FREEDOM OF RELIGION UNDER THE MALAYSIAN FEDERAL

CONSTITUTION
by
Ahmad Masum*
[2009] 2 CLJ i
MALAYSIA
Introdution
The right to freedom of religion is one of the fundamental rights guaranteed in
many international and regional human rights instruments.
1
For example, the
right to freedom of religion is guaranteed under art. 11(1) of the Federal
Constitution.
2
However, it is important to note that none attempts to define the
term religion. !t has "een o"served that the effort to define religion is as old
as the a#ademi# study of religion itself.
$
!n fa#t, do%ens, if not hundreds of
proposals have "een made, ea#h #laiming to solve the definitional pro"lem in a
new uni&ue way.
'
(eedless to say, no one definition of religion has garnered a
#onsensus, and the definitional enterprise, as well as the de"ate over the very
need for definitions, #ontinues in full vigor.
)
*lthough this may "e the #ase,
there are those who view religion as a set of "eliefs, essentially an intensely
personal matter.
+
Thus, "elief in a religion is fre&uently manifested in a#ts of
worship and demonstrations of "elief, usually in #ommunity with others.
,oo-ing at the definitional aspe#t of the term religion from a .alaysian
perspe#tive, perhaps one would have to as- the &uestion of whether /religion0
refers merely to esta"lished and an#ient religions.
1
2r does it in#lude #ults and
se#ts with distin#t philosophies and rituals of their own3
4
!t has to "e
a#-nowledged that the issue is as yet untested in our #ourts. The pra#ti#e up to
now has "een to prose#ute any .uslim or non5.uslim who is involved in
deviationist tea#hings and pra#ti#es.
6
Hen#e it would appear that in a
traditional so#iety li-e .alaysia with an offi#ial religion and Rukun
Negara whi#h affirms to #ommitment to "elief in 7od, atheisti# pra#ti#es may
not re#eive mu#h sympathy in the #ourts although 8estern theory supports a
"road view of the term religion.
19
!rrespe#tive of the diffi#ulties involved while fa#ed with this fundamental
li"erty ie, li-e the definitional aspe#t of the term itself, it has to "e noted that
the Federal Constitution of .alaysia guarantees freedom of religion, and
further pro#laims !slam as the offi#ial religion.
11
However, the pro#lamation of
!slam as the offi#ial religion does not mean that others are denied the right to
pra#tise their freedom of religion. For example, .alaysia has a re#ord of
religious toleran#e that should "e the envy of all plural so#ieties. .os&ues,
temples, #hur#hes and gudwaras dot the lands#ape.
12
Di!our!" On Fr""do# O$ R"%i&ion Fro# T'" ("r!)"ti*" O$ T'"
M+%+,!i+n F"d"r+% Con!titution
Freedom of religion as a fundamental right is guaranteed under the Federal
Constitution "y virtue of art. 11(1). This arti#le shows a spe#ial tenderness for
religious li"erty. For example, proper understanding of the arti#le would
portray or show that every person has the right to three things: to profess; to
pra#tise and su"<e#t to art. 11(') to propagate his religion. This fundamental
right is availa"le to #iti%ens and as well as non5#iti%ens. !t is also not only
availa"le to individuals "ut also to groups and asso#iations.
1$
*part from art. 11(1) of the Federal Constitution, religious li"erty is further
guaranteed in many arti#les of the Federal Constitution. For example, there is
no #ompulsion on anyone to support a religion other than his own and no
person shall "e #ompelled to pay any tax the pro#eeds of whi#h are spe#ially
allo#ated to a religion other than his own.
1'
*lso, no person shall "e re&uired to
re#eive instru#tions in or ta-e part in any #eremony or a#t of worship of a
religion other than his=her own.
1)
The Federal Constitution also does not allow
for dis#rimination on the grounds of religion against employees in the pu"li#
se#tor; in the a#&uisition, holding or disposition of property; and any trade,
"usiness or profession.
1+
This fundamental right #annot "e restri#ted even in
times of emergen#y "y an emergen#y law.
11
However, it should "e noted that
although this fundamental right is of paramount importan#e in a demo#rati#
environment and well prote#ted under the Federal Constitution, it is "y no
means a"solute. !n other words, li-e all freedom, the right to follow one0s
#ons#ien#e #annot "e a"solute.
R"!trition! On Fr""do# O$ R"%i&ion Und"r T'" M+%+,!i+n F"d"r+%
Con!titution
There are several #onstitutional limits on religious li"erty or freedom under the
Federal Constitution. The restri#tions #ould "e in the form of: permissi"le
restraints; propagation of religion to .uslims; religion of minors, non5
mandatory pra#tises and many more.
Permissible Restraints
*rti#le 11(1) of the Federal Constitution, whi#h guarantees freedom of religion
#annot "e read in isolation. This arti#le must "e read together with art. $(1),
whi#h states that the pra#tise of religion must not distur" pea#e and harmony.
!n other words, one is allowed to exer#ise his freedom of religion on #ondition
that it would not distur" pea#e and harmony in any part of the Federation.
*nother permissi"le restraint is provided under art. 11()), whi#h states that the
arti#le does not authorise any a#t #ontrary to any general law relating to pu"li#
order, pu"li# health or morality. Thus, the impli#ation of the arti#le is that all
religious #ondu#t is su"<e#t to the power of >arliament to restri#t it on the
grounds stated a"ove. Hen#e if a spee#h, #ondu#t, pra#tise or institution is
grounded on religious do#trine and if it threatens any of the a"ove three
for"idden grounds, it #an "e exterminated "y a parliamentary law.
