Faith, Hope, and the Charter

By Mujtaba Hamdi

PETALING JAYA, Malaysia –  Dead men may not tell tales, but here in Malaysia, the demise of a mountaineer sparked a nationwide debate on the country’s constitution and led to the formation of a coalition of nongovernment organisations (NGOs) called Article 11. The debate was still raging as this was being written, but even then more and more Malaysians were already taking a second look at what their charter had to say about religion.

Before the death of popular mountaineer Moorthy Maniam on December 20, 2005, and and the subsequent fight over his body between his wife Kaliammal and Majlis Agama Islam Wilayah Persekutuan (the Islamic Religious Council of the Federal Territory), few Malaysians had probably given any thought to the constitutional provision regarding religion (Article 11). The country’s leaders, after all, like to emphasise Malaysia’s multi-cultural heritage, as well as its tolerance of various faiths – of which there are quite a few in Malaysia. Almost 60 percent of the 25.6 million Malaysians are Muslim, while Buddhists make up some 19 percent. About nine percent are Christian, and six percent Hindu. Followers of Confucius, tribal religions, and other faiths make up the rest.

Then Moorthy died. His family wanted to bury him as a Hindu, but the Islamic Religious Council wanted the army lance corporal — who was considered a national hero, being the first Malaysian to scale Mt. Everest — buried according to Muslim rites. Two days later, the Syariah Court decreed that Moorthy had converted to Islam before he passed away, and was even known as Muhammad Abdullah.

According to the Malaysian Constitution, Islam is the religion of the Federation of Malaysia. But even if it also says other faiths may be practised in peace and harmony, the case of Moorthy — along with other previous legal disputes involving religion — has led some people to observe that minority religions often wind up at the losing end whenever the other party happens to be Muslim.

It was with such thoughts that I arrived at the office of Sisters in Islam (SIS) here in Petaling Jaya, a satellite city of Kuala Lumpur, to meet up with Norhayati Kaprawi, the group’s programme manager for public education. SIS was among the initiators of Article 11, which groups together 13 NGOs that are bent on educating Malaysians on the charter’s provisions regarding religion.

After some small talk, we began discussing events that had taken place recently and touched on trends in religious worship in Malaysia and Indonesia, two nations that share a common linguistic heritage and which are both predominantly Muslim. Recently, both countries have also had to face questions about religious tolerance – or more precisely, the supposed lack of it among some sectors in their respective societies.

I asked Norhayati what Article 11 was planning next in the aftermath of the May 14, 2006 incident in the northern island of Penang, where the coalition’s forum, “Federal Constitution: Protection for All”, had been disrupted by some 200 Muslim demonstrators.

Norhayati’s reply was confident: “We will still continue whatever our schedule is, because we plan to do a road show.”

Conversion and apostasy

The “Federal Constitution: Protection for All” forum in Penang, in fact, was part of that road show. Similar forums had previously been held in Petaling Jaya and Malacca, a historic city 150 km south of the capital city, and more forums had been slated for other towns. When we met, neither Norhayati nor I had any inkling that coalition’s road show would be put in limbo following the government’s directive to stop sensitive discourse on race and religion — especially Article 11’s forums. As Norhayati stressed, the road show “was just to explain to the people what the Constitution says”.

Because the Constitution had declared Islam as the religion of the Federation, some had interpreted that to mean that Malaysia is an Islamic country or state. Others, though, have insisted the country was meant to be secular, since the charter also emphasises respect for other religions.

It was not until 1988, however, that the interpretation of Malaysia as an Islamic state began to gain more ground. That was when a Constitutional amendment gave the Syariah Court jurisdiction over all matters relating to Islam. Since then civil courts have been reluctant to touch such issues. As a result controversies such as those involving the dead mountaineer have erupted, and Article 11 was formed and pushed to go on the road to explain matters to the people.

The test case regarding conflicting jurisdiction of syariah and civil courts in Malaysia in fact began a good three years before Moorthy’s death: Shamala Sathiyaseelan v Dr. Jeyaganesh C. Mogarajah.

Shamala and Jeyaganesh used to be married. They had two children, Saktiswaran and Theiviswaran. Jeyaganesh, like Shamala, was a Hindu. In 2002, however, he converted to Islam and changed his name to Muhammad Ridzwan Mogarajah. He then registered the children as Muslims without Shamala’s knowledge and consent, and also obtained a custody order for the children from a syariah court.

