Legislation provides for Muslim and non-Muslim religious institutions.
Financial allocations, gifts of land and tax exemptions are granted to all religions.
Cultural and religious tolerance extends to the use of minority languages in trade and commerce, and the establishment of private schools using Chinese and Tamil.
The Malaysian approach is that the state should not be indifferent to or hostile towards religions. It must promote tolerance. Tolerance comes not from the absence of faith but from its living presence.
Constitutional Protection of Freedom of Religion: Article 11
Islam is the religion of the federation. But all other religions may be practiced in peace and harmony: Article 3(1)
In respect of religion, every person has the right to three things:
- to profess
- to practice
- and, subject to Article 11(4), to propagate his religion: Article 11(1)
The right to religion is available not only to individuals but also to groups and associations: Article 11(3) and 12(2). Every religious group has the right to:
- Manage its own affairs
- Establish and maintain institutions for religious purposes.
- Acquire and own property and administer it: Article 11(3)
- Establish and maintain institutions for religious education: Article 12(2).
The right is available to citizens as well as to non-citizens: Article 11(1)
There is no compulsion on anyone to support a religion other than his own.
No person shall be compelled to pay any tax the proceeds of which are specially allocated to a religion other than his own: Article 11(2).
There is to be no discrimination on the ground of religion in relation to the rights of students to education or in public support for educational institutions: Article 12(1) and 8(2).
No person shall be required to receive instructions in or to take part in any ceremony or act of worship of a religion other than his/her own: Article 12(3)
There can be no discrimination on the ground of religion against employees in the public sector; in the acquisition, holding or disposition of property; and in any trade, business or profession: Article 8(2)
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: Minister v Jamaluddin bin Othman [1989]
Article 150 (6A) provides that freedom of religion cannot be restricted even in times of emergency by an emergency law under Article 150.
AREAS OF CONCERN
- Non-Mandatory Practices
Does freedom of religion extend only to those practices and rituals that are essential and mandatory or does it also cover practices that are non-essential and optional?
· Halimatussaadiah v PSC [1992]
· Meor Atiqulrahman Ishak v Fatimah bte Sihi [2000]
2. Planning Permissions
Local authorities often drag their feet in granting planning permissions for religious establishments. Such abuse of power is contradictory to the constitutional right.
It is also contrary to the letter and spirit of Islam. In the Holy Qur’an there is explicit mention of religious and cultural pluralism and freedom of conscience.
3. Inter-Religious Marriages
As Muslims are not allowed to marry under the civil law of marriages, non-Muslims seeking to marry Muslims have to convert to Islam. This has caused pain to the parents of many converts.
Likewise it has led to several difficult cases of apostasy by Muslims who, for reasons of the heart, wish to marry their non-Muslim counterparts.
4. Atheism
Does the right to religious belief include the right to disbelief and to adopt atheism, agnosticism, rationalism etc.?
In most democratic countries, the right to disbelief is constitutionally protected.
But in light of the Rukun Negara (“Kepercayaan kepada Tuhan”); the language of Article 11(2) - no tax to support a religion other than one’s own; Article 12(3) - no instruction in a religion other than one’s own; and the mandatory application of syariah laws to Muslims, it is possible to argue that atheism is not protected by Article 11 – at least not for Muslims.
5. Propagation of Religion to Muslims
Under Article 11(4) of the Federal Constitution, any preaching of religious doctrine to Muslims (whether by non-Muslims or unauthorised Muslims) can be regulated by state law.
Many non-Muslims complain that this amounts to unequal treatment under the law. Indeed it does. But it is one of the pre-Merdeka compromises between the Malays and the non-Malays in order to insulate Malays against internationally funded and powerful proselytising forces that had become entrenched in the country because of official support from the colonial government
There is the additional fat that proselytising activities like seeking death-bed conversions, generous grant of funds to potential converts and indirect and subtle proselytizing activities amongst minors have distinct implications for social harmony.
Prof. Harding in his book Law, Government and the Constitution of
To this may be added a unique ethnic and political factor in
6. Restraints on Freedom of Religion
The right to religious belief is, of course, not absolute. All religious conduct is subject to the power of Parliament to regulate it on the grounds of public order, public health and morality: Article 11(5).
In the case of Muslims additional restraints are possible due to the power of the States to punish Muslims for “offences against the precepts of Islam”: Schedule 9, List II, Item 1: Kamariah bte Ali lwn Kerajaan Kelantan [2002].
7. Conversions and Apostasy
The right to convert out of one’s faith is not mentioned explicitly in the Malaysian Constitution though it is alluded to in Article 18 of the International Covenant on Civil and Political Rights 1966 and Article 18 of the Universal Declaration of Human Rights.
For a non-Muslim the right to opt out of one’s faith and choose another has been regarded as an implicit part of religious liberty guaranteed by the Constitution
But because of its implications for child-parent relationships, the court in the case of Teoh Eng Huat [1990] held that a child below 18 must conform to the wishes of his/her parents.
In relation to Muslims the issue of conversion or apostasy raises significant religious and political considerations.
The traditional Muslim view is that as Islam is the religion of the federation and Malays are, by constitutional definition, required to be of the Muslim faith, all Muslims are liable to prosecution for apostasy or deviationism. The notion that freedom to believe includes the freedom not to believe is rejected in relation to Muslims.
