The essay discusses renouncing of Islam, prohibition of other Islamic teachings and propagation of other religions and proselytizing among Muslims in Malaysia through constitutional and respective state law along with the cases related to such abuse. In the second part author outlines possible circumstances that may have contributed to keeping the freedom of religion in Malaysia on nowadays level.
Malaysia is a federal constitutional monarchy. The Federation of Malaya became independent in 1957 and gained its today’s name Malaysia in 1963 when Singapore, Sabah and Sarawak joined the Federation. Nowadays it consists of 13 states and 1 federal territory. It is a multi-religious state with almost 26 million inhabitants (CIA 2010). As a federation with its multi-religiousness with the main cleavage between Muslims1 and Non-Muslims the issue of freedom of religion in Malaysia is especially complex and particularly urgent to address. To this inextricable net are added the various constitutional and respective state law perspectives. The aim of this essay is to deal with several abuses of freedom of religion in Malaysia and to point out constitutional or respective state law circumstances along with the cases related to such abuse. The emphasis is given on the most discussed right to renounce one’s religion. In the final stage I roughly suggest possible explanations for the formation and persistence of such abuses. The article does not deal with international context and documents related to freedom of religion which Malaysia ratified.
By the term violation/abuse of freedom of religion I mean such actions that are in conflict with the normative core of the human right to freedom of thought, conscience and religion. These deviations are defined in the next part. In order to understand the nature of the violations, we need to briefly describe the Malaysian court system. It consists of three parts: Civil, native and Syariah courts. Native courts, existing only in states Sabah and Sarawak, deal with multiple legal issues affecting areas with vast number of indigenous groups or traditions. Civil courts embody superior and inferior courts for issues not relating to Islam. Superior court system includes the Supreme Court, Court of Appeal and High Court. Finally, the Syariah Courts have their own and final jurisdiction with no chance of appeal to civil courts. Moreover, each state can define the jurisdiction of the Syariah court differently along with the administration of Islamic family law and propagation of Islamic doctrine (Caroll 2009: 102 – 103).
There are certain incentives indicating that two processes contributed to Islamization of Malaysian law, the first is strengthening the position of Syariah courts towards common law courts through Article 121(1A) by restricting the chance of appeal to civil courts in any matter within the jurisdiction of Syariah courts. The second can be taken by subtle co-option of Syariah law into common law (Neoh 2008: 9 – 10).
To identify the violation we will use the normative core of the human right to freedom of thought, conscience and religion identified by scholarship (Lindholm et al. 2004: xxxvii – xix).2 According to this core these areas of aversive components in Malaysia, related to the religion will be discussed:
3. Propagating of other religions and proselytizing among Muslims
This is not an exhaustive list. Cases that will not be addressed include delaying the building of non-Muslim worship places, demolishing such places, and violations of the right of parents and guardians to ensure the religious education of their children and other cases.
Firstly, renouncing religion is assigned to be an internal freedom. I understand renouncing religion as changing one’s religion. If the right to change religion includes exclusion from the religious community but not the reduction of individual’s civil and political rights, then it is plausible to say that this freedom has been violated in Malaysia.
Secondly, persecuting other Islamic teachings as religious sects also hits the internal core of freedom of religion. It can be said that the adoption of certain religious teachings within one’s religion is still considered as religion. Forcing an Anglican to be a Roman Catholic would certainly violate his freedom of religion, it would not be sufficient to mark the Anglicanism as a form of Christian deviationism.
Thirdly, proselytizing belongs to the external freedoms, freedom to persuade others about the rightness of one’s religion and freedom to non-coercively propagate one’s religion is a form of manifestation, which can be a case of certain restrictions. In the case of Malaysia this has discriminatory attributes with prohibition to proselytize Muslims. The government in Malaysia has a very low level of sensitivity, reacting in such cases where no fraudulent or other requirements were met to prohibit proselytizing.
The initial division of Muslims and Non-Muslims is used to suggest discriminatory potential. Muslims encounter with extra procedural burden while converting out of Islam due to constitutional principle of equality to treat all persons in like circumstances alike (Neoh 2008: 17). Proselytizing of religion faces obstacles only if you are not Muslim, conversions to Islam are widely encouraged. Malaysia fails in respecting the right to freedom of religion without distinction of any kind. In this case, the distinction is made by one’s religion.
