I wonder whether the proponents of anti-apostasy laws have given thoughts to various legal issues which will undoubtedly arise in the event anti-apostasy laws are passed.
First of all, article 11 of the Federal Constitution guarantees the right of every person to profess and practise his religion. Freedom of religion, as this article guarantees, is deemed to be so important and universal so much so that the Federal Constitution guarantees it for every person in Malaysia as opposed to just her citizens.
By contrast, freedom of speech and expression, the right to assemble and the right to form associations are only guaranteed for Malaysian citizens. Such is the universality and fundamentality of freedom of religion that every person within Malaysia is guaranteed of that right.
The right to practise a religion is absolute. That right is not limited to the right to choose a religion but also the right to practise the religion of choice in accordance to the person’s belief and faith. In other word, under our Federal Constitution, one can not only choose a religion of his or her choice, but also to practise his or her religion freely, without any mullahs, monks, priests or prophets, real or otherwise, telling him how to do this and that.
Being so, anti-apostasy laws would run foul of article 11 as soon as it is passed. It is a non-starter. In legal jargon, it is void ab initio.
There are only two very narrow restraints which the Federal Constitution allows in so far as freedom of religion is concerned.
Firstly, laws may be passed to control or restrict the propagation of any religious doctrine or belief among Muslims. This means, a law may be passed for example, to prohibit anybody or group from propagating Christianity to Muslims. This provision however, does not allow any law to be passed to prevent a Muslim from leaving Islam or to punish Muslims for doing so.
Secondly, any person is not allowed to practise his or her religion in any way which may be contrary to any general law relating to public order, public health or morality. This simply means that if your religion requires you to slaughter five pigs at Dataran Merdeka every Friday at precisely 12.30pm, you cannot do so even though article 11 says you are free to practise your religion. Similarly, if your religion requires you to have sex with your daughter and your wife at the same time, you are not allowed to do so, although of course, it is open to you to argue that you may do so spiritually and not physically. (excuse me, I have to laugh…hahaha).
So, that’s about it. Quite how the proponents of anti-apostasy laws are planning to overcome this Constitutional hurdle to their beloved anti-apostasy laws is beyond me. I suppose, they would also seek to amend the Federal Constitution along with the anti-apostasy laws.
Assuming the Constitutionality issue is overcome, then comes the jurisdiction clanger. This is what I normally refer to as the judicial ping-pong or pass-the-bucket.
You see, in the United States, United Kingdom, Australia or anywhere else in the civilised world, every arm of the country’s administration would defend it’s jurisdiction and powers so fervently. Of course here in Malaysia, our judiciary, in the form of the highest Court of the land, ie the Federal Court, have always done it’s darndest best to disclaim its jurisdiction and powers. It’s almost funny really.
Whenever cases involving Islam come to our Federal Court, it will, without fail hold that it does not have the jurisdiction or power to hear such cases because they involve matters concerning Islam. Never mind the fact that the matter also involves serious and multiple Constitutional issues which have far-reaching consequences and ramifications on our society and nations. As long as the word Islam appears of the Court papers, the Federal Court will tremble in its pants and disclaim jurisdiction.
Sometimes, the Federal Court will cling to some technicalities in order to refuse hearing such hot potatoes of a case. See Shamala and the skirt of technicalities, as an illustration of this.
The oft-relied Constitutional provision for this disclaimer of jurisdiction is of course article 121 (1A), which says that our Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.
So, assuming anti-apostasy laws are passed and a man is going to be charged for being an apostate. The first question is, in which Court is he supposed to be charged?
He cannot be charged in our civil Courts. Because quite simply, our civil Courts will say whether or not that man is an apostate would depend on whether he has really left Islam and that would be a matter for the Syariah Court to deal with. So, our civil Court will gladly disclaim jurisdiction.
And so, our guy would then have to be put in the black maria and driven to the Syariah Court. Okay, hold on to your seat guys, this is going to be one hell of a ride.
He is then produced before a Kadhi/Syariah Judge and charged. The charge might read as follows:
“Bahawa kamu, Jakim bin Jais, telah didapati tidak sembahyang Jumaat sebanyak tiga kali berturut-turut dan telah dengan itu keluar dari agama Islam dan dengan itu telah melakukan kesalahan di bawah seksyen 3 Akta Anti-Apostasi.”
(“That you, Jakim bin Jais, has been found not to perform the Friday prayer for three consecutive times and accordingly you have left the religion of Islam and accordingly has committed an offence under section 3 of the Anti-Apostasy Act.”)
So far so good.