14
*part from the permissi"le restraint under art. 11()), in the #ase of .uslims,
additional restraints are possi"le. This is "y virtue of ?#hedule 6, ,ist !!, !tem 1,
whi#h grants power to ?tate *ssem"lies to punish .uslims for offen#es against
the pre#epts of !slam.
16
*##ording to ?had Faru&i, this power is used fre&uently
to punish a wide variety of un!slami# #ondu#t li-e khalwat (#lose
proximity), zina (adultery), gam"ling, drin-ing, "eauty #ontests and
deviationists a#tivities.
29
Propagation Of Religion To Muslims
!t has "een argued that a persons0 right to propagate religion among people
professing !slam is pursuant to art. 11(') #an "e restri#ted "y Federal law
(Federal Territory) or state law pursuant to art. 11(').
21
!t is important to note
that laws #ontrolling propagation are meant not only to prevent .uslims from
"eing exposed to hereti#al religious do#trines, "e they of !slami# or non5
!slami# origin and irrespe#tive of whether the propagators are .uslims or non5
.uslims.
22
?ome s#holars argue that the purpose of art. 11(') is to insulate
.alays against internationally funded and powerful proselytising for#es that
had "e#ome entren#hed in the #ountry due to offi#ial support from the #olonial
government.
2$
To Harding, art. 11(') was inserted primarily "e#ause of pu"li#
order #onsiderations. However, ?had Faru&i went further "y adding to this
rationale the element of ethni#ity and politi#al fa#tor "y saying that in the
#ontext of .alaysia, renun#iation of !slam "y a .alay would automati#ally
mean a"andoning the .alay #ommunity. This is "e#ause !slam is one of the
defining features of a .alay in art. 1+9(2).
2'
?till on the issue of propagation of religion to .uslims, it would "e safe to
suggest that any prea#hing of religious do#trine to .uslims (whether "y non5
.uslims or unauthorised .uslims) #an "e regulated "y state law.
2)
This is due
to the fa#t that ?tate ena#tments also ma-e it an offen#e to #onvert .uslims. 2f
re#ent, this limitation or restri#tion has generated a heated de"ate in .alaysia.
*n a#ute example of this heated de"ate is that of #onversion, whi#h the author
intends to address at the latter part of the dis#ussion.
Furthermore, mu#h as we admit that the restri#tion of propagation of non5
!slami# religions among .uslims and state #ontrol over the propagation of
!slami# do#trine may also serve the purpose of maintaining so#ial
sta"ility.
2+
The pro"lem with these prin#iples is that they are #ontrary to the
spirit of freedom of religion, and pla#e the adherents of other religions (and
.uslims who hold to unorthodox religious tenets) at a disadvantage #ompared
with .uslims (or orthodox .uslims).
21
Thus in the long term the maintenan#e
of these restri#tions may have the effe#t of undermining the overar#hing
prin#iple of religious freedom.
24
Religion Of Minors
*lthough art. 11(1) uses the word /person0 as having freedom of religion in the
#ontext of professing and pra#tising the said religion, "ut su"<e#t to #l. (') when
it #omes to propagation, it "e#omes vital to read the arti#le together with art.
12(') when the person we are dealing with happens to "e under 14. Thus,
in Teoh Eng Huat
26
the #ourt held that in matters of religion, a #hild "elow 14
must #onform to the wishes of her parents. @ased on this line of reasoning, the
#ourt ruled that the #onversion of a 115year old @uddhist girl to !slam without
her parents #onsent was of no effe#t. !t would appear that the de#ision of the
then ?upreme Court (now Federal Court) diffused a potentially divisive issue,
given that there are serious politi#al overtones in the religious exploitation of
minors. Hen#e the ?upreme Court was right to overrule the de#ision of the
High Court "earing in mind that within the #ontext of a multi5religious so#iety,
*"dul .ale- A in the High Court was not right in importing !slami# law in his
#onstru#tion of art. 11(1).
$9
Non-mandatory Praties
The #ontentious issue here is as to whether religious freedom would #over all
aspe#ts of pra#tise as far as the said religion is #on#erned. This is due to the fa#t
that in respe#t of religion, every person has three rights: to profess; to pra#ti#e;
and su"<e#t to
#l. ', to propagate his religion. >ra#tise means to put into pra#tise, to perform,
to #arry out, to do ha"itually.
$1
*lthough this is how the word pra#tise is
understood, it is important to note that in .alaysia it has "een held "y the
#ourts that freedom of religion extends only to those pra#tises and rituals that
are essential and mandatory. !n H!h Halimatussaadiah bte H! "amaruddin #$
Publi %er#ie &ommission
$2
the issue was whether a female .uslim pu"li#
servant #ould wear purdah to wor-. The apex #ourt was of the view that the
government was entitled, in the interest of the pu"li# servi#e, to for"id in the
wor-pla#e a religious tradition that was non5essential and optional. The same
reasoning applied in 'atimah %ihi ( Ors #$ Meor )ti*ulrahman bin +shak (
Ors
$$
where .uslim s#hool"oys failed to get #ourt endorsement of their
demand to wear serban to s#hool.
,oo-ing at the line of reasoning given "y the #ourts a"ove, it would appear safe
to #on#lude that in .alaysia freedom of religion in the #ontext of pra#tise
extends only to those pra#tises and rituals that are essential and mandatory. @ut
su#h rulings may #reate pro"lems in other areas as some pra#tises, although not
mandatory, are however part and par#el of #ertain religions.
