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CONSTITUTION
by
Ahmad Masum*
[2009] 2 CLJ i
MALAYSIA
Introduction
Apart from art. 11(1) of the Federal Constitution, religious liberty is further
guaranteed in many articles of the Federal Constitution. For example, there is
no compulsion on anyone to support a religion other than his own and no
person shall be compelled to pay any tax the proceeds of which are specially
allocated to a religion other than his own.14Also, no person shall be required to
receive instructions in or take part in any ceremony or act of worship of a
religion other than his/her own.15The Federal Constitution also does not allow
for discrimination on the grounds of religion against employees in the public
sector; in the acquisition, holding or disposition of property; and any trade,
business or profession.16This fundamental right cannot be restricted even in
times of emergency by an emergency law.17However, it should be noted that
although this fundamental right is of paramount importance in a democratic
environment and well protected under the Federal Constitution, it is by no
means absolute. In other words, like all freedom, the right to follow one's
conscience cannot be absolute.
There are several constitutional limits on religious liberty or freedom under the
Federal Constitution. The restrictions could be in the form of: permissible
restraints; propagation of religion to Muslims; religion of minors, non-
mandatory practises and many more.
Permissible Restraints
Article 11(1) of the Federal Constitution, which guarantees freedom of religion
cannot be read in isolation. This article must be read together with art. 3(1),
which states that the practise of religion must not disturb peace and harmony.
In other words, one is allowed to exercise his freedom of religion on condition
that it would not disturb peace and harmony in any part of the Federation.
Another permissible restraint is provided under art. 11(5), which states that the
article does not authorise any act contrary to any general law relating to public
order, public health or morality. Thus, the implication of the article is that all
religious conduct is subject to the power of Parliament to restrict it on the
grounds stated above. Hence if a speech, conduct, practise or institution is
grounded on religious doctrine and if it threatens any of the above three
forbidden grounds, it can be exterminated by a parliamentary law.18
Apart from the permissible restraint under art. 11(5), in the case of Muslims,
additional restraints are possible. This is by virtue of Schedule 9, List II, Item 1,
which grants power to State Assemblies to punish Muslims for offences against
the precepts of Islam.19According to Shad Faruqi, this power is used frequently
to punish a wide variety of unIslamic conduct like khalwat (close
proximity), zina (adultery), gambling, drinking, beauty contests and
deviationists activities.20
It has been argued that a persons' right to propagate religion among people
professing Islam is pursuant to art. 11(4) can be restricted by Federal law
(Federal Territory) or state law pursuant to art. 11(4).21It is important to note
that laws controlling propagation are meant not only to prevent Muslims from
being exposed to "heretical religious doctrines, be they of Islamic or non-
Islamic origin and irrespective of whether the propagators are Muslims or non-
Muslims.22Some scholars argue that the purpose of art. 11(4) is to insulate
Malays against internationally funded and powerful proselytising forces that
had become entrenched in the country due to official support from the colonial
government.23 To Harding, art. 11(4) was inserted primarily because of public
order considerations. However, Shad Faruqi went further by adding to this
rationale the element of ethnicity and political factor by saying that in the
context of Malaysia, renunciation of Islam by a Malay would automatically
mean abandoning the Malay community. This is because Islam is one of the
defining features of a "Malay" in art. 160(2).24
Religion Of Minors
Although art. 11(1) uses the word `person' as having freedom of religion in the
context of professing and practising the said religion, but subject to cl. (4) when
it comes to propagation, it becomes vital to read the article together with art.
