Freedom
of Religion in Malaysia- A Critical Analysis of the Federal Constitution
Ahmad Masum
Senior lecturer Faculty of Law,
Government and International Studies
University Utara Malaysia
(asmad@uum.edu.my)
Kebebasan beragama merupakan kebutuhan dasar
manusia. Manusia membutuhkan suatu keyakinan, otoritas atau kekuasaan untuk
membimbing dia ke jalan yang benar dan mencapai tujuan hidupnya. Dari awal manusia sangat
menyadari pentingnya menjaga kebebasan beragama. untuk menjamin adanya perlindungan sangat perlu adanya
undang-undang.
Hak untuk kebebasan beragama adalah salah satu hak dasar yang dijamin dalam
berbagai instrumen internasional dan regional hak asasi manusia. Di Malaysia,
upaya perlindungan hak dasar ini dijamin berdasarkan Pasal 11 (1), tapi tentu saja
dengan beberapa keterbatasan yang melekat padanya. Kebebasan beragama menjadi
seperangkat keyakinan dan pada dasarnya suatu hal yang sangat pribadi, itu
tidak bisa dihindari bahwa perlindungan hak-hak beragama sangat bermasalah bagi
negara karena ada tantangan besar dalam pembingkaian hukum yang menyerang
keseimbangan antara mengizinkan kebebasan beragama disatu sisi dan praktik
keagamaan pada sisi lain serta dalam melindungi hak-hak non-penganut agama.
Baru-baru
ini, di Malaysia, seperti halnya dalam semua masyarakat kita telah menyaksikan,
ada area di mana kepentingan agama, budaya, dan etnis yang bersaing dan bentrok
serta kontroversi
yaitu kemurtadan, konversi agama dan penyimpangan dari
ajaran Islam,
hukuman untuk murtad dan banyak lagi. Penelitian ini bertujuan untuk melihat
isu-isu ini dengan memberikan gambaran yang lebih jelas kepada masyarakat
tentang bagaimana kebebasan beragama didekati berdasarkan Konstitusi Federal
Malaysia sebagai lawan pendekatan Barat.
Keywords: Freedom, Religion, Fundamental Right, Federal
constitution
1.
INTRODUCTION
The right to freedom of religion is one
of the fundamental rights guaranteed in many international and regional human
rights instruments.[1]
For example, Article 18 of the Universal Declaration of Human Rights which was
introduced in 1948 declares that all individuals have “the right to freedom of
thought, conscience and religion”- this includes the freedom to change and to
practice their religion or belief. On the other side of the spectrum, the right
to freedom of religion in Malaysia is guaranteed under Article 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.”[3] In
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.[7] Or
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.[9]
Hence 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 i.e. 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.[11]
However, 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]
2.
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 Article 11(1).
This Article shows a special tenderness for religious liberty. For example,
proper understanding of the Art 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.
[14]
Also, 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.[15]
The Federal Constitution also does not allow for discrimination on the ground
of religion against employees in the public sector; in the acquisition, holding
or disposition of property; and any trade, business or profession.[16]
This fundamental right cannot be restricted even in times of emergency by an
emergency law.[17]
However, 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
freedoms, the right to follow one’s conscience cannot be absolute.
3.
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 form of: permissible restraints; propagation of
religion to Muslims; religion of minors, non-mandatory practises and many more.
3.1
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 restrain is provided
under Art 11(5), which states that the Art does not authorise any act contrary
to any general law relating to public order, public health or morality. Thus,
the implication of the Art 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.[19]
According 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 contest and deviationists activities.[20]
3.2.
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).[21]
It 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.[22]
Some 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.[26]
The 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).[27]
Thus in the long term the maintenance of these restrictions may have the effect
of undermining the overarching principle of religious freedom.[28]
3.3.
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 Clause (4) when it comes to
propagation, it becomes vital to read the Art together with Art 12(4) when the
“person” we are dealing with happens to be under 18. Thus, in Teoh Eng Huat[29]
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 over rule 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]
3.4.
