LAST WEEK, the international news channel Al-Jazeera highlighted the controversial case of a 29-year Malaysian woman who has been detained in a rehabilitation centre for Muslim apostates and deviants.
The international coverage of her case brought Malaysia adverse publicity and re-ignited the divisive and sensitive issue of Muslim apostasy.
In defending the action of the Syariah authorities, one of the panelists on Al-Jazeera made two significant points.
First, that apostasy is a serious criminal offence in the Quran.
Second, that the Constitutions gilt-edged provision in Article 11(1) that every person has the right to profess and practice his religion and, subject to clause (4), to propagate it must not be read in isolation. It must be viewed in the backdrop of the rest of the Constitution.
The first assertion that apostasy is a heinous, Quranic offence is a serious misinterpretation of the Quran.
The second, that the Constitution must be read as a whole is eminently correct.
The Quran is replete with passages condemning apostasy. In 20 or so passages it states that becoming a renegade is a sin and will be punished severely in the hereafter. The curse of God, of His angels and of all mankind shall fall on those who reject the faith (3:87; 18:29).
But nowhere is there a requirement of a worldly punishment unless the apostate wages war or indulges in defamation. Surah 4:89 is often cited as evidence of the divine commandment to seize them and slay them.
But 4:89 is immediately qualified by the words except those who join a group between whom and you there is a treaty of peace or those who approach you with hearts restraining them from fighting you.
A similar call for non-aggression against the non-belligerent murtad (convert) exists in Surah 4:91.
In fact Surah 4:137 talks of repeated acts of apostasy. Those who believe and then disbelieve and then again disbelieve and then increase in disbelief, Allah will never pardon them?
S.A. Rahman, former Chief Justice of Pakistan, points out that this verse is conclusive evidence that the Quran could not have contemplated the killing of the apostate for his act of defection. Otherwise there would not be a history of repeated conversion.
Surah 3:91 and 2:217 talk of those who reject faith and die rejecting. This is evidence that Allah envisages the natural death of the apostate without state intervention to kill him. Surah 3:89 speaks of the mercy and forgiveness of God for those who repent and make amends.
Add to these verses other exquisite passages like Let there be no compulsion in religion (2:256). Unto you your religion, unto me mine (109:6).
If it had been thy Lords will, they would all have believed, all who are on earth! Will thou then compel mankind against their will to believe! (10:99).
In innumerable passages the Quran reminded Prophet Mohamed that his duty was to draw peoples attention to Allah. But it was not the Prophets duty to use force to make people believe (39:41; 88:21 & 22; 27:92). Thy duty is to make the message reach them. It is our part to call them to account. (13:40)
It is clear, therefore, that in the Quran apostasy is a sin (punishable in the hereafter) and not a crime (punishable by the state).
Islam is a religion of persuasion, not force. The criminalisation of apostasy runs counter to the spirit of Islam, which is one of tolerance for the disbeliever.
Despite the absence of a worldly punishment for murtad in the Quran many Muslim jurists rely on a known Hadith (saying of the Prophet) that apostates should be advised, imprisoned and if they still persist, then beheaded.
Prophet Mohammads words and deeds, of course, deserve the highest veneration.
But many scholars have pointed to instances when the Prophet allowed apostates to go free without punishing them.
There is also the fact of the Prophet signing the Treaty of Hudaibiyah to permit converts to depart freely to join the non-Muslim community.
However, in the era after the demise of the Prophet, new interpretations took hold.
The Caliphs and the jurists interpreted the Quranic verses and the Hadith to imply that punishment for apostasy was mandatory in Islam.
Whether the punishment was death or a lesser penalty, remained a matter of debate. Some jurists distinguished between male and female apostates, reserving the harsher penalty for males.
These juristic views are difficult to reconcile with the Qurans exquisite message of religious tolerance. A stream cannot be higher than its source.
A few Muslim governments like Saudi Arabia and Afghanistan have legislated death for apostasy.
But the majority of Muslim nations leave the matter at advising and counselling. They rest their laws on the view of scholars who interpret Prophet Mohameds Hadith to refer to situations when apostasy was combined with rebellion against the state.
A belligerent murtad is punishable, but not one who defects peacefully.
Prophet Mohamed never put anyone to death for apostasy per se.
The Grand Imam of Al-Azhar, Shaikh Mohamed Sayyed Tantawi, is of the view that action should not be taken against apostates on the basis that they had renounced Islam. Only when they insult Islam or try to destroy the religion, one should act against them.
Malaysia was for a long time in the category of Muslim nations that did not criminalise defections from the religion.
Inspired by the Quranic respect for liberty of conscience, guided by the ideals of the Constitution and conscious of the international milieu, state legislation in the past merely imposed a registration requirement on apostates. (See for example the Pahang Enactment 1982, section 103(2))
Lately, however, fears have grown that the Muslim population is being exposed to aggressive attempts at proselytisation from abroad.
The fall of Baghdad, the conquest of Afghanistan, the stationing of Christian armies in several Muslim citadels including Saudi Arabia and the colonial designs on Iran, Syria, Sudan and Somalia reinforce the fears of a new crusade. The Muslim community feels at siege.
The Internet contains some wild claims from evangelical groups that hordes of Malay Muslims are waiting to exit from Islam.
There are equally unreliable allegations by some Malay leaders that hundreds of thousands of Muslims are about to desert the community.
Many Muslims feel apprehension, alarm and anger.
No wonder that six out of thirteen states have legislated penal sanctions against murtad.
In Malaysia, due to the fascinating intermingling of race and religion among the Malays, conversion out of Islam means an automatic desertion of the Malay community. This has obvious political connotations.
Our first task should be to separate fact from fiction.
After that, we need to put our heads and hearts together to tackle difficult issues with moderation and compassion. There is no reason to believe that the Merdeka spirit of accommodation cannot be revived again.
Tomorrow: The constitutional perspective
Dr Shad Faruqi is Professor of Law at UiTM.
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