$'
2ne example is
polygamy. *lthough this is not mandatory to male .uslims, "ut denying it may
"e said as denying religious freedom.
$)
So#" Ar"+! O$ Con"rn R"&+rdin& Fr""do# O$ R"%i&ion Und"r T'"
M+%+,!i+n F"d"r+% Con!titution
!n re#ent years, we have witnessed ra#ial and religious polarisation #oming into
play whenever the issue of freedom of religion is raised under the Federal
Constitution. !t has to "e admitted wholeheartedly that li-e in all so#ieties, there
are areas where religious, #ultural and ethni# interests are #ompeting and
#lashing. Thus, .alaysia "eing a multira#ial so#iety we are "ound to fa#e some
of these #lashes dire#tly or indire#tly li-e the !slami# ?tate #ontroversy,
apostasy and many more.
+slami %tate &ontro#ersy
The #ontroversy is prompted "y la#- of in5depth understanding of art. $(1) and
its impli#ations. *rti#le $(1) pro#laims that !slam is the religion of the
Federation "ut all other religions may "e pra#tised in pea#e and harmony. !t
must "e pointed out that the adoption of an offi#ial faith is not a uni&ue
#onstitutional phenomenon.
$+
For example, there are Christian #ountries li-e
!reland and (orway with state religions.
The impli#ation of adopting !slam as the religion of the Federation is that
!slami# edu#ation and way of life #an "e promoted for .uslims; !slami#
institutions #an "e esta"lished; !slami# #ourts #an "e set up; and .uslims #an
"e su"<e#ted to the %yari,ah in areas assigned "y the Constitution.
$1
Hen#e
adopting !slam as the religion of the Federation does not turn .alaysia into an
!slami# ?tate. This is due to the fa#t that .alaysia0s do#ument of destiny does
not #ontain a pream"le.
$4
The word !slami# or se#ular does not appear
anywhere in the Constitution. However, there is strong histori#al eviden#e in
the Beid Commission papers that the #ountry was meant to "e se#ular.
$6
!t is
therefore argua"le that the forefathers of the Merdeka Constitution did not
intend to laun#h a theo#rati# state. This line of reasoning is even favoured "y
the #ourts while interpreting art. $(1). For example, in &he Omar bin &he
%oh,
'9
the ?upreme Court said in unmista-a"le language that though !slam is
the religion of the Federation, it is not the "asi# law of the land.
*lthough this is the legal position regarding the status of .alaysia as a #ountry,
politi#ians and even some of our leaders have not a##epted this line of
reasoning. For instan#e on 26 ?eptem"er 2991, the then >rime .inister
.ahathir .uhamad asserted that .alaysia is an !slami# #ountry, even though
the Constitution and system of governan#e do not fall neatly into the norms
of what #onstitute an !slami# ?tate. .ahathir0s de#laration was e#hoed "y his
su##essor, *"dullah @adawi, in Auly 299'. !n response to a written &uestion
during parliamentary sitting, @adawi said that .alaysia is an !slami# ?tate in
that it is a#-nowledged in the Federal Constitution to have !slami#
#hara#teristi#s and "e#ause its state governan#e and ethni# ma<ority pra#tise
!slam. He said the position of .alaysia as an !slami# state is strengthened "y
art. $ of the Federal Constitution, whi#h states that !slam is the offi#ial religion
of the Federation. 2n 11 Auly 2991, the Ceputy >rime Catu- ?eri (a<i" *"dul
Ba%a- said .alaysia today is not a se#ular state, "ut an !slami# state driven "y
the fundamentals of !slam. He went further and pro#laimed that: !slam is the
offi#ial religion and .alaysia is an !slami# state, an !slami# state that respe#ts
the rights of the non5.uslims and we prote#t them.
'1
From the a"ove paragraph, there seems to "e a #lash of opinions on the status
of .alaysia, ie, whether it is an !slami# or se#ular state as a result of
adopting !slam as the religion of the Federation under art. $(1). ?in#e #ase law
is in favour of a se#ular state argument while fa#ed with the interpretation of
art. $(1), it would "e safe to #on#lude that the !slami# state argument is more of
a politi#al reasoning rather than a legal reasoning and thus should "e dis#arded
altogether in a multi5ra#ial so#iety li-e .alaysia.
&ontro#ersies O#er )postasy
*lthough freedom of religion is guaranteed "y art. 11(1), in pra#tise this right is
fraught with diffi#ulties for .uslims, whether they are "orn into the faith or
have #onverted to !slam.
'2
The issue of renun#iation of the !slami# faith and
em"ra#ing of another religion is a #ontroversial &uestion.
'$
!t is nearly
impossi"le for individuals who have renoun#ed !slam to o"tain offi#ial
re#ognition of the same.
Furthermore, #ontention over the issue of apostasy, spe#ifi#ally on
#onstitutional provisions for freedom of religion to .uslims, remains
unresolved. ,egal and #onstitutional experts hold divergent views on whether
the Federal Constitution allows a#tion to "e ta-en against apostates.
''
?ome
argue that the freedom of religion guaranteed "y art. 11(1) of the Federal
Constitution is #onditional on art. $(1), whi#h states that !slam is granted
spe#ial status as the #ountry0s offi#ial religion. Hen#e, to ta-e legal a#tion
against .uslims who #hoose to depart from !slam or #onvert to other religions
does not #ontravene the provisions of the Constitution.
')
Those who advo#ate
for this view also draw on art. 11(') to support this argument.