12(4) when the "person" we are dealing with happens to be under 18. Thus,
in Teoh Eng Huat29 the court held that in matters of religion, a child below 18
must conform to the wishes of her parents. Based on this line of reasoning, the
court ruled that the conversion of a 17-year old Buddhist girl to Islam without
her parents consent was of no effect. It would appear that the decision of the
then Supreme Court (now Federal Court) diffused a potentially divisive issue,
given that there are serious political overtones in the religious exploitation of
minors. Hence the Supreme Court was right to overrule the decision of the
High Court bearing in mind that within the context of a multi-religious society,
Abdul Malek J in the High Court was not right in importing Islamic law in his
construction of art. 11(1).30
Non-mandatory Practices
The contentious issue here is as to whether religious freedom would cover all
aspects of practise as far as the said religion is concerned. This is due to the fact
that in respect of religion, every person has three rights: to profess; to practice;
and subject to
cl. 4, to propagate his religion. Practise means to put into practise, to perform,
to carry out, to do habitually.31Although this is how the word "practise" is
understood, it is important to note that in Malaysia it has been held by the
courts that freedom of religion extends only to those practises and rituals that
are essential and mandatory. In Hjh Halimatussaadiah bte Hj Kamaruddin v.
Public Service Commission32 the issue was whether a female Muslim public
servant could wear purdah to work. The apex court was of the view that the
government was entitled, "in the interest of the public service", to forbid in the
workplace a religious tradition that was non-essential and optional. The same
reasoning applied in Fatimah Sihi & Ors v. Meor Atiqulrahman bin Ishak &
Ors33 where Muslim schoolboys failed to get court endorsement of their
demand to wear serban to school.
Looking at the line of reasoning given by the courts above, it would appear safe
to conclude that in Malaysia freedom of religion in the context of "practise"
extends only to those practises and rituals that are essential and mandatory. But
such rulings may create problems in other areas as some practises, although not
mandatory, are however part and parcel of certain religions.34One example is
polygamy. Although this is not mandatory to male Muslims, but denying it may
be said as denying religious freedom.35
In recent years, we have witnessed racial and religious polarisation coming into
play whenever the issue of freedom of religion is raised under the Federal
Constitution. It has to be admitted wholeheartedly that like in all societies, there
are areas where religious, cultural and ethnic interests are competing and
clashing. Thus, Malaysia being a multiracial society we are bound to face some
of these clashes directly or indirectly like the Islamic State controversy,
apostasy and many more.
Although this is the legal position regarding the status of Malaysia as a country,
politicians and even some of our leaders have not accepted this line of
reasoning. For instance on 29 September 2001, the then Prime Minister
Mahathir Muhamad asserted that Malaysia is an Islamic country, even though
the Constitution and system of governance do not fall neatly into the "norms"
of what constitute an "Islamic State." Mahathir's declaration was echoed by his
successor, Abdullah Badawi, in July 2004. In response to a written question
during parliamentary sitting, Badawi said that Malaysia is an Islamic State in
that it is acknowledged in the Federal Constitution to have Islamic
characteristics and because its state governance and ethnic majority practise
Islam. He said the position of Malaysia as an Islamic state is strengthened by
art. 3 of the Federal Constitution, which states that Islam is the official religion
of the Federation. On 17 July 2007, the Deputy Prime Datuk Seri Najib Abdul
Razak said Malaysia today is not a secular state, but an Islamic state driven by
the fundamentals of Islam. He went further and proclaimed that: "Islam is the
official religion and Malaysia is an Islamic state, an Islamic state that respects
the rights of the non-Muslims and we protect them."41
From the above paragraph, there seems to be a clash of opinions on the status
of Malaysia, ie, whether it is an "Islamic" or "secular" state as a result of
adopting Islam as the religion of the Federation under art. 3(1). Since case law
is in favour of a secular state argument while faced with the interpretation of
art. 3(1), it would be safe to conclude that the Islamic state argument is more of
a political reasoning rather than a legal reasoning and thus should be discarded
altogether in a multi-racial society like Malaysia.