The Oxford Dictionary of Islam defines Apostasy as “Renunciation of one’s religion.” (Esposito 2003: 22). Restrictions on this right are not merely formal, reasons for renouncing Islam are certainly higher than the line of triviality, mostly including marriage to a Non-Muslim, inheritance issues or issues relating to burial upon death. The confirmation of renouncing of Islam is in such cases necessary to take further steps without being punished. There also may be situations where Muslims can face religious charges that otherwise are not illegal, such as eating during daylight hours in Ramadan or failure to attend Friday prayers (Ahmad 2005: 11). We will discuss it from the constitutional and state enactments perspective and also illustrate two relevant cases.
Creation of the constitution has to be considered with the fear of loosening influence constraining the religious elite. First and foremost, there is explicit evidence that the Constitutional Commission, an ad-hoc instrument created for the purpose of writing the constitution, was not in favor of any declaration that could suggest that the Islamic Faith is a religion of the Federation of Malaysia. This stance had a strong support of Non-Muslim immigrants. Objection came from hereditary rulers on the respective state level. They posed also as heads of Islam in a particular state and were afraid of losing its privileges. At the end a compromise was born with incorporating Islam into the Constitution but granting Non-Muslims freedom of religion and citizenship. The Federal constitution was adopted in 1957 (Saeed and Saeed 2004:123 – 124).
Forty-five years later, the unilateral declaration from the mouth of Prime Minister Mahathir Mohamad that Malaysia in fact already was a model Islamic state (CNN 2002) marked the path of Malaysian attitude towards Islam. There is an ongoing discussion as to whether there is growing Islamization in Malaysia, with a struggle between ruling UMNO3 and PAS4 in the opposition.
We shall now look on the relevant articles concerning renouncing of the Islam.
Firstly, Article 3(1) states that: „Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation.“ (de Varennes 2000: 216).
Secondly, Article 11(1) of the Malaysian constitution provides that: “Every person has the right to profess and practise his religion and subject to Clause (4) propagate it.” (Ibidem: 219).
Thirdly, Article 11 (4) says that “This Article does not authorize any contact contrary to any general law relating to public order, public health or morality.” (Ibidem: 220).
We can see that freedom of religion can be according to the Constitution subject to certain restrictions. On one hand, the Constitution does not explicitly say a freedom to change one’s religion. On the other hand, it also does not suggest that renouncing of a religion is restricted; the peculiarity of this will be shown later. Propagation is more complex and shall later be discussed in the section devoted to the propagation of non-Islamic religions.
The emphasis of importance of freedom of religion can be also seen in a nonderogability during the time of emergency. According to Article 150 (6A), Clause (6), which deals with the provisions of any Act of parliament passed while Proclamation of Emergency, shall not “validate any provision inconsistent with the provisions of this Constitution relating to any such matter or relating to religion, citizenship, or language.” (Ibidem: 235). The same can be said with respect to matters of Islamic law or the custom of the Malays.
There are three approaches dealing with apostasy on the state level. First, punishment for apostasy is included in Islamic Criminal Law Enactments or Administration of Islamic Law Enactments in at least five states: Pahang, Perak, Melaka, Sabah and Terengganu (Mohamed Adil 2007b: 14 – 15). The highest punishment is provided by Pahang where the Muslims who ceased to be a Muslims are “liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both and to whipping of not more that six strokes.“ (Ibidem: 14). Five thousand ringgit is approximately 1200 euros, while estimated GDP per capita (PPP) in Malaysia in 2009 was 9976 euros (Index Mundi 2010).
Second, apart from the possibility of punishment, at least in three states the person intending to leave Islam can be also detained in faith rehabilitation centre and given counseling. The longest period in a respective state for such detention is 36 months (Mohamed Adil 2007a: 22 – 23).
