Bahan ini dibentang di usrah Pertubuhan Muafakat Sejahtera Masyarakat Malaysia (MUAFAKAT) bulan Julai 2013

UPRTanggal 24 Oktober 2013 bakal menyaksikan giliran Malaysia menjalani pusingan kedua sesi Semakan Berkala Sejagat (UPR) yang dikendalikan Majlis Hak Asasi Manusia, Pertubuhan Bangsa-bangsa Bersatu (UNHRC) di Geneva, Switzerland. Sesi UPR ini dilakukan bagi menyemak rekod dan pencapaian hak asasi manusia sesebuah Negara anggota PBB. Semasa pusingan pertama yang telah dijalankan pada tahun 2009, sebanyak 62 syor telah dikemukakan kepada Malaysia tetapi Malaysia telah menerima untuk mempertimbangkan kira-kira 34 syor yang telah dikemukakan.

Tekanan-tekanan yang wujud dari kalangan pertubuhan-pertubuhan hak asasi manusia tempatan mahupun luar Negara terhadap beberapa perkara pokok berkaitan rekod hak asasi manusia ini perlu diberikan perhatian sewajarnya oleh kerajaan Malaysia. Bagi isu-isu yang terkait dengan kedudukan Islam sebagai agama persekutuan, pertubuhan-pertubuhan Islam Bukan Kerajaan (NGI) perlu memberikan tumpuan khusus memandangkan wadah seumpama UPR ini adalah antara mekanisme yang digunakan NGO-NGO Hak Asasi Manusia yang beracuan sekular untuk menyebarluaskan fahaman liberalisme, pluralisme dan sekularisme mereka serta mencanang gaya hidup bebas yang menjunjung faham kebebasan tanpa batas termasuk mengizinkan tindakan meninggalkan agama (murtad) bagi orang Islam serta orientasi seks bebas atau dikenali sebagai LGBT).

Latar belakang hak asasi manusia dan kebebasan mutlak berfahaman Barat inilah yang menjadi asas pada sebahagian memorandum yang dikemukakan beberapa NGO Hak Asasi tempatan seperti Gabungan NGO Malaysia di dalam Proses UPR (COMANGO) melalui memorandum yang dikemukakan pada Februari 2009, hujahan bersama Article 19 dan SUARAM bertarikh 11 Mac 2013, laporan European Centre for Law & Justice (ECLJ) berhubung Kebebasan Beragama di Malaysia (2013), hujahan International Commission of Jurists (ICJ) bulan Mac 2012 (sekadar menyebut beberapa dokumen rujukan).

Pada hakikatnya, isu-isu yang dikemukakan jelas bertujuan untuk menekan Malaysia untuk tunduk terhadap norma-norma antarabangsa yang pada hakikatnya mengikut acuan faham secular barat yang menjunjung isu-isu mencabar aqidah dan syariah seperti liberalisme, pluralisme dan sekularisme.

Nota ini cuba meneliti sebahagian perkara-perkara pokok yang menjadi ancaman utama kepada usaha mempertahankan kedudukan Islam di Malaysia.

1.     Isu Kebebasan Beragama

Memorandum Februari 2009 “The Coalition of Malaysian NGOs in the UPR Process (COMANGO”)

Perenggan B5 m/s 2: “Since the late 1980s, there has been an increase in the presence of Islam into the public sphere even though “Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only.” In contravention of the 9th Schedule of the FC, the Government of Kelantan enacted hudud laws which, among others, made theft a crime under Syariah laws even though it is already a crime under the Penal Code. No action was taken by the Federal Government to declare the hudud laws ultra vires the FC. The unanimous decision of the same Supreme Court case of Che Omar also held that Malaysia is a secular state.”

