FREEDOM OF RELIGION UNDER THE MALAYSIAN FEDERAL CONSTITUTION

by

Ahmad Masum*

[2009] 2 CLJ i

MALAYSIA

Introduction

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

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

Irrespective of the difficulties involved while faced with this fundamental liberty ie, like the definitional aspect of the term itself, it has to be noted that

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

Discourse On Freedom Of Religion From The Perspective Of The Malaysian Federal Constitution

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

Apart from art. 11(1) of the Federal Constitution, religious liberty is further guaranteed in many articles of the Federal Constitution. For example, there is no compulsion on anyone to support a religion other than his own and no person shall be compelled to pay any tax the proceeds of which are specially allocated to a religion other than his own.14Also, no person shall be required to receive instructions in or take part in any ceremony or act of worship of a religion other than his/her own.15The Federal Constitution also does not allow for discrimination on the grounds of religion against employees in the public sector; in the acquisition, holding or disposition of property; and any trade, business or profession.16This fundamental right cannot be restricted even in times of emergency by an emergency law.17However, it should be noted that although this fundamental right is of paramount importance in a democratic environment and well protected under the Federal Constitution, it is by no means absolute. In other words, like all freedom, the right to follow one's conscience cannot be absolute.

Restrictions On Freedom Of Religion Under The Malaysian Federal Constitution

There are several constitutional limits on religious liberty or freedom under the Federal Constitution. The restrictions could be in the form of: permissible restraints; propagation of religion to Muslims; religion of minors, non-mandatory practises and many more.

Permissible Restraints

Article 11(1) of the Federal Constitution, which guarantees freedom of religion cannot be read in isolation. This article must be read together with art. 3(1), which states that the practise of religion must not disturb peace and harmony. In other words, one is allowed to exercise his freedom of religion on condition that it would not disturb peace and harmony in any part of the Federation.

Another permissible restraint is provided under art. 11(5), which states that the article does not authorise any act contrary to any general law relating to public order, public health or morality. Thus, the implication of the article is that all religious conduct is subject to the power of Parliament to restrict it on the grounds stated above. Hence if a speech, conduct, practise or institution is grounded on religious doctrine and if it threatens any of the above three forbidden grounds, it can be exterminated by a parliamentary law.18

Apart from the permissible restraint under art. 11(5), in the case of Muslims, additional restraints are possible. This is by virtue of Schedule 9, List II, Item 1, which grants power to State Assemblies to punish Muslims for offences against the precepts of Islam.19According to Shad Faruqi, this power is used frequently to punish a wide variety of unIslamic conduct like khalwat (close proximity), zina (adultery), gambling, drinking, beauty contests and deviationists activities.20

Propagation Of Religion To Muslims

It has been argued that a persons' right to propagate religion among people professing Islam is pursuant to art. 11(4) can be restricted by Federal law (Federal Territory) or state law pursuant to art. 11(4).21It is important to note that laws controlling propagation are meant not only to prevent Muslims from being exposed to "heretical religious doctrines, be they of Islamic or non-Islamic origin and irrespective of whether the propagators are Muslims or non-Muslims.22Some scholars argue that the purpose of art. 11(4) is to insulate Malays against internationally funded and powerful proselytising forces that had become entrenched in the country due to official support from the colonial government.23 To Harding, art. 11(4) was inserted primarily because of public order considerations. However, Shad Faruqi went further by adding to this rationale the element of ethnicity and political factor by saying that in the context of Malaysia, renunciation of Islam by a Malay would automatically mean abandoning the Malay community. This is because Islam is one of the defining features of a "Malay" in art. 160(2).24

