There are a number of approaches which one might take when considering the freedom of religion in Malaysia, in terms of human rights. However, as delineated below, there will invariably be problems inherent in applying a Universalist perspective to the Islamic worldview. Given the constraints of time and space in this instance, then, the focus will be primarily on the Islamic perspective on the issues.
This does not, of course, mean that such a perspective is difficult to identify and quantify, or that it is lacking in objectivity. Issues relating to Islam, Islamic law and the Constitution can be debated within a broad discursive framework in which a range of viewpoints which can be taken into account: questions, commentary, legal opinion and judgment. However, it is important to distinguish between informed and uninformed opinion, and to acknowledge the primacy of academic and professional expertise. All opinions are authentic, in the subjective sense, but not all should carry equal weight in the sphere of formal discourse on Islamic and Constitutional issues.
First of all, let us consider the issue of human rights as it is conceptualized in Islam and in western cultures. The two perspectives are not mutually exclusive, and indeed have many common positions. However, there are important differences in their respective ideological bases. If one supports universalism, then this presupposes that all individuals have the same rights and duties no matter where they live, or what kind of government is in place in their country. A relativistic view, on the other hand, asserts that rights must be judged according to the precepts of local ideologies. However, this in itself must presuppose equality between the principles of Islam and those of non-Islamic cultures.
Sen (1997) states that universalism can have the effect of “denying or masking the reality” (Sen, 1997) of diversity, and that it is important to maintain regional differences. Sen points out that in some Asian countries, it has been argued that a more authoritarian state, despite its apparently giving less credence to individual human rights than a liberal one, will in reality be more beneficial to the populace if the outcome is the promotion of economic growth and a higher standard of living. One has also to bear in mind, here, the necessity of maintaining cohesion. Page (2004) comments in reference to the case of Azlina Jailani that if Muslims are permitted to leave Islam at will, this leaves the way open for the whole of Shariah jurisdiction to be undermined.
Treanor (2005) argues that the essential issue is not that of relativism per se, but rather the way that assumptions about “human rights” can be used to impose one political ideology on another. He points out that the doctrine of human rights which is widely accepted as being ethically correct is in the “broad European liberal tradition”, that the liberal tradition does not even constitute the whole of European political thought, and asserts that “not only are human rights not universal, they are not even ‘western’ or ‘European'” (Treanor, 2005). He sees the entire western concept of human rights as being part of a political ideology which is invariably linked to other western political concepts, such as that of the free market, and which promotes a false universalism.
Such an ideology automatically marginalizes the Islamic perspective on human rights, forcing it into a philosophical framework which is inherently defined in non-Islamic terms. Sadurski (2002) makes a similar point, citing Gunther (1999) as stating that “the idea of universal human rights is in itself a particularly European idea” (Gunther, 1999, 117). However, Sadurski also notes that simply because a concept is derived from local origins, this does not mean that it cannot come to have universal applications. Such a perspective strongly supports not only the preservation of the Islamic construct of human rights within Islamic cultures themselves, but also their wider dissemination through more secular societies.
Berger (1997) refers to the spread of Islamic thoughts and values in decidedly negative terms, and argues that such an ideology is diametrically opposed to that of the “free” West. However, it would be inaccurate to state that all observers of Islamic cultures would agree with him. Tessler (2002), for example, argues that this is not the case. He comments that democracy and support for social welfare are by no means antithetical to Islamic precepts, even though many western commentators put forward the view that they must be mutually exclusive.
Clearly, then, one cannot assume that western perceptions of human rights are definitive and objective, much less that they should automatically be perceived as superior to Islamic ideology. Even within the European philosophical tradition, concepts of human rights are continually changing and evolving and cannot be seen as “universal” even within that limited framework.
Even if we approach the issue from a religious rather than a political perspective, Islam cannot be integrated into some broad, ecumenical paradigm in which all religious ideologies support a similar regime of rights, duties, and individual and societal outcomes. This is in part due to the different perceptions of the sociocultural position of theology and religious law in Islamic and non-Islamic cultures. As Schacht (1977) states, the “sacred law of Islam . . . runs parallel with the history of Islamic civilization . . . religious law is incomparably more important in . . . Islam than theology” (Schacht, 1977). Iqbal (2002) comments that Islam has “no ‘theology’, as the term is understood in the Western religious tradition” (Iqbal, 2002). Rather, the foundations of religion (usuluddin) are analogous with the foundations of jurisprudence (usul al-fiqh). Both the religious and the legal principles are “based on the sacred scripture of Islam, the Quran and the Sunnah (the Way) of the prophet of Islam” (Iqbal, 2002) whereas in Western ideologies “theology is poised as a counterweight to science” (Iqbal, 2002) as opposed to being integrated with it.
Schacht reiterates this in his comment that “the development of all religious sciences . . . in Islam, takes its rhythm from the development of religious law” (Schacht, 1977). The artificial divide between religion, law and science which permeates western ideologies is absent in Islam. Schacht also makes the salient point that “lawgiving” in the time of the Prophet did not take place within the framework of the existing legal system: Muhammad’s authority came rather from religious and political support. He goes on to say that Muhammad’s aim was not, in fact, to change the legal system, but to “teach men what to do in order to achieve their salvation” (Schacht, 1977). The Quran is therefore not a “legal document” as westerners would define the term, but rather a religious document which forms the basis for all precepts of ritual and moral behaviors, as well as the law itself.
