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Of Judges And The Constitution PDF Print E-mail
Posted by Super Admin   
Friday, 23 May 2008 11:34

My last comment ‘Of Religion And Choice’, not unexpectedly, drew some adverse comments on my blog.

One in particular emphasized the need for scrutiny in this very serious matter of Muslims leaving their faith, a process that, according to my critic, only the Islamic courts could properly undertake. It is intrinsic to this viewpoint is a belief that Islam prohibits apostasy.

The difficulty that the Muslim community in general has with apostasy is not a recent nor a localized phenomenon, the rejection of the freedom to leave Islam having been vehemently denied in other parts of the world. This is notwithstanding there being a dichotomy of views on the subject within the Islamic community, the other view being that the prohibition against compulsion in religion extends even to Muslims.

What has made the Malaysian experience unique is that while Muslim society did not support renunciation, until the Supreme Court fashioned a need to procure a declaration of apostasy from a syariah court in its 1999 decision in Soon Singh, there were no legal impediments standing in the way of an individual’s right to express his or her choice to do so. I say ‘express’ because to date, there has been no suggestion by the courts that Muslims do not have the freedom of religion. In Lina Joy, the majority concluded that the freedom of religion applied equally to Muslims but that such freedom was to be exercised through the syariah courts in accordance with Islamic law and that a declaration of apostasy was a pre-requisite to the practice of another faith.

It is significant that the decision in Lina Joy, like the prior decisions in Soon Singh and Kamariah Ali, were cases concerning the jurisdiction of the syariah courts. This was notwithstanding lawyers for or in support of the claimants having argued their cases as being mounted on the freedom of religion.

It appears that the judges concerned took this tact as this allowed them to avoid confronting the very real fact that the Federal Constitution guarantees in Article 11 a freedom of religion for every ‘person’ without qualification. The judges, Muslims themselves, seemed to have been conflicted; giving weight to the rights under Article 11 would pave the way to apostasy, something that they perhaps could not condone.

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written by Bunda, May 23, 2008 | 11:39:18
Well put, Malik!
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written by Thambidoorai, May 23, 2008 | 11:55:09
CONVENIENCE, CONVERSION AND APOSTASY


I am not a Muslim. I am an Atheist.

In Malaysia, Islam is the official religion and has been ever since Merdeka – this fact I trust we are all agreed. Besides this, it is also special in that, for all Muslims and Muslims only, there is a separate and distinct voluntarily accepted jurisprudence and legal court that rules and decides on personal Islamic issues. This, I believe, no Muslim will deny.

Islam has laws and practices that appear harsh or strange or unreasonable to non-Muslims and even some Muslims. These practices and laws are not secretive rules and regulations that are only known to Muslims, or are suddenly foisted upon a convert once he becomes Muslim. No, these are open and well-known facts.

In fairness to Islam, it is not the only religion that imposes peculiar requirements on its devotees and harsh punishments if they drift wayward. Other religions too have their strict rules and regulations and punishments. The Catholic Church, a long time ago, would burn you at the stake if you said that the Earth revolved around the Sun. They no longer do that, although the department of the Church that did that is still around under another name. The Hindus, also long ago, expected widows to jump into the funeral pyres of their newly dead husbands. They also do not do that anymore. I am not belittling or trying to instigate hatred for these religions. I purposely chose these extreme examples to illustrate that many religions, not just Islam, will, at one time or another, in this place or the next, have some strange practices.

Muslims generally do not go around proselytizing. In this regard, I respect Muslims, because they do not engage in the more insidious and hypocritical practices that a few other religions do. This is important to me because the practitioners of some other religions appear to regard me as a free-for-all target, to be saved from himself at all costs, the moment I declare myself an Atheist. I find that not only insulting but disgusting as well.

I trust you would agree that, in Malaysia, no one is coerced or forced to be a Muslim.

Do many converts truly and fully grasp the implications of the act when they convert?

Yes, it is the duty of the religious governing body certifying the conversion to ensure that a convert is truly and completely converted before certifying. But, how can this be done with certainty?

When you convert you will gain, no!, demand the rights and privileges that a particular religion can confer on its believers. Would it then not be right, or just, to expect that you, the voluntary convert, fully comply with the obligations and laws of that religion as well?

Muslims (born or converted) find it near impossible to officially renounce Islam when they no longer believe. I have great sympathy for these people because it is really pitiful to be yoked with the practices of a religion you no longer hold to be true. So what do they do? They run to the federal courts claiming constitutional protection to relieve them of their grief. I think this is wrong and I have no sympathy for this action.

