The Book of Prof Shad.docx

Several states have enacted laws that permit the

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Several states have enacted laws that permit the arrest and rehabilitation of apostates. Variously referred to as Restoration of Aqidah or apostasy or murtad laws, these enactments shake constitutional theory to its roots. They pit state law on apostasy against the Federal Constitution’s guarantee of religious liberty. They pit state law against international law. They put the conservative interpretation of religious freedom in Islam on a collision course with Article 11. From a constitutional law point of view, apostasy laws raise difficult constitutional issues under Articles 3, 5, 10, 11 and 12. Though Islam is the religion of the federation under Article 3(1), it is stated in Article 3(4) that nothing in this Article derogates from any other provision of the Constitution. This means that constitutional rights in Articles 10, 11 and 12 are not extinguished despite the adoption of Islam as the religion of the Federation. The aqidah (basic faith) laws cannot be immune from challenge because of the explicit language of Article 3(4). Article 3(1) does not override Article 11(1). Forced rehabilitation will be an interference with personal liberty guaranteed by Article 5(1). The validity of the aqidah law may, therefore, be challenged. Habeas corpus may be applied for though on the present realities it is unlikely to issue because of the civil courts’ broad interpretation of the exclusionary effect of Article 121(1A). Article 10(1)(a) guarantees speech and expression. A murtad (convert out of Islam) may claim that the rehabilitation law violates his rights under Article 10 unless aspects of public order can be used to defend the murtad law. Article 10(1)(c) guarantees the right to associate. Inherent in this right is the right to disassociate. See Dewan Undangan Negeri Kelantan v Nordin b. Salleh [1992] 1 MLJ 343 about the right to leave a political party and join another. The freedom in Article 11(1) is broad enough to permit change of faith. Though Article 11(4) restricts propagation of any religion to Muslims, the law nowhere forbids voluntary conversion of a Muslim to another faith. Any attempt to keep a person within the fold by compulsion is both unconstitutional and contrary to the spirit of tolerance that the Holy Qur’an mandates in Surahs 2:256, 10:99 and 109: 1-6. Article 12(3) says that no person shall be forced to receive instruction or take part in any ceremony or act of worship of a religion other than his own. The forced rehabilitation laws will fall foul of this guarantee. In sum, the aqidah laws have triggered a massive constitutional debate that has pitted religion against the Constitution and has disturbed the delicate social fabric that held us all together for 50 years. 66
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Civil courts’ approach : Litigation involving apostates has dragged our superior court judges into legally difficult, politically controversial and religiously painful dilemmas. The civil courts are cognisant of Article 4(1) that the Constitution is supreme; of Article 11(1) that every one, including a Muslim, has freedom
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