The third attitude is presented in one state, Negeri Sembilan. Muslim who intends to renounce Islam should apply to the Syariah Court, which refers the case to the Mufti and applicant is given counseling for repentance purposes in a period of ninety days, if an applicant still refuses to repent and the judge believes there is still a chance for such repentance, he may adjourn the case up to one year. After this the conversion from Islam is allowed. (Mohamed Adil 2007b: 17).
Considering the constitutionality of different state enactments punishing apostasy we will examine the two judgments of Courts dealing with this matter. We should also bear in mind that the Federal Constitution is according to Article 4 (1) supreme law of the Federation and any law inconsistent with it shall be void (De Varennes 2000: 216).
In Daud Mamat & Ors v The Government of Kelantan & Anor and Kamariah Ali & Ors v The Government of Kelantan & Anor the appellants were charged with heresy and sent to prison for two years. The Syariah Court of Appeal released them but they had to inter alia appear before Qadi for repentance purposes every month. After failure of reappearance and the next charges they confessed they had renounced Islam. They were sentenced not only to 36 months of imprisonment, they were charged under other enactment which allows detaining of the persons renouncing Islam without approval of the Court (Mohamed Adil 2007b: 20). After the Court of Appeal dismissed their application, the Federal Court also dismissed the appeal. The reason for dismissal was that the Syariah court is competent in cases sentencing punishment relating to apostasy and that the appellants were still Muslims when committing apostasy (Ibidem: 21).
The most “famous” case regarding apostasy which is used by many either to condemn or glorify such a verdict is the case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors. Lina Joy, former Azlina Jailani, converted from Islam to Christianity and wanted to marry her Non-Muslim boyfriend. She succeeded to change her name on the identification card, but authorities refused to remove Islamic religion from it (Asia Sentinel 2007). The High Court ruled that the Article 11 (1) in the case of Muslims does not give the appellant the freedom of choice to profess and practice the religion of her choice. Furthermore, professing of religion is directly connected to the obligations under the state Islamic law (Ahmad 2005: 14). Court also held that as Malay, she must be a Muslim until the end of her life.5 The Court of Appeal held that there was no denial of her right and that the only restriction imposed is the declaration from Syariah Court (Mohamed Adil 2007b: 23). Finally, the Federal Court majority decision affirmed the direct connection to Islamic law and that practising the religion of Islam means to practise also legal aspects of that religion. The Court also stated that if one followed his own desires and whims, it would result in chaos in the Islamic community. Therefore, the NRD6 was right of requiring documentation from Islamic religious authorities before removal of religious status from the identification card (Neoh 2008: 11 – 12).
As Joshua Neoh states, such judgment removed the right to convert out of religion from general constitutional provision securing freedom of religion. In fact, it reduced it to the conditional permission from the religious authorities of the religion a person wants to convert out of (Ibidem: 14).
According to Salbiah Ahmad, the civil courts so far hold the position of the jurisdiction of Syariah courts regarding the conversion out of Islam. By focusing on the issue of jurisdiction they bypass the constitutionally protected freedom of religion (Ahmad 2005: 12).
Mohamed Azam Mohamed Adil’s opinion seems to be that with judgments in favor of the free renouncing of Islam but under the condition of obtaining the document from Syariah Court, it leads a person to a dead end, because going to Syariah Court often means punishment. Moreover, a person stays under the jurisdiction of Syariah Court until the court itself declares him apostate. A slight suggestion from this author is also worthy of mention. The Republic of Singapore shows a way connected with counseling before approval of renouncing ones faith without punishment or mandatory detention. It is reported that almost 90% of persons after such counseling returned to Islam (Mohamed Adil 2007b: 24). At least an altered version of the Singapore model can be satisfactory in Malaysian context since it meets a demand for obstacle before renouncing Islam to protect the cultural identity of Malays which the Islam lays in the core. The case of Negeri Sembilan can point out the way.
This section deals with the restrictions related to profession of other Islamic teachings than the main Sunni branch of Islam in Malaysia, it elaborates constitutional and general law perspective as well as the practice of deviationist labelling.
