REPORT ON THE STATE OF RELIGIOUS LIBERTY IN MALAYSIA

FOR THE YEARS 2009 & 2010

Prepared by the Religious Liberty Commission National Evangelical Christian Fellowship Malaysia

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BACKGROUND TO THE TWO YEARS UNDER REVIEW

Introduction
In 2009, Malaysia witnessed a change in her political leadership when Najib Tun Razak became the nations sixth Prime Minister. In contrast to the start of Abdullah Ahmad Badawis administration in early 2004, the Christian community was noticeably less optimistic about the political environment surrounding issues of religious liberty when Najib assumed office in April 2009. As is well known, Abdullah was forced to step down because of his perceived poor leadership of his party, the United Malay National Organisation (UMNO), and to accept responsibility for the results of the March 2008 General Elections which saw the Barisan Nasional (BN) lose its two-thirds majority in Parliament as well as the governments of three major West Coast states. UMNO is the senior member of BN, the ruling coalition.

1.1

On assuming the Prime Ministers office, Najib, like those before him, began his tenure by defining his vision and direction for the country. Abdullah and Dr Mahathir Mohamad had also done so but Najibs was in trumping spades, going by the sheer number and breathtaking level of ambition. Through the introduced 1Malaysia concept, he implied the promise of more social cohesiveness and less ethnically- and religiously- motivated governance. He also introduced the slogan People First, Performance Now to counter the public image that the BN was an elitist organisation that only looked out for itself and whose policy results fell far short of its rhetoric. Less remembered but important in its own right was Najibs call for a new national discourse, one that was based on transparency and accountability and that embraced respect and fairness in public dialogue.

To give this new national discourse a sense of substance, he instituted three major initiatives, viz. the New Economic Model (NEM) to lay out economic goals and

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strategies, and the Government and Economic Transformation Programmes (GTP and ETP); both far-reaching attempts to (as their names imply) thoroughly overhaul the national governance and the Malaysian economy. It was obvious that he saw himself and was unafraid to be seen more as a chief executive officer rather than politician. Being enamoured by the blue ocean strategy he enlisted its main founder, the Harvard management guru, W Chan Kim as an advisor.

Najib was a man in a hurry. He needed to prove his bona fides in hope that these would convince the voting public that he was the right man for the job. It must also be noted that Najib assumed office immediately after the September 2008 global financial crisis and there were immense concerns of severe economic recession. In order to ensure that his reform initiatives were not held back and confounded by a slow, unwieldy and ill-equipped civil service, he relied on foreign and local private consultants and highly-paid talent from the private sector to staff PEMANDU, a vehicle established in the Prime Ministers Department to drive the changes. Naturally, this did not endear him to the civil service. But of much greater consequence was the fact that his reform initiatives also did not endear him to the political hardliners within his party.

In Najibs efforts to get things moving, he had to court wealthy businessmen, professionals and foreign investors and was seen as ignoring the Malay agenda. Three things that he did, in particular, seemed to fuel the latter belief: First, the significant reduction in the scope and powers of the Foreign Investment Committee (FIC), second, the removal of the need to reserve a portion of all initial public offerings in equity to Bumiputera and, third, the abolishment of the Ministry of Entrepreneur Development.

It was obvious that Najib was not going to settle for anything less than an all-out effort to craft Malaysia in the image of what he thought the Malaysian public wanted

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and needed, notwithstanding growing disaffection by his party. He and his coterie of advisors must have surmised that their policies and programmes were the antidote to the marked political shift and drift that had led to the outcome of the previous general elections.

In terms of religious liberty and for the Christian community, initial expectations varied. There are those who were sceptical and doubted that the state of religious liberty would improve given the shocking and unexpected firebombing incidents involving three churches and others which were vandalized. But there were others who looked at the positive side and preferred to give him a chance especially in light of his three new major initiatives pursuant to his People First, Performance Now philosophy. The question that lingers on everyones mind is whether the state of religious liberty has improved and been substantially enhanced during the tenure of the Najib administration, given the bold initiatives he had laid out?

In contrast to previous years, this report will encompass a two-year period for the years 2009 to 2010. The Religious Liberty Commission is of the view that this is necessary and of upmost interest as many of the issues and violation of religious liberty occurred not only in 2009 but followed through to 2010. The following pages are the report in substantially the same format and layout as previous years.

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ISSUES CONCERNING RELIGIOUS FREEDOM

Introduction: Constitutional Issues
The Federal Constitution of Malaysia is the supreme law of the land which expressly provides for the fundamental right to freedom of religion. Article 11 of our Constitution stipulates and guarantees that every person has the right to profess and practise his religion subject to State law (for the federal territories, Federal law) which may control and restrict the propagation of any religious doctrine and belief amongst the people professing the religion of Islam.

This means the Constitution recognises that all persons have the right and freedom to choose his or her own religion according to ones own choice, conscience, belief and conviction. This expression of every person must include all people of any and all ethnic groups and cannot be confined to a segment of society to the exclusion of any. To do so would be a mockery to the Constitution. The right to profess and practise one's own religion would imply the right to choose a religion without the need to be subjected to any conditions. It also means the right to manage one's own religious affairs and institution without undue interference or discrimination.

As regards the right to propagate, Article 11(4) stipulates that state law (in the case of the federal territories, Federal Law) may control and restrict the propagation of religious doctrine or belief among Muslims. It is argued that such provisions allowing the state to control the propagation of non-Islamic religions is clearly contrary to the intention of the Constitution and indeed ultra vires against the backdrop of Article 11.

This is arguably the case as the Constitution envisages a secular policy; Malaysia is not a theocratic but a secular state with Islam being declared to be the religion of the

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Federation under Article 3 of the Constitution. This, however, cannot be taken to mean that Malaysia is an Islamic state as it only provides that the nation espouses a national religion but does not exclude the practice of other religions. Such is expressly provided in Article 3 which states that that provision does not derogate from any other provision of the Constitution (including Article 4 entrenching the principle of the supremacy of the Constitution). It also goes on in the same breath to pronounce that all religions may be practised peacefully and in harmony in any part of the Federation.

It is rather unfortunate that the process of Islamisation which started more than 25 years ago has altered this fundamental perception and outlook within Malaysian society. Today, Islamisation continues to constrict the free and legitimate exercise of religious rights guaranteed under the Federal Constitution while incessantly undermining the secular basis and character of Malaysia.

2.1

Right to Profess

2.1.1 Conversion Issues/Cases

Article 121(1A) of the Federal Constitution provides that the two High Courts in Malaysia referred in Article 121(1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. This clause has been inserted with the purpose of delineating the judicial jurisdiction of Malaysias dual system of civil and Syariah courts and to prevent the High Courts from exercising its powers of judicial review over the decision of a Syariah court. However, far from clarifying the judicial ambit, the contesting interpretation of the clause has led to much controversy and social tension, especially when the cases involved are inter-religious in nature and the parties include Muslims as well as non-Muslims.

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Another provision in the Federal Constitution which has raised public concern is Article 12(4) which provides that the religion of a person under the age of eighteen years shall be decided by his parent or guardian. Of late, the courts have been interpreting this clause, particularly the word parent, literally, instead of adopting a purposive approach. It was ruled that unilateral conversion of a child to Islam can be done without the consent or knowledge of the non-converting spouse. This has led to a spate of controversial cases, some of which occurred within the two years under this review.

2.1.1.1 Muhammad Ridzuan Abdullah (formerly known as K Patmanathan) had converted to Islam from Hinduism on 11 March 2009. He then converted his three children Tevi Darsiny, 12, Karan Dinish, 11 and baby Prasana Diksa, 1, to the same on 2 April 2009 without consent and/or knowledge of their mother (his Hindu wife), Indira Gandhi.1 The children were converted without their knowledge and in their absence, using only their birth certificates. Muhammad Ridzuan further proceeded to take away their infant child on 4 April 2009.2

Muhammad Ridzuan and Indira Gandhi had been having a bitter relationship and there stands a pending divorce suit filed by Indira Gandhi in December 2008. The Syariah Court in Perak initially awarded the interim or temporary custody of the children to Muhammad Ridzuan but on 24 April 2009 the Ipoh civil High Court granted Indira Gandhi interim custody of the three children together with an injunction preventing her husband from entering their home. The court also ordered the police to assist Indira Gandhi in carrying out the court's orders.

On 11 March 2010, the Ipoh High Court granted the custody of the baby, Prasana Diksa, to Indira Gandhi.3 However, Muhammad Ridzuan filed a notice of appeal to the court and an application for a stay of execution of the order made by the Ipoh

Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), pp 115 116 The Star, 25 and 26 April 2009; Earlier, it was reported that the infant was taken away by her husband on 31 March 2009. See also: New Straits Times, 23 April 2009 and The Star, 24 April 2009 3 The Star, 11 March 2010
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High Court to return Prasana Diksa (about 2-3 years old at that time) to the mother. This application was subsequently dismissed by the High Court.4

On 28 July 2010, Indira Gandhi was granted leave by the Ipoh High Court for a judicial review to quash her children's conversion to Islam5 but has yet to be reunited with her youngest daughter.6 To date, the case has not been resolved.7

2.1.1.2 Banggarma Subramaniam filed a suit in the Penang High Court on 23 December 2009, seeking a declaration that her alleged conversion to Islam at the age of seven was invalid. Named as defendants in her suit were former Prime Minister Dr Mahathir Mohamad in his capacity as president of the Muslim Welfare Organisation Malaysia (Perkim), Perkim official Raimi Abdullah, the Penang Islamic Council (Majlis Agama Islam Pulau Pinang, MAIPP) and the Penang City Kadi (Islamic judge).8 The said conversion was alleged to have occurred on 28 December 1989 during the time she was placed in a government welfare home, namely Rumah Kanak-Kanak Taman Bakti. Additionally, she sought to have the name on her identity card (presently being Siti Hasnah Vangarama Abdullah) changed to her original Hindu name and for the designation of Islam to be deleted from the same.9

This was disputed by the Welfare Department who maintained that it was her natural father who converted her to Islam (allegedly on 30 November 1983) when Banggarma was one year old. This assertion contradicts the Certificate of Conversion in Banggarmas possession (as handed to her by the welfare home officer) that states her conversion had occurred in 1989; i.e. when she was seven years old.

