Non-Muslims should never be subjected to syariah courts

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Non-Muslims should never be subjected to syariah courts as it is a fundamental and inalienable constitutional right of Malaysians to seek justice and legal recourse in civil and not in any religious courts

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Speech at Sitiawan Forum

by Lim Guan Eng

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(Ipoh, Tuesday): Non-Muslims should never be subjected to syariah courts as it is a fundamental and inalienable constitutional rights of Malaysians to seek justice and legal recourse in civil and not in any religious courts. There can never be compromise on this matter as this strikes at the very heart of the secular nature of Malaysian Constitution and threatens the core of our existence as a nation.

The refusal to submit to syariah courts should not be confused with whether syariah courts can offer justice to non-Muslims. This is similar to the situation of Muslims not submitting to civil courts on matters related the family law is not related to whether civil courts can offer justice. The principle is whether one should be compelled to submit to a jurisdiction one had never agreed to.

On 30 May 2007, the Federal Court decided by a 2-1 majority in the momentous Lina Joy’s case that only the syariah court can decide whether a person can renounce Islam or is still a Muslim. DAP’s view is that this decision goes against the fundamental human right of freedom of religion as enshrined under Article 18 of the United Nations Universal Declaration of Human Rights,

“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.”

The Lina Joy case has not only violated and diminished our freedom of belief and conscience. Worse this decision may prove the death blow to the constitutional guarantees on freedom of religion, the Federal Constitution as the supreme law of the land and above all, the sacred Merdeka “social contract” underlying the constitution that Malaysia is a secular nation with Islam as the official religion but not an Islamic state.

The dichotomy remains between those who hold that our Federal Constitution is secular in nature and content against those who insist that irregardless Malaysia is in reality already an Islamic state. The 1957 social contract that gave us Merdeka clearly established a constitution with a secular nature but enshrining Islam as the religion of the Federation.

This was reaffirmed by the Supreme Court in the Che Omar Che Soh case in 1988 when it declared that the Malaysian Constitution is secular and does not make Malaysia an Islamic state. In that judgment, Chief Justice Tun Salleh Abas ruled that the syariah law was not the basic law of the land and that the constitution was the supreme law. Unless there is a constitutional amendment Malaysia is and never was an Islamic state.

DAP will take the initiative to ask our ally in Datuk Seri Anwar Ibrahim to review his and Parti Keadilan Rakyat’s support for the Federal Court decision on Lina Joy as well as oppose any attempt to criminalise apostasy

Legal jurists may question whether the syariah courts exercise exclusive powers of jurisdiction over Muslims that can not be questioned by the civil courts, especially when such exercise is not clearly defined and contrary to our Federal Constitution. What is the meaning of Article 11 of the right of freedom of religion if Muslims who declare that they wish to leave the religion are punished with fines, jail or detention or ‘rehabilitation’?

The Ninth Schedule of the Federal Constitution gives authority to the syariah courts over persons professing the religion of Islam, not those who do not profess Islam. Even the syariah courts’ authority over Muslims is limited to personal and family law with a specific list that neither includes nor mentions apostasy.

University Malaya Associate Professor Dr Azmi Sharom, has forcefully argued that the ‘authority’ vested in syariah courts comes from a line in Schedule 9 of the Federal Constitution that says states can make laws punishing Muslims who act against the ‘precepts’ of the religion. However, Azmi stresses that apostasy is not expressly mentioned, therefore everything hinges on the question as to what makes up the ‘precepts’ of Islam.

What constitutes precepts of Islam is not spelled out and hence subjective in nature. It is accepted law that people can not be punished based on a subjective interpretation whether this offence is included or not. Now there are attempts by some political parties to even criminalise apostasy, including sending to prison non-Malays who converted to Islam and wishes to revert to their original religion. Punishing non-Malays who wishes to revert to their original religion as criminals will only inflame the public.

Malaysians have expressed our concerns firmly not in an emotional manner but using reason and logic. Yet the government does not listen. The people have a clear choice between BN non-Muslim component parties that supports Lina Joy and Malaysia being an Islamic state; or DAP as the only political party in Malaysia that defends our Merdeka constitutional framework of freedom of conscience and a secular state.

At the same time we should reach out to Muslims who are appalled at the growing trend towards a theocratic Islamic state. DAP will take the initiative to ask our ally in Datuk Seri Anwar Ibrahim to review his and Parti Keadilan Rakyat’s support for the Federal Court decision on Lina Joy as well as oppose any attempt to criminalise apostasy.

(26/6/2007)

* Lim Guan Eng, Secretary-General of DAP