Freedom of religion in Islamic Law
1. No compulsion in Islam
The Quran states “Let there be no compulsion in religion. Truth stands out clear from error”(61). This is a clear recognition that faith is a matter for the individual to decide. This is consistent with the definition of Muslim as seen earlier.
The Quran is clear that Allah does not compel people to believe - “If it had been thy Lord’s Will, they would all have believed, - all who are on earth! Will thou then compel mankind, against their will, to believe!”(62) Allah further instructs the prophet that his duty is merely to proclaim the message, not to force the people to believe(63).
As such, in the Islamic faith, it appears that one is free to choose which religion that one wills. This is reflected during the drafting of Article 18 of the ICCPR where there were objections by some Muslim States to the inclusion of the clause “This right includes freedom to change [one’s] religion or belief”. However, once the offending clause was changed to “[t]his right shall include freedom to have or to adopt a religion or belief of [one’s] choice, the Article was unanimously adopted without reservations(64).
Therefore, it appears that while there is some objections on one’s freedom to change his religion – and this will dealt with in detail hereinbelow when we look in the issue of apostasy – the general rule is that Islam gives freedom to choose one’s own religion.
Having said that, if one were to look at some of the said reservations, this rule does not appear to apply to children. Jordan objects to the provisions which grants “freedom of choice of religion” to the child as this is “at variance with the precepts of… Islamic Shar’ia”. Maldives express reservation to Article 14 on the grounds that “all Maldivians should be Muslims”! Oman does not consider itself bound to the provision which “accord a child to choose his or her religion”.
However that these views do not seem to be consistent with the Quranic injunction referred to above that there should to be any compulsion in religion(65). While the said verse does not mention children specifically, the context of the verse shows that the verse is in fact directly concerning children. At that time, some Christians who converted to Muslim tried to convert their children as well. This verse was spoken to such parents to warn them against any acts of forceful conversion. It is commented that “Compulsion is incompatible with religion: because … religion depends upon faith and will, and these would be meaningless if induced by force”(66).
Furthermore, as will be seen later, most Muslim States do not allow a Muslim to convert out of Islam to another religion. If a child born into a Muslim family is not allowed to choose his/her own religion, then it means that that child will never ever have a chance to choose his/her religion.
It is submitted therefore that the reservations which suggest that a child has no right to choose his or her own religion are themselves not compatible with the Quran.
2. Apostasy
The word “apostasy” comes from the root word “Riddah”, which literally means “turning back”(67). Thus an apostate is “a muslim who rejects Islam and/or converts to another religion(68). Unless stated otherwise, this will be the definition used whenever the word “apostasy” is used hereinbelow.
Abdullah Saeed considers that before one can be found guilty of apostasy(69), it must be shown that it was voluntary and the person must also be sane.
Saeed further notes that the apostasy of a minor who does not comprehend the meaning of apostasy is not valid. But in the case of a minor who comprehends the meaning of apostasy, the views diverge. One school of thought maintains that the apostasy is invalid unless maturity or puberty can be proved(70). Other schools hold the view that the apostasy is valid. They argue that if the profession of Islam by the minor is valid, the subsequent rejection of Islam is too as long as the minor understands it.
It is submitted that the latter view is logical and makes sense. It does not matter how old the child is – if the child could profess belief in a religion, that should be valid. If the child subsequently chooses to reject it, that should equally be allowed. In fact, this is a clear reflection of Article 14 of the CRC.
3. Apostasy forbidden
In the pre-modern Islamic Law, apostasy if prohibited and the punishment for apostasy is death. There is no direct reference in the Quran that the punishment for apostasy is death(71). This view is based on several hadith.
The first and most widely referred to is the hadith which states “Whoever changes his religion, kill him”(72). Other hadiths referred to involve the Prophet ordering the killing and the execution of apostates(73).
Sultanhussein Tabandeh objects to change of religion(74) as the decision may have been made under duress, or it could be done for ulterior motives. Further, he is of the view that as Islam is superior over the rest, anyone who deserts Islam “betrays the fact that he must have played truant to its moral and spiritual truths in his heart earlier”.
Hassan Ahmad Abidin of the Sunni Islam notes that apostasy was prohibited as a precautionary measure to safeguard the Muslim community(75). Mayer notes that proponents of the death punishment for apostasy view that it can be a deterrent as no one should be encouraged to consider it(76).
Even at this point of time, a man in Afghanistan is on trial for converting from Muslim to Christianity . Reports say that “Abdul Rahman, 41, is charged with rejecting Islam and could be executed under Shar’ia law unless he reconverts”.
4. How does the issue of apostasy affect the Muslim child?
The Moroccan observer in the Working Group on the negotiation of the CRC argued the notion that a child could freely choose his/her religion “ran counter to the principles of Muslim Law: The child of a Muslim was bound to be a Muslim, and in order to renounce that fact, he had to conform to the rules of Muslim Law on the matter”(78).