The Star, 1 April 2010; With Muhammad Ridzuans application being set aside, he risks being jailed for contempt should he still fail or refuse to return the infant (Prasana Diksa) to Indira Gandhi 5 The Star, 28 July 2010; Justice Zainal Adzam finally granted this leave after the case was postponed many times pending the Federal Courts decision on the S. Shamala conversion case. 6 The Star, 31 July 2010; Muhammad Ridzuan went on to caution Indira Gandhi against pursuing the matter and warned that Indira Gandhi can forget about seeing her youngest daughter again 7 As of 31 December 2010 8 The Sun, 23 December 2009 9 Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), pp 114 - 115

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Denying the Welfare Departments assertion, Banggarma contended, by virtue of Section 80 of the Penang Administration of Islamic Affairs Enactment 1993 (PAIAE 93), that her conversion was unlawful and sought a court order to nullify the conversion. Section 80 of the PAIAE 93 states that no child under the age of 18 can be converted to Islam without ones parents permission.10

On 29 August 2009, Banggarma joined a group claiming to be the Human Rights Party of Malaysia seeking to hand over a memorandum pleading for the Sultan of Perak to intervene into issues concerning religious conversions. The delivery of the memorandum, however, failed as police only allowed a limited number of people into the palace grounds.11

On 6 February 2009, the Malay daily Utusan Malaysia reported that the Majlis Agama Islam Pulau Pinang (MAIPP) had rejected Banggarmas assertion and further contended that when her parents had embraced Islam in Rompin, Pahang on 30 November 1983, her parents had converted her, too. It is MAIPPs stand that her alleged conversion on 28 December 1989 is false and suspicious as she (Banggarma) had only been sent to the welfare home on 5 March 1990.12

On 4 August 2010, Justice Yaacob Md Sam (of the Penang High Court) dismissed Banggarmas originating summons with costs after ruling that the High Court did not have jurisdiction to hear her case. The court held that either the parents or a caretaker has the right to determine the religion of a child or children of minor age.13 The court was of the view that Banggarma is a Muslim since her parents had converted themselves as well as their five children to Islam.

2.1.1.3 On 25 July 1998, Siti Fatimah Tan binti Abdullah (formerly known as Tan Ean Huang) converted to Islam to marry an Iranian, Ferdoun Aslanian. They were married on

10 11

The Star, 20 November 2009; Malaysiakini, 20 November 2009; The Sunday Daily, 24 November 2009 The Star, 29 August 2009 12 Utusan Malaysia, 6 December 2009 13 New Straits Times, 4 August 2010; The Star, 5 August 2010

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4 August 1999 but separated a few months later. In May 2006, she filed an application under Section 61 (3) (b) (x) of the Administration of the Religion of Islam (State of Penang) Enactment 2004 seeking a declaration that she was no longer a Muslim as she wished to renounce Islam and return to Buddhism.14

On 8 May 2008, the Penang Syariah High Court allowed her application but the Penang Islamic Religious Council, being dissatisfied, appealed against this decision. On 19 March 2009, the Syariah Court of Appeal dismissed their appeal and upheld the decision of the Penang Syariah High Court. The Syariah Court of Appeal further stated that her uttering of the two clauses of Affirmation of Faith (Syahadah oath) was invalid. Accordingly, she could not be considered as a Muslim and hence was not an apostate.15

2.1.1.4 Mohammad Shah @ Gilbert Freeman, 60, applied to the Seremban Syariah High Court to declare himself a non-Muslim after the National Registration Department refused to accept he was a Christian and disallowed him to drop his Islamic name when he applied for a new identity card. He also asked the court to remove his Malay name in his identity card.

He told the court that he was raised according to the Christian faith and had adhered to the religion since childhood. He also explained that his late mother, who was a Christian, had cared for him then. He was also baptised in Seremban Visitation Church at the age of three (on 17 April 1948), was married according to Christian rites to P Anjalie (on 3 August 1974) and had never lived according to the Muslim faith nor adhered to any of its cultures or practices. Mohammad Shah had never seen his father, known as Mohd Said, who had left him and his mother when he was only two months old. In fact, his mother and Mohd Said had never married according to either the Muslim or Christian faiths.

14 15

Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), pp 114 115 Majlis Agama Islam Pulau Ping lwn Siti Fatimah Tan Binti Abdullah [2009] 27 Jurnal Hukum Bhg II 185

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On 5 March 2009, the Seremban Syariah High Court (by Judge Mohd Nadzri Abdul Rahman Ibrahim) ruled that Mohammad Shah is not a Muslim. The learned judge went on to say that even though Shah's father is a Muslim, Section 108 of the Administration of the Religion of Islam (Negeri Sembilan) Enactment 200316 does not apply because he was never raised as a Muslim and had not embraced the religion as stated under the law. He was not practising Islam and he had not applied to be a Muslim.17 He added that there is also no proof of a valid marriage, according to either Muslim or Christian rites, between Mohammad Shahs father, Mohd Syed @ Mohammad Said, or his late mother, Doris Josephine Freeman.

This was a rare case as while Muslims are governed by the Islamic Syariah courts and civil courts have jurisdiction over non-Muslims, inter-religious disputes usually end up in Syariah courts, and end in favour of Muslims. The judge, however, rejected his application to have his name changed as such an application to remove Mohammad Shahs Malay name falls under the purview of the National Registration Department.18

2.1.1.5 On 5 March 2009, Chew Yin No, age 23, filed a petition at the Seremban Syariah Court seeking the dissolution of her marriage to Hoo Ying Soon, a Buddhist, under section 46(2) of the Administration of Islamic Law (Negri Sembilan). She had converted to Islam on 28 January 2009 and adopted a Muslim name, Siti Zubaidah Chew Abdullah. She registered her religious status at the Pusat Dakwah Islamiah in Paroi in January 2009. She also had a declaration card which confirmed her status as a Muslim. On 3 February 2009, she had also converted the couple's 15-month-old daughter whose name was changed from Hoo Joey, to Nurul Syuhada Chew Abdullah. Siti Zubaidah and her 28-year-old husband were married on 14 February

16

Section 108 of the Administration of the Religion of Islam (Negeri Sembilan) Enactment 2003 provides that [a] person is converted to the religion of Islam and becomes a Muslim as soon as he finishes uttering the two clauses of the Affirmation of Faith provided that the requirements of section 107 are fulfilled; and that person shall thereupon be referred to as a muallaf. 17 New Straits Times, 6 March 2010; Associated Press, 6 March 2010 18 For details, see Re Declaration on Religious Status of Mohd Shah @ Gilbert Freeman [2009] 4 Sh LR 90.

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2007 and they have yet to finalise their divorce in the civil court. The Syariah High Court gave interim custody of Hoo Joey to Siti Zubaidah.19

2.1.1.6 On 22 April 2009, the Cabinet decided that civil courts are the right place to dissolve a marriage in the event of a spouse converting to Islam. It also decided that if either spouse were to convert to Islam, the children should follow the faith that the parents had agreed on at the time of marriage, or implied by their common religion. The Cabinet made the decision following Indira Gandhis case where her three children were converted to Islam by her husband K Patmanathan, now known as Mohd Ridzuan Abdullah, without her consent.20 The Cabinet had also instructed the Attorney-General to look at all relevant laws needing amendment in line with the decision.

A day later, Minister in the Prime Ministers Department Datuk Seri Nazri Aziz announced plans to amend the three laws - Law Reform (Marriage and Divorce) Act 1976, Islamic Family Law (Federal Territories) Act 1984 and Administration of Islamic Law (Federal Territories) Act 1993 - to accommodate these decisions.21

While the Bar Council, the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, the Council of Churches Malaysia, National Evangelical Christian Fellowship, Joint Action Group (JAG) for Gender Equality, MCA and Sisters in Islam welcomed this Cabinet directive, it was opposed by the Malaysian Syariah Lawyers Association (PGSM), PEMBELA (a coalition of Muslim nongovernmental organisations) and Jamaah Islah Malaysia (JIM).22

On 29 June 2009, the 217th (special) meeting of the Conference of Rulers decided that any amendments to the laws pertaining to matters of conversion and religion

The Star, 5 March 2009; New Straits Times 6 March 2009. New Straits Times, 24 April 2009; The Star, 24 April 2009. 21 New Straits Times, 30 June 2009. 22 The Star, 24 and 25 April 2009; Bar Councils press release on 28 April 2009; The Malaysian Insider, 30 April 2009.
20

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must be referred to the state religious authorities first. Consequently, the proposed amendments to the Law Reform (Marriage and Divorce) Act 1976, Administration of Islamic Law (Federal Territories) Act 1993 and Islamic Family Law (Federal Territories) Act 1984 which were to be tabled in Parliament on 1 July 2009 were held back.

2.1.1.7 On 12 November 2010, the Federal Court dismissed a referral application by Shamala Sathiyaseelan,23 stating that as Shamala had avoided contempt proceedings against her by her husband, Dr Muhammad Ridzwan Mogarajah (formerly known as Dr Jeyaganesh C Mogarajah), she would not be granted the opportunity to be heard on constitutional issues regarding the validity of the childrens conversion to Islam.

Shamala and Dr Muhammad Ridzwan were married according to Hindu rites in 1998.24 On 19 November 2002, Dr Muhammad Ridzwan converted to Islam and proceeded to convert their two children on 25 November 2002 without Shamalas knowledge and/or consent. In July 2004, the High Court granted Shamala actual custody of the children, but she was ordered to share legal custody with Dr.

23

Five questions were posed for the consideration of the Federal Court: i. Whether Section 95(b) of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) is ultra vires Article 12(4) and Article 8 of the Federal Constitution read in their proper context? ii. Whether Section 95(b) of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505), as State law, is by reason of Article 75 of the Federal Constitution, inconsistent with a Federal law, namely, Section 5(1) of the Guardianship of Infants Act 1961 (as amended) and is therefore invalid? iii. In the context of Article 121(1A) of the Federal Constitution, where a custody order is made by the Syariah Court or the High Court, on the basis that it has jurisdiction to do so, whether there is jurisdiction for the other court to make a conflicting order? iv. Where there has been a conversion of the children of a civil marriage into Islam by one parent without the consent of the other parent, whether the rights of remedy under Part II of the Federal Constitution of the non-Muslim parent read with the Law Reform (Marriage and Divorce) Act 1976 is vested in the High Court? v. Whether in the context of Articles 8, 11, 12 (4) and 121 (1A) of the Federal Constitution, the Syariah Court has exclusive jurisdiction to determine the validity of conversion of a minor into Islam once the minor has been registered by the Registrar of Muallafs (Majlis Agama Islam)?

The Star, 12 November 2010, Federal Court rejects Shamalas referral application (Updated) http://thestar.com.my/news/story.asp?file=/2010/11/12/nation/20101112141055&sec=nation last accessed on 19 February 2011

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Muhammad Ridzwan. Shamala left the country with the two children pending appeal. The Federal Court allowed the preliminary objection by Dr Muhammad Ridzwan to the referral, insisting that Shamala was required to return to Malaysia to be present at the contempt proceedings before she would be allowed the right to be heard.25

2.1.2 Snatching of Children

2.1.2.1 Kedah PKR Youth vice-chairperson Gooi Hsiao Leung expressed his concern of a growing trend in child snatching cases where a converted Muslim parent uses the authority accorded by Syariah law to affect the seizure of a child. In such cases, the Muslim parent can do this because he or she manages to secure a Syariah Court order, which encroaches on the constitutional and civil law rights of the non-Muslim parent over the right to the child. This causes a serious constitutional problem as the rights of the non-Muslim parent suddenly becomes subjected to Syariah laws and the Syariah courts. The matter is made worse and more complicated when the child, once snatched, is converted by the Muslim parent without consent of the nonMuslim parent, thus throwing the entire dispute into Syariah law in which the civil courts have no jurisdiction.26

One case that highlights the plight of such a parent caught in this situation is that of Tan Cheow Hong, 36, who lives in Butterworth, Penang. Tan had separated from his wife, Fatimah Fong (now a Muslim convert) in 2007 and since then their daughter, Tan Yi Min, had lived with her father while Fatimah moved to Kuala Lumpur.