Shamala contested this all this all the way to the High Court and eventually regained custody of her children. But the court explicitly cautioned her from “influencing the infants’ religious belief by teaching them her articles of faith or by making them eat pork”. Otherwise, it said, she could lose them again. The rationale given was that the court “cannot run away from the fact that the two infant children are now muallaf (converts to Islam)”.

When Shamala went to a civil court to cancel her children’s new religious status, Justice Faiza Thamby Chik said that only syariah court had jurisdiction in such matters.

In 2001, Justice Chik had also held that Lina Joy, a woman in her 40s who had converted to Christianity, was still a Muslim and could not leave the faith. The magistrate also said the matter remained within the jurisdiction of syariah courts.

Lina used to be known as Azlina Jailani before she converted to Christianity in 1997. She applied to have the information on her identity card changed to reflect her new religious status, but the National Registration’s Department (NRD) refused to make the changes.  An NRD officer stated in 1999 that they could not comply with Lina’s wish unless a syariah court decided in her favour.

After receiving Justice Chik’s decision, Lina filed an appeal. But Justice Abdul Aziz Mohammad and Justice Ariffin Zakaria upheld the previous decision, reasoning that only syariah courts had the right to decide on the case. Justice Gopal Sri Ram saw it differently, but his was a minority view.

The case of the mountaineer

Hands down, though, it is Moorthy’s case that has attracted the most attention so far. Like many other Indian Malaysians, Moorthy was born a Hindu and brought up as one. When he and Kaliammal married in 1995, two years before his historic climb of Mt. Everest, they did so at a temple in Taman Selayang, in Selangor state. For much of his life, he was known as a faithful Hindu who observed all the usual religious customs. According to Kaliammal, throughout their marriage, Moorthy often prayed in the temple and observed Thaipusam (a Hindu festival to honour Lord Murugan) by shaving his hair, carrying a paal kodam (milk pot) and using holy ash in Batu Caves, the most popular and famous Hindu pilgrimage site in Selangor.

But tragedy struck on August 14, 1998. While Moorthy was in a training camp, he had an accident that left him paralysed from waist down. His memory was also affected.

More bad luck followed. When he was visiting a disabled persons centre, Moorthy fell from his wheelchair. He was immediately taken to the nearby Selayang Hospital. Unfortunately, it was not equipped adequately, and Moorthy was transferred to the Kuala Lumpur Hospital while he was still in a coma. Yet it was not until that fateful day in December 2005 that his heart finally stopped beating.

Moorthy’s body was not immediately buried because his religious status was soon in dispute. Kaliammal found herself up against the Islamic Religious Council, insisting that her husband had been a Hindu his entire life, not a Muslim. Kaliammal also insisted the document that stated Moorthy had converted to Islam stood on weak legal ground. She thus proceeded with legal action to get the Kuala Lumpur Hospital to return her husband’s body to her and the family, and to prohibit the Council from taking Moorthy’s body away from the hospital.

In her affidavit, Kaliammal reiterated that Moorthy had been a devout Hindu. As late as 2005, using a wheelchair, he had taken part in a Hindu ceremony, carrying a paal kodam at Batu Caves. Members of the People’s Volunteer Corps (Rela) helped Moorthy reach the Sri Subramaniam temple, located in a cave at the top of a 272-step staircase.

Losing Moorthy all over again

Kaliammal said she had also witnessed Moorthy eating pork, consuming liquor, and carrying out other deeds that showed that he was not a Muslim. For instance, on November 1, 2005 Moorthy’s elder brother, Gophal, brought a box of alcoholic drinks for Moorthy. Together with other guests, Moorthy shared the drink. Furthermore, said Kaliammal, Moorthy had never been circumcised. Moorthy’s close friend, Chandiran Periasamy, and older brother, Tenmuli Maniam also drew up affidavits that supported Kaliammal’s claims regarding Moorthy’s faith.

But Justice Mohd Raus Sharif said simply that the civil court had no right to hear a case that had been already decided by a syariah court. The decision, he added, was made with reference to Section 121 (1A) of the Constitution, which states that the High Courts and inferior courts shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.

The decision meant Kaliammal and her family had no chance to pay their last respects – according to Hindu rites – to Moorthy. On the same day the civil court’s decision was handed down, the Islamic Religious Council took the body of Moorthy alias Muhammad Abdullah from the hospital under tight police security. At noon, the Council buried his body at the Taman Ibukota cemetery in Gombak, Selangor; Kaliammal had lost Moorthy all over again.

