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Kamis, 06 Desember 2012

Freedom of Religion in Malaysia- A Critical Analysis of the Federal Constitution


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.      
[96] Shad Faruqi, n. 86 at p E7.    
[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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