From a constitutional perspective, there is no provision dealing with the central place of Sunni teachings in Malaysian constitution. This issue has been dealt with in respective States’ Enactments, some of them even provided the emphasis on certain school such as Shafi’i’s school in Labuan and Putrajaya (Ibidem: 10). There were propositions of amendment related to Sunni Islam as the official branch, but so far they were unsuccessful (Saeed and Saeed 2004:128).
The interpretation of “true” Islam is in the hands of authorities with a close surveillance on smaller Islamic sects. The adherents of Islam teachings other than the official one supervised by government are marked as “deviationists” with the attribute of arbitrariness. The restrictions are often made with the rhetoric of national security or security of religion and society. An example of a deviationist case was conducted under Selangor Syariah Criminal Enactment. Abdul Kahar Ahmad Case was charged inter alia with deviationist teachings, blasphemy and spreading false belief. Pleaded guilty and sentenced to 10 years in jail, fine of 16,500 ringgits (approximately four thousand euros) and six strokes of cane, he was said to pose a threat to the security of the religion, society and nation (SUARAM 2009: 23 – 24).
In the year 2009, the Government of Malaysia stated 56 sects of Islam as „deviant“ and as a threat to the national security (U.S. Department of State 2009). The government has a few laws at its disposal including The Internal Security Act of 1960 (ISA)7 and The Societies Act of 1966.
The first act was invoked by the Federal government during the detention of the six followers of Shi’i during the month on the turn of the year 2000. Their detention was not followed by charges in Civil or Syariah Courts. Afterwards the Fatwa Committees on the state and also on the national level issued fatwa labelling this group as deviant (Mohamed Adil 2007b: 10).
The latter was used in Arqam case, which is also interesting for political consequences and legal registration requirements. Arqam movement was established by Ashaari Muhammad in 1968 and was distinguished by its rejection of secular state and strict adherence to Islamic way of life, manifested with specific clothing. It was estimated to have approximately one hundred thousand adherents and during the strongest period of the movement they started to challenge the government in relation to right to represent Malays. That led to arrest of the leaders, declaration of movement as unlawful by the National Fatwa Council in 1994 and disbandment of it under Societies Act (1966). After the confession of the deviation from seven members including Ashaari on national television, they were released without charge but restricted in movement under other Restricted Residence Act (1993) (Saeed and Saeed 2004: 129 – 130).
Firstly, it is notable that a deviationist labelling in its arbitrariness and finality and with no recourse to appeal constituted an opportunity to mark religious opponents of the leading UMNO government as religious deviants. The Arqam movement started to be seen as a problem after series of confrontational attitudes and growing popularity among Malays (Ibidem: 129 – 130).
Secondly, mandatory registration is required for the formation of religious groups under the federal law. Government may revoke groups threatening national interest or security under the already mentioned Societies Act. In the above mentioned case of Arqam the government used this Act to revoke such registration in 1994 (Mohamed Adil 2007b: 12). Such actions with arbitrary potential and the government using the broad vocabulary of unspecified national interest or security along with the deviationist labels may have a destructive impact on a legal status of religious groups and their existence. It does not limit the manifestation of religion. It prohibits from professing the branch of religion itself, with the threat of detention or restriction of movement such as in Arqam case.
As it was stated earlier, Article 11(1) says that: “Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.” (de Varennes 2000: 219).
The relevant clause (4) of the Article 11 provides that: „State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law, may control or restrict propagation of any religious doctrine or belief among persons professing the religion of Islam.“ (Ibidem: 220).
Here one can see that restriction on propagating a Non-Muslim religion among Muslims is not the violation of the constitution. It creates a limitation on absoluteness of freedom of religion in Malaysia. The authorities are very sensitive in such cases, detaining any person suspected of undertaking such activity not taking into account propriety. Any act of proselytizing Muslims can be explicitly prohibited on the state level without concerns about coerciveness or fraudulence of proselytizing that could cause a permissible limitation of such behaviour. There seems to be no hesitation in the choice between the right to manifest one’s religion and violation of forum internum of the others. Apparently, in Malaysia freedom to convince your neighbour applies only if your neighbour is not Muslim.
