An Indian woman whose Hindu wedding was recently disrupted by Selangor Islamic officials insisting she is Muslim despite her efforts to leave Islam has again put the spotlight on the difficulties in exiting the religion.
Like many Malaysians who dispute their official identities as Muslims, she was told to go to the Shariah courts in order to remove the status from her official documents.
Despite being the standard response in such instances, little is known of the procedure and potential dangers — detention, fines, jail, whipping and even a theoretical death sentence — that one might face in such applications.
In a recent interview with The Malay Mail Online, the Department of Syariah Judiciary Malaysia (JKSM) said that the Islamic courts are the only place according to current laws for Malaysians seeking to be no longer known as a Muslim.
Non-Muslim or apostate?
Explaining the process for a switch in religious status, JKSM identified two types of applications at the Shariah courts, namely to renounce Islam or for a declaration that one is no longer Muslim.
The first involves practicing Muslims regardless of ethnicity who want to renounce Islam and convert to other faiths; the JKSM said it could not find any such application in its official records, however.
For the second type of application, JKSM further carves up applicants into three categories. The first subgroup are those mistakenly listed as Muslims because of naming conventions, typically involving residents of Sabah and Sarawak.
Another group covers those who embraced Islam but now wish to revert to being non-Muslims, which includes applicants who had converted when marrying a Muslim but want out of the religion after the marriage fails.
The last includes non-practising Muslims who want to be recognised as non-Muslims, with this third group cutting across ethnicity; this includes those who were born as Muslims and “by virtue of the documents are Muslims, but never practise the religion of Islam”, it said.
Children from an initial non-Muslim marriage who were unilaterally converted by one of the parents who had converted to Islam also fall within this third group. They may apply personally to be recognised as non-Muslims once they are 18 years old.
According to Muslim non-governmental organisation Sisters in Islam, Islamic Affairs Minister Datuk Seri Jamil Khir had in 2011 said that the Shariah Courts had only approved a total of 135 out of 686 applications by Muslims seeking to change their religious status for the 2000-2010 period.
Two classes of applications but one route for both
According to JKSM, the procedure for anyone who wishes to renounce Islam or declare a change in religious status is the same, regardless of which category they fall under. In a typical application by way of summons, the state religious council and department — who are interested parties as keepers of the record of conversions — will have to answer the case in the Shariah court as defendants.
Usually, the defendants will file a response stating the reasons why they object to the application, and apply to the Shariah Court to send the applicant for counselling sessions that typically last in most states for a maximum of six months.
“The plaintiff will be sent to a committee to reconcile, to persuade him or her to remain in the religion,” JKSM said, noting that Negri Sembilan is the only state with laws on the procedure to renounce Islam. The Administration of the Religion of Islam (Negri Sembilan) Enactment 2003 states that counselling sessions should not exceed 90 days, but also allows the Shariah court to order a further counselling session not exceeding a year if it believed “there is still hope that the person may repent”.
The reconciliation committee will submit a report to the Shariah court, with a repentant applicant then resulting in the case being either struck out by the courts or being withdrawn on the request of the state religious council or the applicant himself, JKSM said.
But if counselling is unsuccessful, the court will hear evidence from both sides before deciding whether to allow or dismiss the application. There is “no penalty” and no mandatory counselling session if the Shariah court rejects the application, while applicants also have the right to appeal, JKSM said.
Attempted apostasy: A Catch-22 scenario?
Successful applicants may find their victory in the courts bittersweet. According to JKSM, five states in Malaysia have laws that prohibit apostasy or attempted apostasy.
For Sabah and Kelantan, those found guilty of attempted apostasy will be detained in Islamic Rehabilitation Centres until they repent or for up to 36 months, while those in Malacca would face up to six months of detention in such centres.
Those convicted of apostasy in Perak may be fined up to RM3,000, jailed for as long as two years or both; in Pahang, this is RM5,000 or three years along with as many as six lashes of the cane or a combination of any of these three penalties.
According to SIS, Kelantan technically has a death penalty for apostasy, but this falls under the 1993 hudud penal code that it cannot yet enforce due to conflicts with federal law.
Under Terengganu’s 2002 Islamic criminal laws which it also cannot enforce now, any Muslim who fails to repent within three days upon conviction of apostasy will also be sentenced to death, SIS said.
JKSM said the Syarie chief prosecutor has the “absolute right according to the law” to initiate criminal proceedings for apostasy or attempted apostasy against those who seek the Shariah court’s declaration of change of religious status.
But it also said it had no records of the states’ Syarie chief prosecutor doing so.
“Of course it is quite an anomaly if you give an opportunity for a person to file an application which is tantamount to ‘percubaan murtad’ (attempted apostasy), and at the same time you make it as an offence. That is the reason, because of that contradiction, so far we have not come across,” JKSM said.
Why no Malay Muslims applicants?
Having laid out the steps to leave Islam, however, the JKSM said that its records showed that no Malay Muslims have ever applied to change their religious status, acknowledging that this may be due to the constitutional definition of a Malay as Muslim, among other things.
“It could be one of the reasons. The landmark case of Lina Joy — in that case the Federal Court has confirmed the interpretation, the stand taken by Datuk Faiza Thamby Chik who was the presiding High Court judge where he interpreted Islam or Malay and the religion of Islam as two integral parts, that means if you were to be known as a Malay, you have to be a Muslim at the same time,” JKSM said.
Born Azlina Jailani, the Malay Muslim who converted to Christianity and later sought official recognition as Lina Joy would have been the first of her kind to apply at the Shariah courts for a declaration of her religious status. But after failing to get her religious status in her identity card changed, she did not file an application at the Shariah courts and is believed to have fled the country.