However, detra#tors hold that the #ourt should adhere to the spirit of the
Constitution. !t is said that art. 11(1) is "road enough to permit #hange of faith
and though art. 11(') restri#ts propagation of any religion to .uslims, the law
nowhere for"ids voluntary #onversion of a .uslim to another faith. !n other
words, art. 11(') does not restri#t a .uslim from studying other religions and
#onverting to another religion out of his=her own free will.
'+
!t is also pointed
out that many state laws impli#itly re#ognise #onversions out of !slam "y
re&uiring a register to "e -ept of those who "e#ome murtad (infidels) and a
similar register is -ept of those who adopt !slami# faith.
'1
However, re#ently we
have witnessed some interesting de#isions of "oth #ivil and %yari,ah #ourts
regarding the issue of apostasy. For example, a former religious tea#her and
follower of the ?-y Dingdom deviant se#t Damariah *li was <ailed for two
years for apostasy.
'4
&on#ersion )nd )postasy
*lthough it is universally a##epted that freedom of religion in#ludes the right to
#onvert to another faith, it is important to note that the position in .alaysia is
not very #lear. For example, the right to #onvert out of one0s faith is not
mentioned expli#itly in the .alaysian Constitution.
'6
However, it is ta-en for
granted that a non5.uslim0s right to opt out of his religion is an impli#it part of
his religious li"erty.
)9
*s to .uslims, the issue of #onversion or apostasy raises signifi#ant religious
and politi#al #onsiderations. The adoption of !slam as the religion of the
Federation and the #ompulsory su"<e#tion of .uslims to the syari,ah in a
num"er of matters are other reasons why the #onversion of a .uslim out of
!slam arouses revulsion and anger among the .alays=.uslim #iti%ens.
)1
!t is
e&ually important to note that as !slam is the religion of the Federation and
.alays are, "y #onstitutional definition, re&uired to "e of the .uslim faith, all
.uslims are lia"le to prose#ution if their #ondu#t is violative of !slami#
pre#epts.
)2
(o .uslim #an lay a #laim to opt out of syari,ah laws 5 the
#onstitutional guarantee of freedom of religion notwithstanding. Hen#e, the
notion that freedom of "elief in#ludes the freedom not to "elieve is unli-ely to
"e a##epted in .alay so#iety.
)$
!rrespe#tive of this line of reasoning, some still
view art. 11(1) very "road enough to permit #hange of faith though art. 11(')
restri#ts propagation of any religion to .uslims, the law nowhere for"ids
voluntary #onversion of a .uslim to another faith.
)'
+ssue Of -urisdition .etween &i#il )nd %yari,ah &ourts
!t may have "een a positive move to have #ome up with the #onstitutional
amendment in 1644, whi#h saw the separation of these two #ourts, ie, the High
Courts (#ivil #ourts) were de#lared to have no <urisdi#tion in respe#t of any
matter within the <urisdi#tion of thesyari,ah #ourts. This is due to the fa#t that
the syari,ah is a #omplex and distin#t field that re&uires expert handling "y
those trained in the fundamental postulates of !slami# law and
<urispruden#e.
))
However, the amendment was flawed "e#ause it did not #reate
an authoritative ma#hinery for determining &uestions of #onfli#t of
<urisdi#tion.
)+
For example, some disputes involve mixed &uestions of #ivil
and syari,ah law. There are #ases where one part is a .uslim, the other is a
non5.uslim. However, of re#ent, we have witnessed some positive de#isions
given "y the Federal Court on this #onfli#ting issue of <urisdi#tion.
)1
!t has to "e admitted that this issue of #onfli#t of <urisdi#tion has "een one of
the areas in .alaysia where religious polarisation has set in espe#ially when
dealing with #onversion involving adults and #hildren as well; non5.uslim
marriages and many more. For example, it is ta-en for granted that that a non5
.uslim0s right to opt out of his religion is an impli#it part of his religious
li"erty.
)4
However, the exer#ise of this li"erty is not free of thorny issues li-e if
a @uddhist hus"and #onverts to Christianity, the religion of the #hildren may
"e#ome a "one of #ontention.
)6
The s#enario is even more #ompli#ated if the
#onversion is to !slam. For example, though the marriage is not automati#ally
dissolved, the syari,ah #ourt will have the power to end it. Custody and
guardianship of #hildren will "e#ome issues. The non5#onverting spouse will
not "e eligi"le for inheritan#e.
+9
/e#iationist +slam Or )ti#ities
*lthough !slam is the offi#ial religion of the Federation, it should "e noted that
the pra#tise of anything other than ?unni !slam is disallowed.
+1
There are
various laws at state level meant to deal with deviationist tea#hings or
a#tivities. For example, the *dministration of !slami# ,aw Ena#tment 1646 for
?elangor gives ex#lusive powers to the mufti to issue, amend or
revo-e fatwa (religious de#rees that are "inding and enfor#ea"le on#e
ga%etted).
+2
*lso the syari,ah #riminal offen#es legislation ma-es it an offen#e
for anyone to have an opinion or even own "oo-s #ontrary to the fatwa.
+$
So%ution! To So#" O$ T'" Ar"+! O$ Con"rn R"&+rdin& Fr""do# O$
R"%i&ion Und"r T'" M+%+,!i+n F"d"r+% Con!titition
.u#h as there is an a#-nowledgement of volatility of religion in any given
so#iety, it is vital to note that religion has a pea#eful fa#e and greatly valued for
various reasons. For example, religious freedom is "asi# to the nature of man
and is deeply rooted in our so#ial life. Hen#e, in the #ontext of this study it
"e#omes inevita"le to address some solutions to the areas of #on#ern regarding
this fundamental li"erty if we were to avoid ra#ial and religious polarisation in
.alaysia. The following are some of the solutions to the pertinent issues raised
throughout the dis#ussion:
There is an urgent need to understand the impli#ation of the #onstitutional
de#laration of !slam as the religion of the Federation. !t #annot "e denied that
!slam as a religion is given a spe#ial position under the Federal Constitution.
