Freedom of Religion, Apostasy and Islam

Abdullah Saeed

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351935746
• Edition: 1
• Topic: Theology & Religion
• Subtopic: Religion

Debate on freedom of religion as a human right takes place not only in the Western world but also in Muslim communities throughout the world. For Muslims concerned for this freedom, one of the major difficulties is the 'punishment for apostasy' - death for those who desert Islam. This book argues that the law of apostasy and its punishment by death in Islamic law is untenable in the modern period. Apostasy conflicts with a variety of foundation texts of Islam and with the current ethos of human rights, in particular the freedom to choose one's religion. Demonstrating the early development of the law of apostasy as largely a religio-political tool, the authors show the diversity of opinion among early Muslims on the punishment, highlighting the substantial ambiguities about what constitutes apostasy, the problematic nature of some of the key textual evidence on which the punishment of apostasy is based, and the neglect of a vast amount of clear Qur'anic texts in favour of freedom of religion in the construction of the law of apostasy. Examining the significant challenges the punishment of apostasy faces in the modern period inside and outside Muslim communities - exploring in particular how apostasy and its punishment is dealt with in a multi-religious Muslim majority country, Malaysia, and the challenges and difficulties it faces there - the authors discuss arguments by prominent Muslims today for an absolute freedom of religion and for discarding the punishment of apostasy.

Part I

Chapter 1
The Context of the Debate on Apostasy: Freedom of Religion in the Modern Period

Although the term ‘human rights’ (huquq al-insan) has its equivalent in many languages, the understanding of what ‘human rights’ means is subject to debate and controversy. For some in non-Western societies, the discourse of human rights is a product of the West and Western civilization; it has a neo-imperialistic tone, and is used to dominate, control and restrict the progress of non-Western societies. For others in these societies, the concept of ‘human rights’ reflects the concerns and interests of the vast majority of people on earth; the fact that it began as a Western construct does not mean that it is specifically a Western idea, interest or concern.¹

The discourse of human rights is based on the idea that ‘individuals possess rights simply by virtue of being human’.² Freedom of religion is seen as one element of human rights addressed in the major religious traditions of Judaism, Christianity and Islam. Many of the rights referred to in the Universal Declaration of Human Rights can be found explicitly or implicitly in the Bible or the Qur’an (the Holy Scripture of Muslims). However, as a discourse, ‘human rights’ emerged relatively recently and developed gradually into its current form. The French Revolution of 1789 and the American Bill of Rights of 1791 are considered important landmarks of this discourse. The Universal Declaration of Human Rights by the United Nations (1948) was a result of this development, which was drafted by an international panel that included non-Western members. This Declaration was followed by a series of human rights conventions supported in varying degrees by Western as well as non-Western nations. For the purpose of our discussion on religious freedom, other relevant conventions include the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), and the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981).

Right to Freedom of Religion

The right to freedom of religion is perhaps the oldest human right recognized internationally. In the context of the West, the international document enshrining the Peace of Westphalia, which accorded international protection to religious groups, was signed in 1648. In the eighteenth century, the right of religious liberty added dynamism to the Commonwealth of Virginia’s Bill of Rights of 1776, the Austrian Act of Religious Tolerance of 1781 and the Virginia Statute of Religious Liberty of 1786.³

In the USA, the First Amendment to the US Constitution emphasizes the free exercise of religion. It states that: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ The second clause, containing the phrase ‘free exercise’, guarantees a citizen’s right to express religious beliefs, and act in accord with those beliefs. As Thomas Jefferson noted: ‘All men shall be free to profess, and by argument to maintain, their opinions in matters of religion. And the same shall in no wise diminish, enlarge or affect their civil liberties.’⁴

In Europe, two main conventions safeguard freedom of conscience and religion: Article 9 of the European Convention on Human Rights (ECHR), and Article 18 of the International Covenant on Civil and Political Rights. Both Articles are based, almost verbatim,⁵ on Article 18 of the United Nations’ Universal Declaration of Human Rights (UDHR) of 1948, which states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

This right was included in the International Covenant on Civil and Political Rights (ICCPR, in force 23 March 1976). Article 18 of this covenant provides that:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief, observance, practice, and teaching.
2. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Two key freedoms related to religion are specified above: freedom to maintain or to change religion or belief; and freedom to manifest religion or belief. In the case of the first freedom, it includes not only the ‘inner freedom of an individual to maintain his religion or belief, but also his freedom to belong, or not to belong, to an organized religion or belief’.⁶ The inner freedom, freedom of thought and conscience, is related to the mind. But simply having freedom of thought and conscience is of very little practical value unless freedom to express what is in the mind is also recognized. This does not mean, however, that the right to freedom of thought and conscience has no other benefits:

It also guarantees that one cannot be subjected to a treatment intended to change the process of thinking –brainwashing and so on. It forbids any form of compulsion to express thoughts, to change an opinion or to divulge a religious conviction. It also means that no sanction may be imposed, either on the holding of any view whatsoever, or on the change of religion or conviction. It protects against indoctrination by the state.⁷