However, detractors hold that the court should "adhere to the spirit of the
Constitution." It is said that art. 11(1) is broad enough to permit change of faith
and though art. 11(4) restricts propagation of any religion to Muslims, the law
nowhere forbids voluntary conversion of a Muslim to another faith. In other
words, art. 11(4) does not restrict a Muslim from studying other religions and
converting to another religion out of his/her own free will.46 It is also pointed
out that many state laws implicitly recognise conversions out of Islam by
requiring a register to be kept of those who become murtad (infidels) and a
similar register is kept of those who adopt Islamic faith.47However, recently we
have witnessed some interesting decisions of both civil and Syari'ah courts
regarding the issue of apostasy. For example, a former religious teacher and
follower of the Sky Kingdom deviant sect Kamariah Ali was jailed for two
years for apostasy.48
It may have been a positive move to have come up with the constitutional
amendment in 1988, which saw the separation of these two courts, ie, the High
Courts (civil courts) were declared to have no jurisdiction in respect of any
matter within the jurisdiction of thesyari'ah courts. This is due to the fact that
the syari'ah is a complex and distinct field that requires expert handling by
those trained in the fundamental postulates of Islamic law and
jurisprudence.55 However, the amendment was flawed because it did not create
an authoritative machinery for determining questions of conflict of
jurisdiction.56For example, some disputes involve mixed questions of civil
and syari'ah law. There are cases where one part is a Muslim, the other is a
non-Muslim. However, of recent, we have witnessed some positive decisions
given by the Federal Court on this conflicting issue of jurisdiction.57
It has to be admitted that this issue of conflict of jurisdiction has been one of
the areas in Malaysia where religious polarisation has set in especially when
dealing with conversion involving adults and children as well; non-Muslim
marriages and many more. For example, it is taken for granted that that a non-
Muslim's right to opt out of his religion is an implicit part of his religious
liberty.58However, the exercise of this liberty is not free of thorny issues like if
a Buddhist husband converts to Christianity, the religion of the children may
become a bone of contention.59The scenario is even more complicated if the
conversion is to Islam. For example, though the marriage is not automatically
dissolved, the syari'ah court will have the power to end it. Custody and
guardianship of children will become issues. The non-converting spouse will
not be eligible for inheritance.60
The other important issue to look into is that of conversion and laws on
apostasy. The focus of attention here is on the issue or question of whether a
Muslim can convert out of Islam. If so, can he/she be punished for apostasy?
70
Will such punishment infringe his/her right under art. 11?71It is submitted that
the legal scenario is complicated. However, recently we have witnessed some
few cases where Muslims have been charged in the syari'ah courts for apostasy
and even judgment passed.72It must be pointed out that in the context of this
study laws on apostasy and other aqidah (faith) laws may raise important
constitutional issues.73 For example, art. 11(1) is broad enough to permit
change of faith irrespective of art. 11(4). Hence, a law that violates art. 11(1)
may be challenged as unconstitutional. Also forced rehabilitation could be
viewed as an interference with personal liberty guaranteed by art. 5(1).74This is
due to the fact that the term "law" under art. 160(2) of the Federal Constitution
does not include "syari'ah law." So, are these apostasy or aqidah (faith) laws
considered syari'ah laws? If the answer is to the affirmative, then such laws
could be challenged to be unconstitutional by virtue of art. 160(2) and thus
someone who converts out of Islam could still invoke the violation of his
constitutional right under art. 5(1) as a result of forced
rehabilitation.75Irrespective of what is said here, some would still argue that
such laws are not unconstitutional on the basis of art. 11(4), which stipulates
that state or federal law "may control or restrict the propagation of any religious
doctrine or belief among persons professing the religion of Islam." Probably
what is needed is a fair balancing of interests with the least friction and the
need to understand the constitutional provisions from the historical perspective
as well.
As to the issue of jurisdiction between the civil and syari'ah courts, although
the original intention of this constitutional amendment was to upgrade the
status of the syari'ah courts and to make them autonomous of the civil courts in
matters of Islamic law, it could not be denied or watered down that the
amendment was flawed because it did not create an authoritative mechanism
for determining questions of conflict of jurisdictions. In order to overcome this
problem, probably the syari'ah courts should have exclusive jurisdiction only
when both parties are Muslim.83Thus, the civil courts should not be excluded
from hearing such a case especially where one of the parties is non-Muslim.
Probably we need to have a mechanism in place like where the High Court
have a Syari'ah Division manned by judges familiar with both civil
and syari'ah laws to adjudicate upon the matter.84It could also be possible to
invoke the advisory jurisdiction of the Federal Court under art. 130 to address
this conflict of jurisdiction.