For example, the arti#le is not a mere de#laration "ut imposes a positive
o"ligation on the Federation to prote#t, defend, promote !slam; give effe#t "y
appropriate state a#tion to the in<un#tions of !slam; and ena"le, fa#ilitate and
en#ourage .uslims to order their lives and pra#tise a##ording to !slami#
in<un#tions, spiritual and mundane ali-e. However, this arti#le should not "e
read literally and further that the events leading to independen#e show that
.alaysia was intended to "e a se#ular state.
+'
The arti#le was inserted for
#eremonial purposes.
+)
!t has to "e admitted wholeheartedly that the restri#tion on the right to
propagate religion among people professing !slam pursuant to art. 11(') is said
to flow logi#ally and ne#essarily from !slam0s position as the religion of the
Federation. However, #ontrolling propagation #urtails the position of
religionists for whom proselytising is an integral part of worship. .any non5
.uslims #omplain that this amounts to une&ual treatment under the law for
other religions.
++
!ndeed it does. To over#ome this intention or #lash, it is
hum"ly su"mitted that the "est way of understanding #onstitutional provisions
of any given #ountry espe#ially li-e that of .alaysia is to ma-e referen#e to
some histori#al fa#ts or events that led to the in#lusion of su#h provisions into
the Constitution. Hen#e, it must "e remem"ered art. 11(') was part of the pre5
.erde-a so#ial #ontra#t "etween .alays and non5.alays.
+1
Though this may
"e the argument to present, still some have argued that while art. 11(') permits
restri#tion to propagation of other religions among .uslims, it does not restri#t
a .uslim from studying other religions and #onverting to another religion out
of his=her own free will.
+4
?till the #onversion of a .uslim out of !slam is
#onsidered a #ontentious issue "e#ause not all share the same view. For
example, Harding0s view regarding the restri#tion on proselytism revolves
around the issue of preserving pu"li# order than religious priority, seems not to
"e the #ase "ased on the ?upreme Court0s de#ision in the #ase of Mamat bin
/aud #$ 0o#ernment of Malaysia$
+6
The other important issue to loo- into is that of #onversion and laws on
apostasy. The fo#us of attention here is on the issue or &uestion of whether a
.uslim #an #onvert out of !slam. !f so, #an he=she "e punished for apostasy3
19
8ill su#h punishment infringe his=her right under art. 113
11
!t is su"mitted that
the legal s#enario is #ompli#ated. However, re#ently we have witnessed some
few #ases where .uslims have "een #harged in the syari,ah #ourts for apostasy
and even <udgment passed.
12
!t must "e pointed out that in the #ontext of this
study laws on apostasy and other a*idah (faith) laws may raise important
#onstitutional issues.
1$
For example, art. 11(1) is "road enough to permit
#hange of faith irrespe#tive of art. 11('). Hen#e, a law that violates art. 11(1)
may "e #hallenged as un#onstitutional. *lso for#ed reha"ilitation #ould "e
viewed as an interferen#e with personal li"erty guaranteed "y art. )(1).
1'
This is
due to the fa#t that the term law under art. 1+9(2) of the Federal Constitution
does not in#lude syari,ah law. ?o, are these apostasy or a*idah (faith) laws
#onsidered syari,ah laws3 !f the answer is to the affirmative, then su#h laws
#ould "e #hallenged to "e un#onstitutional "y virtue of art. 1+9(2) and thus
someone who #onverts out of !slam #ould still invo-e the violation of his
#onstitutional right under art. )(1) as a result of for#ed
reha"ilitation.
1)
!rrespe#tive of what is said here, some would still argue that
su#h laws are not un#onstitutional on the "asis of art. 11('), whi#h stipulates
that state or federal law may #ontrol or restri#t the propagation of any religious
do#trine or "elief among persons professing the religion of !slam. >ro"a"ly
what is needed is a fair "alan#ing of interests with the least fri#tion and the
need to understand the #onstitutional provisions from the histori#al perspe#tive
as well.
!n addition to the issue of apostasy, pro"a"ly when it #omes to something li-e
an apostasy law, or a pu"li# poli#y to govern faith, so#iety must de"ate openly
and rationally to "e a"le to de#ide what is in the "est interest of the people.
1+
*ll
#iti%ens should have the right to engage in dialogue on religious issues. 8e
should not shun away from dis#ussing ra#ial and religious issues "e#ause they
are deemed to "e sensitive. Thus, some have argued that apostasy should "e
addressed through persuasion rather than #riminalisation.
11
For example, it
#ould "e argued that apostasy law is a #ause for #on#ern on the "asis that !slam
is a religion of persuasion, not for#e. Fiewed from that perspe#tive, the idea or
notion of detaining apostates runs #ounter to the spirit of !slam whi#h is one of
toleran#e for the dis"eliever.
Furthermore, in dealing with apostates, the .uslim #ommunity, espe#ially its
religious leaders, must loo- within.
14
They must study all apostasy #ases;
#ategorise them; analyse the #auses; and try to wor- out the #ures.