Yes, our Constitution guarantees freedom of religion. It still does. Which is why we have so many different kinds of religions and so many different kinds of people freely practicing them. The federal courts are not, and have never been, intended to be the arbiter of what is divine or godly. They cannot judge whether a person is Buddhist, or Christian, or Muslim. They are not supposed to!

How could the federal courts, in fairness, judge you to be an apostate just simply upon your application and declaration, when they did not have the power to judge you a follower of the religion that you had wanted to be a part of in the first place? The courts cannot take away what they cannot give. The federal courts can intercede in the case where one has been duped into converting. Otherwise, they, rightly, should not. And this is not about ignoring the Constitutional guarantee. This is about exercising good judgement.

I feel very sorry for Muslims (for that is what you became when you converted and made the necessary declaration) who want to renounce but still cannot. But, they did not walk blindly into that religion. They have to face the consequences with the religious governing body which they had voluntarily embraced in the first place.

Conversion is a very serious matter with very serious and complicated consequences. Do not take it lightly or as a matter of convenience. And also, for both converts and by-births, if you find the laws and practices of your religion to be unbearable or unreasonable, by all means, take actions to change them, but from within your own religion and with your own people. Asking a secular court to decide a religious issue will only create unwanted social and legal problems. It takes time, but all religions will evolve and mellow eventually. That is your consolation.
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written by chanatak, May 23, 2008 | 12:04:46
This goes to show the hypocrisy of Muslim judges. These so called judges do not have the guts to uphold the constitutional law. They are legal cowards. They have proven themselves partial - which makes them unfit to serve as judges.

Isn't it a tenet of the court that says "No man shall judge in his own cause" . Does not this extend to mean that a Muslim judge must therefore not sit in the bench to preside over such a case where his own emotions may colour his judgment?

This is the result of politically appointed judges - they are judges as a result of kulitfication, not of merit.

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written by Thambidoorai, May 23, 2008 | 12:15:41
To chanatak:

Point of clarification: would you, let's just say, as an Atheist, be willing to be judged by, say a Hindu or Christian or Muslim, concerning a personal faith matter?
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written by non conformist, May 23, 2008 | 12:56:54
written by Thambidoorai, May 23, 2008 | 12:15:41
To chanatak:
Point of clarification: would you, let's just say, as an Atheist, be willing to be judged by, say a Hindu or Christian or Muslim, concerning a personal faith matter?
=========

Thambi, it would be natural that an Atheist would prefer to be judged by an Atheist, no?
Personal faith matter and Atheism are mutually exclusive concepts.
May be not, since the faith of an Atheist is godlessness, whatever else he does believe.

An ancient man wrote:
18 For the wrath of God is revealed from heaven against all ungodliness and unrighteousness of men, who hold the truth in unrighteousness;
19 ¶ Because that which may be known of God is manifest in them; for God hath shewed it unto them.
20 For the invisible things of him from the creation of the world are clearly seen, being understood by the things that are made, even his eternal power and Godhead; so that they are without excuse:
21 Because that, when they knew God, they glorified him not as God, neither were thankful; but became vain in their imaginations, and their foolish heart was darkened.
22 Professing themselves to be wise, they became fools...

Another ancient man said, "The fool hath said in his heart, There is no God. They are corrupt, they have done abominable works, there is none that doeth good."

sing lau, penang.




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written by mgeo, May 23, 2008 | 14:24:44
Long live form over substance!
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written by wag the dog, May 23, 2008 | 14:59:38
MIC Rebranding - Heading for Failure

visit www.wagthedog-malaysia.blogspot.com for details.
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written by almier, May 23, 2008 | 15:29:22
Thambidoorai,

Well written my friend. I could see that you are well lighted in your logic than many Malaysians.

But there is one thing that you think before saying you are an Atheist. In Malaysia it Atheist is not recognized, simply because the Rukun Negara implies that every Malaysian must believe in God.
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written by Lostsoul12, May 24, 2008 | 10:33:22
"Yes, our Constitution guarantees freedom of religion."
We can read or hear the above statement (and some which carried same meaning) alomost every day from the goverment and muslim. But, are you sure that our constitution really practice freedom of religion??? To muslim of Malaysia maybe yes - in their own term (Just like US of A talk about human right, they decide human right in their own term regardless others opinion). For the rest, it is not call freedom. Once you are muslim, you can't convert to other religion or to be religion free even you have no more faith in it and don't practiced any of the basic practice. you call it freedom? To me the answer is NO.
I've another concern, now and then we can read from media that our muslim brother go and take the dead body from non-muslim families and buried as muslim. My question is who is going the "sembayang" them after that? Those who burried them or just leave them after buried??
P/S: I'm not anti-muslim and I respect Islam too. But the are some rules needed to change/revise accordance with time and culture/society
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written by chanatak, May 24, 2008 | 13:55:25
To Thamydoorai, sorry for this late response. Just drop back in today.