The Star, 12 November 2010, Decision by Federal Court over Shamalas bid regrettable, says Loh http://thestar.com.my/news/story.asp?file=/2010/11/14/nation/7427596&sec=nation last accessed on 19 February 2011. For the details of the Federal Court decision on 12 November 2010, see Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah & Anor [2011] 1 CLJ 568 (FC). 26 Malaysiakini, 16 November 2010, http://www.malaysiakini.com/news/148356 and http://www.malaysiakini.com/news/148410

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The mother had obtained a court order from the Shah Alam Syariah Court for custody of Yi Min and had gone to her school accompanied by representatives from the religious council and the police to implement the court order. Teachers and the principal of the school had tried to prevent Yi Min from being taken away but failed when the mother produced the Syariah Court order.

The father, Tan, was only informed of such proceedings after this incident. He come to understand that Fatimah had filed for divorce at the Shah Alam Syariah Court on 26 October 2010 and the next day obtained an ex-parte order for the custody of the child, notwithstanding that the couple had separated since 2007.

Gooi Hsiao Leung further added that the sequence of events leading up to the snatching of Tan Yi Min suggests that it had been planned right from the beginning where Fatimah had used the backdoor approach to obtaining the child from a nonMuslim parent.

Tan Cheow Hong has filed for custody at the civil court and hearing has been set for 24 November 2010. However, the Penang High Court has granted custody of the child to Fatimah Fong27 as the child had converted to Islam on 9 November 2010 at the Selangor Islamic Affairs Department.28

Although this may seem an isolated and singular incident, its implications are drastic to the community at large. Should the courts uphold Fatimah Fongs custody of her daughter or merely fail, refuse and/or neglect to intervene in upholding Tan Cheow Hongs rights, it sets a precedent that decisions of the Syariah Court may override the civil liberties of non-Muslims. If the compulsion imposed by Fatimah Fong (and her party) upon Yi Mins school to release her based on the Syariah Courts order is

Malaysiakini, 4 January 2011, Custody goes to Muslim convert mother, http://www.malaysiakini.com/news/152390, Last accessed 11 January 2011 28 Malaysiakini, 6 January 2011, Can a 7-year old declare faith?, http://www.malaysiakini.com/columns/152589, Last accessed 11 January 2011

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indeed legal, this too affirms that rights and liberties of non-Muslims are subject to Syariah laws or principles.

2.1.2.2 In March 2010, civil servant Faizal Wong Abdullah, 54, filed an application in the Kuala Lumpur Syariah High Court to renounce Islam and to return to Buddhism. He had embraced Islam on the persuasion of friends on 6 October 1999 at the Pertubuhan Kebajikan Islam Malaysia (PERKIM).

He insisted that his conversion has only been nominal as he had not adhered to any Islamic practices and that his heart had remained a Buddhist. When questioned outside the courtroom, Faizal explained that his desire to return to Buddhism was caused by pressure from family and relatives.

During the second hearing of this case on 18 May 2010, Farah Wahida Mohd Amin acting as counsel for The Federal Territory Islamic Council (Majlis Agama Islam Wilayah Persekutuan), raised a preliminary objection to Faizals application seeking to have Faizal undergo counselling instead.29 The court then set 2 June 2010 for the next hearing.

There has been no further update in the media on this case.

2.1.3 Disputed Religious Status

2.1.3.1 Human Resources Minister Dr S Subramaniam, who is also Deputy President of the ethnic Indian party, MIC, issued a statement that the Federal Government intends to launch a nationwide My Daftar Campaign from 19 to 26 February 2011 in an effort to resolve problems faced by Malaysian Hindu-Malays who do not have or have insufficient documents pertaining to their identification, birth and/or citizenship. He

29

Malaysiakini, 18 May 2010; Utusan Online, 19 May 2010

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said that the campaign was organised by the Special Implementation Taskforce on the Indian Community and in collaboration with the Ministry of Home Affairs.30

The campaign would also seek to identify individuals who possess a birth certificate but have not applied for a 'MyKad', and those who do not possess a birth certificate and are therefore unable to secure a 'MyKad'. (Without a birth certificate, a child cannot attend school.)

Official records show that there are 32,000 Indians with birth certificates but without MyKads. The figure for those without even a birth certificate is expected to be staggering.31 One cause for the figure is the difficulties faced by the Hindu-Malay community whose applications for a MyKad are refused for various reasons.

M Saraswasthy (not her real name), 15, had her application for a MyKad rejected because she had been born of a Muslim mother and a Hindu father and had chosen to retain her Hindu identity, Saraswathy a/p Muniandy. Officers from the National Registration Department had insisted that she use the Muslim name 'Saraswathy binti Kamal Shah Kamal Shah being a name that was forced onto her father by religious authorities although he had never converted. The National Registration Department had recognised him as a Hindu. According to Muniandy, his family, living as Hindus for the past 17 years, have had to move at least five times in the past years as they faced raids from religious departments and threats from parang-wielding vigilantes who found them at their new location.

On one occasion of a raid by religious authorities on Muniandys house, Muniandy was beaten up, had his wife and children taken away from him and asked to go to the religious department to negotiate. He asserted that he was placed in a small room with the azan playing on a loudspeaker in efforts to make him convert to Islam.

Bernama, 30 December 2010, "My Daftar" Campaign For Indians In February, th http://www.bernama.com/bernama/v5/newsindex.php?id=553346, Last accessed 8 January 2011 31 st Malaysiakini, 31 December 2010, Growing MyKad woes for kids of Hindu-Muslim birth, th http://www.malaysiakini.com/news/152085, Last accessed 8 January 2011

30

th

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Though the session failed and Muniandy survived the ordeal, he was released only after agreeing to change his name to a Muslim name on his identity card, albeit not converting.32

Subramaniam, however, asserted that complainants who brought their problems to the taskforce and worked closely with the National Registration Department have nothing to fear. According to him, they have committed no wrong and thus should have no fear of prosecution.

2.1.3.2 In a press statement issued by Sarawak PKR State Liaison Chief, Baru Bian33 on 30 November 2010, there is a growing concern among native parents as a handful of their children have had their race reclassified as Malay instead of Lain-lain. In particular, a school in Miri (the Temenggong Datuk Muip School) was found to have reclassified six of its students who are of the Orang Ulu and Iban community. According to a school report card of a student sent to Bian, an 11-year-old student who is of Kelabit and Lun Bawang parentage was classified as Malay by the school.34

This is a cause of great concern as, according to Bian, it may be the tip of an iceberg. Should this issue remain unresolved, it may have drastic implications on the status and classification of the childs religion and faith.

Article 160 of the Federal Constitution states that a Malay means a person who professes the religion of Islam, habitually speaks the Malay language [and] conforms to Malay custom. The Federal Constitution further defines native under Article 161A (6) (a) as: in relation to Sarawak, a person who is a citizen and either belongs

Malaysiakini, 30 December 2010, MyKad burden for children of Hindu-Muslim parentage, http://www.malaysiakini.com/news/152016, Last accessed 8 January 2011 33 Press Statement issued by Baru Bian, PKR State Liaison Chief, Sarawak on 30 November 2010 at the Keadilan Stampin Office 34 The Malaysian Insider, 30 November 2010, Race change to Malay in Sarawak schools spook parents, http://www.themalaysianinsider.com/malaysia/article/race-change-to-malay-in-sarawak-school-spooksparents/ Last accessed 12 January 2011

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to one of the races specified in Clause (7) as indigenous to the State or is of mixed blood deriving exclusively from those races. The races to be treated for the purposes of the definition of native as indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.35

With such a definition, a Malay cannot attend church, celebrate Christmas and/or Gawaii, thus further complicating matters as some of these children are of the Christian faith, having being born into a Christian household. According to one parent, the Education Officer there cannot make any alterations to correct the flaw as the information is already within the system.36

President of Sarawak teachers' union, William Ghani Bina, has also expressed his concern over the matter and says that he has taken up the matter to the state deputy director of education. He further expressed his intention to discuss the matter with the Director-General of Education in Kuala Lumpur.

2.1.4 Body Tussle Cases

2.1.4.1 Art director for film and television commercials Mohan Singh a/l Janot Singh passed away on 25 May 2009 from a heart attack in his Damansara Damai apartment. His body was sent to Hospital Sungai Buloh for a post-mortem.37 A legal battle then ensued when his immediate family members sought to claim his body; the hospital

Article 161A(7) of the Federal Constitution. Free Malaysia Today, 30 November 2010, Native kids being classified as Melayu, http://archive.freemalaysiatoday.com/fmt-english/politics/sabah-and-sarawak/13539-native-kids-beingclassified-as-melayu, Last accessed 12 January 2011 37 Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 115
36

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authorities believed that the late Mohan Singh had converted to Islam and thus refused to release the body to them.38

At the same time, the Selangor Islamic Religious Council also attempted to claim the body with the intention to conduct a burial according to Islamic rites. Selangor Islamic Religious Council (MAIS) claimed that based on a conversion certificate issued by the Penang State Islamic Affairs Department, the deceased had converted to Islam on 11 August 1992. However, the immediate family members of the deceased contended that the deceased was never a Muslim as he had professed the Sikh religion all his life and they were not aware of the purported conversion. Jaswant Kaur (Mohan Singhs sister) added that the hospital was keeping Mohans body in the non-Muslim section of the mortuary and that she could not understand how MAIS could still claim her brothers body if it was kept in the non-Muslim section. In court, the family contended that Mohan was not a Muslim at the time of his death because he married a non-Muslim woman in 1997, after his alleged conversion in 1992. Mohan Singhs counsel has also submitted that the marriage certificate and the birth certificate of Mohans daughter born in 2000 bore his Punjabi name, and Sikhism as his religion.39

On 1 June 2009, Shah Alam High Court judge Justice Rosnaini Saub granted an interim order not to allow the hospital to release the body to any party until disposal of the civil proceedings.40 This prolonged tussle caused the family much anxiety as Sikh rites demand that the body be cremated within 24 hours of a person's death and that prayers be performed for the deceased's soul after 16 days.