16
!n other
words, the authority must see- to win "a#- lost souls through love and
persuasion and not through #riminalisation. This in fa#t would redu#e the
tension "uilt on religious freedom in the #ontext of #onversion sin#e *llah
(7od) re#ognises the possi"ility of repentan#e and reminds us that He is all5
forgiving.
49
*s to a #onversion of a non5.uslim to !slam, pro"a"ly there is a need to #ome
up with some guidelines if we were to address some of the thorny pro"lems or
issues #aused "y the exer#ise of this li"erty, ie, freedom of religion. For
example, it should "e made as a re&uirement that the family of the aspiring
#onvert must "e informed and must "e heard.
41
*lso, no #onversion #ertifi#ate
should "e issued till the issues of divor#e, distri"ution of property, guardianship
and #ustody of #hildren have "een resolved in a##ordan#e with the law under
whi#h the marriage too- pla#e.
42
*s to the issue of <urisdi#tion "etween the #ivil and syari,ah #ourts, although
the original intention of this #onstitutional amendment was to upgrade the
status of the syari,ah #ourts and to ma-e them autonomous of the #ivil #ourts in
matters of !slami# law, it #ould not "e denied or watered down that the
amendment was flawed "e#ause it did not #reate an authoritative me#hanism
for determining &uestions of #onfli#t of <urisdi#tions. !n order to over#ome this
pro"lem, pro"a"ly the syari,ah #ourts should have ex#lusive <urisdi#tion only
when "oth parties are .uslim.
4$
Thus, the #ivil #ourts should not "e ex#luded
from hearing su#h a #ase espe#ially where one of the parties is non5.uslim.
>ro"a"ly we need to have a me#hanism in pla#e li-e where the High Court
have a %yari,ah Civision manned "y <udges familiar with "oth #ivil
and syari,ah laws to ad<udi#ate upon the matter.
4'
!t #ould also "e possi"le to
invo-e the advisory <urisdi#tion of the Federal Court under art. 1$9 to address
this #onfli#t of <urisdi#tion.
Furthermore, although deviationist tea#hings fall outside the s#ope of freedom
of religion as understood in .alaysia, perhaps there is a need altogether to
revisit the approa#h adopted "y the relevant states or authorities in #ur"ing this
mena#e among the .uslims. For example, the deviationists should not "e
#riminalised altogether "ut rather should "e given a full platform or fair
opportunity to defend themselves and pro"a"ly to explain their
#ondu#t.
4)
*lthough some may still argue in favour of #riminalisation, we ought
to -now the dangers asso#iated with su#h a move, ie, use of ar"itrary laws and
as well as private religious groups with no authority to see- to stifle diversity
within religious dis#ourse "y #alling upon government to ta-e a#tion against
the proponents of alternative views on the grounds that they insult !slam.
Con%u!ion
!t may safely "e #on#luded that freedom of religion under the .alaysian
Federal Constitution #annot "e understood without ma-ing referen#e espe#ially
to arts. $ and 11 of the Federal Constitution. Hen#e, proper understanding of
these arti#les is essential while fa#ed with the issue or &uestion of religious
freedom from a .alaysian perspe#tive. There is also a need to understand other
#onstitutional provisions related to the dis#ussion of religious freedom as far as
the .alaysian Federal Constitution is #on#erned. However, it is wholly
admitted that "y understanding these #onstitutional provisions alone would not
solve the pro"lems that we are #urrently fa#ing in the #ontext of freedom of
religion. Thus, there is a dire need for politi#al will to wor- out satisfa#tory
solutions to some of the pro"lems highlighted a"ove if we were to really
address the interests and legitimate expe#tations of the various religious
#ommunities whi#h at present are #ompeting and #lashing in some areas. For
example, the re#ent #ases of ?hamala and ?gn .oorthy *"dullah highlight the
pain and anguish a #onversion #an #ause.
4+
*part from the politi#al will that is needed, pro"a"ly we ought to loo- into the
fun#tion of law in relation to religion within a multi5#ultural and multi5religious
so#iety where religious pluralism is valued. !n su#h a #ontext, law affords e&ual
prote#tion to all religions and refrains from <udging the merits of any religion.
E&ual treatment of religions under the law does not, of #ourse, mean that all
religions are of e&ual truth5validity.
41
That is a matter left to the <udgment and
#hoi#e of the individual. *lthough this is what is said a"out the fun#tion of law
in relation to religion, it is inevita"le to suggest that in .alaysia there is a need
to have #lear laws in pla#e in ta#-ling some of these pro"lems. For example,
the Federal Court de#ision in 1atifah Mat 2in
44
was of spe#ial importan#e.
Austi#es *"dul Hamid .ohamed, *rifin Ga-aria and *ugustine >aul, while
they #larified some of the #onfli#ts in <urisdi#tion "etween #ivil
and syari,ah #ourts, they noted that there were matters that might "e outside the
<urisdi#tion of "oth, resulting in no availa"le remedy in either #ourt.
*ll in all, it is su"mitted that the efforts at the so#ietal level may "e more
fruitful in understanding the notion of freedom of religion under the .alaysian
Federal Constitution. Thus, freedom of religion may "e enshrined in the
.alaysian Constitution "ut .alaysians have mu#h to learn a"out respe#ting
one another0s faith. *lso, although religion is often viewed as a sensitive issue,
so#iety should not "e afraid to dis#uss it in a pea#eful and ta#tful manner. 8hat
is important in the dis#ussion of freedom of religion in a .alaysian #ontext is
for us to stri-e a "alan#e "etween "eing ta#tful and tolerant with religious
issues, and at the same time, "e open to allow individuals to see- the faith of
their #hoi#e.