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 Clause 4, to propagate his religion. Practise means to put into
practise, to perform, to carry out, to do habitually.[31]
Although 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
Commission,[32]
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 work place a religious tradition that was
non-essential and optional. The same reasoning applied in Fatimah Sihi & Ors v Meor
Atiqulrahman bin Ishak & Ors[33]
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 religion.[34]
One example is polygamy. Although this is not mandatory to male Muslims, but
denying it may be said as denying religious freedom.[35]
Looking at the
restrictions addressed above, it is inevitable to point out that some of these
restrictions could be argued to be in line with the approach of human rights
from an Islamic perspective. However, looking at the approach of human rights
from a Western perspective, it could equally be argued that some of these
restrictions do not echo well with the notion of religious freedom. Take for
instance the limitation imposed under Art 11(4) of the Federal Constitution on
propagation of religion to Muslims.
4.
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.
4.1.
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.[36]
The issue of renunciation of the Islamic faith and embrace of another religion
is a controversial question.[37]
It 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 Constitutional allows
action to be taken against apostates.[38]
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.[39]
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 no where
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.[40]
It is also pointed out that many state laws implicitly recognises 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.[41] However, 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.[42]
4.2.
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.[43]
However, 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.[44]
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.[45]
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.[46]
No 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 believe includes the freedom not to believe
is unlikely to be accepted in Malay society.[47]
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.[48]
4.3.
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.[49]
There 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).[50]
Also the syari’ah criminal offences
legislation makes it an offence for anyone to have an opinion or even own books
contrary to the fatwa.[51]
4.4.
Islamic State controversy
The controversy is
prompted by lack of in depth understanding of Art 3(1) and its implications.
Art 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.[52]
For example, there are Christian countries like Ireland and Norway with state
religion.
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.[53]
Hence 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.[54]
The 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.[55]
It 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,[56]
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 Sept 2001, then the 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 today Malaysia 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.”[57]
From the above paragraph,
there seems to be a clash of opinions on the status of Malaysia i.e. 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.
4.5.
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 i.e. the High Courts (civil courts) were
declared to have no jurisdiction in respect of any matter within the
jurisdiction of the syari’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.[58]
However, the amendment was flawed because it did not create an authoritative
machinery for determining questions of conflict of jurisdiction.[59]
For 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.[60]
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.[61]
However, 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.[62]
The 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.[63]
From the above
foregoing discussion regarding the issue of some areas of concern surrounding religious
freedom in Malaysia or under the Federal Constitution, again it could not be
denied that we are bound to have different views or opinions as far as these
areas of concern are perceived both from Islamic and Western perspective as
well. For example, the majority view is that a Muslim cannot come out of Islam
and some even suggested for the death penalty. On the other hand, this is not
how religious freedom is understood from a Western perspective. In the West,
religious freedom is understood to cover conversion to another faith.[64]
5. THE POSITION TAKEN
BY MUSLIM JURISTS REGARDING THE PUNISHMENT FOR APOSTASY
Muslim jurists made references to the
Holy Qur´an and Hadith of the Holy Prophet (Pbuh) to state their positions.
Although, Muslim jurists are divided over the issue of apostasy and the right
punishment to be meted out, it is still considered a sin and is condemned. The
Muslim jurists cited in the Holy Qur´an,
Allah declares to the effect, “There shall be no compulsion in religion…”[65]
and this is corroborated by another verse revealed to the Holy Prophet (Pbuh)
to the effect, “Had Allah willed, everyone on the face of the earth would have
professed the faith. Are you then forcing people to become believers?”[66]
Notwithstanding the clarity of the Qur´anic
proclamations, the subject of freedom of religion, especially concerning
apostasy, remains controversial. Some commentators have drawn a conclusion that
the Qur´anic passages which validate
holy war (jihad) and fighting against
disbelievers actually abrogate the Qur´anic
proclamations on tolerance and respect for other religions, and that the
punishment for the mere renunciation of faith is death. However, in many Muslim
countries, their views hold sway regardless of the fact that there has been no
consensus on such matters or that the noted Maliki jurist al-Baji also observed
that apostasy is a sin which carries no prescribed or had penalty, and that
such a sin may be punished under the discretionary punishment of tazir (which is lesser than hudud), or that the renowned Hanbali
jurist, Ibn Taymiyyah, has also agreed categorically on the punishment for
apostasy being tazir.[67]
Apart from the Qur´anic verses cited above, one of the notable Hadith that the
Muslim jurists made reference to, is the Hadith
which proclaims ‘whoever renounces his religion shall be killed’. Based on this
Hadith, ‘Abd al-Hakim al-Ili and
Ismail al-Badawi maintained it to be political in character and aimed at the
inveterate enemies of Islam.[68]
On the other hand, Mahmassani has observed that the death penalty was meant to
apply, not to simple act of apostasy from Islam, but when apostasy was linked
to an act of political betrayal of the community. According to him, the Prophet
never killed anyone solely for apostasy. This being the case, the death penalty
was not meant to apply to a simple change of faith but to punish acts such as
treason, joining forces with the enemy and sedition.[69]
Though this may be the case, can we have apostasy per se? It is submitted that in the context of Islamic
jurisprudence there is a likelihood that the phrase ‘…joining forces with the
enemy…’ could be interpreted to mean that the issue of apostasy is not left out
as well.