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

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

Religion Of Minors

Although art. 11(1) uses the word `person' as having freedom of religion in the context of professing and practising the said religion, but subject to cl. (4) when it comes to propagation, it becomes vital to read the article together with art. 12(4) when the "person" we are dealing with happens to be under 18. Thus, in Teoh Eng Huat29 the court held that in matters of religion, a child below 18 must conform to the wishes of her parents. Based on this line of reasoning, the court ruled that the conversion of a 17-year old Buddhist girl to Islam without her parents consent was of no effect. It would appear that the decision of the then Supreme Court (now Federal Court) diffused a potentially divisive issue, given that there are serious political overtones in the religious exploitation of minors. Hence the Supreme Court was right to overrule the decision of the High Court bearing in mind that within the context of a multi-religious society, Abdul Malek J in the High Court was not right in importing Islamic law in his construction of art. 11(1).30

Non-mandatory Practices

The contentious issue here is as to whether religious freedom would cover all aspects of practise as far as the said religion is concerned. This is due to the fact that in respect of religion, every person has three rights: to profess; to practice; and subject to 

cl. 4, to propagate his religion. Practise means to put into practise, to perform, to carry out, to do habitually.31Although this is how the word "practise" is understood, it is important to note that in Malaysia it has been held by the courts that freedom of religion extends only to those practises and rituals that are essential and mandatory. In Hjh Halimatussaadiah bte Hj Kamaruddin v. Public Service Commission32 the issue was whether a female Muslim public servant could wear purdah to work. The apex court was of the view that the government was entitled, "in the interest of the public service", to forbid in the workplace a religious tradition that was non-essential and optional. The same reasoning applied in Fatimah Sihi & Ors v. Meor Atiqulrahman bin Ishak & Ors33 where Muslim schoolboys failed to get court endorsement of their demand to wear serban to school.

Looking at the line of reasoning given by the courts above, it would appear safe to conclude that in Malaysia freedom of religion in the context of "practise" extends only to those practises and rituals that are essential and mandatory. But such rulings may create problems in other areas as some practises, although not mandatory, are however part and parcel of certain religions.34One example is polygamy. Although this is not mandatory to male Muslims, but denying it may be said as denying religious freedom.35

Some Areas Of Concern Regarding Freedom Of Religion Under The Malaysian Federal Constitution

In recent years, we have witnessed racial and religious polarisation coming into play whenever the issue of freedom of religion is raised under the Federal Constitution. It has to be admitted wholeheartedly that like in all societies, there are areas where religious, cultural and ethnic interests are competing and clashing. Thus, Malaysia being a multiracial society we are bound to face some of these clashes directly or indirectly like the Islamic State controversy, apostasy and many more.

Islamic State Controversy

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

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

Although this is the legal position regarding the status of Malaysia as a country, politicians and even some of our leaders have not accepted this line of reasoning. For instance on 29 September 2001, the then Prime Minister Mahathir Muhamad asserted that Malaysia is an Islamic country, even though the Constitution and system of governance do not fall neatly into the "norms" of what constitute an "Islamic State." Mahathir's declaration was echoed by his successor, Abdullah Badawi, in July 2004. In response to a written question during parliamentary sitting, Badawi said that Malaysia is an Islamic State in that it is acknowledged in the Federal Constitution to have Islamic characteristics and because its state governance and ethnic majority practise Islam. He said the position of Malaysia as an Islamic state is strengthened by art. 3 of the Federal Constitution, which states that Islam is the official religion of the Federation. On 17 July 2007, the Deputy Prime Datuk Seri Najib Abdul Razak said Malaysia today is not a secular state, but an Islamic state driven by the fundamentals of Islam. He went further and proclaimed that: "Islam is the official religion and Malaysia is an Islamic state, an Islamic state that respects the rights of the non-Muslims and we protect them."41

From the above paragraph, there seems to be a clash of opinions on the status of Malaysia, ie, whether it is an "Islamic" or "secular" state as a result of adopting Islam as the religion of the Federation under art. 3(1). Since case law is in favour of a secular state argument while faced with the interpretation of art. 3(1), it would be safe to conclude that the Islamic state argument is more of a political reasoning rather than a legal reasoning and thus should be discarded altogether in a multi-racial society like Malaysia.