Therefore, if a child of Muslim parents has attained manhood according to Islam(79), and he wishes to embrace another religion, he will be guilty of apostasy and can be sentenced to death. If the child is a girl, the situation is different. In the case of a woman who commits apostasy, the punishment is not death but the woman will be beaten and kept in prison until she reverts back to Islam or dies. This will apply to a female minor who understands the meaning of apostasy. Some schools goes further to say that all minors who are guilty of a valid apostasy will not face the death penalty but instead, be instructed to revert back to Islam(80).
It is submitted that based on the matters raised above, the main reason for the reservations made against Article 14(1) of the CRC is that the Muslim child is not free to convert out of the Muslim faith. While the Quran does not compel people of other faiths to belief in the Muslim faith, the freedom to change one’s religion appears to be out of the question if one is a Muslim.
Iraq in its reservation to Article 14 explained that the reason for the reservation was because “allowing a child to change his or her religion runs counter to the provisions of the Islamic Shar’iah”.
If this is the case – and the basis of the said reservations rests on the religious belief of the Muslim States, it appears that there will be great difficulty in the said reservations being withdrawn or modified so as to be compatible with the objects and purpose of the CRC. However, there have been great doubts cast on the interpretation of the Shar’ia regarding the law on apostasy, in particular, regarding the death sentence imposed. In the next section, we’ll investigate these views.
___________________________________
(61) Quran 2:256 – all Quranic verses quoted herein are taken from The Holy Quran – English Translation of the Meanings and Commentary
(62) Quran 10:99
(63) Quran 3:20, 5:99, 24:54
(64) Baderin, Mashood A. - International Human Rights and Islamic Law. Oxford University Press 2003 at 119
(65) See note 61 above
(66) Commentary on Quran 2:256 – all commentary on Quranic verses are taken from The Holy Quran – English Translation of the Meanings and Commentary
(67) See note 55 above, pg 36
(68) See note 55 above, pg 37
(69) See note 55 above, pgs 5-52
(70) Puberty marks the end of childhood – see note 58 above
(71) Although it has been observed that many Quranic verses have been used indirectly. However, these verses are general in nature and does not speak of earthly punishment for apostasy nor does it state expressly that apostasy is to be punished with death – see note 55 above at pg 57-58
(72) Sarakhsi, Al-Mabsuf 10:98
(73) See note 55 above at pg 58 - 66
(74) In A Muslim Commentary on the Universal Declaration of Human Rights, London F.T.Goulding 1970 at pg 70 onwards
(75) See above at pg 16
(76) See note 44 above at pg 159
(77) See the BBC news report at this following link - http://news.bbc.co.uk/1/hi/world/south_asia/4832872.stm
(78) See note 2 above at page 196
(79) As seen above, a Muslim child is considered to have reached adulthood as early as 15 years.
(80) See note 55 above, pg 52
The Quran states “Let there be no compulsion in religion. Truth stands out clear from error”(61). This is a clear recognition that faith is a matter for the individual to decide. This is consistent with the definition of Muslim as seen earlier.
The Quran is clear that Allah does not compel people to believe - “If it had been thy Lord’s Will, they would all have believed, - all who are on earth! Will thou then compel mankind, against their will, to believe!”(62) Allah further instructs the prophet that his duty is merely to proclaim the message, not to force the people to believe(63).
As such, in the Islamic faith, it appears that one is free to choose which religion that one wills. This is reflected during the drafting of Article 18 of the ICCPR where there were objections by some Muslim States to the inclusion of the clause “This right includes freedom to change [one’s] religion or belief”. However, once the offending clause was changed to “[t]his right shall include freedom to have or to adopt a religion or belief of [one’s] choice, the Article was unanimously adopted without reservations(64).
Therefore, it appears that while there is some objections on one’s freedom to change his religion – and this will dealt with in detail hereinbelow when we look in the issue of apostasy – the general rule is that Islam gives freedom to choose one’s own religion.
Having said that, if one were to look at some of the said reservations, this rule does not appear to apply to children. Jordan objects to the provisions which grants “freedom of choice of religion” to the child as this is “at variance with the precepts of… Islamic Shar’ia”. Maldives express reservation to Article 14 on the grounds that “all Maldivians should be Muslims”! Oman does not consider itself bound to the provision which “accord a child to choose his or her religion”.
However that these views do not seem to be consistent with the Quranic injunction referred to above that there should to be any compulsion in religion(65). While the said verse does not mention children specifically, the context of the verse shows that the verse is in fact directly concerning children. At that time, some Christians who converted to Muslim tried to convert their children as well. This verse was spoken to such parents to warn them against any acts of forceful conversion. It is commented that “Compulsion is incompatible with religion: because … religion depends upon faith and will, and these would be meaningless if induced by force”(66).
Furthermore, as will be seen later, most Muslim States do not allow a Muslim to convert out of Islam to another religion. If a child born into a Muslim family is not allowed to choose his/her own religion, then it means that that child will never ever have a chance to choose his/her religion.
It is submitted therefore that the reservations which suggest that a child has no right to choose his or her own religion are themselves not compatible with the Quran.
2. Apostasy
The word “apostasy” comes from the root word “Riddah”, which literally means “turning back”(67). Thus an apostate is “a muslim who rejects Islam and/or converts to another religion(68). Unless stated otherwise, this will be the definition used whenever the word “apostasy” is used hereinbelow.