Endnot"!-
3 1eturer4 'aulty of .usiness and 1aw4 Multimedia 5ni#ersity4 Malaysia$
The author may be ontated at6 ahmad$masum7mmu$edu$my$
1. ?ee art. 14 of the Hniversal Ce#laration of Human Bights 16'4 and also art.
14 of the !nternational Covenant on Civil and >oliti#al Bights 16++. ?ee also
art. 6 of the European Convention on Human Bights.
2. *rti#le 11(1) of the Federal Constitution provides that: Every person has the
right to profess and pra#tise his religion and, su"<e#t to Clause ('), to propagate
it.
$. *s #ited "y T. Aeremy 7uun, 8The &omple9ity of Religion and the /efinition
of 8Religion8 in +nternational 1aw8 (299$) vol. 1+ Harvard Human Bights
Aournal 161.
'. +bid$
). +bid$
+. Bhona D... ?mith I Carolyn .#!ntosh, 'reedom of Religion6 The
E#olution of a Human Right4http:==www.dere#hos.org=-oaga=i=smithr.html
viewed on 24 *ugust 299+.
1. *s stated "y ?had Faru&i, 8%upport for religious liberty48 ?unday ?tar, 2)
Fe"ruary 2991, 22. ?ee also ?had Faru&i, 8The Human Rights and
&onstitutional Perspeti#e8 (2992) !(?*F the Aournal of .alaysian @ar 6.
4. +bid$
6. +bid$
19. +bid$
11. ?ee arts. 11(1) and $(1) of the Federal Constitution respe#tively.
12. ?had Faru&i, n. 1 at 22.
1$. ?ee arts. 11($) and 12(2) of the Federal Constitution.
1'. *rti#le 11(2) of the Federal Constitution.
1). *rti#le 12($) of the Federal Constitution.
1+. *rti#le 4(2) of the Federal Constitution.
11. *rti#le 1)9(+*) of the Federal Constitution. ?ee also the de#ision of the
#ourt in the #ase of -amaluddin bin Osman J1646K 1 .,A $+6 where the #ourt
held that a preventive detention order #annot "e issued on the ground that a
#onvert out of !slam is involved in a programme for propagation of Christianity
amongst .alays. !n other words, freedom of religion under art. 11 was held to
override the power of preventive detention under the !nternal ?e#urity *#t
16+9.
14. ?had Faru&i, 8&onstitutional limits on religious liberty48 The ?un, 2) .ay
299+, E+. ?ee also ?had Faru&i, 8The Human Rights and &onstitutional
Perspeti#e8 (2992) !(?*F the Aournal of .alaysian @ar 12.
16. +bid$
29. +bid$ ?ee also the #ase of "amariah bte )li #$ "elantan 0o#ernment J2992K
$ C,A 1++.
21. Devin L, Tan I Thio ,i5*nn, Constitutional ,aw in .alaysia and
?ingapore, @utterworth *sia, .alaysia, 1661 at 6'1.
22. +bid$
2$. ?had Faru&i, 8%upport for religious liberty48 ?unday ?tar, 2) Fe"ruary
2991, 22.
2'. ?had Faru&i, n. 14 at E+.
2). ?ee s. 12' of the Coun#il of the Beligion of !slam and .alay Custom,
Delantan Ena#tment 1662 provides: /*ny person who helps or #auses a person
who professes the religion of !slam to leave his religion is guilty of an offen#e
and shall, on #onvi#tion, "e lia"le to a fine not ex#eeding four thousand ringgit
or to imprisonment for a term not ex#eeding two years or "oth.0 ?ee also s. ',
(on5!slami# Beligions (Control of >ropagation *mongst .uslims) ?elangor
Ena#tment 1 of 1644 and the similarly worded Ena#tment for .ala##a (o 1 of
1644 and Dedah (o. 11 of 1644. These ma-e it an offen#e to persuade a
.uslim to #hange faith, to approa#h a .uslim to su"<e#t him to spee#h
#on#erning a non5!slami# religion or send him materials on non5!slami#
religions, to distri"ute su#h pu"li#ations to .uslims in a pu"li# pla#e.
2+. *s stated "y *ndrew Harding, 1aw4 0o#ernment and the
&onstitution4 .alayan ,aw Aournal ?dn @hd, Duala ,umpur, 166+, at 292.
21. +bid$
24. +bid$
26. J1669K 2 C,A 11; J1669K 1 C,A (Bep) 211 ?C.
$9. *"dul Hamid #ited art. 12(') and art. 1+(') in support of his de#ision. !n
applying the !slami# age of #onsent (a##ording to the%hari,ah4 this is 1) for
"oys and on the onset of baligh or menstruation for girls), he held that the age
of ma<ority under art. 12 (eighteen years) did not apply to art. 11.
$1. ?ee Cham"ers English Ci#tionary.
$2. J166'K $ C,A )$2 ?C.
$$. J299+K ' C,A 1.
$'. *"dul *%i% @ari I Farid ?uffian ?huai", &onstitution of Malaysia-Te9t (
&ommentary4 2nd edn, >renti#e Hill, >etaling Aaya, 299', at '9.
$). +bid., at '1.
$+. ?had Faru&i, 8'reedom of religion under the &onstitution48 The ?un, 14
.ay 299+, E4.
$1. +bid.
$4. ?had Faru&i, 8Ours is a hybrid system48 The ?un, 29 Auly 299+, E2.
$6. +bid.
'9. J1644K 2 .,A )).
