It is disconcerting that there is among us a 'trigger-happy' crowd, shooting off police reports for 'insulting Islam', calling upon the use of state criminal law, the Sedition Act or the notorious Internal Security Act.

In some cases, Malaysians have not been spared the rod as it were, when they are hauled up for apostasy/deviancy under state Islamic laws. They are stripped of the right to religious freedom, which includes the right not to have a religion and the right to leave a religion.

In view of our local context, where Muslims are mostly Sunni-Shafii, freedom of religion includes the right to believe in a different school of thought or a particular Muslim sect.

It might be noted that Shiite Muslims - who have historically faced persecution from Sunni Muslims during the Umayyad and Abbasid periods - have developed a principle called taqiyya, which permits believers to deny or dissimulate their beliefs if exposed to danger.

Our fundamental freedoms in the federal constitution have been made subservient to state laws in recent decisions. To date, our courts have adopted the position that freedom of religion is subject to restrictions under state laws for Muslims.

Even if the states have not made specific laws on this point, the alleged rationale is that states are empowered to make such laws as provided under the state legislative list! This does not appear to bode well for the rule of law.

This state of affairs has of course encouraged politicians to wave indifference to rights. The truth is, it does not and should not matter where you are posited, in the United States or here in Malaysia, these are rights recognised by the international community of states.

The fact that states have not complied with these standards does not de-legitimise human rights values.

The issue of 'social demographics' as cited by Abdullah Mohd Zin, head of the Islamic Development Department (Jakim) and minister in the prime minister's department - without clarification of relevance to the issue of rights - is at best an Umno political issue and it should not derail us from adherence to human rights values. Malaysia is perhaps the only country where religious freedom on account of 'social demographics' ala Jakim is a 'national security' issue for the government.

Protection from religion?

It is not just the state and its apparatus, including state-employed ulama, that are playing moral guardians. Over the years, Malay-Muslim based political parties, ulama associations and NGOs have also called upon the state to censor and censure Muslims and non-Muslims in the name of Islam.

A useful pointer is to ask whether a particular action actually strengthens the state and its apparatus or the people? Any rookie activist who offers state persecution rather than discussion and consensus-building would not earn her/his points.

The reasonable person drinking teh tarik at a warong (stall) may have occasion to mull the question 'how can human rights norms protect us from religious persecution?' Others may think a more central question is actually 'how can human rights norms protect us from religion itself?'

Religion and law scholars and activists in the meantime are pondering the question, of 'how can religion be an agent for the formulation of human rights norms?'

Whether or not we think we are nearer to the right responses, it is important that we remain cognisant of these questions. Many of the concerns of these questions are works in progress. As such, they require open debate, negotiation and consensus.

On July 26, Ramdas Tikamdas of Hakam said that Mahathir's declaration that Malaysia is an Islamic state has inevitably affected human rights

I would say that the declaration complicates matters certainly, but Ramdas would agree with me that we did not have a good record for the protection of human rights by the executive, parliament and the judiciary, even before the Sept. 29, 2001 declaration.

Our rights are made subject to or whittled down by successive laws, such as the Police Act, the Sedition Act, the Official Secrets Act, the Printing Presses and Publications Act, the ISA, to name a few.

It is more important to note that whatever may be - regardless of the nature of the state - we should have a clear and consistent commitment to human rights.

Being an Islamic state as per Umno or PAS, or instilling Islam Hadhari, does not appear to have brought us to a higher level of commitment to human rights. I have no real impression of Islam Hadhari save for the nagging thought that it was perhaps an attempt to smooth over the Mahathir 'Islamic state' declaration.

Abdullah Ahmad Badawi in his earlier speeches as prime minister said that Islam is not to be an ideology of the state, but this rhetoric remains vague in terms of policy, law and practice. Certainly his religious advisers have a lot more work to do than crafting his speeches.

Narrow ideological vision

Coming back to the point raised by Ramdas, it is problematic to accord religion to a state. Jennings, a member of the Reid Constitutional Commission, 1957 recorded the same misgivings in his personal notes (Fernando, 2002).

An-Naim (2004) writes that a state, as a political institution, cannot have a religion. To enforce Islam as a state religion would mean that what is being enforced will necessarily be the view of Islam held by the ruling elite.

There is a "paramount danger of allowing such claims to prevail because they will force others, Muslims as well as non-Muslims to live by the narrow ideological vision of the elite".

In the context of religious freedom, the "narrow ideological vision of the elite" is manifested in the selection of fiqh (opinions of jurists, which premises law) views in policy and law, which criminalises apostasy. Was this a decision reflective of Jakim's "socials demographics" in the country?

The Quranic injunction that there is no compulsion in religion (2:256) has been subverted in preference for a state law that requires the state to mete out punishments, including a period of rehabilitation for recantation.

Death or incarceration for apostasy contradicts the principle of non-compulsion. With the exception of the infant conversion to Islam case of Chang Ah Mee (2003) our civil courts are reluctant to support the wider view of non-compulsion in deciding or reconciling issues outlined in Article 11 on freedom of religion.