On 6 July 2009, the Shah Alam High Court held that the Administration of the Religion of Islam (State of Selangor) Enactment 2003 has expressly conferred the Syariah Court with jurisdiction to determine the religious status of a deceased

Malaysia Today, 29 June 2009, http://mt.m2day.org/2008/content/view/23702/1/ The Nut Graph, 29 June 2009, http://www.thenutgraph.com/who-was-mohan-singh 40 The Star, 17 June 2009, http://thestar.com.my/news/story.asp?file=/2009/6/17/courts/4130596&sec=courts
39

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person. In the absence of any evidence that the conversion certificate was a forgery or fraudulently issued, the Court should accept it as a sufficient proof that the deceased had converted to Islam.41

2.1.4.2 On 6 October 2010, Brian Eustale Steele @ Steele Shah Abdullah, 56, a production operator, had septicaemia shock or blood poisoning and died at the Universiti Malaya Medical Centre. His remains were cremated at the Jalan Kuari crematorium in Kuala Lumpur according to Christian rites on 7 October 2010 and kept at the Urban Cleanliness Control Unit of DBKL's Landscaping and Urban Cleanliness Control Department.42

The Federal Territories Islamic Religious Council (MAIWP) applied to the Kuala Lumpur Syariah High Court to obtain and manage his ashes according to Islamic law. It was contended that the deceased had converted to Islam on 20 August 1975 and had pronounced the Syahadah at MAIWP office.43

On 8 October 2010, Syariah judge Mohd Amran Mat Zain of the Kuala Lumpur Syariah High Court allowed MAIWPs application and ordered that the ashes be surrendered to MAIWP to be dealt with according to Islamic rites. Mohd Amran in his brief judgment said the court allowed the application after studying it and the affidavit submitted by MAIWP under Section 91 of the Administration of Islamic Law (Federal Territories) Act 1993. Through this document, the court was satisfied that MAIWP had managed to prove that the deceased, Brian Eustale Steele @ Steele Shah Abdullah, was a Muslim before and at the time of his death. The court further took into consideration that during the lifetime of Brian Eustale Steele @ Steele Shah

For the details of the case, see Nagamuthu Punnusamy & Ors v Ketua Pengarah Kementerian Perubatan Malaysia & Ors [2010] 2 CLJ 174 42 New Straits Times Online, 8 October 2010, http://www.nst.com.my/nst/articles/Convert_sashesallowedtobeinterredaccordingtoIslamicLaw/Mobile/articl e_html 43 Berita Harian, 9 October 2010, http://www.bharian.com.my/bharian/articles/MahkamahbenarMAIWPurusabumayatmualaf/Article/index_ht ml

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Abdullah, the deceased had never stated that he had left the Islamic faith and there was also no order from any court to say that he was no longer a Muslim.44

2.1.5 Against Non-Orthodox Muslims

2.1.5.1 Department of Islamic Development (Malaysia) has identified and blacklisted 55 deviant groups in Malaysia as of year ending 2009.45

2.1.5.2 On 24 April 2009, Selangor Islamic Religious Council (MAIS) issued a notice forbidding the national Ahmadiyya headquarters (the Bait-us-Salam Mosque) from performing Friday prayers at their mosque with immediate effect. The notice was issued under the Administration of the Religion of Islam (State of Selangor) Enactment 2003 and threatens the Ahmadiyya Muslim Community (AMC) Malaysia members with imprisonment and fines if they do not comply.46

MAIS rationalises the issuance of its directive on the grounds that the Ahmadiyya mosque did not get the council's approval to conduct such Friday prayers. The notice further states that AMC Malaysia no longer has official permission to use Bait-usSalam as a Mosque. To this effect, a notice has been placed around the Bait-us-Salam Mosque stating Qadiani Bukan Agama Islam; this translates as Ahmadiyya is not an Islamic Religion.

In 1975, the Selangor Fatwa Council issued a fatwa declaring the Ahmadiyya sect non-Muslim. The fatwa recommended that the Ahmadiyya be stripped of all special Malay privileges. The size of AMC Malaysia is approximately 1,500 with the majority

The Malay Mail, 11 October 2010, http://www.mmail.com.my/content/51749-converts-ashes-allowed-be-managed-according-islamic-laws 45 Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p117 46 Salem-News.com, 1 May 2009, http://www.salem-news.com/articles/may012009/malaysia_problems_5-1-09.php

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in Sabah. Most of the AMC Malaysia members are ethnic Malays, and the movement was founded in Malaya in the 1930s.47

Ahmadiyya spokesperson Ainul Yakin Muhd Zain elaborates that though the Selangor religious executive committee Datuk Dr Hassan Ali has expressed willingness to negotiate with the Ahmadiyya community, such dialogue has been limited to their use of the land and not on the issue of their aqidah (belief system). Ainul adds that the way the Pakatan Rakyat Selangor government is treating AMC Malaysia is the same as how the Barisan Nasional used to.

2.1.5.3 On 9 August 2009, Utusan Malaysia reported that in an operation by the Jabatan Hal Ehwal Agama Islam Negeri Sembilan (JHEAINS) together with the police, 20 followers of a deviant group were arrested. It reported that that among those arrested included their facilitator who shall be questioned by Jabatan Agama Islam Selangor officials as well as the police.48 According to police, the said facilitator has no authority to preach Islam in the state and that the group shared similar elements with the Negara Islam Indonesia (NII), a banned organisation that is said to reject government ideologies, the Al-Quran and Hadis. Head of Operation of JHEAINS further explained that this group has been active since 2003 and operates in the Klang Valley and Selangor area with followers in excess of 2000. This, however, is the first case in Negeri Sembilan.49

2.1.5.4 On 24 September 2009, Abdul Kahar Ahmad, a self-proclaimed prophet, pleaded guilty to five charges under the Selangor Syariah Criminal Enactment for proclaiming himself a prophet for the Malays, conducting deviationist teachings, violating the

The Nut Graph, 29 April 2009, http://www.thenutgraph.com/mais-forbids-ahmadiyya-worship/; The Ahmadiyya movement was founded by Mirza Ghulam Ahmad of Qadian, India, in 1889. They are sometimes inaccurately referred to as Qadianis. Although Ahmadiyya consider themselves Muslim, mainstream Muslims reject this because the Ahmadiyya believe that Ahmad was the metaphorical second coming of Jesus. 48 Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 117 49 Utusan Malaysia, 9 August 2009, http://www.utusan.com.my/utusan/info.asp?y=2009&dt=0810&pub=utusan_malaysia&sec=Dalam_Negeri&p g=dn_19.htm&arc=hive

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Selangor Muftis order, blasphemy, and spreading false beliefs.50 He was sentenced to 10 years imprisonment, six strokes of the cane and a fine of RM16,500 on 21 October 2009. The judge ordered him to serve his sentence from the date of his arrest on 16 September 2009 and to spend the last six months of his jail term at the akidah rehabilitation centre in Ulu Yam.51

2.1.5.5 On 1 October 2009, while conducting a religious lecture at a house in Kuala Lumpur, former Perlis mufti Dr Mohd Asri Zainul Abidin was arrested by the Selangor State Department of Religious Affairs together with the police. He was subsequently released but was later charged under Section 119(1) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 for conducting a religious lecture without the required certification of authority. If found guilty, he would be liable to a fine of up to RM3,000 or a maximum jail term of two years or both upon conviction.52

On 18 November 2009, Dr Mohd Asri claimed trail at the Gombak Timur Syariah Lower Court. He then applied to have the case transferred to the High Court and this application was dismissed.53 Dr Mohd Asri further appealed on this dismissal to the Syariah Appeal Court in Shah Alam and on 7 October 2010 the court (through its Chief Judge of the appeal court Tan Sri Ibrahim Lembut) decided to fix 28 December 2010 to deliver a decision whether to grant leave for Dr Mohd Asris application to move his illegal lecture charge to the Syariah Court in Shah Alam.54

Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), pp 117 - 118 The Star, 25 September 2009; The Star, 7 October 2009, http://thestar.com.my/news/story.asp?file=/2009/10/7/nation/20091007125721&sec=nation; The Star, 21 October 2009, http://thestar.com.my/news/story.asp?file=/2009/10/21/nation/20091021132655&sec=nation 52 Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 119 53 Bernama, 28 April 2010, http://www.bernama.com/bernama/state_news/bm/news.php?id=494116&cat=tn 54 The Malay Mail, 7 October 2010, http://www.mmail.com.my/content/51564-former-perlis-muftis-appeal-decision-dec-28
51

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Dr Asri has, however, expressed an intention to shift his religious lectures to other states.55

2.1.5.6 On 22 August, the same Dr Asri (as at 2.2.5.5 above) made headlines again when he issued a statement commenting on a Friday prayer in a Penang mosque that prayed for the well-being of non-Muslims. It was understood that the said mosque came under heavy criticism after the Friday prayer sermon had prayed for the well-being of the Penang Chief Minister, Lim Guan Eng. Dr Asri stressed that the issue should not be politicised by the Barisan Nasional (BN) and Pakatan Rakyat (PR) as it was acceptable for Muslims to pray for non-Muslims. When contacted by The Malaysian Insider, Dr Asri explained that prayers fell into four categories. The first two involved praying that a leader receives guidance and for a leader to be fair and sympathetic to the people, and that such prayers can be read whether the leader is Muslim or not; the other two prayers involved wishing for the well-being of a leader even if he were unfair and outright praising of his leadership, both of which cannot be done.56

2.1.5.7 On 7 June 2009, The Nut Graph reported that a resolution was made by the PanMalaysian Islamic Party (PAS) for Sisters in Islam (SIS) to be investigated and if found to be anti-Islam, to undergo religious rehabilitation.57 It was stated that the liberal views advocated by SIS were a threat to Muslims faith, especially to the younger generation and to those who have a secular education. SIS responded by saying that the action by PAS was retrogressive and undemocratic and urged the party to retract its resolution, emphasising that for the past 20 years, it has been SISs fundamental belief that Islam was a just and egalitarian religion.