Still on the same issue regarding the
punishment for apostasy, Al-Awa elaborated that the death penalty in the Hadith is not designed for apostasy per
se but for high treason, or hirabah,
that is, when apostasy is accompanied by hostility and rebellion against the
community and its legitimate leadership.[70]
To some Muslim jurists, the Hadith is
viewed as a general (amm) command
which is in need of specification (takhsis).
In its general form, it would apply equally to cases that manifestly fall
outside its intention, as it would render this same punishment not only to
Muslims but also to Christians who convert to Judaism, and vice versa. But according to Al-Shawkani, the general purport of
this Hadith has been restricted in
the Qur´an so as to exclude a person
who changes his religion outwardly under duress but remains faithful otherwise.[71]
Thus, taking such a stand prompted Al-Shawkani to criticise the ruling of such
Shafii scholars who have followed the literal and general meaning of the Hadith in question and erroneously held
that death penalty therein applies equally to non-Muslim who converts from one
religion to another.
Furthermore, to the Hanafis, they have
countered the general interpretation of this Hadith in yet another respect, namely, that a woman apostate is not
punished by death but only imprisonment. The basis of this argument of this
school of thought is based on the analysis that the masculine pronominal suffix
alone occurs in the wording. However, making reference to the rule of
interpretation, as expounded in usul
al-fiqh, it states that once a decisive (qati) of a text has been specified in some respect, the part which
remains unspecified becomes speculative (tanni),
and as such, is open to further interpretation and specification (takhsis). It is, thus also suggested
that the Hadith in question may be
further qualified, and that the death penalty therein may be reserved only for
apostasy which is accompanied by high treason (hirabah).[72]
Apart from the first Hadith cited above, the other Hadith often quoted in support of death
penalty for apostasy states:
“The
blood of a Muslim who professes that there is no god but Allah and that I am
His Messenger, is sacrosanct except in three cases: a married adulterer, a
person who has killed another human being; and a person who abandoned his
religion while splitting himself off from the community”.[73]
From the above quoted Hadith, there is no doubt that there is
a clear indication that the apostate must also boycott the community and
challenge its legitimate leadership, in order to be subjected to the death
penalty. To Ibn Taymiyyah, in attempt to reconcile the terms of the above Hadith with the Qur´an, he was of the view that the crime referred to in the Hadith is that of high treason (hirabah) and not apostasy (riddah) as such.[74]
This observation is again supported by the fact that the Prophet never put
anyone to death for apostasy alone. For example, affirmative evidence on this
point is found in the following incident which appears in the Hadith compilations of al-Bukkari and
Muslim:
“A
Bedouin came to the Holy Prophet and pledged his allegiance to him, professing
Islam. The next day he came back, ill with fever and said, ‘Return my pledge to
me,’ but the Prophet refused-thrice. Then the Prophet said: al-Madinah is like
a bellows which rejects its dross and recognizes its pure”.[75]
From the above Hadith compilations of al-Bukkari and Muslim, it could be argued
that this was a clear case of apostasy, in which the Prophet made no reference
to any punishment at all, and the Bedouin, despite his persistence renunciation
of Islam was left to go unharmed. It should therefore be noted that the Prophet
did not treat apostasy as a prescribed offence (had), but, on the contrary, pardoned many individuals who had
embraced Islam, then renounced it, and then embraced it again. For example, the
case of Abdullah ibn Sarh, the foster brother of Uthman ibn Affan, and one time
scribe of the Prophet whom the Prophet forgave when ‘Uthman interceded on his
behalf.