Verse 2:256 was revealed, when a convert to Islam from the tribe Salim ibn Awf brought his sons before the Prophet, grieving over their Christian faith.

The man sought the Prophet's help in persuading his sons to accept Islam. The verse was revealed to the Prophet and the man had to leave his sons in their faith.

This event brought forth several interpretations by scholars. Tabari narrowly viewed the event and opined that the verse is limited to Christians and Jews, thus denying those outside these categories religious freedom.

Zamakhshari viewed 2:256 with another verse in 10:99 (And had your Lord willed, everyone on earth would have believed. Will you then, [O Muhammad] compel mankind until they become believers?) in making the point that all humans have freedom of religion, belief and conscience (Baderin, 2003).

Open to interpretation

The point of this short excursion is to inform the reader of the existence of both narrow and wide interpretations of 2:256. There are others. I am only listing two, to emphasise that when Muslims say "Islam says", or "God says", they may not necessarily say all there is to say on the subject.

Their views may also be influenced by the views of the local Muslim elite or the selected Pusat Islam opinion drafted into law.

Mashood A. Baderin (Nigeria) has produced an excellent and accessible work in identifying fiqh opinions to the standards of human rights in international instruments. He references medieval Islamic works on the subject as well as contemporary scholars.

Baderin adds 6:107-108 to the no-compulsion principle, which I find extremely relevant to our rehabilitation laws.

The verses say, "Had God willed, they would not have taken others beside Him in worship and We have not made you a watcher over them nor are you set over them to dispose of their affairs. And insult not those whom they worship besides God, lest they insult God wrongfully without knowledge. Thus We have made fair-seeming to each people its own doings; then to their Lord is their return and He shall then inform them of all that they are used to do."

Before Ramadan, a friend informed me that he went to a lecture in the Klang valley sometime in late September where one senior member of the Bar (of two speakers, both from the Malaysian Bar) cited the old Singapore case of Maria Hertogh (aka Natra) to make the point of how "Muslim tempers flared" when "our religion is in danger".

In the case of Maria Hertogh, a Dutch child was left in the care of a Malay woman in Singapore during the Japanese occupation. The infant was brought up Malay and Muslim. In a tussle for custody after the interregnum, the Dutch Christian parents won under the Singapore Guardianship of Infants Act as the child was not 18 years old.

A celebration of the Prophet Muhammad's birthday went out of control when Muslims rioted. The incident was attributed to the outcome of the case.

Maria Hertogh was undoubtedly a very difficult case, as are cases of any infant conversions like our own Susie Teoh (1966), Chang Ah Mee (2003) and Shamala (2004) cases.

However I would relegate the point of 'Muslim tempers flaring when our religion is in danger' on the same line as Jakim's "social demographics," as these sentiments are likely to lead our communities more in error, than in understanding.

Muslims have a duty to propagate peace and understanding and Muslims have to be clear on issues of religious freedom, which is supportive of the wider non-compulsion principle supported by medieval and contemporary Muslim scholarship.

It is noted that the acceptance of religious freedoms contained in Article 18 of the Universal Declaration of Human Rights (Udhr) and the International Covenant on Civil and Political Rights (Iccpr) has not been easy.

Egypt, Saudi Arabia, Yemen and Afghanistan pressed for the deletion of Article 18 Iccpr. These objections were also raised to Article 18 Udhr, but were defeated.

Reservations to the draft of Article 18 Iccpr were lifted when countries unanimously adopted the draft proposed by Brazil, the Philippines and the United Kingdom. The negotiated clause that religious freedom "shall include freedom to have or adopt a religion or belief of (one's) choice" was accepted.

Saudi Arabia, in support of the negotiated clause recognised that freedoms to change, maintain and even renounce one's religion or belief were implicit in the right to freedom of thought, conscience and religion.

References:

Mashood A. Baderin (2003), International Human Rights And Islamic Law (Oxford: Oxford University Press) especially pp 118- 125. I have not included the fiqh debates on death for apostasy. This is discussed in this book.

Abdullah A. An-Naim (2004) The Future of the Shar'iah Project. A work in progress. Manuscript with author; idem, (1986), "The Islamic Law of Apostasy and its Modern Applicability: A Case from Sudan," Religion. Vol 16 197-223

Bahiyyah G. Tahzib (1996), Freedom of Religion or Belief: Ensuring Effective International Legal Protection, International Studies in Human Rights (The Hague: Martinus Nijhoff Publishers)

Joseph M. Fernando (2002), The Making of the Malayan Constitution (Malaysian Branch of the Royal Asiatic Society)

Julie Stone Peters (1999), "Reconceptualising the Relationships Between Religion, Women, Culture and Human Rights," in Carrie Gustafson et.al (eds), Religion and Human Rights: Competing Claims? (Armonk, NY: M.E. Sharpe), 140-144