff. After discussion, the first defendant decided not to proceed with this, and instead to raise the issue of preliminary objection challenging the jurisdiction of the High Court to entertain plaintiff’s claim.

- The defendant claimed that the Civil High Court had no jurisdiction on matters pertaining to Islamic Law as stated in the State List.


* Another vital case – Mohamed Habibullah v Faridah Talib. Involved Article 121 (1A).
- the respondent had renounced Islam after being dissatisfied with the manipulation made by Federal Territory Shari’a Court in seeking fasakh (dissolution of marriage by court order). She later filed a writ of summons in the High Court of Kuala Lumpur and claimed among damages and/ or aggravated damages for atcs assault and battery committed by the defendant against the plaintiff and the members of their family.

* (to be continued……)