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FREEDOM OF RELIGION UNDER THE MALAYSIAN FEDERAL

CONSTITUTION

by

Ahmad Masum*

[2009] 2 CLJ i

MALAYSIA

Introduction

The right to freedom of religion is one of the fundamental rights guaranteed in


many international and regional human rights instruments.1For example, the
right to freedom of religion is guaranteed under art. 11(1) of the Federal
Constitution.2 However, it is important to note that none attempts to define the
term "religion." It has been observed that the "effort to define religion is as old
as the academic study of religion itself."3In fact, "dozens, if not hundreds of
proposals have been made, each claiming to solve the definitional problem in a
new unique way.4 Needless to say, no one definition of religion has garnered a
consensus, and the definitional enterprise, as well as the debate over the very
need for definitions, continues in full vigor."5 Although this may be the case,
there are those who view religion as a set of beliefs, essentially "an intensely
personal matter".6 Thus, belief in a religion is frequently manifested in acts of
worship and demonstrations of belief, usually in community with others.

Looking at the definitional aspect of the term "religion" from a Malaysian


perspective, perhaps one would have to ask the question of whether `religion'
refers merely to established and ancient religions.7Or does it include cults and
sects with distinct philosophies and rituals of their own?8 It has to be
acknowledged that the issue is as yet untested in our courts. The practice up to
now has been to prosecute any Muslim or non-Muslim who is involved in
"deviationist" teachings and practices.9Hence it would appear that in a
traditional society like Malaysia with an official religion and Rukun
Negara which affirms to commitment to belief in God, atheistic practices may
not receive much sympathy in the courts although Western theory supports a
broad view of the term "religion".10

Irrespective of the difficulties involved while faced with this fundamental


liberty ie, like the definitional aspect of the term itself, it has to be noted that
the Federal Constitution of Malaysia guarantees freedom of religion, and
further proclaims Islam as the official religion.11However, the proclamation of
Islam as the official religion does not mean that others are denied the right to
practise their freedom of religion. For example, Malaysia has a record of
religious tolerance that should be the envy of all plural societies. Mosques,
temples, churches and gudwaras dot the landscape.12

Discourse On Freedom Of Religion From The Perspective Of The


Malaysian Federal Constitution

Freedom of religion as a fundamental right is guaranteed under the Federal


Constitution by virtue of art. 11(1). This article shows a special tenderness for
religious liberty. For example, proper understanding of the article would
portray or show that every person has the right to three things: to profess; to
practise and subject to art. 11(4) to propagate his religion. This fundamental
right is available to citizens and as well as non-citizens. It is also not only
available to individuals but also to groups and associations.13

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.

Restrictions On Freedom Of Religion Under The Malaysian Federal


Constitution

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

Propagation Of Religion To Muslims

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

Still on the issue of propagation of religion to Muslims, it would be safe to


suggest that any preaching of religious doctrine to Muslims (whether by non-
Muslims or unauthorised Muslims) can be regulated by state law.25 This is due
to the fact that State enactments also make it an offence to convert Muslims. Of
recent, this limitation or restriction has generated a heated debate in Malaysia.
An acute example of this heated debate is that of conversion, which the author
intends to address at the latter part of the discussion.

Furthermore, much as we admit that the restriction of propagation of non-


Islamic religions among Muslims and state control over the propagation of
Islamic doctrine may also serve the purpose of maintaining social
stability.26The problem with these principles is that they are contrary to the
spirit of freedom of religion, and place the adherents of other religions (and
Muslims who hold to unorthodox religious tenets) at a disadvantage compared
with Muslims (or orthodox Muslims).27Thus in the long term the maintenance
of these restrictions may have the effect of undermining the overarching
principle of religious freedom.28

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

Some Areas Of Concern Regarding Freedom Of Religion Under The


Malaysian Federal Constitution

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.

Islamic State Controversy

The controversy is prompted by lack of in-depth understanding of art. 3(1) and


its implications. Article 3(1) proclaims that "Islam" is the religion of the
Federation but all other religions may be practised in peace and harmony. It
must be pointed out that the adoption of an official faith is not a unique
constitutional phenomenon.36For example, there are Christian countries like
Ireland and Norway with state religions.