Conclusion
Apart from the political will that is needed, probably we ought to look into the
function of law in relation to religion within a multi-cultural and multi-religious
society where religious pluralism is valued. In such a context, law affords equal
protection to all religions and refrains from judging the merits of any religion.
Equal treatment of religions under the law does not, of course, mean that all
religions are of equal truth-validity.87 That is a matter left to the judgment and
choice of the individual. Although this is what is said about the function of law
in relation to religion, it is inevitable to suggest that in Malaysia there is a need
to have clear laws in place in tackling some of these problems. For example,
the Federal Court decision in Latifah Mat Zin88 was of special importance.
Justices Abdul Hamid Mohamed, Arifin Zakaria and Augustine Paul, while
they clarified some of the conflicts in jurisdiction between civil
and syari'ah courts, they noted that there were matters that might be outside the
jurisdiction of both, resulting in no available remedy in either court.
All in all, it is submitted that the efforts at the societal level may be more
fruitful in understanding the notion of freedom of religion under the Malaysian
Federal Constitution. Thus, freedom of religion may be enshrined in the
Malaysian Constitution but Malaysians have much to learn about respecting
one another's faith. Also, although religion is often viewed as a sensitive issue,
society should not be afraid to discuss it in a peaceful and tactful manner. What
is important in the discussion of freedom of religion in a Malaysian context is
for us to strike a balance between being tactful and tolerant with religious
issues, and at the same time, be open to allow individuals to seek the faith of
their choice.
Endnotes:
1. See art. 18 of the Universal Declaration of Human Rights 1948 and also art.
18 of the International Covenant on Civil and Political Rights 1966. See also
art. 9 of the European Convention on Human Rights.
2. Article 11(1) of the Federal Constitution provides that: "Every person has the
right to profess and practise his religion and, subject to Clause (4), to propagate
it."
4. Ibid.
5. Ibid.
8. Ibid.
9. Ibid.
10. Ibid.
11. See arts. 11(1) and 3(1) of the Federal Constitution respectively.
17. Article 150(6A) of the Federal Constitution. See also the decision of the
court in the case of Jamaluddin bin Osman [1989] 1 MLJ 369 where the court
held that a preventive detention order cannot be issued on the ground that a
convert out of Islam is involved in a programme for propagation of Christianity
amongst Malays. In other words, freedom of religion under art. 11 was held to
override the power of preventive detention under the Internal Security Act
1960.
18. Shad Faruqi, "Constitutional limits on religious liberty," The Sun, 25 May
2006, E6. See also Shad Faruqi, "The Human Rights and Constitutional
Perspective" (2002) INSAF the Journal of Malaysian Bar 12.
19. Ibid.
20. Ibid. See also the case of Kamariah bte Ali v. Kelantan Government [2002]
3 CLJ 766.
21. Kevin YL Tan & Thio Li-Ann, Constitutional Law in Malaysia and
Singapore, Butterworth Asia, Malaysia, 1997 at 941.
22. Ibid.
23. Shad Faruqi, "Support for religious liberty," Sunday Star, 25 February
2001, 22.
25. See s. 124 of the Council of the Religion of Islam and Malay Custom,
Kelantan Enactment 1992 provides: `Any person who helps or causes a person
who professes the religion of Islam to leave his religion is guilty of an offence
and shall, on conviction, be liable to a fine not exceeding four thousand ringgit
or to imprisonment for a term not exceeding two years or both.' See also s. 4,
Non-Islamic Religions (Control of Propagation Amongst Muslims) Selangor
Enactment 1 of 1988 and the similarly worded Enactment for Malacca No 1 of
1988 and Kedah No. 11 of 1988. These make it an offence to persuade a
Muslim to change faith, to approach a Muslim to subject him to speech
concerning a non-Islamic religion or send him materials on non-Islamic
religions, to distribute such publications to Muslims in a public place.
27. Ibid.
28. Ibid.
30. Abdul Hamid cited art. 12(4) and art. 16(4) in support of his decision. In
applying the Islamic age of consent (according to theShari'ah, this is 15 for
boys and on the onset of baligh or menstruation for girls), he held that the age
of majority under art. 12 (eighteen years) did not apply to art. 11.