To your question, the answer is Yes, to the extent that the judge is impartial, and not bigotted towards imposing his personal values on the case. The fact that you hypothesize me in the situation means also that as an Atheist, I don't care 2 hoots about religious values and beliefs, right?

A case must be heard and judged according to the principles of the spirit of the law and facts. The judge's personal convictions must not come into play at all.

In the cases being discussed, we have ignored the facts of the case. The fact is that a person no longer has faith in a particular religion. This is not a question of correctness of interpretation of any religious tenents or the scriptures. It is a simple fact - " I no longer want to believe in this ". Does this need a spiritual expert to make a decision? But if the case involves elements of rituals and values, like what is the right of my husband to take 4 wives in the light of certain scriptures, or what constitutes the right interpretation of the laws of inheritance in the view that I am a believer, or if the Imam Mahdi greater than the Prophet Muhammad, then the syariah judge is supposed to the expert.





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written by Thambidoorai, May 24, 2008 | 17:48:04
To chanatak, glad you replied.

Your reply showed me that my impression of you based on your earlier more emotive and angry posting on the 23 May had been off – I am glad for this.

Anyway, I agree with you fully about the need for impartiality in judges. However, there is a danger that some may equate impartiality with ignorance.

Judges necessarily must at all times discharge their duties with complete impartiality in accordance to the rule of law…including Muslim judges…including Syariah Court judges. But, as judges are only humans, that can only be wishful thinking. Perhaps “non-conformist” might declare, only god could be totally fair and impartial. So we make do with what we have and hope for the best.

For specialized cases, religion being just one of many, it is actually necessary for the judge(s) to have wide and in-depth knowledge and personal experience in order to adjudicate wisely. For examples: professional cases involving doctors, engineers, ship captains…judges…they are usually judged by a body of their peers or, in a court of law, by a judge assisted by a court appointed amicus curiae (friend of the court) who is well versed in the issue at hand.

No law or rules or codes are complete and perfect in themselves. I am a technical professional, let me say, if an accident due to a system crash happened in the middle of the night in the dark with no direct witness…reviewing all the codes of practice and control procedures and records alone would likely not reveal the truth of what happened.

Here is where the judge’s experience (in other words: personal convictions) must come into play. Granted, the judge may still make a mistake, but let’s face it, this is as good as it gets.

And, yes, for some, it does take a religious expert to decide on “I no longer want to believe in this.” In some remote places, even today, when you utter those words, consider yourself lucky if they just perform exorcism on you.

By the way, do you know that, for some Muslims, it is a divinely enjoin duty to prevent another Muslim from going down the path to perdition (the shortest cut would be apostasy)? Hence, what you see happening.

So, what’s my points? My points is:

The federal court is correct to rule that declaration on religious matters must necessarily issue from the governing body of that religion. Otherwise, if it starts on one issue, others will follow, ending in a chaotic (and dangerous) mess. Let Muslims deal with Islamic matter themselves. Yes, even apostates (for you are Muslim first before you can be an apostate). If the ruling appears to go against natural justice or freedom, let them make the changes themselves, in their own way, at their own pace.
To interfere (especially from infidels like us) will likely invite a fight and create regression.

Have faith. Muslims are also humans. What we want, what we need, they too likewise.

I am confident it will happen. Just look at the Catholic Church. They used to burn or drown you for apostasy. Not anymore. And this was not because of victories in secular courts. No. It was because more and more “use-to-be-faithfuls” just could not give a damn anymore, so the governing body had to start relaxing or turning a blind eye to the more unpopular requirements.

So, “non-conformist”, when are you coming over from the Darkside? Don’t worry, we won’t bite over here.
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written by Thambidoorai, May 24, 2008 | 19:06:41
To almier:

My Daddy cannot meet all my expectations.

I cannot meet all my children's expectations.

4 out of 5 ain't bad...I can submit to and am willing to fight for the other 4 Rukuns.

How many can say that sincerely?
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