Controversies Over Apostasy

Although freedom of religion is guaranteed by art. 11(1), in practise this right is fraught with difficulties for Muslims, whether they are "born" into the faith or have converted to Islam.42The issue of renunciation of the Islamic faith and embracing of another religion is a controversial question.43It is nearly impossible for individuals who have renounced Islam to obtain official recognition of the same.

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

However, detractors hold that the court should "adhere to the spirit of the Constitution." It is said that art. 11(1) is broad enough to permit change of faith and though art. 11(4) restricts propagation of any religion to Muslims, the law nowhere forbids voluntary conversion of a Muslim to another faith. In other words, art. 11(4) does not restrict a Muslim from studying other religions and converting to another religion out of his/her own free will.46 It is also pointed out that many state laws implicitly recognise conversions out of Islam by requiring a register to be kept of those who become murtad (infidels) and a similar register is kept of those who adopt Islamic faith.47However, recently we have witnessed some interesting decisions of both civil and Syari'ah courts regarding the issue of apostasy. For example, a former religious teacher and follower of the Sky Kingdom deviant sect Kamariah Ali was jailed for two years for apostasy.48

Conversion And Apostasy

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

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

Issue Of Jurisdiction Between Civil And Syari'ah Courts

It may have been a positive move to have come up with the constitutional amendment in 1988, which saw the separation of these two courts, ie, the High Courts (civil courts) were declared to have no jurisdiction in respect of any matter within the jurisdiction of thesyari'ah courts. This is due to the fact that the syari'ah is a complex and distinct field that requires expert handling by those trained in the fundamental postulates of Islamic law and jurisprudence.55 However, the amendment was flawed because it did not create an authoritative machinery for determining questions of conflict of jurisdiction.56For example, some disputes involve mixed questions of civil and syari'ah law. There are cases where one part is a Muslim, the other is a non-Muslim. However, of recent, we have witnessed some positive decisions given by the Federal Court on this conflicting issue of jurisdiction.57

It has to be admitted that this issue of conflict of jurisdiction has been one of the areas in Malaysia where religious polarisation has set in especially when dealing with conversion involving adults and children as well; non-Muslim marriages and many more. For example, it is taken for granted that that a non-Muslim's right to opt out of his religion is an implicit part of his religious liberty.58However, the exercise of this liberty is not free of thorny issues like if a Buddhist husband converts to Christianity, the religion of the children may become a bone of contention.59The scenario is even more complicated if the conversion is to Islam. For example, though the marriage is not automatically dissolved, the syari'ah court will have the power to end it. Custody and

guardianship of children will become issues. The non-converting spouse will not be eligible for inheritance.60

Deviationist Islam Or Activities

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

Solutions To Some Of The Areas Of Concern Regarding Freedom Of Religion Under The Malaysian Federal Constitition

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

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

It has to be admitted wholeheartedly that the restriction on the right to propagate religion among people professing Islam pursuant to art. 11(4) is said to flow logically and necessarily from Islam's position as the religion of the Federation. However, controlling propagation curtails the position of

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

The other important issue to look into is that of conversion and laws on apostasy. The focus of attention here is on the issue or question of whether a Muslim can convert out of Islam. If so, can he/she be punished for apostasy?70Will such punishment infringe his/her right under art. 11?71It is submitted that the legal scenario is complicated. However, recently we have witnessed some few cases where Muslims have been charged in the syari'ah courts for apostasy and even judgment passed.72It must be pointed out that in the context of this study laws on apostasy and other aqidah (faith) laws may raise important constitutional issues.73 For example, art. 11(1) is broad enough to permit change of faith irrespective of art. 11(4). Hence, a law that violates art. 11(1) may be challenged as unconstitutional. Also forced rehabilitation could be viewed as an interference with personal liberty guaranteed by art. 5(1).74This is due to the fact that the term "law" under art. 160(2) of the Federal Constitution does not include "syari'ah law." So, are these apostasy or aqidah (faith) laws considered syari'ah laws? If the answer is to the affirmative, then such laws could be challenged to be unconstitutional by virtue of art. 160(2) and thus someone who converts out of Islam could still invoke the violation of his constitutional right under art. 5(1) as a result of forced rehabilitation.75Irrespective of what is said here, some would still argue that such laws are not unconstitutional on the basis of art. 11(4), which stipulates that state or federal law "may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam." Probably what is needed is a fair balancing of interests with the least friction and the