Additionally, SIS has also been the target of investigations following various police reports lodged against it by Malay-Muslim groups after SIS had called for a review of Syariah laws that allowed for whipping as a punishment for Muslims. In November

55 56

Sin Chew Daily, 5 December 2009, http://www.mysinchew.com/node/32449 The Malaysian Insider, 22 August 2010, http://www.themalaysianinsider.com/malaysia/article/asri-sees-nowrong-in-praying-for-leaders-well-being 57 The Nut Graph, 7 June 2009, http://www.thenutgraph.com/pas-wants-sisters-in-islam-investigated/

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2009, several SIS members were even called up by the police for investigation.58 Notwithstanding such investigations against it, SIS has been steadfast in its efforts and has continued to voice its concern, resulting even with the youth arm of PAS condemning SISs actions.59

2.1.5.8 SIS has also come under fire for the use of Islam in its name. Then Pakatan Rakyat MP for Kulim-Bandar Baru, Zulkifli Noordin (now an independent), called on the Companies Commission of Malaysia (CCM) to stop SIS from using the word Islam in its name as it implied that the group spoke on behalf of Islam. However, CCM stated that it cannot do so as companies are not restricted from using the word Islam in their name.60

In a statement by Prof Dr Mohammad Hashim Kamali, who heads the International Institute of Advanced Islamic Studies (IAIS) Malaysia, he expressed his concern that instead of criticising SIS so heavily, PAS should instead offer guidance (nasihat) in the spirit of Islam and not ridicule. He also acknowledged that SIS has been involved in some praise-worthy undertakings though some minor adjustments may be necessary to make the organisation more effective.61

2.1.6 Right to Profess Observation and Remarks

2.1.6.1 The two years under review saw continuing reports of Muslims who, having converted out of Islam, proceeded to seek declarations from the civil courts that they were no longer Muslims and were entitled to change their religious status. In most cases, their application was unsuccessful because of the civil courts declining jurisdiction to hear the cases and leaving the Syariah court to decide such matters. This is a disturbing developing trend. As with previous years, the commission views

Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 119 Utusan Malaysia, 21 February 2010, http://www.utusan.com.my/utusan/info.asp?y=2010&dt=0221&pub=Utusan_Malaysia&sec=Dalam_Negeri&p g=dn_05.htm 60 The Star, 19 June 2009, http://thestar.com.my/news/story.asp?file=/2009/6/19/nation/4154542&sec=nation 61 The Star, 21 June 2009, http://thestar.com.my/news/story.asp?file=/2009/6/21/focus/4166071&sec=focus
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such a position as untenable and represents a further curtailment of the constitutional rights of citizens to freely choose and profess the religion of their choice.

2.1.6.2 The reported cases of Siti Fatimah and Mohammad Shah do not reflect the ongoing trend in these conversion cases. An analysis of these cases reveals that these individuals had overwhelming evidence before the Syariah Court that they were either not a Muslim or a practising Muslim. As with the previous years, there were no reported cases of Malay Muslims who wanted to leave the religion of Islam by way of a declaration from the Syariah Court. It is doubtful whether a Syariah court, even with overwhelming evidence of non-practice of the Islamic religion, would allow a Malay Muslim to convert out of Islam with an order of declaration that he or she is no longer a Muslim.

2.1.6.3 Concerning individuals who wish to convert out of Islam and who are now seeking recourse at the Syariah courts as opposed to the civil courts, the commission is of the view that it is still too early to say whether such an approach is deemed acceptable as a long-term solution. If at all, the cases on conversion seem to suggest that the Syariah Court is reluctant to allow Muslims to convert out of Islam with an order of declaration that they are no longer Muslim, unless confronted with overwhelming evidence to the contrary.

2.1.6.4 The commission notes the rather disturbing trend involving spouses who have converted to Islam who will usually apply to the Syariah court for custody of their children often without the knowledge or letting the unconverted spouse know. In such cases, the children will also get converted to Islam without the consent or permission from the unconverted spouse. This state of affairs presents grave injustice to the unconverted spouse since the custody and subsequent conversion of the children to Islam is done without the input, consent and permission of the unconverted spouse as he or she has no recourse to the Syariah courts. The unconverted spouse being non-Muslim in such cases is therefore deprived of his or her rights to determine the religion of their children.
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2.1.6.5 The commission wishes to state that this precedent is likely to present one party in matrimonial disputes the opportunity to take advantage of the other in gaining custody of children where it would be difficult for them to do so in civil proceedings. This is an extremely unhealthy trend given that the legal mechanism has been used and abused to further the ends of individuals against the rights of others.

2.1.6.6 This predicament has been recognised by the Cabinet when they decided that the right place to dissolve a marriage in the event of a spouse converting to Islam is the civil courts. It also decided that if either spouse were to convert to Islam, the children should follow the faith that the parents had agreed on at the time of marriage. However, attempts to amend the law to reflect this decision were held back when the Conference of Rulers decided that such amendments must be referred to the state religious authorities first. With no further news or development on this matter, the problem still persists.

2.1.6.7 The commission also notes the injustice that is manifested when non-Muslims are unable to apply for their MyKads because one parent is Muslim and the other not. The concern here is that such people will be regarded as Muslim and forced to use Muslim names in their MyKad when in actual fact they have never practised Islam or lived as a Muslim. Such an unhealthy practice by the National Registration Department goes against the rights of individuals to choose and determine the religion of their choice.

2.1.6.8 In relation to this, the commission views with alarm the report that a handful of native children have had their ethnic identity classified as Malay instead of the usual Dan Lain-Lain. Although the report gives the appearance of the incident as an isolated case, it is possible such cases may be more wide spread. It reflects a systemic progression of ongoing Islamisation of native people, thereby depriving them of the right to freely choose the religious status of their choice.

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2.1.6.9 As with the previous year, the commission reiterates the position that civil courts are usually not prepared to and have declined jurisdiction to hear the grievances of nonMuslims in cases where one party has converted to Islam or where the religious status of a person is questioned. The trend seems to suggest that the civil courts are now more inclined to allow the Syariah court or the Islamic religious authorities to determine the status of whether a person has converted to Islam or not. This has led to grave uncertainties and in most cases, led to injustice for such non-Muslims.

2.1.6.10 The commission therefore calls on the civil courts not to abdicate their constitutional role as the third independent institution of the state, being the judicial arm of governance in a democratic nation, and to acknowledge the constitutional nature of the matter and the serious denial of remedies in clear cases of breaches of fundamental rights and guarantees to religious liberty. The commission calls for a change in judicial attitudes from that of reticence to one of dutiful performance by the judiciary to preserve, protect and defend the Constitution before Malaysians fundamental rights to religious liberty are further eroded.

2.1.6.11 The commission further calls on the governing authorities to recognise the plight of those who are innocent and the grave injustice against them in such situations. This commission would wish to see a change in judicial attitude in that the civil courts should not abdicate their duty to administer the law of the land despite claims of jurisdiction by Islamic authorities where jurisdiction rightfully resides in the civil courts. They should be rigorous in ensuring that the twin pillars of the Rukun Negara, the supremacy of the Constitution and Rule of Law, are upheld.

2.1.6.12 This commission affirms the stand taken in previous reports that the right to convert out of a religion, including that of a Muslim to leave the religion of Islam, is a fundamental human right recognised by Article 11 of the Constitution. This right is to be exercised by the individual, and to do so, he needs no approval or permission from any authority. Any law or administrative directive that requires him to apply for approval or permission to leave a religion is a violation of his right under Article 11. Similarly, any law or administrative directive or action that refuses to recognise the
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exercise of this right by an individual and requires prior approval from some authority is a violation of his right under Article 11.

2.2

Right to Practice
In a report on 17 September 2010, a church building in Pos Pasik in the interior of Kelantan was at risk of being torn down (as was the church in Kampung Jais, Gua Musang). Construction of the church was about 70% completed when it was issued stop-work orders via a letter from the Jabatan Hal Ehwal Orang Asli (JHEOA). In the letter dated 9 August 2010, the JHEOA had written to the village chief, Setmen Bin Belungei, informing him that the application to build a church was not approved but had failed to provide any explanation for it.62

2.2.1 Demolition of Non-Muslim places of worship

2.2.2 Non-Muslim Societies Banned in Schools

2.2.2.1 In early July 2010, the Klang High School received a note from the Selangor Education Department, stating that the Kelab Agama Hindu, Kelab Agama Buddha and the Christian Union, which had been in existence since 1969, had to be dissolved immediately. The directive was purportedly made after the newly-appointed senior assistant in charge of the schools co-curricular activities wrote to the department, allegedly instructed by the school principal, to check if all its societies had been approved. An announcement of the dissolution of these non-Muslim societies was made at the school assembly. Their plight was highlighted in Citizen Nades column in The Sun based on complaints from parents.63 It was later found that SMK SS17 in Subang Jaya, Selangor, had without warning ordered the schools Buddhist Society and Christian Fellowship to stop holding meetings and carrying out religious activities in January 2009 on the grounds that they were not registered with the state

The Malaysian Insider, 19 September 2010, Jungle church in Kelantan faces demolition, http://www.themalaysianinsider.com/malaysia/article/jungle-church-in-kelantan-faces-demolition/, Last accessed 30 January 2011 63 The Sun, 12 July 2010, http://www.thesundaily.com/article.cfm?id=49301

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Education Department. The two non-Muslim religious clubs had been running for nearly 15 years since the school was established, but were suddenly ordered to disband.64

Apparently, there was a circular dated 16 December 2000 issued by the former director-general Dr Abdul Shukor Abdullah in 2000 which set out guidelines on forming non-Muslim religious societies in schools. The circular quotes Rule 4 of the Education Regulations (School Associations) 1998, under Section 130 of the Education Act 1996, which states that the headmaster or principal of a school is to form societies according to these categories: (i) subjects taught in school; (ii) hobbies and recreations; (iii) sports and games; (iv) uniformed bodies; (v) any other societies approved by the Registrar. Thus, the Registrar, who is the state education director, has the power to approve any other societies that does not come under the first four categories. However, the circular specifically says the status quo is maintained for schools which already have non-Muslim religious societies. It also states that the rule only applies if there are students or teachers who want to form new religious societies. In other words, school clubs formed before the date of directive were exempted.

On 24 July 2010, the Education Minister (who is also the Deputy Prime Minister) Muhyiddin Yassin gave an assurance that non-Muslim societies that had been in operation before the year 2000 in schools would not be shut down. Subsequently, the Deputy Education Minister Wee Ka Siong said that only those which came into existence after that directive need to obtain the necessary approval from the respective state education departments before they can take in members.

Following public outcry over the closure, Alimuddin Dom, director-general of education, reportedly said that the directive was a misunderstanding by the Selangor Education Department and ordered a reinstatement of the affected

64

Sin Chew Daily, 26 July 210, http://www.mysinchew.com/node/42396?tid=14

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religious clubs. In fact, the two schools which were directed by the Selangor State Education Department to dissolve their non-Muslim societies have since reinstated them.65

2.2.3 Banning of Books on Religion (Banning of Religious Literature)

2.2.3.1 In 2009, 15 out of 20 books banned by the government were religious materials.66

2.2.3.2 In March 2009, 5,000 copies of the Malay-language Bible were confiscated, and in September 2009, 15,000 copies imported from Indonesia were held by the authorities for the use of the word Allah, on the basis that they were prejudicial to public order.67

2.2.3.3 On 16 February 2009, an order entitled Internal Security (Prohibition on Use of Specific Words on Document and Publication) Order 2009 allowing the use of the word Allah, Kaabah, Baitullah and Solat in the publication of the Roman Catholic newspaper, The Herald, was gazetted by the government, subject to the condition of the words For Christians only on the publication.68 This was short lived, however, as the government rescinded the gazette on 28 February 2009, due to a purported mistake in enacting the gazette, resulting in the reinstatement of the previous ban until otherwise decided by the court.69

2.2.3.4 In a statement by the Home Ministry, Deputy Secretary-General Ahmad Fuad Ab Aziz said the ministry gave its guarantee that no action would be taken on the 5,100 copies of Al-Kitab Berita Baik currently in the possession at its Port Klang branch until

The Sun, 12 and 13 July 2010; The Star, 14 July 2010; The Malaysian Insider, 24 July 2010; Star Online, 24 July 2010; also ref: http://www.compassdirect.org/english/country/malaysia/23949/ 66 Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 119 67 Malaysiakini, 29 October 2009; The Star, 4 November 2009; Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 122 68 Background and facts of case, ref: Religious Liberty Report 2007 para 2.3.2.3 and Religious Liberty Report 2008 paras 2.3.1.5 and 2.3.1.6.; Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), pp 122 - 123 69 Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 123

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the court judgment on the Allah issue was handed down.70 The ministry, he added, was still studying the Al-Kitab case, which involves the Malay-language Bible printed in Indonesia. He went on further to explain that the release of Al-Kitab in Sarawak was allowed due to a different set of circumstances because it involved an Indonesian version which had been in use for years in the state. The Bible Society of Malaysia had written an appeal to the ministry over the confiscation but not received any reply.