But liberal Muslim scholars argue that Islam is a religion of persuasion, not force. The proposal to detain apostates runs counter to the spirit of Islam which is one of tolerance for the disbeliever.It is noteworthy that the Holy Qur’an nowhere prescribes a worldly punishment for apostates. The difficulty is that there is a known Hadith ordering that apostates should be advised, imprisoned, and if they still persist, then beheaded.
This Hadith must be read in the context in which it was made – in times of war, emergency and grave threat to the Islamic community. It must also be noted that Prophet Muhammad (s.a.w.) never ordered the execution of an apostate.
Since the 90s the conservative view has prevailed in
Apostasy laws raise difficult constitutional issues under Articles 11(1), 5(1), 10(1)(c) and 12(3). They are triggering a massive constitutional debate that pits religion against the Constitution and disturbs the delicate social fabric that has held all Malaysian together for 48 years. At the moment the following judicial attitudes and conflicts have emerged.
According to the High Court the act of exiting form a religion is not part of freedom of religion – at least not in the case of Muslims: Daud Mamat v Majlis Agama [2002] 2 MLJ 390.A contrary view was expressed by the Court of Appeal in Kamariah bte Ali lwn Kerajaan Negeri Kelantan [2002]. Muslims too have a right to renounce. But this renunciation cannot be done unilaterally. A Muslim who wishes to declare apostasy must first get the syariah court to confirm that he/she has left the religion. A statutory declaration of apostasy is not enough.
The problem is that the applications of most apostates to the syariah courts are left unattended.
In same cases criminal action for insulting Islam is taken.
CONCLUSION
A. The right to propagate
The right to propagate one’s faith has traditionally been regarded as an integral part of religious freedom. Unfortunately in a multi-religious society, the ideological fervour of religious zealots can have serious implications for social stability. For this reason some internal as well as external restraints must be built around all proselytising activities.
An Inter-Faith Commission must be set up which can assist to draw up some ground rules. Religious preachers need to be told that no religion has a monopoly to the Truth; that there are many ways of finding salvation.
There is a need to avoid words and acts that are patronizing, self-righteous and insulting.
It is insulting and narrow-minded to tell the believer of another faith that his God is not the true God and that he needs to “see the light”.
“Ambulance-chasing” by some proselytisers who roam hospital corridors to try to secure conversion of the dying, the critically injured or their vulnerable relatives is despicable
Hospital staff who alert evangelical groups about who to target must be warned not to subordinate official duties to personal convictions. Attempted conversions of minors through direct or indirect “social activities” must be strictly controlled.
“Cheque-book” conversions by resorting to financial benefit for the proselytiser as well as the proselytised must be condemned. In exposing the overzealousness of some proselytisers, double standards should not be applied. We must not single out some religions and ignore malpractices in other religious establishments.
B. The right to convert
Just as with the right to propagate, the right to convert is part of the constitutional and international right to freedom of religion.
However, though conversion is an intensely personal decision, its exercise must be regulated by the law if the conversion adversely affects the rights of others. The recent case of Sgt. Moorthy highlighted the pain and anguish a conversion can cause to the non-converting spouse.
In the Moorthy case the legal system was seriously scandalised. It was totally unjust and unnecessary for the syariah authorities to commence the action ex parte in the syariah court. Moothy’s wife and other relatives should have been heard. The issue whether Moorthy had, subsequent to his conversion to Islam, become a murtad and reverted to Hinduism should have been investigated.
Subsequently, the High Court judge who tried the case and the officers of the AG’s Chambers who supported the argument that Moorthy’s wife had no recourse to any court, did much damage to our system of justice. Islam was defamed.
As to the ruling that a Muslim has no unilateral right to apostate and must seek a court ruling, it can be observed in support that status is generally other-determined, not self-determined. In the context of
An act of apostasy by a Muslim would cause a divorce between the apostate and his/her Muslim spouse. Issues of custody and guardianship of children will arise. The apostate will lose his/her status as a Malay. He/she may end up losing many privileges like Malay reserve land. A court declaration is, therefore, appropriate. But time limits must be imposed on the syariah courts for determination of the applications of murtads. Justice must not be allowed to be defeated through delays.
Procedural hurdles in the way of apostasy are justified. But criminalisation of apostasy is not. In matters of religion there should be no compulsion. Criminal penalties against murtads run contrary to international law, contrary to constitutional guarantees and in violation of the spirit of Islam which is one of tolerance for the disbeliever.
Also, like the procedural hurdles that exist for those intending to leave Islam, there must likewise exist some procedural requirements when someone wishes to embrace Islam and the conversion would adversely affect the rights of his/her spouse and children. Specifically the family must be informed and must be heard. No conversion certificate should be issued till the issues of divorce, distribution of property, guardianship and custody of children have been resolved in accordance with the law under which the marriage took place.
The writer, Professor Shad Saleem Faruqi is the Legal Adviser to the Universiti Teknologi Mara. He is also a faculty member and is always in constant demand as a conference panelist. He has been consultant to the Malaysian and other governments in the region in areas of the law including promulgation and amendments.
As always comments are encouraged to enable lively debates.
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