Authored by: Aisha Husna binti Hapidra
We live in a multicultural society where other races and religions are allowed to be practiced in Malaysia. In relation to religion, every person has the right to three things – the right to profess, to practice and, subject to Article 11(4), to propagate his religion.
Furthermore, under Article 3(1) of the Federal Constitution (‘FC’), it states that “Islam is the religion of the Federation but all other religions may be practiced in peace and harmony”. This shows that other religions of non-muslim may be practiced in peace and harmony such as Buddha, Hindhu, Christianity etc. However, Article 3(4) states that nothing in Article 3 derogates from any other provision of this Constitution.
In essence, this Article does not derogate any other provision in the Constitution including making Malaysia as an Islamic State. However, article 12(2) of the Federal Constitution provides that educational institutions are given the right to propagate religion where the federal or state government may provide expenditure to establish religious schools, Islamic mosques, and communities.
In this article, we shall examine several issues that have encroached our freedom of religion under Article 11 of the Federal Constitution.
In general, apostasy is when a person renounces his or her religion such as when a Muslim renounces his/her religion. In Malaysia, apostasy is considered as a crime where severe punishments are imposed on those who convert out of Islam and the Syariah Courts have exclusive jurisdiction in cases of apostasy.
HaKita recently had invited Farhan, who is syarie lawyer that currently works on cases of apostasy and Larissa, who is a human rights lawyer, to speak on the topic of freedom of religion. According to Farhan, cases of apostasy are not as easy as it seems even though the converter has followed the procedure to convert out of Islam. Most of the time, the Syariah Court is reluctant to make judgements that will determine the religious status of a person at that particular time.
There are several reasons on why the Syariah Court had disallowed the application for apostasy which are the person is a Muslim from the beginning, the process of conversion is followed by correctly, there’s insufficient evidence to prove that person has converted out of Islam and the witnesses produce in Court does not fulfill the criteria under Section 86(5) of the Syariah Court Evidence (Federal Territories) Act 1997.
However, there have been cases where the civil courts had to determine a person’s religion but this is only limited to situations where that person had never professed the religion of Islam and the conversion process was invalid.
In Dahlia Dhaima bt Abdullah v Majlis Agama Islam Selangor, the applicant admitted that she had never professed the religion of Islam and her conversion by her Muslim-convert mother and step-father was invalid. The Court decided that the applicant was not a Muslim from the start and she could not have been a person professing the religion of Islam.
This case was also based on an apex court decision in the case Rosliza bt Ibrahim v Kerajaan Negeri Selangor, where the Court decided that civil courts have the jurisdiction to hear cases that falls under Article 11 of the FC where the applicant had never been professing the religion of islam as opposed to no longer being a muslim.
Besides that, Larissa had also shared with us that children do not have the right to choose their religion because Malaysia has made a reservation to Article 14 of the Convention on the Rights of the Child. This would mean that children are not given the opportunity to express their own religion.
Proselytism is the attempt to convert an individual into another religion. Under Article 11 of the Federal Constitution, proselytizing activities by non- Muslims and by unauthorized Muslims are disallowed to Muslims. This restriction is more to preserve the status of Malay’s faith because any attempt to convert out of Islam would lead to deserting the Malay community.
In Malaysia, proselytizing of Muslim has been prohibited in several states such as under the Kelantan Syariah Criminal Code. Furthermore, any attempt of propagation of non-muslim activities in a muslim community would face severe consequences. For instance, Pastor Raymond Koh was alleged to proselytize to Muslims and he was abducted. Amri Che Mat was alleged to have propagated the teaching of shias and he was also abducted.
iii. Standing up for freedom of religion
In order for religious freedom to be protected, the legal institution has to actively safeguard any religious issues that would infringe other fundamental liberties. This can start by improving the line of jurisdiction between the civil courts and syariah courts. Farhan has pointed out that the case of Indiragandhi has to be appreciated by the judges in the civil court because that decision has given the right for civil courts to review cases that have been brought to the syariah court.
Furthermore, Larissa has emphasized on the importance of having tolerance and respect towards every religion. Every person should be given the right to profess and express their own religion. For example, syarie lawyers should work together with civil lawyers in handling cases that involve religious issues.
In conclusion, it’s important that we protect our right to freedom of religion under the federal constitution by respecting the right to express one's religion and to condemn any act of showing hatred, discrimination and religious intolerance.