Abdullah Saeed considers that before one can be found guilty of apostasy(69), it must be shown that it was voluntary and the person must also be sane.
Saeed further notes that the apostasy of a minor who does not comprehend the meaning of apostasy is not valid. But in the case of a minor who comprehends the meaning of apostasy, the views diverge. One school of thought maintains that the apostasy is invalid unless maturity or puberty can be proved(70). Other schools hold the view that the apostasy is valid. They argue that if the profession of Islam by the minor is valid, the subsequent rejection of Islam is too as long as the minor understands it.
It is submitted that the latter view is logical and makes sense. It does not matter how old the child is – if the child could profess belief in a religion, that should be valid. If the child subsequently chooses to reject it, that should equally be allowed. In fact, this is a clear reflection of Article 14 of the CRC.
3. Apostasy forbidden
In the pre-modern Islamic Law, apostasy if prohibited and the punishment for apostasy is death. There is no direct reference in the Quran that the punishment for apostasy is death(71). This view is based on several hadith.
The first and most widely referred to is the hadith which states “Whoever changes his religion, kill him”(72). Other hadiths referred to involve the Prophet ordering the killing and the execution of apostates(73).
Sultanhussein Tabandeh objects to change of religion(74) as the decision may have been made under duress, or it could be done for ulterior motives. Further, he is of the view that as Islam is superior over the rest, anyone who deserts Islam “betrays the fact that he must have played truant to its moral and spiritual truths in his heart earlier”.
Hassan Ahmad Abidin of the Sunni Islam notes that apostasy was prohibited as a precautionary measure to safeguard the Muslim community(75). Mayer notes that proponents of the death punishment for apostasy view that it can be a deterrent as no one should be encouraged to consider it(76).
Even at this point of time, a man in Afghanistan is on trial for converting from Muslim to Christianity . Reports say that “Abdul Rahman, 41, is charged with rejecting Islam and could be executed under Shar’ia law unless he reconverts”.
4. How does the issue of apostasy affect the Muslim child?
The Moroccan observer in the Working Group on the negotiation of the CRC argued the notion that a child could freely choose his/her religion “ran counter to the principles of Muslim Law: The child of a Muslim was bound to be a Muslim, and in order to renounce that fact, he had to conform to the rules of Muslim Law on the matter”(78).
Therefore, if a child of Muslim parents has attained manhood according to Islam(79), and he wishes to embrace another religion, he will be guilty of apostasy and can be sentenced to death. If the child is a girl, the situation is different. In the case of a woman who commits apostasy, the punishment is not death but the woman will be beaten and kept in prison until she reverts back to Islam or dies. This will apply to a female minor who understands the meaning of apostasy. Some schools goes further to say that all minors who are guilty of a valid apostasy will not face the death penalty but instead, be instructed to revert back to Islam(80).
It is submitted that based on the matters raised above, the main reason for the reservations made against Article 14(1) of the CRC is that the Muslim child is not free to convert out of the Muslim faith. While the Quran does not compel people of other faiths to belief in the Muslim faith, the freedom to change one’s religion appears to be out of the question if one is a Muslim.
Iraq in its reservation to Article 14 explained that the reason for the reservation was because “allowing a child to change his or her religion runs counter to the provisions of the Islamic Shar’iah”.
If this is the case – and the basis of the said reservations rests on the religious belief of the Muslim States, it appears that there will be great difficulty in the said reservations being withdrawn or modified so as to be compatible with the objects and purpose of the CRC. However, there have been great doubts cast on the interpretation of the Shar’ia regarding the law on apostasy, in particular, regarding the death sentence imposed. In the next section, we’ll investigate these views.
___________________________________
(61) Quran 2:256 – all Quranic verses quoted herein are taken from The Holy Quran – English Translation of the Meanings and Commentary
(62) Quran 10:99
(63) Quran 3:20, 5:99, 24:54
(64) Baderin, Mashood A. - International Human Rights and Islamic Law. Oxford University Press 2003 at 119
(65) See note 61 above
(66) Commentary on Quran 2:256 – all commentary on Quranic verses are taken from The Holy Quran – English Translation of the Meanings and Commentary
(67) See note 55 above, pg 36
(68) See note 55 above, pg 37
(69) See note 55 above, pgs 5-52
(70) Puberty marks the end of childhood – see note 58 above
(71) Although it has been observed that many Quranic verses have been used indirectly. However, these verses are general in nature and does not speak of earthly punishment for apostasy nor does it state expressly that apostasy is to be punished with death – see note 55 above at pg 57-58
(72) Sarakhsi, Al-Mabsuf 10:98
(73) See note 55 above at pg 58 - 66
(74) In A Muslim Commentary on the Universal Declaration of Human Rights, London F.T.Goulding 1970 at pg 70 onwards
(75) See above at pg 16
(76) See note 44 above at pg 159
(77) See the BBC news report at this following link - http://news.bbc.co.uk/1/hi/world/south_asia/4832872.stm
(78) See note 2 above at page 196
(79) As seen above, a Muslim child is considered to have reached adulthood as early as 15 years.
(80) See note 55 above, pg 52
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