Having addressed the views presented by
the Muslim jurists above and coming back to the topic of Muslim apostasy,
perhaps the questions to be asked are: Is it Islamically legally acceptable?
Should there be a punishment for it in this world? Or should the apostate be
left alone because no punishment for apostasy was assigned in the Qur´an? Reacting to these questions, it
is inevitable to point out that there seems to be no consensus amongst the
Muslim jurists as to the form of punishment for apostasy. Due to the fact that
Muslim jurists have not reached a consensus on this heated debate, the author
would like to submit that in the context of Malaysia and the laws on apostasy
in particular i.e. the ‘Perlis Apostasy Law’ and many others could raise some
important constitutional issues as mentioned in the earlier part of the
discussion.
5.
RECOMMENDATIONS TO SOME OF THE AREAS OF CONCERN REGARDING FREEDOM OF RELIGION
UNDER THE MALAYSIAN FEDERAL CONSTITUTION
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 reason.
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 recommendations to the pertinent issues
raised throughout the discussion:
There is an urgent need
to look into the issue of conversion and laws on apostasy in Malaysia. 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?[76]
Will such punishment infringe his/her right under Art 11?[77]
It 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.[78]
It must be pointed out that in the context of this study laws on apostasy and
other aqidah (faith) laws may raise
important constitutional issues.[79]
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).[80]
This 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.[81]
Irrespective 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 list 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.[82]
All 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.[83]
For 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.[84]
They must study all apostasy cases; categorise them; analyse the causes; and
try to work out the cures.[85]
In 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.[86]
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 i.e.
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.[87]
Also, 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.[88]
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.[89]
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.[90]
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.[91]
Still 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.[92]
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.[93]
Although some may still argue in favour of criminalisation, we ought to know
the dangers associated with such a move i.e. use of arbitrary laws and as well
as private religious groups with no authority seek to stifle diversity within
religious discourse by calling upon government to take action against the
proponents of alternative views on the ground that they “insult Islam.”
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 Art
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 Art should not be read literally and further that
the events leading to independence show that Malaysia was intended to be a
secular state.[94]
The Art was inserted for ceremonial purposes.[95]
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 maters 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.[96]
Thus, the civil courts should not be excluded from hearing such a case
especially where one of the party’s 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.[97]
It could also be possible to invoke the advisory jurisdiction of the Federal
Court under Art 130 to address this conflict of jurisdiction.
6. CONCLUSION
It may safely be
concluded that freedom of religion under the Malaysian Federal Constitution
cannot be understood without making reference especially to Articles 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.[98]
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 religion 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.[99]
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 Zin[100]
was of special importance: Justices Abdul Hamid Mohamed, Arifin Zakaria and
Augustine Paul while they clarified some of the conflict in jurisdiction
between civil and syari‘ah court,
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.
[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] Art 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 McIntocsh, 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 Articles 11(1) and
3(1) of the Federal Constitution respectively.
[12] Shad Faruqi, n. 7 at p 22.
[13] See Articles 11(3) and
12(2) of the Federal Constitution.
[14] Art 11(2) of the
Federal Constitution.
[15] Art 12(3) of the
Federal Constitution.
[16] Art 8(2) of the
Federal Constitution.
[17] Art 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 a
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 p 941.
[22] Ibid.
[23] Shad Faruqi, “Support
for religious liberty,” Sunday Star, 25 February, 2001, 22.
[24] Shad Faruqi, n. 18 at p E6.
[25] See Sec 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 Sec 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 makes 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 p 202.
[27] Ibid.
[28] Ibid.
[29] [1990] 2 MLJ 301.
[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 the Shari‘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 MLJ 61.