Hallaq (1997) notes that the Quranic verses which deal with legal issues tend to be based in rationality and to some extent expediency, in the sense that the content can be adapted according to different requirements. This is a logical approach: if the ultimate aim is that all should behave in a way which allows them to “achieve their salvation”, then it is evident that the prescriptions and proscriptions which channel their actions towards this end will vary from one society to another.
Islamic law therefore both guides and regulates the public sphere, incorporating the rights and duties of individuals and the community as a whole, within an overarching structure which promotes the doing of good and the elimination of evil. The Shariah court is a court of law, not a “religious court” as the term is understood in the west.
It is not possible to separate the moral and theological concepts of “good” and “evil” from their enactment in jurisprudence. Munkar is both a moral and a legal wrongdoing, and there is consensus that apostasy must be regarded as the greatest munkar, even if there is debate amongst ulama on the most appropriate punishment. The proscription of apostasy may lead to some instances of suffering, but without such proscription, much greater harm will result.
If we consider the position of Malaysia in particular, it is evident that throughout the political changes which the state has undergone, apostasy was prohibited, both before and after the colonial period. This continuity, then, does not imply that Malaysia has changed from a secular to a theocratic state, or that it is heading towards a repressive theocracy.
Ibrahim (2007) also points out, in his commentary on Che Omar Che Soh, that the concept of “secularism” in relation to the law is problematic. Although it can be interpreted as meaning anti-religious, one could also argue that “secular” law is that which is applicable in the public sphere, and not necessarily that which opposes religious law. Murder is prohibited both because it is sinful and because it is harmful to society: the religious and secular viewpoints on the issue are not in conflict. Similarly, if we consider the issue of apostasy, it is evident that it is not solely a religious matter: the individual who leaves Islam is not merely “changing their religion” but in reality divorcing themselves from an entire cultural infrastructure.
For a non-Muslim, converting from one faith to another is effectively a matter of personal choice; it does not put the individual outside of the boundaries of the law, or negate their duty to obey the law, since the strictures which regulate the social order are not directly derived from a theological foundation. This is not the case for a Muslim, for whom apostasy is a legal and social matter, as well as a religious issue. In a western society, the secular equivalent of apostasy would be a decision to disregard the “law of the land” or, at best, to obey it only when it coincided with the individual’s personal ideology. Clearly, this would lead to severe repercussions for the individual. If it was permitted on a wide scale, however, it would also cause disruption and chaos across society as a whole.
It could perhaps be argued that as Malaysia is composed of both Muslims and non-Muslims, that Islamic ideology should be subordinate to a generic “secular” law which encompasses all faiths and belief systems. Khaw (2006) comments that “Muslims – who account for more than half of the population – live together with Buddhists, Christians and Hindus” and adds that the government has “tried to establish the country as moderately Muslim” (Khaw 2006). However, the question remains as to whether it is acceptable for non-Muslims to interfere in what as essentially intrareligious issues, especially when some elements of Shariah, such as the proscriptions against alcohol and gambling, are not questioned by those outside Islam. If Islamic law is accepted as valid in these matters, surely apostasy should be treated in the same light: namely, an issue to be decided by Muslims themselves.
The judgment in the case of Azlina Jailani, for example, is clearly valid under Islamic law: apostasy is strictly prohibited and it would be impossible for the court to have decided otherwise without refuting the very precepts on which jurisprudence is based. The concept that a Muslim can convert from Islam to another faith is one which is founded in western ideologies based on individualism, not those of Islam: a western, secular court must permit apostasy since it has no jurisdiction over the individual’s personal beliefs, whereas a Shariah court must not, since to do so would be to abnegate its duty and responsibility as a legal institution.
It would, though, be wrong to assume that the way forward will inevitably involve confrontation and the clash of opposing cultural values. Although the Quran (3:64) states that Muslims must remain constant to their faith, this does not preclude dialogue between Muslims and other groups or the right of Muslims themselves to speak and engage publicly on Islam. Progress can best be achieved through gradual incremental changes, rather than more radical disruption and upheaval, with change taking place in a framework of educated and knowledgeable debate and negotiation. The decision in Azlina Jailani, for example, was not unanimous, illustrating that the framework for discourse is one which allows for evolution and development.
However, one has to bear in mind that there are complex and potentially divisive issues at stake: the relationship between Muslims and other members of the community incorporates issues of nationality, ethnic identity, and diverging attitudes towards personal freedoms and community cohesion. It is impossible to look at the matter of apostasy in a vacuum; even if it is perceived as an internal matter for Muslims to decide, rather than one open to intervention by non-Muslims, the decision which is reached will invariably affect other aspects of the social order and the relationship between Muslims and other groups. Because of this, it is important that changes take place within a carefully controlled framework in which relevant issues are considered in detail, and negotiation is prioritized over confrontational and dogmatic stances.
There is no reason why different approaches and perspectives should not be considered, provided that these can be shown to be sound, and the discourse which ensues should focus on maintaining cohesion rather than giving free rein to a multitude of perspectives which are not so supported. The unique history of Malaysia, and the current structure of the state, lends itself to such dialogue and the outcome of debate can provide a valuable model for the examination of similar issues in other countries.
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