The implication of adopting Islam as the religion of the Federation is that


Islamic education and way of life can be promoted for Muslims; Islamic
institutions can be established; Islamic courts can be set up; and Muslims can
be subjected to the Syari'ah in areas assigned by the Constitution.37Hence
adopting Islam as the religion of the Federation does not turn Malaysia into an
Islamic State. This is due to the fact that Malaysia's document of destiny does
not contain a preamble.38The word "Islamic" or "secular" does not appear
anywhere in the Constitution. However, there is strong historical evidence in
the Reid Commission papers that the country was meant to be secular.39It is
therefore arguable that the forefathers of the Merdeka Constitution did not
intend to launch a theocratic state. This line of reasoning is even favoured by
the courts while interpreting art. 3(1). For example, in Che Omar bin Che
Soh,40 the Supreme Court said in unmistakable language that though Islam is
the religion of the Federation, it is not the basic law of the land.

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.

Controversies Over Apostasy

Although freedom of religion is guaranteed by art. 11(1), in practise this right is


fraught with difficulties for Muslims, whether they are "born" into the faith or
have converted to Islam.42The issue of renunciation of the Islamic faith and
embracing of another religion is a controversial question.43It is nearly
impossible for individuals who have renounced Islam to obtain official
recognition of the same.

Furthermore, contention over the issue of apostasy, specifically on


constitutional provisions for freedom of religion to Muslims, remains
unresolved. Legal and constitutional experts hold divergent views on whether
the Federal Constitution allows action to be taken against apostates.44 Some
argue that the freedom of religion guaranteed by art. 11(1) of the Federal
Constitution is conditional on art. 3(1), which states that Islam is granted
special status as the country's official religion. Hence, to take legal action
against Muslims who choose to depart from Islam or convert to other religions
does not contravene the provisions of the Constitution.45 Those who advocate
for this view also draw on art. 11(4) to support this argument.

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

Conversion And Apostasy

Although it is universally accepted that freedom of religion includes the right to


convert to another faith, it is important to note that the position in Malaysia is
not very clear. For example, the right to convert out of one's faith is not
mentioned explicitly in the Malaysian Constitution.49However, it is taken for
granted that a non-Muslim's right to opt out of his religion is an implicit part of
his religious liberty.50

As to Muslims, the issue of conversion or apostasy raises significant religious


and political considerations. The adoption of Islam as the religion of the
Federation and the compulsory subjection of Muslims to the syari'ah in a
number of matters are other reasons why the conversion of a Muslim out of
Islam arouses revulsion and anger among the Malays/Muslim citizens.51 It is
equally important to note 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 if their conduct is violative of Islamic
precepts.52No Muslim can lay a claim to opt out of syari'ah laws - the
constitutional guarantee of freedom of religion notwithstanding. Hence, the
notion that freedom of belief includes the freedom not to believe is unlikely to
be accepted in Malay society.53 Irrespective of this line of reasoning, some still
view art. 11(1) very broad enough to permit change of faith though art. 11(4)
restricts propagation of any religion to Muslims, the law nowhere forbids
voluntary conversion of a Muslim to another faith.54

Issue Of Jurisdiction Between Civil And Syari'ah Courts

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

Deviationist Islam Or Activities


Although Islam is the official religion of the Federation, it should be noted that
the practise of anything other than Sunni Islam is disallowed.61There are
various laws at state level meant to deal with deviationist teachings or
activities. For example, the Administration of Islamic Law Enactment 1989 for
Selangor gives exclusive powers to the mufti to issue, amend or
revoke fatwa (religious decrees that are binding and enforceable once
gazetted).62Also the syari'ah criminal offences legislation makes it an offence
for anyone to have an opinion or even own books contrary to the fatwa.63

Solutions To Some Of The Areas Of Concern Regarding Freedom Of


Religion Under The Malaysian Federal Constitition

Much as there is an acknowledgement of volatility of religion in any given


society, it is vital to note that religion has a peaceful face and greatly valued for
various reasons. For example, religious freedom is basic to the nature of man
and is deeply rooted in our social life. Hence, in the context of this study it
becomes inevitable to address some solutions to the areas of concern regarding
this fundamental liberty if we were to avoid racial and religious polarisation in
Malaysia. The following are some of the solutions to the pertinent issues raised
throughout the discussion:

There is an urgent need to understand the implication of the constitutional


declaration of Islam as the religion of the Federation. It cannot be denied that
"Islam" as a religion is given a special position under the Federal Constitution.
For example, the article is not a mere declaration but imposes a positive
obligation on the Federation to protect, defend, promote Islam; give effect by
appropriate state action to the injunctions of Islam; and enable, facilitate and
encourage Muslims to order their lives and practise according to Islamic
injunctions, spiritual and mundane alike. However, this article should not be
read literally and further that the events leading to independence show that
Malaysia was intended to be a secular state.64The article was inserted for
ceremonial purposes.65

It has to be admitted wholeheartedly that the restriction on the right to


propagate religion among people professing Islam pursuant to art. 11(4) is said
to flow logically and necessarily from Islam's position as the religion of the
Federation. However, controlling propagation curtails the position of
religionists for whom proselytising is an integral part of worship. Many non-
Muslims complain that this amounts to unequal treatment under the law for
other religions.66 Indeed it does. To overcome this intention or clash, it is
humbly submitted that the best way of understanding constitutional provisions
of any given country especially like that of Malaysia is to make reference to
some historical facts or events that led to the inclusion of such provisions into
the Constitution. Hence, it must be remembered art. 11(4) was part of the pre-
Merdeka social contract between Malays and non-Malays.67 Though this may
be the argument to present, still some have argued that while art. 11(4) permits
restriction to propagation of other religions among Muslims, it does not restrict
a Muslim from studying other religions and converting to another religion out
of his/her own free will.68Still the conversion of a Muslim out of Islam is
considered a contentious issue because not all share the same view. For
example, Harding's view regarding the restriction on proselytism revolves
around the issue of preserving public order than religious priority, seems not to
be the case based on the Supreme Court's decision in the case of Mamat bin
Daud v. Government of Malaysia.69

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.

In addition to the issue of apostasy, probably when it comes to something like


an apostasy law, or a public policy to govern faith, society must debate openly
and rationally to be able to decide what is in the best interest of the people.76All
citizens should have the right to engage in dialogue on religious issues. We
should not shun away from discussing racial and religious issues because they
are deemed to be "sensitive". Thus, some have argued that apostasy should be
addressed through persuasion rather than criminalisation.77For example, it
could be argued that apostasy law is a cause for concern on the basis that Islam
is a religion of persuasion, not force. Viewed from that perspective, the idea or
notion of detaining apostates runs counter to the spirit of Islam which is one of
tolerance for the disbeliever.

Furthermore, in dealing with apostates, the Muslim community, especially its


religious leaders, must look within.78They must study all apostasy cases;
categorise them; analyse the causes; and try to work out the cures.79In other
words, the authority must seek to win back lost souls through love and
persuasion and not through criminalisation. This in fact would reduce the
tension built on religious freedom in the context of conversion since Allah
(God) recognises the possibility of repentance and reminds us that He is all-
forgiving.80

As to a conversion of a non-Muslim to Islam, probably there is a need to come


up with some guidelines if we were to address some of the thorny problems or
issues caused by the exercise of this liberty, ie, freedom of religion. For
example, it should be made as a requirement that the family of the aspiring
convert must be informed and must be heard.81Also, 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.82

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.

Furthermore, although deviationist teachings fall outside the scope of freedom


of religion as understood in Malaysia, perhaps there is a need altogether to
revisit the approach adopted by the relevant states or authorities in curbing this
menace among the Muslims. For example, the deviationists should not be
criminalised altogether but rather should be given a full platform or fair
opportunity to defend themselves and probably to explain their
conduct.85 Although some may still argue in favour of criminalisation, we ought
to know the dangers associated with such a move, ie, use of arbitrary laws and
as well as private religious groups with no authority to seek to stifle diversity
within religious discourse by calling upon government to take action against
the proponents of alternative views on the grounds that they "insult Islam."