Perenggan B7 m/s 3: “…in the period under review, there has been conflict of jurisdiction issues which relate to competing rights. Examples: The 1) conversion of non-Muslim spouses to Islam and its effects  on the non-Muslim family; the 2) dispute over the bodies of purported Muslims; and the 3) discussion of the rights under Article 11 of the Federal Constitution which guarantees freedom of religion.” (These issues will be more fully addressed in the submission by the Bar Council of Malaysia)

Perenggan B8 m/s 3: “…in violation of the freedom of religion, a number of Hindu temples were demolished by the local councils. In 2007 alone, the known ones included the 100-year old Sri Maha Mariaman Hindu temple (Shah Alam, October), Sri Maha Periyachi Amman temple (Melaka, July) and the Sri Kaliaman temple (Shah Alam, June). There is poor implementation of policies and guidelines for the erection, demolition, relocation or replacement of palces of worship for non-Muslims.”

Perenggan B9 m/s 3:  In Malaysia, Sunni Islam is the officially accepted school of thought. Any other forms, practices or school of thoughts in Islam may be considered deviant. Islamic authorities have powerful influence over the administration of religious matters at the state and federal levels. This includes determining “true” Islam. Example, in 2007, a gathering of Rufaqa’ Corporation (owned by former leader of the banned Darul Arqam movement) was interrupted by the Penang Islamic Religious Affairs Department on the grounds that it violated Islamic law and 43 were charged…”

Perenggan B10 m/s 3: – There is also an Islamisation policy that targets the conversion of the Orang Asli community which would restrict their freedom to freely to participate in the cultural life of their communities, and to enjoy the arts. (This issue will be fully addressed in the submission by Jaringan Orang Asal Semalaysia (JOAS)).

European Centre for Law and Justice (ECLJ) UPR Submission Malaysia 2013

Perenggan 2 m/s 1: Government Restricts Religious Freedom and Discriminates Against Minorities

2. The 2009 UPR expressed concerns “about the rights of non-Muslims in cases involving Shar’iah law and freedom of religion.”2 It recommended that the Malaysian government “continu[e] to guarantee religious freedom by taking away any impediment to the full enjoyment of this basic human right for all its citizens.”3 Article 10 of the Constitution of Malaysia provides that “every citizen has the right to freedom of speech and expression,”4 and “[e]very person has the right to profess and practice his religion and, subject to Clause (4) to propagate it.”5 Clause (4) gives state and federal governments the right to “control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.”

Perenggan 5 m/s 2:

Apostasy Laws

5. The Constitution of Malaysia defines all ethnic Malays as Muslim. In Malaysia, “conversion from Islam to another religion is a criminal offense, punishable by a fine or a jail term.” “Muslims who deviate from accepted Sunni principles [are] subject . . . to mandatory ‘rehabilitation.’” Additionally, the “government strictly prohibits religious groups from proselytizing Muslims, although proselytizing non-Muslims is allowed.” Currently, there are no reported cases in which apostasy has been punished. However, “Muslims who seek to convert to another religion must first obtain approval from a Sharia court to declare themselves ‘apostates.’” The mandatory diversion of conversion cases to Sharia courts dramatically reduces the likelihood of a Muslim being able to convert to another religion because Sharia courts “seldom grant such requests and can impose penalties . . . on apostates.” Practically, the only time Sharia courts grant conversion requests is when “non-ethnic Malay individuals who had previously converted to Islam for marriage . . . were seeking to reconvert to their previous religious affiliation after their marriages dissolved.” Even in these exceptional circumstances, Sharia courts deny apostasy requests.

Perenggan 6 m/s 3:

Although Malaysia is not a party to the International Covenant on Civil and Political Rights (ICCPR), as a UN member, it is nevertheless obligated to protect the fundamental rights of its citizens equally. Freedom of religion is a fundamental right, which neither the ICCPR nor the Universal Declaration of Human Rights (UDHR) limit under any circumstances, unlike the limitations that may be placed on the freedom of expression. Because of the general acceptance of both the ICCPR and the UDHR, many international scholars consider the right to freedom of religion or belief as jus cogens, from which no derogation is allowed: “The basic elements of the freedom of religion and belief have no doubt the status of jus cogens, or international customary law. A state is thus obliged to respect the right regardless of ratification of international texts.” Malaysia’s apostasy law is thus in contravention to the fundamental right to freedom of religion.