need to understand the constitutional provisions from the historical perspective as well.

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

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

As to a conversion of a non-Muslim to Islam, probably there is a need to come up with some guidelines if we were to address some of the thorny problems or issues caused by the exercise of this liberty, ie, freedom of religion. For example, it should be made as a requirement that the family of the aspiring convert must be informed and must be heard.81Also, no conversion certificate should be issued till the issues of divorce, distribution of property, guardianship and custody of children have been resolved in accordance with the law under which the marriage took place.82

As to the issue of jurisdiction between the civil and syari'ah courts, although the original intention of this constitutional amendment was to upgrade the status of the syari'ah courts and to make them autonomous of the civil courts in matters of Islamic law, it could not be denied or watered down that the amendment was flawed because it did not create an authoritative mechanism for determining questions of conflict of jurisdictions. In order to overcome this problem, probably the syari'ah courts should have exclusive jurisdiction only when both parties are Muslim.83Thus, the civil courts should not be excluded from hearing such a case especially where one of the parties is non-Muslim.

Probably we need to have a mechanism in place like where the High Court have a Syari'ah Division manned by judges familiar with both civil and syari'ah laws to adjudicate upon the matter.84It could also be possible to invoke the advisory jurisdiction of the Federal Court under art. 130 to address this conflict of jurisdiction.

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

Conclusion

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

Apart from the political will that is needed, probably we ought to look into the function of law in relation to religion within a multi-cultural and multi-religious society where religious pluralism is valued. In such a context, law affords equal protection to all religions and refrains from judging the merits of any religion. Equal treatment of religions under the law does not, of course, mean that all religions are of equal truth-validity.87 That is a matter left to the judgment and

choice of the individual. Although this is what is said about the function of law in relation to religion, it is inevitable to suggest that in Malaysia there is a need to have clear laws in place in tackling some of these problems. For example, the Federal Court decision in Latifah Mat Zin88 was of special importance. Justices Abdul Hamid Mohamed, Arifin Zakaria and Augustine Paul, while they clarified some of the conflicts in jurisdiction between civil and syari'ah courts, they noted that there were matters that might be outside the jurisdiction of both, resulting in no available remedy in either court.

All in all, it is submitted that the efforts at the societal level may be more fruitful in understanding the notion of freedom of religion under the Malaysian Federal Constitution. Thus, freedom of religion may be enshrined in the Malaysian Constitution but Malaysians have much to learn about respecting one another's faith. Also, although religion is often viewed as a sensitive issue, society should not be afraid to discuss it in a peaceful and tactful manner. What is important in the discussion of freedom of religion in a Malaysian context is for us to strike a balance between being tactful and tolerant with religious issues, and at the same time, be open to allow individuals to seek the faith of their choice.

Endnotes:

* Lecturer, Faculty of Business and Law, Multimedia University, Malaysia. The author may be contacted at: ahmad.masum@mmu.edu.my.

1. See art. 18 of the Universal Declaration of Human Rights 1948 and also art. 18 of the International Covenant on Civil and Political Rights 1966. See also art. 9 of the European Convention on Human Rights.

2. Article 11(1) of the Federal Constitution provides that: "Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it."

3. As cited by T. Jeremy Guun, "The Complexity of Religion and the Definition of "Religion" in International Law" (2003) vol. 16 Harvard Human Rights Journal 191.