Conclusion

It may safely be concluded that freedom of religion under the Malaysian


Federal Constitution cannot be understood without making reference especially
to arts. 3 and 11 of the Federal Constitution. Hence, proper understanding of
these articles is essential while faced with the issue or question of religious
freedom from a Malaysian perspective. There is also a need to understand other
constitutional provisions related to the discussion of religious freedom as far as
the Malaysian Federal Constitution is concerned. However, it is wholly
admitted that by understanding these constitutional provisions alone would not
solve the problems that we are currently facing in the context of freedom of
religion. Thus, there is a dire need for political will to work out satisfactory
solutions to some of the problems highlighted above if we were to really
address the interests and legitimate expectations of the various religious
communities which at present are competing and clashing in some areas. For
example, the recent cases of Shamala and Sgn Moorthy Abdullah highlight the
pain and anguish a conversion can cause.86

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:

* Lecturer, Faculty of Business and Law, Multimedia University, Malaysia.


The author may be contacted at: ahmad.masum@mmu.edu.my.

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."

3. As cited by T. Jeremy Guun, "The Complexity of Religion and the Definition


of "Religion" in International Law" (2003) vol. 16 Harvard Human Rights
Journal 191.

4. Ibid.

5. Ibid.

6. Rhona K.M. Smith & Carolyn McIntosh, Freedom of Religion: The


Evolution of a Human Right,http://www.derechos.org/koaga/i/smithr.html
viewed on 28 August 2006.
7. As stated by Shad Faruqi, "Support for religious liberty," Sunday Star, 25
February 2001, 22. See also Shad Faruqi, "The Human Rights and
Constitutional Perspective" (2002) INSAF the Journal of Malaysian Bar 9.

8. Ibid.

9. Ibid.

10. Ibid.

11. See arts. 11(1) and 3(1) of the Federal Constitution respectively.

12. Shad Faruqi, n. 7 at 22.

13. See arts. 11(3) and 12(2) of the Federal Constitution.

14. Article 11(2) of the Federal Constitution.

15. Article 12(3) of the Federal Constitution.

16. Article 8(2) of the Federal Constitution.

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.

24. Shad Faruqi, n. 18 at E6.

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.

26. As stated by Andrew Harding, Law, Government and the


Constitution, Malayan Law Journal Sdn Bhd, Kuala Lumpur, 1996, at 202.

27. Ibid.

28. Ibid.

29. [1990] 2 CLJ 11; [1990] 1 CLJ (Rep) 277 SC.

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.

31. See Chambers English Dictionary.

32. [1994] 3 CLJ 532 SC.

33. [2006] 4 CLJ 1.

34. Abdul Aziz Bari & Farid Suffian Shuaib, Constitution of Malaysia-Text &
Commentary, 2nd edn, Prentice Hill, Petaling Jaya, 2004, at 40.

35. Ibid., at 41.


36. Shad Faruqi, "Freedom of religion under the Constitution," The Sun, 18
May 2006, E8.

37. Ibid.

38. Shad Faruqi, "Ours is a hybrid system," The Sun, 20 July 2006, E2.

39. Ibid.

40. [1988] 2 MLJ 55.

41. R. Manirajan,Deputy Prime Minister: Malaysia is not a secular state. What


the legal experts, politicians' say/PM: Muslim countries cannot remain mere
spectators, viewed on 22 July 2008.

42. See Malaysia Human Rights Report 2005-Civil and Political


Rights, SUARAM Kommunikasi, Petaling Jaya, 2006, at 94.

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.

org.my viewed on 23 November 2008.

52. Ibid.
53. Ibid.

54. Shad Faruqi, n. 47 at 15.

55. Shad Faruqi, n. 49 at E7.

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.

58. Shad Faruqi, n. 55 at E7.

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.

66. Shad Faruqi, n. 18 at E6.

67. Ibid.

68. See Malaysian Human Right Reports 2005-Civil and Political


Rights, SUARAM Kommunikasi, Petaling Jaya, 2006, at 95.

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.

70. Shad Faruqi, n. 47 at 14.

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.

73. As cited by Shad Faruqi, "The Human Rights and Constitutional


Perspective" (2002) INSAF the Journal of Malaysian Bar 15.

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.

80. See Surah al-Imran, 3:86-89.


81. Shad Faruqi, "Spotlight on religious freedom," The Sun, 1 June 2006, E7.

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.

88. [2007] 2 CLJ 253.