2.     Isu orientasi seks bebas/LGBT

Perenggan C2 m/s 4: C2.1 The Government’s hetero-normative stand discriminates against people of non-heterosexual orientations by adopting conservative and restrictive interpretations of religions and laws. Examples:

a)      S377A of the Penal Code (PC) criminalises oral and anal sex among consensual adults. Such acts are punishable with imprisonment of up to 20 years and shall be liable for whipping.

b)     S377D of the PC allows for the persecution of consenting adults who commit “an act of gross indecency’, even in the privacy of their homes. It is punishable with imprisonment of up to 2 years.

c)      S21 of the Minor Offences Act 1955 provides for the offence of indecent behaviour, which includes cross-dressing. Those found guilty can be fined anywhere between RM25 to RM50.

d)     Syariah laws criminalise homosexuality acts. It denies Muslims (the majority of whom are Malays) the freedom of expression, thought, conscience, religion or belief. Syariah laws also criminalise zina (sexual intercourse with a person who is not your legal spouse), and men cross-dressing as women. They could be charged under the various Syariah criminal offence enacments, which provide for penalties ranging from RM800 to RM3000 and/ or imprisonment.

 

International Commission of Jurists (ICJ) submission to the Universal Periodic Review of Malaysia

Perenggan 11 m/s 2:

Right to Freedom of Expression of LGBT Groups

11. Seksualiti Merdeka (Sexuality Independence) is an annual festival held since 2008 on sexuality rights held in Kuala Lumpur by individuals and Malaysian civil society groups, which include the Malaysian Bar Council, Suara Rakyat Malaysia (SUARAM), Empower, and PT Foundation. Seksualiti Merdeka also organizes workshops, talks, and film screenings throughout the year. In November 2011 police banned the Seksualiti Merdeka festival. The police justified the ban on the grounds that the festival was a threat to national security and public order. The organizing committee filed an application for judicial review, but in March 2012 the High Court of Kuala Lumpur rejected the application, stating that the police were acting within their powers to investigate under the Police Act and the matter was not open to review.

3.     ISU Kebebasan Bersuara

Joint Submission by ARTICLE 19 and SUARAM to the UN Universal Periodic Review

 

Perkara ke 14 m/s 4: The Malaysian government continues to curtail the right to freedom of expression through the banning of books. In 2012, five books were banned (Allah, Liberty & Love – Courage to Reconcile Faith & Freedom by Irshad Manji, and the Malay language translation of the book; Where Did I Come From? by Peter Mayle; Penghantar Ilmu-Ilmu Islam by Murtadha Muthahhari ; Dialog Sunnah Syi’ah by A. Syarafuddin Al-Musawi ; and Tafsir Sufi Al-Fatihah Mukadimah by Jalaluddin Rakhmat).

Perkara ke 15 m/s 5: On 23 May 2012, approximately 30 officers from t he Federal Territories Islamic Affairs Department (JAWI) confiscated seven copies of Irshad Manji’s book from a Borders bookstore as the content was deemed to be contrary to Islamic teachings. During the raid, JAWI officers together with media personnel took photographs of the staff and recorded their identification card numbers, including non-Muslim staff. The book was banned the next day under Section 7(1) of the PPPA-84. Subsequently, Manji’s publishing house Zi Publications was raided by the Selangor Islamic Affairs Department and the director, Ezra Zaid, was taken in for questioning. The Borders store manager, Raina Nik Abdul Aziz, was charged with distributing the book under Section 13 of the Federal Territory Syariah Offences Act 1997, which relates to the sanctity of Islam and its institutions.