'1. B. .anira<an,/eputy Prime Minister6 Malaysia is not a seular state$ :hat
the legal e9perts4 politiians, say;PM6 Muslim ountries annot remain mere
spetators4 viewed on 22 Auly 2994.
'2. ?ee Malaysia Human Rights Report <==>-&i#il and Politial
Rights4 ?H*B*. Dommuni-asi, >etaling Aaya, 299+, at 6'.
'$. +bid$
''. +bid$
'). +bid$
'+. +bid$
'1. ?had Faru&i, 8The Human Rights and &onstitutional Perspeti#e48 (2992)
!(?*F the Aournal of the .alaysian @ar 1'.
'4. ?ee 8%ky "ingdom member gets two years for apostasy48 The ?tar, ' .ar#h
2994, ($).
'6. ?had Faru&i, 8%potlight on religious freedom8 The ?un, 1 Aune 299+, E1.
)9. +bid$
)1. ?had Faru&i, -urisdition of %tate )uthorities to punish offenes against the
preepts of +slam6 ) &onstitutional Perspeti#e4 www.malaysian"ar.
org.my viewed on 2$ (ovem"er 2994.
)2. +bid$
)$. +bid$
)'. ?had Faru&i, n. '1 at 1).
)). ?had Faru&i, n. '6 at E1.
)+. +bid$
)1. ?ee the Federal Court0s de#ision in the #ase of 1atifah Mat 2in #$
Rosmawati %haribun ( )nor J2991K 2 C,A 2)$. ?ee also the #ase of %ubashini
#$ %ara#anan J2991K 1 C,A )4'. !n %ubashini, the Federal Court ruled that
&uestions of <urisdi#tion are for the #ivil #ourts to determine. The High Court
has <urisdi#tion even if the hus"and has #onverted to !slam and even if he had
#ommen#ed pro#eedings in the %yari,ah #ourts.
)4. ?had Faru&i, n. )) at E1.
)6. +bid$
+9. +bid$
+1. ?ee Malaysia Human Rights Report <==> - &i#il and Politial
Rights4 ?H*B*. Dommuni-asi, >etaling Aaya, 299+, at 6).
+2. +bid$
+$. ?ee s. 6 of the ?yari0ah Criminal 2ffen#es *#t 1661 for the Federal
Territories, whi#h ma-es it a #riminal offen#e for any person ... a#ts in
#ontempt of religious authority or defies, diso"eys or disputes the orders or
dire#tions of the ?ang di-Pertuan )gong (Ding) as Head of the religion of
!slam, the Ma!lis or the Mufti, expressed or given "y way of fatwa$ ?ee also
?e# 12 of the same *#t. !t ma-es it an offen#e for any person to give,
propagate, or disseminate any opinion #on#erning !slami# tea#hings, !slami#
law, or any issue #ontrary to any fatwa when it is in for#e.
+'. ?ee the 8hite >aper on the Constitutional >roposals for the Federation of
.alaya stating that it is a se#ular state. ?ee also the #larifi#ation made "y the
then >rime .inister Tun-u *"dul Bahman at the Federal ,egislative Coun#il
in 16)4 that ... this #ountry is not an !slami# state as it is generally understood,
we merely provide that !slam shall "e the offi#ial religion of the ?tate.
+). ?ee the impli#ations that flourish from art. $(1) of the Federal Constitution,
ie, !slami# edu#ation and way of life #an "e promoted "y the state; taxpayers0
money #an "e utilised to promote !slami# !nstitutions and to "uild mos&ues et#.
*lso, !slami# #ourts #an "e esta"lished and syari,ah offi#ials #an "e hired.
++. ?had Faru&i, n. 14 at E+.
+1. +bid$
+4. ?ee Malaysian Human Right Reports <==>-&i#il and Politial
Rights4 ?H*B*. Dommuni-asi, >etaling Aaya, 299+, at 6).
+6. J1644K 1 .,A 1165where the ?upreme Court reiterated that the a#ts
prohi"ited "y the se# (s. 264* of the >enal Code) had nothing to do with pu"li#
order, a federal matter, "ut dire#tly #on#erned with religion.
19. ?had Faru&i, n. '1 at 1'.
11. +bid$
12. ?ee the re#ent de#ision of the %yari,ah High Court <udge .uhammad
*"dullah in Duala Terengganu regarding a follower of the ?-y Dingdom
-nown as Damariah *li who was <ailed for two years for apostasy.
1$. *s #ited "y ?had Faru&i, 8The Human Rights and &onstitutional
Perspeti#e8 (2992) !(?*F the Aournal of .alaysian @ar 1).
1'. +bid$
1). +bid$
1+. Cindy Tham, 7od0s words and man0s laws5,awyers, (72s #all for
statutory #oun#il to preserve religious freedom and toleran#e, The ?un, 19
Ce#em"er 2999, 11.
11. +bid$ This view is shared "y a#ademi#s li-e ?had Faru&i (emphasis added).
14. ?had Faru&i, ?ee-ing the path of moderation, The ?un, 4 Aune 299+, E4.
16. +bid$
49. ?ee ?urah al5!mran, $:4+546.
41. ?had Faru&i, ?potlight on religious freedom, The ?un, 1 Aune 299+, E1.
42. +bid$
4$. +bid$
4'. +bid$
4). +bid$
4+. +bid$
41. Devin L, Tan and Thio ,i5*nn, &onstitutional 1aw in Malaysia and
%ingapore, @utterworth *sia, .alaysia, 1661 at 411.
44. J2991K 2 C,A 2)$.