2.2.3.5 On 4 May 2009, Justice Alizatul Khair Osman granted leave to Jill Ireland Lawrence Bill, 27, to initiate judicial review proceedings to seek three reliefs from the court. Jill Ireland challenge the Home Ministry's decision to confiscate eight compact discs (CDs) of Christian religious teachings containing the word "Allah" from her when she disembarked at the Low Cost Carrier Terminal (LCCT) in Sepang on 11 May 2008. The CDs containing titles including "Cara Menggunakan Kunci Kerajaan Allah, Cara Hidup Dalam Kerajaan Allah and Ibadah Yang Benar Dalam Kerajaan Allah" ("The way to use the keys to the kingdom of Allah (SWT) ", and, "True worship in the kingdom of Allah (SWT)") were brought in from Indonesia.

These CDs were seized by the Home Ministry under section 9 (1) of the Printing Presses and Publications Act 1984. Jill, a Sarawakian native of the Christian faith, claimed that she used the word "Allah" in her prayers, worship and religious education. She claimed that she used both Bahasa Malaysia and the Bahasa Indonesia Al-Kitab which uses the word "Allah". She wants an order of certiorari to quash the ministry's decision to confiscate the CDs, an order of mandamus to direct the ministry to return the CDs to her and a declaration that she has the legitimate expectation to exercise her right to possess, use and import publications containing the word "Allah".71

The Star, 15 May 2010, http://thestar.com.my/news/story.asp?file=/2010/5/15/nation/6269635&sec=nation 71 New Straits Times, 5 May 2009; The Star, 5 May 2009

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As of 12 October 2010, the The Star reported that (now former) Home Minister Syed Hamid Albar had been ordered to file an affidavit-in-reply to Jills application which questioned him over the seizure of the eight compact discs.72 The case is ongoing.73

2.2.3.6 On 8 January 2009, the publisher of the Catholic weekly The Herald received a letter dated 7 January 2009 from the Home Ministry retracting its earlier letter dated 30 December 200874 and approved the publication permit for the period from 1 January 2009 until 31 December 2009 on the conditions that the word "Allah" was not used until the matter was settled in court and the word "Limited" (Terhad) be endorsed on its front page to mean that it must be circulated only to Christians.75 The publisher of The Herald sought leave, inter alia, for an order of certiorari to quash the decision of the Home Ministry on 7 January 2009 and for several declarations.

On 31 December 2009, the High Court quashed the Home Ministers prohibition against the use of the word Allah in its publication, stating that the prohibition was illegal, null, and void. Justice Lau Bee Lan held that the right to use the word Allah in The Herald was a constitutional right, and that the Constitution did not empower the minister to make such a prohibition. Justice Lau further ruled that the Respondents (the Home Minister and the Government of Malaysia) had throughout

The Star, 12 October 2010, http://thestar.com.my/news/story.asp?file=/2010/10/12/courts/7203279&sec=courts 73 The Malaysian Insider, 10 May 2012, http://www.themalaysianinsider.com/litee/malaysia/article/christianfails-in-bid-to-quiz-syed-hamid-over-allah-cd-ban/ In July 2011, the High Court dismissed Jills application to cross-examine former Home Minister Syed Hamid Albar for issuing orders to confiscate her religious CDs. On 10 May 2012, the Court of Appeal upheld the High Courts decision to dismiss the application to cross-examine the minister but allowed the appeal to extend to guidelines on how the religious body decided to ban the word "Allah". 74 In the January 2009 issue, The Herald informed readers that on 30 December 2008 (the eve of the expiry of its publishing permit for that year) the Home Ministry prohibited the printing of the Bahasa Malaysia section until the case is resolved by the High Court. Ref: Catholics Pray In Wake Of Battle Between Church Weekly And Government Over Use Of Allah at http://www.ucanews.com/2009/01/19/catholics-pray-in-wake-ofbattle-between-church-weekly-and-government-over-use-of-allah/ 75 Background and facts of case, ref: Religious Liberty Report 2007 para 2.3.2.3 and Religious Liberty Report 2008 paras 2.3.1.5 and 2.3.1.6.; Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 123

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the trial failed to prove how the use of the word Allah posed a threat to national security. The learned judge also found that the historical facts relating to the use of the word Allah by Christians had not been disputed or challenged by the Home Minister and the Government of Malaysia as factually incorrect. The Home Minister, in exercising his discretion to impose further conditions in the publication permit, had failure to take into account these relevant matters and hence committed an error of law that warranted the courts intervention by quashing the Home Ministers decision on 7 January 2009. In regard to Section 9 of the various State Enactments which provide for an offence relating to the use of certain words and expressions, including the word Allah,76 the learned judge held that the correct way of approaching Section 9 of these State Enactments was to read it together with Article 11 (4) of the Federal Constitution. The result will be that a non-Muslim could be committing an offence if he uses the word Allah to a Muslim but there would be no offence if it was used to a non-Muslim. Article 11 (4) of the Federal Constitution and the preamble to the State Enactments reinforce this position.77

The Home Minister, Hishammuddin Hussein, said that they would appeal against the decision.

On 3 January 2010, 13 non-governmental organisations (NGOs) protested in Kuala Lumpur against the use of the word "Allah" in The Herald. Among the NGOs that participated in the protest were Majlis Permuafakatan Ummah, Pertubuhan Pribumi Perkasa and Malaysian Indian Muslim Congress. In George Town, a crowd of about

76

Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1980 (State of Terengganu), Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1981 (State of Kelantan), Control and Restriction of the Propagation of Non-Islamic Religions To Muslim Enactment 1988 (State of Malacca), Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1988 (State of Kedah), Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1988 (State of Perak), Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 (State of Selangor), Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1989 (State of Pahang), Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1991 (State of Johor), Control and Restriction (The Propagation of Non-Islamic Religions Amongst Muslims)(Negeri Sembilan) Enactment 1991 and Control and Restriction of the Propagation of Religions Doctrine and Belief which is contrary to the Religion of Islam Enactment 2002 (State of Perlis). 77 For Justice Lau Bee Lans full judgment, ref: Titular Roman Catholic Archbisho of Kuala Lumpur v Menteri Dalam Negeri & Anor [2010] 2 MLJ 78; [2010] 2 CLJ 208.

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250 people gathered in front of the Penang High Court at Lebuh Light on the same day to show their unhappiness against the courts decision in The Herald case.

On 4 January 2010, the Home Ministry filed an appeal with the Court of Appeal against the Kuala Lumpur High Courts ruling that the word "Allah" can be used by The Herald. On 5 January 2010, they filed for a stay of execution against the said order pending the appeal.

The Herald website was hacked three times after the landmark High Court decision. On 7 January 2010, the Malaysian Judiciarys website, too, was hacked and defaced with its homepage substituted with a threat to not pursue The Heralds use of the word Allah.

2.2.3.7 On 8 January 2010, after Friday prayers, protests took place in Kuala Lumpur (three cases), Selangor (four), Pahang (two), and Terengganu (one).

On 8 January 2010, there were arson attacks on three churches in the Klang Valley. In the first incident, the ground floor of the three-storey Metro Tabernacle Church in Desa Melawati, Kuala Lumpur was badly damaged.78 Two similar attacks (on the Assumption Church in Jalan Templer and the Life Chapel Church in Section 17, Petaling Jaya) a few hours later were unsuccessful. Meanwhile, false SMS messages were spread stating Please remove all rosaries and all religious articles from your cars now. They are smashing cars. Started all over Bangsar. Protests going (on) now and going to Shah Alam.

On 9 January 2010, there was a fourth arson attack on a church. This attack scarred the outside wall of the Good Shepherd Lutheran Church in Jalan Othman, Petaling

The Star, 8 January 2010, http://thestar.com.my/news/story.asp?file=/2010/1/8/nation/5435794&sec=nation

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Jaya.79 On the same day, the Federal Government gave a grant of RM500,000 to the Metro Tabernacle Church to help it to relocate.80

On 10 January 2010, two cases of attempted arson were reported involving a church and a school in Taiping, namely the All Saints' Church at Jalan Taming Sari and SMK Convent along Jalan Convent. The staircase leading to the Taiping church was slightly burned while the Molotov cocktail thrown into the school failed to explode. In Malacca, black paint was splashed on the outer wall of the Malacca Baptist Church in Durian Daun. On the same day, the windows of Good Shepherd Church at Lutong, Miri were smashed with stones.81

On 11 January 2010, the Sidang Injil Borneo (SIB) church at Lake View Square, Seremban 2, Negri Sembilan, became the eighth church attacked when scorch marks were found on its main entrance door.82

On 12 January 2010, a Sikh temple at Sentul, Kuala Lumpur namely Sentul Gurdwara became the target. The corner of a mirror was smashed by stones.

On 14 January 2010, St Elizabeth Catholic Church at Kota Kecil, Kota Tinggi, Johor was splashed with red and brown paint.83

On 19 and 20 January 2010, eight men, aged between 21 and 26 years, were arrested in connection with the arson attack at the Metro Tabernacle Church in Desa Melawati. The suspects include two brothers, their uncle and a group of their

The Star, 10 January 2010, http://thestar.com.my/news/story.asp?file=/2010/1/10/nation/5445109&sec=nation 80 The Star, 10 January 2010, http://thestar.com.my/news/story.asp?file=/2010/1/10/nation/5445070&sec=nation 81 The Star, 10 January 2010, http://thestar.com.my/news/story.asp?file=/2010/1/10/nation/20100110121327&sec=nation 82 The Star, 12 January 2010, http://thestar.com.my/news/story.asp?file=/2010/1/12/nation/5450289&sec=nation 83 The Star, 14 January 2010, http://thestar.com.my/news/story.asp?file=/2010/1/14/nation/20100114124758&sec=nation

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friends, comprising mainly despatch riders, office boys and clerks.84 Subsequently, three of them were charged with causing mischief by fire by torching the Metro Tabernacle Church. The charge read "mischief by fire or explosive substance with intent to destroy a house" under section 436 of the Penal Code and when read together with section 34 of the same Code, carries a maximum imprisonment of 20 years and a fine upon conviction.