4. Ibid.

5. Ibid.

6. Rhona K.M. Smith & Carolyn McIntosh, Freedom of Religion: The Evolution of a Human Right,http://www.derechos.org/koaga/i/smithr.html viewed on 28 August 2006.

7. As stated by Shad Faruqi, "Support for religious liberty," Sunday Star, 25 February 2001, 22. See also Shad Faruqi, "The Human Rights and Constitutional Perspective" (2002) INSAF the Journal of Malaysian Bar 9.

8. Ibid.

9. Ibid.

10. Ibid.

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

12. Shad Faruqi, n. 7 at 22.

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

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

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

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

17. Article 150(6A) of the Federal Constitution. See also the decision of the court in the case of Jamaluddin bin Osman [1989] 1 MLJ 369 where the court held that a preventive detention order cannot be issued on the ground that a convert out of Islam is involved in a programme for propagation of Christianity amongst Malays. In other words, freedom of religion under art. 11 was held to override the power of preventive detention under the Internal Security Act 1960.

18. Shad Faruqi, "Constitutional limits on religious liberty," The Sun, 25 May 2006, E6. See also Shad Faruqi, "The Human Rights and Constitutional Perspective" (2002) INSAF the Journal of Malaysian Bar 12.

19. Ibid.

20. Ibid. See also the case of Kamariah bte Ali v. Kelantan Government [2002] 3 CLJ 766.

21. Kevin YL Tan & Thio Li-Ann, Constitutional Law in Malaysia and Singapore, Butterworth Asia, Malaysia, 1997 at 941.

22. Ibid.

23. Shad Faruqi, "Support for religious liberty," Sunday Star, 25 February 2001, 22.

24. Shad Faruqi, n. 18 at E6.

25. See s. 124 of the Council of the Religion of Islam and Malay Custom, Kelantan Enactment 1992 provides: `Any person who helps or causes a person who professes the religion of Islam to leave his religion is guilty of an offence and shall, on conviction, be liable to a fine not exceeding four thousand ringgit or to imprisonment for a term not exceeding two years or both.' See also s. 4, Non-Islamic Religions (Control of Propagation Amongst Muslims) Selangor Enactment 1 of 1988 and the similarly worded Enactment for Malacca No 1 of 1988 and Kedah No. 11 of 1988. These make it an offence to persuade a Muslim to change faith, to approach a Muslim to subject him to speech concerning a non-Islamic religion or send him materials on non-Islamic religions, to distribute such publications to Muslims in a public place.

26. As stated by Andrew Harding, Law, Government and the Constitution, Malayan Law Journal Sdn Bhd, Kuala Lumpur, 1996, at 202.

27. Ibid.

28. Ibid.

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

30. Abdul Hamid cited art. 12(4) and art. 16(4) in support of his decision. In applying the Islamic age of consent (according to theShari'ah, this is 15 for boys and on the onset of baligh or menstruation for girls), he held that the age of majority under art. 12 (eighteen years) did not apply to art. 11.

31. See Chambers English Dictionary.

32. [1994] 3 CLJ 532 SC.

33. [2006] 4 CLJ 1.

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

35. Ibid., at 41.

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

37. Ibid.

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

39. Ibid.

40. [1988] 2 MLJ 55.

41. R. Manirajan,Deputy Prime Minister: Malaysia is not a secular state. What the legal experts, politicians' say/PM: Muslim countries cannot remain mere spectators, viewed on 22 July 2008.

42. See Malaysia Human Rights Report 2005-Civil and Political Rights, SUARAM Kommunikasi, Petaling Jaya, 2006, at 94.

43. Ibid.

44. Ibid.

45. Ibid.

46. Ibid.

47. Shad Faruqi, "The Human Rights and Constitutional Perspective," (2002) INSAF the Journal of the Malaysian Bar 14.

48. See "Sky Kingdom member gets two years for apostasy," The Star, 4 March 2008, N35.

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

50. Ibid.

51. Shad Faruqi, Jurisdiction of State Authorities to punish offences against the precepts of Islam: A Constitutional Perspective, www.malaysianbar.

org.my viewed on 23 November 2008.