34. Abdul Aziz Bari & Farid Suffian Shuaib, Constitution of Malaysia-Text &
Commentary, 2nd edn, Prentice Hill, Petaling Jaya, 2004, at 40.
37. Ibid.
38. Shad Faruqi, "Ours is a hybrid system," The Sun, 20 July 2006, E2.
39. Ibid.
43. Ibid.
44. Ibid.
45. Ibid.
46. Ibid.
47. Shad Faruqi, "The Human Rights and Constitutional Perspective," (2002)
INSAF the Journal of the Malaysian Bar 14.
48. See "Sky Kingdom member gets two years for apostasy," The Star, 4 March
2008, N35.
49. Shad Faruqi, "Spotlight on religious freedom" The Sun, 1 June 2006, E7.
50. Ibid.
51. Shad Faruqi, Jurisdiction of State Authorities to punish offences against the
precepts of Islam: A Constitutional Perspective, www.malaysianbar.
52. Ibid.
53. Ibid.
56. Ibid.
57. See the Federal Court's decision in the case of Latifah Mat Zin v.
Rosmawati Sharibun & Anor [2007] 2 CLJ 253. See also the case of Subashini
v. Saravanan [2007] 7 CLJ 584. In Subashini, the Federal Court ruled that
questions of jurisdiction are for the civil courts to determine. The High Court
has jurisdiction even if the husband has converted to Islam and even if he had
commenced proceedings in the Syari'ah courts.
59. Ibid.
60. Ibid.
61. See Malaysia Human Rights Report 2005 - Civil and Political
Rights, SUARAM Kommunikasi, Petaling Jaya, 2006, at 95.
62. Ibid.
63. See s. 9 of the Syari'ah Criminal Offences Act 1997 for the Federal
Territories, which makes it a criminal offence for any person "... acts in
contempt of religious authority or defies, disobeys or disputes the orders or
directions of the Yang di-Pertuan Agong (King) as Head of the religion of
Islam, the Majlis or the Mufti, expressed or given by way of fatwa." See also
Sec 12 of the same Act. It makes it an offence for any person to give,
propagate, or disseminate any opinion concerning Islamic teachings, Islamic
law, or any issue contrary to any fatwa when it is in force.
64. See the White Paper on the Constitutional Proposals for the Federation of
Malaya stating that it is a secular state. See also the clarification made by the
then Prime Minister Tunku Abdul Rahman at the Federal Legislative Council
in 1958 that "... this country is not an Islamic state as it is generally understood,
we merely provide that Islam shall be the official religion of the State."
65. See the implications that flourish from art. 3(1) of the Federal Constitution,
ie, Islamic education and way of life can be promoted by the state; taxpayers'
money can be utilised to promote Islamic Institutions and to build mosques etc.
Also, Islamic courts can be established and syari'ah officials can be hired.
67. Ibid.
69. [1988] 1 MLJ 119-where the Supreme Court reiterated that the acts
prohibited by the sec (s. 298A of the Penal Code) had nothing to do with public
order, a federal matter, but directly concerned with religion.
71. Ibid.
72. See the recent decision of the Syari'ah High Court judge Muhammad
Abdullah in Kuala Terengganu regarding a follower of the Sky Kingdom
known as Kamariah Ali who was jailed for two years for apostasy.
74. Ibid.
75. Ibid.
76. Cindy Tham, "God's words and man's laws-Lawyers, NGOs call for
statutory council to preserve religious freedom and tolerance," The Sun, 10
December 2000, 17.
77. Ibid. This view is shared by academics like Shad Faruqi (emphasis added).
78. Shad Faruqi, "Seeking the path of moderation," The Sun, 8 June 2006, E8.
79. Ibid.
82. Ibid.
83. Ibid.
84. Ibid.
85. Ibid.
86. Ibid.
87. Kevin YL Tan and Thio Li-Ann, Constitutional Law in Malaysia and
Singapore, Butterworth Asia, Malaysia, 1997 at 877.