On 30 July 2010, Azuwan Shah Ahmad, 23, who was jointly charged with committing the offence, was acquitted and discharged without his defence being called.85

On 13 August 2010, the Kuala Lumpur Sessions Court sentenced despatch rider Raja Mohamad Faizal Raja Ibrahim, 24, and his brother Raja Mohamad Izham, 22, a bank employee, to five years' jail each after finding them guilty of torching a church in Desa Melawati. Judge SM Komathy Suppiah did not accept the claim that the brothers had sustained burns at a barbecue on the night of the arson. However, the judge granted a stay of execution of the sentence pending an appeal and allowed them a bail of RM20,000 each.86

2.2.4 Ridiculing other Religion(s)

2.2.4.1 On 8 July 2009, two parishes of the Cathedral of the Holy Spirit Church in Penang lodged a police report at the Patani Road police station in Penang over an article Tinjauan Al Islam Dalam Gereja: Mencari Kesahihan Remaja Murtad which was published in the May 2009 issue of Al Islam. The magazine is published by Utusan Karya Sdn Bhd.

The Star, 20 January 2010, http://thestar.com.my/news/story.asp?file=/2010/1/20/nation/20100120105831&sec=nation 85 The Star, 30 July 2010, http://thestar.com.my/news/story.asp?file=/2010/7/30/nation/20100730172035&sec=nation 86 The Star, 13 August 2010, http://thestar.com.my/news/story.asp?file=/2010/8/13/nation/20100813111652&sec=nation; The Star, 14 August 2010, http://thestar.com.my/news/story.asp?file=/2010/8/14/courts/6858618&sec=courts

84

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In the article, the Muslim journalist reported that he, being accompanied by another person, went "undercover" for mass at the St Anthonys Church at Jalan Pudu, Kuala Lumpur on an investigative mission to find out if allegations that young Muslims were being converted to Christianity were true. Disguised as Catholics, they took part in receiving the Holy Communion and actually spat the wafer out, an act Catholics consider as desecration. They then photographed the expelled communion wafer and had the images published in Al Islam.

Police reports were lodged against the journalists and the magazine and they were investigated under Section 298A (1) of the Penal Code for causing disharmony, disunity or feelings of enmity, hatred or ill will, or prejudicing the maintenance of harmony or unity, on grounds of religion.

However, the Attorney-General had decided not to pursue the case because it would not be in the interest of justice, peace and harmony at that particular time. In March 2010, the Al-Islam magazine apologised to the Roman Catholic Church and Christians and the apology was posted on the website of its publisher, Utusan Karya.87

2.2.5 Places of Worship

2.2.5.1 State governments have authority over the building of non-Muslim places of worship as well as the allocation of land for non-Muslim cemeteries. In certain cases, approvals for building permits were granted very slowly. Minority religious groups reported that state governments sometimes blocked construction using restrictive zoning and construction codes.

The Nut Graph, 10 and 15 July 2009; The Sunday Daily, 13 July 2009; The Star, 4, 5 and 6 March 2010 http://thestar.com.my/news/story.asp?file=/2010/3/6/nation/20100306144414&sec=nation and 7 March 2010, http://thestar.com.my/news/story.asp?file=/2010/3/7/nation/5813588&sec=nation

87

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2.2.5.2 Several Hindu temples were demolished throughout the year, including the Veera Muneswarar Alayam temple in Jalan Yap Kwan Seng, Kuala Lumpur on 28 June 2009 and the Mathurai Veeran Temple in Shah Alam, Selangor in October 2009.

2.2.5.3 On 28 August 2009, a group of 50 Malay-Muslims claiming to be residents of Section 23 in Shah Alam, Selangor, staged a protest against the decision by the Selangor government to relocate the 150-year-old Sri Mariamman temple to their Malay-majority are from Section 19. The protesters marched from the Shah Alam State mosque after Friday afternoon prayers to the State Secretariat building with a severed cows head, which was then paraded, spat and stomped upon in front of the State Secretariat building.88

On 3 September 2009, Malay daily Berita Harian reported that the government would meet the Hindu Sangam Association to discuss the incident. Home Minister Hishammuddin Hussein expressed the need for a win-win situation between both parties and that anything short of that would cause more unrest and tension. He went on to state his agreement that the relocation of the temple to the MalayMuslim majority area was indeed inappropriate.89

On 9 September 2009, six people were charged at the Shah Alam Sessions Court for sedition under Section 4 (1) of the Sedition Act 1948 or alternatively under Section 298 of the Penal Code for uttering words with deliberate intent to wound the religious feelings of another person.90 The accused were also charged with illegal assembly under section 27 of the Police Act 1967 with six others.

On 27 July 2010, the 12 accused were convicted under an alternative charge, i.e. Section 143 of the Penal Code for illegal assembly.91 The Shah Alam Sessions Court

Malaysiakini, 28 August 2009, http://www.malaysiakini.com/news/111628 Berita Harian, 3 September 2009 90 Berita Harian, 8 September 2009 91 Section 143 of the Penal Code provides for a lighter sentence where the offence is punishable with a fine, an imprisonment not exceeding 6 months or both. The earlier charge, i.e. Section 27 of the Police Act 1967
89

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sentenced them to a fine of RM1,000.00 or one months imprisonment if they defaulted in paying the fine.

2.2.5.4 On 26 July 2010, The Star reported that the Federal Court had turned down a request by former Sabah chief minister Chong Kah Kiat to appeal against the state government's decision to reverse the approval for construction of a 108-feet high Mazu (Goddess of the Sea) statue in Kudat. The Kudat Town Board had approved the statue's construction in February 2006; however, it withdrew its letter of approval on 15 November 2007 for the reason that the Mazu statue would be built too close to a mosque that was situated 600 metres from the site of the statue.92 & 93

2.3

Right to Propagate

2.3.1 Proselytising Muslims

2.3.1.1 On 14 July 2009, police arrested nine Christians in a hostel room at Universiti Putra Malaysia who were accused of trying to convert Muslim university students.94 A Muslim student had filed a complaint alleging that the nine were trying to convert Muslims. The students, who claimed that they were visiting friends, denied this. It was subsequently discovered that they were merely distributing forms and questionnaires relating to Christianity to other Christians for a research project about religious understanding. These nine Christians were released after the recording of their statements. Five of them were students at the university while the others were friends from Hong Kong.95

provides for a heavier sentence where the offence is punishable with a fine or imprisonment not exceeding one year. 92 The North Borneo Herald, 29 July 2010, http://northborneoherald.blogspot.com/2010/07/mazu-case-datuk-chong-kah-kiat-loses.html; 93 The Star, 26 July 2010, http://thestar.com.my/news/story.asp?sec=nation&file=/2010/7/26/nation/20100726180801 94 Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 122 95 Associated Press, 15 July 2009

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ISLAMISATION
Islamic resurgence in Malaysia began in the 1970s as a grass-roots phenomenon. The government responded positively to this movement by centralising its Islamic administration through the Islamic Development Department (JAKIM) and launching its own programme of Islamisation. In 1983, Prime Minister Dr Mahathir

Mohammad described Islamisation as the policy to infuse Islamic values into all government institutions. A Syariah and Civil Technical Committee was set up in the Prime Ministers Department in 1988 to ensure that all new laws were Syariah compliant. Prominent new Islamic institutions were set up that included Bank Islam and the International Islamic University. Islamic Civilisation was made a compulsory subject in universities and the school curriculum was revised to reflect more Islamic content. The governments agenda of Islamisation reached its high point when Dr Mahathir in 2001 publicly declared Malaysia as an Islamic country.

The government programme of Islamisation has indelibly transformed the Muslim community. It is increasingly evident that the government wants to extend Islamisation onto non-Muslims with public policies aimed at regulating their public life according to Islamic values. The following reports of incidents such as banning the sale and consumption of alcohol in certain neighbourhoods, banning of non-halal food in some schools and restrictions on non-Muslim societies in schools and tertiary institutions of education, may be viewed as snapshots of how Islamisation results in encroachment of the public life of non-Muslims and infringement of their fundamental liberties.

3.1

Enforcement of Islamic Values and Moral Code

3.1.1 Punished for Bringing Non-Halal Food to a Public School

3.1.1.1 On 15 October 2010, Basil anak Baginda, 10, was caned 10 times on his palms for bringing fried rice cooked with pork sausages to the St Thomas Primary School.

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On 19 October 2010, his mother, Angela Jabing, went to the school seeking an explanation for the incident. She was informed that since February 2010 students were not allowed to bring any non-halal food to school out of respect for Muslim students.96

3.1.2 Sale and Consumption of Alcoholic Beverages

3.1.2.1 On 13 May 2009, the Shah Alam City Council (MBSA) sent a letter to retail outlets stating that the sale of all alcoholic drinks, including beer, would not be allowed in the Muslim-majority areas of Sections 1 to 25 in Shah Alam. The ban on the sale of beer also covered outlets in Bandar Baru Sungai Buloh (Section U20) and TTDI Jaya (Section U2). The state government, however, froze the ban on 27 May 2009 pending guidelines on the sale of hard liquor and beer.97

On 29 July 2009, MBSA officers confiscated beer worth RM620.00 at a 7-Eleven outlet in Section 8, Shah Alam. MBSA had seized some 70 cans and bottles of beer from the 7-Eleven outlets despite there being no directive from the state government to do so. Subsequently, the MBSA officers returned the seized cans and bottles upon learning that the sale was allowed.98

3.2

Islamisation & Conflict of the Legal Order

3.2.1 Islam & Moral Code

3.2.1.1 On 20 July 2009, the Kuantan Syariah High Court sentenced Kartika Sari Dewi Shukarno to six strokes of the cane and a RM5,000 fine after she pleaded guilty to

Malaysian Mirror, 4 November 2010, Mom demands probe over non-halal food caning at school, http://www.malaysianmirror.com/media-buzz-detail/139-sarawak/50342-mother-demands-probe-over-nonhalal-food-caning-at-school 97 The Star, 4 August 2010, http://thestar.com.my/news/story.asp?file=/2009/8/4/nation/20090804144354&sec=nation 98 Sin Chew Daily, 3 August 2010, http://www.mysinchew.com/node/27842?tid=14

96

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consuming alcohol at a hotel lounge in Kuantan the previous year. 99 However, on 2 April 2010, 100 it was reported that the sentence had been commuted to community service on the orders of the Sultan of Pahang. In a letter received by the Pahang State Islamic and Malay Culture Council dated 26 March 2010, the council deputy president Wan Abdul Wahid Wan Hassan said that the sentence was reduced following a meeting on 3 March 2010 between Kartika and Tengku Mahkota Tengku Abdullah Sultan Ahmad Shah; Kartika was instructed to perform community service at the Tengku Ampuan Fatimah Childrens Home in Kuantan for three weeks.