52. Ibid.

53. Ibid.

54. Shad Faruqi, n. 47 at 15.

55. Shad Faruqi, n. 49 at E7.

56. Ibid.

57. See the Federal Court's decision in the case of Latifah Mat Zin v. Rosmawati Sharibun & Anor [2007] 2 CLJ 253. See also the case of Subashini v. Saravanan [2007] 7 CLJ 584. In Subashini, the Federal Court ruled that questions of jurisdiction are for the civil courts to determine. The High Court has jurisdiction even if the husband has converted to Islam and even if he had commenced proceedings in the Syari'ah courts.

58. Shad Faruqi, n. 55 at E7.

59. Ibid.

60. Ibid.

61. See Malaysia Human Rights Report 2005 - Civil and Political Rights, SUARAM Kommunikasi, Petaling Jaya, 2006, at 95.

62. Ibid.

63. See s. 9 of the Syari'ah Criminal Offences Act 1997 for the Federal Territories, which makes it a criminal offence for any person "... acts in contempt of religious authority or defies, disobeys or disputes the orders or directions of the Yang di-Pertuan Agong (King) as Head of the religion of Islam, the Majlis or the Mufti, expressed or given by way of fatwa." See also Sec 12 of the same Act. It makes it an offence for any person to give, propagate, or disseminate any opinion concerning Islamic teachings, Islamic law, or any issue contrary to any fatwa when it is in force.

64. See the White Paper on the Constitutional Proposals for the Federation of Malaya stating that it is a secular state. See also the clarification made by the then Prime Minister Tunku Abdul Rahman at the Federal Legislative Council

in 1958 that "... this country is not an Islamic state as it is generally understood, we merely provide that Islam shall be the official religion of the State."

65. See the implications that flourish from art. 3(1) of the Federal Constitution, ie, Islamic education and way of life can be promoted by the state; taxpayers' money can be utilised to promote Islamic Institutions and to build mosques etc. Also, Islamic courts can be established and syari'ah officials can be hired.

66. Shad Faruqi, n. 18 at E6.

67. Ibid.

68. See Malaysian Human Right Reports 2005-Civil and Political Rights, SUARAM Kommunikasi, Petaling Jaya, 2006, at 95.

69. [1988] 1 MLJ 119-where the Supreme Court reiterated that the acts prohibited by the sec (s. 298A of the Penal Code) had nothing to do with public order, a federal matter, but directly concerned with religion.

70. Shad Faruqi, n. 47 at 14.

71. Ibid.

72. See the recent decision of the Syari'ah High Court judge Muhammad Abdullah in Kuala Terengganu regarding a follower of the Sky Kingdom known as Kamariah Ali who was jailed for two years for apostasy.

73. As cited by Shad Faruqi, "The Human Rights and Constitutional Perspective" (2002) INSAF the Journal of Malaysian Bar 15.

74. Ibid.

75. Ibid.

76. Cindy Tham, "God's words and man's laws-Lawyers, NGOs call for statutory council to preserve religious freedom and tolerance," The Sun, 10 December 2000, 17.

77. Ibid. This view is shared by academics like Shad Faruqi (emphasis added).

78. Shad Faruqi, "Seeking the path of moderation," The Sun, 8 June 2006, E8.

79. Ibid.

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

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

82. Ibid.

83. Ibid.

84. Ibid.

85. Ibid.

86. Ibid.

87. Kevin YL Tan and Thio Li-Ann, Constitutional Law in Malaysia and Singapore, Butterworth Asia, Malaysia, 1997 at 877.

88. [2007] 2 CLJ 253.