The grieving widow nonetheless continued to seek redress. On January 24, 2006, she applied for the case to be reviewed, listing 50 arguments to support her position. On June 20, the hearing began.

In the meantime, about 30 Hindu organisations under a coalition called Hindu Rights Action Force (Hindraf) had petitioned the King, asking him to suspend Justice Mohd Raus Sharif and remove him from the bench. In its petition, Hindraf said the justice had failed to perform his duty as mandated by the Constitution, and had committed serious misconduct as judge. Hindraf Press Secretary P. Waytha Moorthy said, “We have no choice but to submit the petition to the King as the law has failed to take care of minority rights.”

Road show on rights

Then of course there has been Article 11, which aside from SIS includes the Women’s Aid Organisation (WAO), the All Women’s Action Society (Awam), the Women’s Development Collective (WDC), the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS), the Catholic Lawyers Society, the Interfaith Spiritual Fellowship, the Bar Council of Malaysia, the Pure Life Society, the Vivekananda Youth Group, Suara Rakyat Malaysia (Malaysian People’s Voice) or Suaram, the National Human Rights Society (Hakam), and the Malaysian Civil Liberties Society (MCLS).

The coalition’s road show, with the theme “protection for all”, had kicked off with a forum on March 12, 2006 here in Petaling Jaya. Among the speakers during the half-day event were activists and lawyers, including WAO executive director Ivy Josiah, MCLS founder Zaid Ibrahim, lawyer Malik Imtiaz, former Bar Council president Dr. Cyrus Das, and constitutional law scholar Dr. Shad Saleem Faruqi.

Ivy Josiah expressed her regret over Moorthy, Shamala, Lina and other similar cases: “The current trend is divisive and unhealthy as it leads to the creation of two separate societies within one country,” she said. During the discussion session, many among the 700 people in the audience took their turn voicing their concern. Among them was a Muslim Malay who complained that even Muslims were not allowed to have different insights and practices that differed from that accepted by more powerful sectors.

At the end of the forum, people signed a petition aimed at protecting the right to religious freedom under the Constitution. All in, 450 signatures were collected as a sign of support and solidarity. The petition maintained that Malaysia is not an Islamic state.

“The Supreme Court decision in Che Omar Che Soh (1988) reaffirmed that ‘the law in this country is still what it is today, secular law’,” it said. “In recent cases in the High Courts, judges have declined to adjudicate on pressing issues simply because they involve some elements of Islamic law, leaving litigants without any remedy. This is a most unsatisfactory state of affairs and one which no civil society must endure.”

Support and protests

To broaden public support for the petition, an online service was provided to enable others to express their support and to participate through a website. The plan was to have the petition to be forwarded to the prime minister once an optimum number of signatures was gathered.

April 22, 2006 marked Malacca’s turn to host an Article 11 forum. This time, almost 600 people attended. The first speaker, WAO president Meera Samanther, discussed the Moorthy dispute. Then Dr Shad Saleem discussed section 121 (1A) that was always referred to by the judges. Dr. Shad insisted that any decisions that touched on fundamental rights fell under the jurisdiction of the civil courts, not the syariah courts.

On May 14, 2005 came the forum in Penang that attracted some 200 people. But it was disrupted when an equal number of people chanted outside where the forum was being held, and demanded that it be called off. Read the pamphlets being given away by the protesters: “War against Liberal Islam!” and “The laws of Allah precede Human Rights!”

Several protesters were also able to get the hotel and into the forum, where they again demanded that it be stopped. Half an hour later, and before a couple of the invited speakers had a chance to speak, police “advised” the organisers to stop the proceedings.

“A challenge to syariah”

For several days after, the Penang incident was front-page news. Mohd Azmi Abdul Hamid who had been reported as the man behind the protest organised by Badan Bertindak Anti-IFC (The Anti Inter-Faith Commission Body) or Badai explained to the New Sunday Times:” This forum is being seen by Muslims as a challenge to syariah. We cannot allow this.”

For Azmi, the forums not only undermined syariah courts but also attempted to condone apostasy. As for Article 11’s signature campaign for its petition, he said, “They are collecting signatures to make it look like syariah is full of injustice.”

Another media report cited Hafiz Nordin, the secretary-general of the Penang chapter of the Ulamas Association of Malaysia, as saying that the protesters were worried that the forum would discuss apostasy. “We had intended to stop their road shows in Kuala Lumpur and Malacca, but since it was too late for that, we decided to stop that in Penang,” he said.