3.2.1.2 On 14 September 2009, the New Straits Times reported that the Kuantan Syariah High Court sentenced Nasarudin Kamaruddin, an Indonesian national, to a years jail and six strokes of the cane after pleading guilty to the charge of consuming alcohol in a restaurant on 27 August 2009.101

3.2.2 Sentencing Standards on Children

3.2.2.1 There are discrepancies in Malaysian laws relating to children and appropriate sentencing applicable to them. The issue here is two-fold in the classification of who amounts to a child and what degree of sentencing is deemed legal and appropriate. Malaysian laws generally acknowledge that persons convicted of an offence committed under the age of 18 may lawfully be sentenced to capital punishment, corporal punishment and life imprisonment but implements a dualsystem of secular and Islamic law in its governance.

A major discrepancy appears in the classification of a child. While the Penal Code sets the minimum age of criminal responsibility at 10 years,102 (and the Internal

The Star, 17 February 2010, http://thestar.com.my/news/story.asp?file=/2010/2/17/nation/5688110&sec=nation 100 The Star, 2 April 2010, http://thestar.com.my/news/story.asp?file=/2010/4/2/nation/5981013&sec=nation 101 New Straits Times, 15 September 2009, Another to be canned for boozing, http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=25864 102 Section 82 of the Penal Code see also section 2 of the Child Act 2001 for the meaning of child.

99

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Security Act being applicable regardless of age,103) the Syariah Criminal Offences (Federal Territories) Act 1997 refers to the attainment of puberty,104 and the Syariah Criminal Procedure (Federal Territories) Act 1997 defines a youthful offender as between 10 and 16 (above the age of 10 and below the age of 16).105

Whipping, as a form of corporal punishment, is allowed under section 91 (g) of the Child Act 2001 which authorises the court for children to order the child, if a male, to be whipped with not more than ten strokes of a light cane... subject to certain preconditions. In addition, the Criminal Procedure Code also provides for whipping in the way of school discipline,106 in addition or in lieu of fine or imprisonment.107 However, no sentence of whipping shall be passed on women or on males sentenced to death.108 Under Syariah law, however, whipping is not confined to males. Accordingly, females too can be whipped as the Syariah Courts (Criminal Jurisdiction) Act (applicable to all states in Peninsular Malaysia) provides for Islamic courts to order whipping of up to six strokes.109 With regard to age, the act applies to all children having attained the age of puberty according to Islamic laws.

Although Malaysia has ratified the Convention of the Rights of the Child in 1995, it has done so with numerous reservations110 expressing, in essence, that the provisions of the convention are applicable only if it conforms to the national Constitution, national laws and national policies of the Government of Malaysia.111

There is a need then, for a more comprehensive and thorough approach in the ratification of the Convention of the Rights of the Child to ensure that the laws of

103 104

Rule 3 of the Essential (Security Cases) Regulations 1975 (ESCAR) Section 2 of the Syariah Criminal Offences (Federal Territories) Act 1997 provides that baligh means having attained the age of puberty according to Islamic law. Section 51 of the same Act states that nothing is an offence which is done by a child who is not baligh. 105 Section 2 of the Syariah Criminal Procedure (Federal Territories) Act 1997 106 Section 288 of the Criminal Procedure Code 107 Section 293 of the Criminal Procedure Code 108 Section 289 of the Criminal Procedure Code 109 Section 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965. 110 Reservations are on Articles 1, 2, 7, 13, 14, 15, [...], 28, [paragraph 1 (a)] 37, [...] of the Convention 111 UNICEF Malaysia, CRC In Malaysia, http://www.unicef.org/malaysia/children_crc-in-malaysia.html

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Malaysia adheres to the acceptable international standard as well as a review on the interpretations and/or definitions of a child to prevent differing standards imposed on a child in the criminal justice system.

3.2.3 Formation of Inter-Faith Committees

3.2.3.1 In January 2010, the formation of a special inter-faith committee to promote better religious understanding and harmony between Muslims and those of other faiths was proposed after a spate of attacks on various houses of worships following the New Years Eve High Court ruling that Catholic weekly The Herald had the constitutional right to use the word Allah to describe the Christian God.

In February 2010, the Cabinet approved its formation. Former Kota Baru MP Ilani Isahak, who was a member of the National Unity and Integration Department (NUID) was appointed as its special coordinator to chair the committee.

The committee members comprise representatives from the Islamic Development Department (JAKIM), Institute of Islamic Understanding (Ikim) and the Malaysian Consultative Council on Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST). Minister in the Prime Ministers Department Dr Koh Tsu Koon said the committee functioned under the National Unity and Integration Department as a secretariat and would report to him as minister in charge, before he submitted its reports to the Cabinet. However, the setting up of the committee was opposed by the Malay rights group Perkasa and the Perak Fatwa Committee.

The committees first official meeting was held on 6 April 2010 at the Federal Territory National Unity and Integration Department office in Kuala Lumpur. Its subsequent meeting which was scheduled on 13 April 2010 was called off after representatives from the MCCBCHST felt that the deputy prime minister had showed a lack of faith towards the Cabinet-initiated committee. Several Muslim groups and muftis baulked at the inclusion of the term inter-religious. Subsequently, the interfaith committee initiated by the Prime Ministers administration was asked to come up with a new name. The council of muftis proposed that the panel should be
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renamed the Special Committee to Promote Inter-Racial Harmony and Understanding. As of the time of writing, there is no further progress reported in regard to this inter-faith committee.112

CONCLUSION AND PROPOSAL

Given the bold and creative policies and programmes that Prime Minister Najib has laid out and his determination to prove himself to the voting public that he is the right man for the job, the Najib administration would potentially have been able to bring about a true reformation of the social-political landscape for religious liberty. At perhaps another time and under another leader, marks of true reformation could yet materialise. Why, instead, have there been less than effective measures and no political will to bring about reforms to protect and enlarge the space for religious liberty? Why have the substantial directions and paths that Najib has opened up been met with stony criticism or worse, failure?

There are multiple possible reasons. Firstly, there are deep social and religious rifts accentuated by government inaction or misplaced actions which characterised Malaysia at the end of the Abdullah era. Trust in government and governing institutions was at a low, if not an all time low, pointing to the failure of Abdullahs policy attempts to bring about change. Ironically, despite the otherwise temperate Abdullah, the country witnessed a rise in the number of politically charged racial and religious incidents, which Najib then inherited. They had the effect of galvanizing opposition to the ruling coalition by non-Malays, while Malays were fragmented not only among political parties but also within them.

112

The Star, 7 April 2010; The Malaysian Insider, 11 April 2010, 13 April 2010 and 24 July 2010.

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Corruption was perceived as rife and enforcement agencies, particularly the Malaysian Anti-Corruption Commission (MACC), were seen as instruments of political persecution (the death under MACC custody of Teoh Beng Hock, the political aide of an opposition politician, remains a high-profile case until today). Najib inherited all these, together with a host of stratifying issues, including the right of Malaysian Christians to use the term Allah for God. To be sure, Najib seemed to acquit himself well after three churches in Malaysia were firebombed but his inconsistencies in approach did not augur well for him.

Apart from the legacy issues, and perhaps even more damaging to his credibility was the fact that Najib had his own baggage to carry from the past. Najib is a veteran UMNO politician and he has had to play the ethnic and religious card many times in the past. (He, along with his cousin the current Minister of Home Affairs, will long be remembered for brandishing an unsheathed Malay keris (blade) as a symbol of ethnic supremacy.) Added to this are incidents relating to his personal life, speculations about the exact nature of his involvement with the death of a Mongolian translator, and the related case of supposedly enormous amounts of undisclosed commissions paid by the French manufacturer of submarines that the Malaysian Navy had purchased. These events were, and to some extent still are, very politically cogent.

And if these were not enough, Najib was widely seen as one of the hidden hands behind the 2009 fall of the Opposition-led state government of Perak and in many of the Federal and State by-elections that have been held since March 2008. One of the most prominent was in the 2010 Sibu, Sarawak elections, when he publicly stated that he would sign the cheque for a much-needed flood mitigation scheme if voters returned the BN candidate. (They did not.) Again if this were not enough, he was also seen to be involved in the allegations of sodomy against the de facto PKR leader, Anwar Ibrahim, by his former personal assistant, Saiful Bukhari Azlan. The case is ongoing.

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Such incidents may have contributed in no small way to undermining Najibs personal credibility and integrity, and therefore how his reform agenda was perceived. For the Christian community at large, these could be regarded as unfortunate since for all his personal and political failings, the Prime Minister has still demonstrated a moderate and pragmatic streak. He is also all too aware that Malaysians, and particularly the Malays, cannot continue to be ensconced by the government and is determined to promote a progressive brand of Islam. His attempts to withdraw government subsidies and introduce an expenditure-based tax have largely been shelved because of political unpopularity, notwithstanding his attempts to follow them through.

All of these concerning Najib are of interest to the Malaysian Christian community in a way that is not apparent in any other UMNO or even Opposition politician. Yet, because of the mixed signals he has given, he has been unable to engineer a broad return of support and reforms, especially by the urban middle class, even as dissatisfaction within his own party grows. If these continue, he will undoubtedly find it difficult to hold on to the reins of leadership. At the same time, various groups would be seeking to create incidents to force his hand and make him look bad in one or another community. He might then be tempted in the future to resort to more hardline measures that would, on balance, be less favourable to the Church in terms of religious liberties.

To ensure that the state of religious liberty in the country remains vibrant, true to international human rights norms and consistent with the provision of freedom of religion in the Federal Constitution, it becomes incumbent on Christians and the church to at least attempt to address the above factors together with civil society for greater democratic space and freedom. Kingdom witness and new social-political or religious realities demand the church not stay within the bounds of perceived private

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space but move into the public square striving for greater understanding and harmony, towards mutual respect and acceptance. Only then will the Christian community in Malaysia be assured in the days to come of a flourishing state of religious liberty for this nation.

Released June 2012

Prepared and Submitted by Members of the NECF Malaysia Religious Liberty Commission Lim Heng Seng (Chairman) Kong Yeng Pooi (NECF Exco Member) Samuel Ang (NECF Secretary-General Eugene Yapp (NECF Research Executive Secretary) Dr Ng Kam Weng David Fung Baru Bian Tan Kong Beng Crystal Kuek Special thanks to report drafters Kathlyn Lee and Alex Tung Kok Weng, who did most of the writing of this report while they were reading in chambers.

Contact: The Executive Secretary, NECF Malaysia Religious Liberty Commission, 32, Jalan SS2/103, Petaling Jaya 47300, Selangor Email: research.ey@necf.org.my

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