Article 18 of the UDHR or ICCPR does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally. The freedom to have or to adopt a religion or belief ‘necessarily entails the freedom to choose a religion or belief, including, inter alia, the right to replace one’s current religion or belief’.⁸

Article 18 indicates that it is not just what is in the mind that is important. One ought to have the opportunity to put it into practice; that is, to be able to profess any religion and practise it privately or in community with others. This involves manifesting that religion in worship, teaching, practice and observance. The Article protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion.⁹ However, Article 18 of the Universal Declaration, upon which other religious freedom-related instruments in the modern period have been based, requires interpretation in the light of the restrictions specified in Article 29 (2), which reads:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.¹⁰

The limitations refer to what is contrary to morality, public order or general welfare. This includes practices such as human sacrifice, self-immolation, mutilation of oneself or others, and slavery or prostitution carried out in the service of, or under the pretext of, promoting a religion or belief. Similarly, activities aimed at the destruction of the state, such as rebellion or subversion, or the breach of international peace and security in the name of a religion are not allowed. In the application of this freedom, the state is also required to secure ‘due recognition and respect for the rights and freedoms of others’.¹¹

Thus, it is clear that Article 18 of the UDHR provides a high degree of freedom to adopt, maintain, change and manifest one’s religion, or to not have a religion. Lee Boothby of the International Academy for Freedom of Religion and Belief indicates ways in which religious freedom should be protected in the spirit of Article 18.

According to him, the state should ensure the full equality before the law of all religious organizations, giving each, regardless of size or age, an equal opportunity to enter the religious marketplace, and to propagate their religious views. It should be prohibited from intruding into their internal affairs, and permit them to function fully without regard to national boundaries. Discrimination based on an individual’s religious belief or membership should be prohibited. Individuals should (a) be permitted to manifest their religious beliefs in public and in private; (b) be unrestricted, fully protected with respect to their right to believe or not to believe, and be equally free to change their religious belief; (c) be permitted to worship, either individually or in community, with others. The varied religious beliefs and practices of all should be accommodated by the state, unless the state is able to demonstrate a legitimate state interest that cannot be otherwise served by actions less intrusive into religious belief and expression.¹² However, this level of freedom does not yet exist in most countries.

Universality of the Right: the Debate

The Universal Declaration promotes respect for the human rights and fundamental freedoms specified in it for all people regardless of religion, race or language. It is ‘universal’ in its orientation and several of its Articles convey this concept.¹³ The idea of the universality of human rights has, however, been questioned by many, both Muslims and non-Muslims.¹⁴ Cultural relativists, for example, condemn the notion that there are universal standards by which all cultures may be judged; that is, values taken from Western cultures should not be used to judge non-Western cultures, including Islamic ones.¹⁵ From a non-Western perspective, universal values can be regarded as neo-colonialist, imperialist, and aimed at demonstrating superiority of Western values over other values.

There are varying Muslim views on the universality of human rights. Those Muslims who support it argue that the rights specified in the UDHR are not alien from a Qur’anic point of view and that, in fact, almost all the rights can be supported by the Qur’an and the practice of the Prophet. According to this view, the reservation Muslims have with regard to the right to change one’s religion is based on a misreading of the relevant sections of the Qur’an and a reliance on pre-modern Islamic law. They do not see this pre-modern Islamic law as sacred or immutable; rather they see it as a human product constructed in a certain socio-historical context and therefore susceptible to change. A rereading of the Islamic tradition in the light of modern concerns, interests and needs will, in their view, come to the conclusion that much of the UDHR is in line with the fundamental objectives of the Qur’an and sunnah.

On the other hand, Muslims who oppose the universality of human rights argue that the UDHR and other similar human rights documents are a product of the secular West and therefore cannot be a basis for a Muslim understanding of human rights. For them, the UDHR is a ‘human construct’ and should not be privileged over ‘Divine Law’ (reflected in the Qur’an and sunnah) and the rights and freedoms covered by Divine Law. Some dismiss the UDHR as a relic of neo-colonialism while others argue that the United Nations, or any similar body, has no authority to legislate for Muslims. For the Muslims who oppose universality, Islam has a particular concept of human rights, including religious freedom, and these must be understood in the context of the Islamic law, which itself determines the scope of freedom available to a Muslim. They rely on ideas that exist in Islamic law in their rejection of freedom of religion as specified in Article 18.

In pre-modern Islamic law, as far as religious freedom is concerned, legal capacity is determined by the religion to which the person belongs. Non-Muslims, for example, are divided into two groups: (a) ‘People of the Book’ including Jews, Christians and Zoroastrians; (b) people without a revealed religion. While People of the Book are automatically granted certain privileges in the area of religious freedom, those who do not have a revealed religion pose a problem for pre-modern Islamic law. Differences of opinion exist among pre-modern Muslim jurists on whether this latter group should be ‘forced’ to convert to Islam if under Islamic rule. However, in Islamic history, these people were treated like the People of the Book (as was the case with Hindus and Buddhists in India), and the question remained largely theoretical. Non-Muslims within a Muslim state may practise their religion (with certain restrictions related to manifesting their religion) as long as they submit to the authority of the Muslim state. Similarly, Muslims may practise their religion freely as long as they are not in conflict wit...