With strident statements dogging its every step, Article 11 decided to hold a press conference, during which Ivy Josiah announced that the coalition would have another forum, this time in Johor Baru. “This forum was not organised to insult any religions or ethnic group,” she said.

Yet threats came pouring in anyway, apparently to force Article 11 to cancel the forum. Observed Josiah, who reported that WAO had received threatening text messages and phone calls: “Threats and intimidation of this kind are totally unnecessary.”

Another forum cut short

The Article 11 forum in Johor Baru pushed through on July 22, 2006. But like in Penang, it was cut short on recommendations from the police. The Star newspaper later reported that at least 400 protesters from various Islamic groups gathered outside the venue, denouncing the forum as an “anti-Islam act”. They also declared, “We are ready to sacrifice for Islam.”

Three days after, Prime Minister Abdullah Badawi issued an executive order ending all planned forums of Article 11 coalition for fear of stoking religious fervour. The order was hailed by various Islamic groups such as Badai, as well as by muftis and several Muslim NGOs. They said it was a long-awaited call of the Muslim majority in Malaysia.

In a statement, Badai stressed that it had urged the premier to act against the Article 11 coalition in a memorandum submitted in early March.

But not all Muslim groups apparently thought the same. The deputy president of the Islamic missionary group Jamaah Islah Malaysia (JIM), Syed Ibrahim Syed Noh, told the online publication Malaysiakini that the Malaysian government should have taken a more amicable approach over discussions on religious freedom.

“Generally speaking, there should not be any suppression of the expression of opinions on inter-religious issues,” said Syed Ibrahim. “These are sensitive issues. Racial and religious issues are always sensitive but suppression is not a solution either.”

Prior to the stoppage of the Article 11 forums, JIM and even the Islamic political party Parti Islam Semalaysia (PAS) had softened their stance, and eventually yielded to the calls to sit down and discuss the controversial issues regarding the practice of other religions in Malaysia.

Discussions and diversity

SIS’s Norhayati would view these as indications that the mainstream Muslim society in Malaysia is ready to face the questions on religious freedom. She would also be quoted as saying, “Time will come when my fellow Muslims will realise that there is really a need to discuss these issues. Maybe some (groups) are not ready yet but I know it will come.”

But when I had an hour-long chat with her at the SIS headquarters, she was still lamenting how many Muslim groups in Malaysia seemed to be interpreting Islam very narrowly.

“There is not much diversity in Malaysia,” she said. “It is either black or white. Many people are surprised as (they have this) image of (a) modern, open-minded Malaysia. In fact, it is closed and rigid. It appears liberal outside, but too conservative towards religious matters.”

Norhayati then showed me a column that ran that day in a local newspaper. “Look at this,” she said, and I followed her finger to this line: “‘Islam… forbids apostasy. Therefore, a Muslim cannot leave Islam as it is both a crime and a sin.”

The title of the piece was “Freedom to do what is right.” Its argument was that every human being has rights, but not the right to do wrong. Leaving Islam was wrong; therefore, there was no right to opt out of Islam.

Norhayati and I were still looking the article over when SIS director Zainah Anwar joined us. “Just clear cut, as if there is no other view: ‘Islam forbids apostasy,’” said Zainah, when she saw what we were reading. “As if (the) Koran never states that ‘let there be no compulsion in religion’,” she added, referring to the sentence la ikraha fid-din in al-Baqarah verse 256.

“(In fact) many ulamas (scholars) believe that there is freedom of worship,” Zainah noted. “Tantawi believes in freedom of religion.” She was referring to Sheikh Muhammad Sayyid al-Tantawi, the Grand Mufti of Al-Azhar in Cairo, Egypt.

Norhayati and Zainah then compared the state of Islam in Malaysia to that in Indonesia. They saw Indonesia as being more open-minded, free to debate and not prone to black-and-white views regarding religion. They also said that Indonesia’s Islamic boarding schools, known as pesantrens, had a strong tradition of tolerance. “Progressive scholars (are) more dominant in Indonesia,” they concluded.

More or less, I shared their view about the pesantrens, as I have experienced studying in them. But much as I wanted to agree with them about progressive scholars being dominant in Indonesia, I found myself hesitating. With violence on behalf of Islam occurring more often in my homeland, I just wasn’t sure how accurate that observation was.  – With additional reporting by Allen V. Estabillo

Mujtaba Hamdi is a writer from Syir’ah, a monthly Muslim magazine in Jakarta that promotes religious openness and diversity. This story was written originally in Bahasa Indonesia.