[33] [2006] 4 CLJ 1.
[34] Abdul Aziz Bari &
Farid Suffian Shuaib, Constitution of
Malaysia-Text & Commentary, 2nd Edition, Prentice Hill,
Petaling Jaya, 2004, at p 40.
[35] Ibid., at p 41.
[36] See Malaysia Human Rights Report 2005-Civil and Political Rights, SUARAM
Kommunikasi, Petaling Jaya, 2006, at p 94.
[37] Ibid.
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Shad Faruqi, “The
Human Rights and Constitutional Perspective,” (2002) INSAF the Journal of
the Malaysian Bar 14.
[42] See “Sky Kingdom
member gets two years for apostasy,” The Star, 4 March, 2008, N35.
[43] Shad Faruqi, “Spotlight
on religious freedom,” The Sun, 1 June, 2006, E7.
[44] Ibid.
[45] 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.
[46] Ibid.
[47] Ibid.
[48] Shad Faruqi, n.41 at p
15.
[49] See Malaysia Human Rights Report 2005- Civil and Political Rights, SUARAM Kommunikasi, Petaling Jaya, 2006, at p
95.
[50] Ibid.
[51] See Sec 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.
[52] Shad Faruqi, “Freedom
of religion under the constitution,” The Sun, 18 May, 2006, E8.
[53] Ibid.
[54] Shad Faruqi, “Ours
is a hybrid system,” The Sun, 20,July, 2006, E2.
[55] Ibid.
[56] [1988] 2 MLJ 55.
[57] R. Manirajan, Deputy Prime Minister: Malaysia is not a secular state. What the legal experts, politicians’ say/PM: Muslim countries
cannot remain mere spectators, <http://sun2surf.com/article.cfm?id=18609> viewed on 22 July 2008.
[58] Shad Faruqi, n.43 at p
E7.
[59] Ibid.
[60] 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]2 MLJ 798. 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.
[61] Shad Faruqi, n.43 at p
E7.
[62] Ibid.
[63] Ibid.
[64] See Art 18 of the
Universal Declaration of Human Rights 1948.
[65] See Surah al-Baqarah, 2: 256
[66] See Surah Yunus, 10: 99
[67] See Muhammad Hashim
Kamali, Freedom of Expression in Islam,
Ilmiah Publishers Sdn. Bhd., Kuala Lumpur, 1998 at p 94.
[68] Ibid.
[69] Ibid.; at p 95.
[70] Ibid.
[71] Ibid.
[72] Ibid.; at p 96.
[73] Ibid.
[74] Ibid.
[75] Ibid.
[76] Shad Faruqi, n.41 at p 14.
[77] Ibid.
[78] 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.
[79] As cited by Shad
Faruqi, “The Human Rights and Constitutional Perspective” (2002) INSAF the
Journal of Malaysian Bar 15.
[80] Ibid.
[81] Ibid.
[82] 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.
[83] Ibid. This view is shared by academics like Shad
Faruqi (emphasis added).
[84] Shad Faruqi, “Seeking
the path of moderation,” The Sun, 8 June, 2006, E8.
[85] Ibid.
[86] See Surah al-Imran, 3:86-89.
[87] Shad Faruqi,
“Spotlight of religious freedom,” The Sun, 1 June, 2006, E7.
[88] Ibid.
[89] Shad Faruqi, n.18 at p
E6.
[90] Ibid.
[91] See Malaysian Human Right Reports 2005-Civil and Political Rights, SUARAM
Kommunikasi, Petaling Jaya, 2006, at p 95.
[92] [1988] 1 MLJ 119-where
the Supreme Court reiterated that the acts prohibited by the sec (sec 298A of
the Penal Code) had nothing to do with public order, a federal matter, but
directly concerned with religion.
[93] Ibid.
[94] 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.”
[95] See the implications
that flourish from Art 3(1) of the Federal Constitution i.e. 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.
[97] Ibid.
[98] Ibid.
[99] Kevin YL Tan and Thio
Li-Ann, Constitutional Law in Malaysia
and Singapore, Butterworth Asia, Malaysia, 1997 at p 877.
[100] [2007] 2 CLJ 253.
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