In today's Sydney Morning Herald, NSW Supreme Court Judge David Hodgson provides a compelling summary of the recent decision of Lina Joy, a Malay woman who abandoned her ancestral Islamic faith.
Malaysia’s constitution declares Islam to be the official state religion. At state level, it establishes Islamic courts which govern the legal affairs of Muslims in certain defined areas. At state and federal level, it also has secular courts applying the common law and statute law, just as an Australian court would do.
So what happens to a person who falls somewhere in the middle? What happens when a case involves an ex-Muslim or an alleged Muslim convert with non-Muslim family members? Which court is supreme? Which legal system operates?
This is an ongoing legal and constitutional saga in a country where at least 40% of the population are non-Muslims.
His Honour says:
As a member of the United Nations, Malaysia is committed to the Universal Declaration of Human Rights ...
Sadly Malaysia hasn’t ratified a host of international human rights treaties, including those dealing with eliminating racial discrimination. This means the contents of these treaties need not be reflected in Malaysia's domestic law.
Malaysia’s Human Rights Commission (SUHAKAM) has, in its 2005 Annual Report, mentioned the case of former Army Commando M Moorthy, a Hindu by birth given a Muslim burial after he allegedly converted to Islam. His Hindu wife and family wanted him cremated in accordance with Hindu custom. Civil courts refused to consider the widow’s application that religious courts erred in declaring Moorthy a Muslim.
His Honour erred, in my opinion, in claiming that the majority ruling of two Muslim judges in the Federal Court decision of Lina Joy “raises the doubts about Islam’s compatibility with religious freedom”. If His Honour could establish that Malaysian Federal Court rulings represent the definitive consensus of 14 centuries of Islamic sacred jurisprudence, I might accept his statement. Is the Joy case really a failure of Islam itself? Or is it a failure of those who drafted the Malaysian constitution?
Malaysia has no constitutional court able to sort out clashes between secular and religious jurisdictions or to review decisions of secular courts refusing to intervene in religious court decisions having direct impact on non-Muslims.
His Honour suggests Malaysian Muslims “applauded” the Joy decision. Perhaps His Honour might subscribe to Malaysiakini.com and read the many letters and articles penned by Muslims critical of the Joy decision. He might also talk to people from groups like Sisters In Islam.
His Honour then challenges Muslim Australians to speak out against such excesses, even suggesting any silence on their part only reinforces these doubts.
The decision was applauded by Muslims in Malaysia. But what do moderate Muslims in Australia think about it?
Suppose that there was a law enforced in Australia. which made conversion from Christianity a criminal offence, punishable by order of Christian tribunals.
Suppose that there was also a law that prevented a woman who had converted from Christianity to Islam from marrying a Muslim man, unless she obtained a certificate from a Christian tribunal that she was no longer a Christian, and that these certificates were difficult to obtain. I'm sure Muslims in Australia would find this utterly repugnant, and rightly so.
Do Muslims in Australia not think that the converse situation in Malaysia is similarly repugnant? Would it be possible for Muslim leaders in Australia, and in other countries with religious freedom, to speak firmly and clearly against the denial of religious freedom in countries such as Malaysia?
If they can and do, this would certainly help to show that Islam can be compatible with religious freedom; but if they cannot and don't, doubt must remain.
In principle, I agree to some extent. Muslim lawyers, at least, should express their dismay in the strongest possible terms. These issues can be easily dealt with. The stalemate between religious and secular courts must be resolved in a manner that maximises and preserves freedom of religion. As one Malay anthropology professor told me in June last year:
"What sort of Islam is this that we have in Malaysia where I don't have the right to be non-Muslim? The Prophet Muhammad gave me that right. Why can't the Malaysian law?"
Further, to suggest that the law of one Muslim country and the decision of one of its courts somehow reflects on the religious heritage of 1.2 billion Muslims and 14 centuries of Islamic juristic heritage is surely drawing a long bow.
To claim that silence of any Australian Muslim represents his or her agreement with Malaysian law effectively suggests Muslims here are somehow responsible for the actions of Malay Muslims. Do we hold all Jews responsible for ever excess of the State of Israel? Of course not.
But in practice, what possible influence could Australian Muslims have on Malaysian lawmakers? I tested this in June last year when I visited representatives of the Malaysian Chinese Association (MCA), a party in the ruling coalition government. MCA officials spoke passionately to our Australian Muslim delegation about the lack of religious freedom in Malaysia. We were appalled.
We repeatedly asked MCA officials whether they’d like us as Australian Muslims to lobby Malaysian Muslim MP’s on behalf of non-Muslim minorities. MCA officials repeatedly avoided the question. I couldn’t understand why, though later I received the following explanation when speaking to a Malaysian Chinese lawyer with links to an opposition Malaysian Party.
“Irfan, these guys benefit from Malaysia’s near-apartheid. They’ve been bought off with government contracts and tenders for their business. Why would they want you to threaten the system that butters their bread?”
Is this true? Who knows? What is certain is that MCA and other groups are campaigning hard to raise awareness about the difficulties faced by religious minorities in what is regarded as one of the world's more progressive Muslim-majority states.
© Irfan Yusuf 2007