Perkara ke 18 m/s 6: In November 2011, an annual Kuala Lumpur sexuality rights festival called Seksualiti Merdeka was banned by the police on the basis of being a deviant activity and would destroy religious freedom, create disharmony and enmity, disturb public order, and could pose a threat to national security. Starting from 7 November 2011, police began questioning and recording statements from 50 persons linked to Seksualiti Merdeka , including Seksualiti Merdeka organiser, Pang Khee Teik; Bar Council President, Lim Chee Wee; Bersih 2.0 Chairperson, S. Ambiga; Executive Director of EMPOWER, Maria Chin Abdullah; and Executive Director of Tenaganita, Irene Fernandez. In a statement to the press, Deputy Inspector-General of Police Khalid Abu Bakar justified the police ban by saying that any event to do with the rights of lesbians and homosexuals is out of the question. Those who had been called for questioning were also investigated under the Penal Code. In response to the banning of Seksualiti Merdeka , Prime Minister Najib Razak pledged that the government will protect the sanctity of Islam and ensure that deviant cultures, such as the practice of lesbian, gay, bisexual, trans and intersex or queer activities, would have no place in Malaysia

Perkara ke 19 m/s 6:– In February 2009, the Home Minister prohibited the use of the word “Allah” by Herald , a national Catholic newsletter, as a precondition for it receiving a publishing permit. The Archbishop of Kuala Lumpur filed for a judicial review and in December 2009 the High Court ruled that the publishers of the newsletter had the constitutional right to use the word “Allah”. However, in disagreement over this decision, fundamentalist groups resorted to attacking churches around the country.

Perkara ke 20 m/s 6:– In October 2011, International Islamic University Constitutional Law Professor Dr Abdul Aziz Bari was suspended by the University for expressing his opinion on a decree issued by the Sultan of Selangor in regard to the Selangor Islamic Affairs Department raid on Damansara Utama Methodist Church. Dr Abdul Aziz Bari criticised the Sultan, who claimed that no group should be prosecuted over the controversial church raid. Following the suspension, the professor received an envelope containing a bullet and a note warning him not to show disrespect to the Sultan.

Perenggan 7  m/s 4:

Confiscation and Destruction of Bibles

7. In March, 2011, “the government agreed to release 35,000 imported Bibles seized by customs officials and held for approximately two years [because of] a dispute over their use of the word ‘Allah’ as a translation for God.” In January 2013 Perkasa, an Islamic political group in Malaysia, threatened to “burn Bibles [written] in the Malay language.” This threat was spurred by a dispute over “the use of the name Allah for God in Malay Bibles.” The “Arabic term for God has been used in Malay Bibles for more than 400 years,” however, “many Malay Muslims claim that Allah is a sacred name for God to be used only in Islam.”

Perenggan 8-9 m/s 4-5:

Discrimination and Violence against Christians

8. In October 2012, Perkasa called for Muslims nationwide to boycott singer Jaclyn Victor because of a lyric in one of her songs that stated “all races in this country hope in you, Jesus.” The Secretary-general of Perkasa, Syed Hassan Syed Ali, stated that there is no right to voice an opinion in Malaysia if that opinion “hurts the feelings of others.” Such an oppressive restriction on expression is directly contrary to provisions in the Constitution of Malaysia regarding freedom of expression, and cannot be supported by the Malaysian government.

9. In January 2013, Sharafuddin Idris Shah, Sultan of the Malaysian state of Selangor, “issued a fatwa prohibiting non-Muslims from using the word ‘Allah’ in Arabic.” The fatwa requires “the Islamic Council of Selangor and the Islamic Affairs Department in the state to take strict action against all groups that question the fatwa . . . .” Article 10 of the Malaysian Constitution guarantees that “every citizen has the right to freedom of speech and expression,” and this illegal fatwa is in direct contradiction, not only to the Constitution, but also a High Court decision rendered in 2009. On 31 December 2009, Judge Lau Bee Lan of Malaysia’s high court rescinded a “prohibition that forbade the Malay-language edition of the Catholic monthly the Herald to use Allah to denote the Christian God” and ruled that Malaysian Catholics and others may use the term. This ruling was followed by violent attacks on churches, including the bombing of several churches, and “gutting the ground floor of the Metro Tabernacle Church” in the capital. The attacks included Molotov cocktails and vandalism such as splashes of black paint and thrown rocks. At least nine churches were attacked after the ruling.

oleh: 

Azril Mohd Amin

Naib Presiden, Persatuan Peguam Muslim Malaysia

merangkap Ketua Delegasi MuslimUPRo ke Geneva

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