We may now move on to practical grounds related to the propagation of non-Islamic religion. Due to the constitutional provision, governments of states of the Malaysian federation enacted laws prohibiting propagation of non-Muslim doctrines among Muslims. The restrictions to manifest one’s religion cover actions such as banning religious literature, arresting people involved in dissemination activities concerning religion or arresting people distributing suspicious leaflets. An example of the last one can be seen in the arrest of nine Christians, two of them university students, because they distributed leaflets and booklets about Christianity at the University Putra Malaysia (UPM) in Serdang (Catholic Online 2009).
The first case concerns the distribution of the Bible in the Bahasa Malaysia language, which is the national language in Malaysia. The government used Section 22 of the Internal Security Act (ISA) to ban the Bible as a document detrimental to the national interest and security of the Federation (The Star Online 2008). The Government later provided exemption for the distribution on the places dealt exclusively with Christians. The Ministry of Home Affairs argued the initial ban with the fear of confusion among Muslims, whose scripture in Qur’an has the same title as the translated Bible: al-Kitab. (Mohamed Adil 2007b: 12 – 13).
In the case Minister of Home Affairs & Anor v Jamaluddin bin Othman, the detention of the respondent was again carried under Internal Security Act (ISA). The reason referred to the involvement in the dissemination of Christianity among Malays. His action was regarded by authorities as a threat to the security of the country. However, Supreme Court stated that such detention is a violation of Article 11 (1) of the Federal Constitution. The Court also noted that the mere participation in Christian seminars and conversion of six Malays to Christianity is not a threat to the security of the country (Ibidem: 10).
The final part of this work should elucidate possible roots of such actions towards restriction of freedom of religion in Malaysia. What contributed to this kind of behaviour towards this freedom? With consideration that this problem could be a stand-alone work, I will briefly outline the possible causes of such abuses that I could find as the most relevant.
The most visible reason lies in the broader struggle between modern and classical Islam and its conformity with human rights with the consequences visible in the violations of the freedom of religion. If this was resolved in favor of modern Islam, the possible cause for violations of freedom of religion discussed above is likely to be weakened.
From the views over the issue of the right to freedom of religion in Islam, this article considers two views of classical jurists and modernists as described by Mohamed Adil. Classical jurists say that freedom of religion is not absolute, it is forbidden to leave Islam and agree with punishment of death penalty. Modernists argue with absoluteness of freedom to choose Islam and the human being with the rejection of the guidance (‘hidaya’) embodied in the Qur’an will suffer spiritually. They argue with the verse from Qur’an (2:256), promoting no compulsion in religion, although interpretations of this verse vary (Mohamed Adil 2007a: 3 – 4).
Which tendencies prevail in contemporary Malaysia? The final verdict in the long-standing case of Lina Joy pushed Malaysia in the direction towards the classical view, as the Malaysian minister Datuk Seri Nazri Aziz declared that this case would be the guide for anyone intending to renounce Islam (The Star Online 2009). Another example of the classical tendencies is the capture of Kelantan and Terengganu by PAS in 1999 elections and the enactment of hudud laws in these states. The hudud enactment provides various punishments, e.g. death for apostasy or death by stoning for illicit sex (zina). Constitutional and legal tensions have yet to be resolved before implementation (Peerenboom et al. 2006: 197). At least in the case of Kelantan hudud code the federal parliament said that the code would not be passed. The parliament also stated, that any move by PAS to amend the Federal Constitution would be blocked, because the country is “not ready” for such laws (Bauer et al. 1999: 186). The tendency towards modernists thinking in Malays is possible to show in the rejection of such conservative trends and correction of widely shared conservative Muslim and western views about Islam as a religion of duties by Muhammad Kamali from the International Islamic University in Malaysia, who also tries to provide broad and comprehensive understanding of Syariah, favoring justice, equality and tolerance (Eldridge 2002: 104 – 105).
Adding the word “change” into the Article of the Federal Constitution will not possibly resolve the tensions, it has to be rather viewed as mere change of attitude of political elites from the creation of the Federal Constitution, which was intended to preserve religious freedom. It seems that the validity of the punishments if declared unconstitutional would result in the amendment of the Constitution by UMNO-led federal government to ensure their continuation (Saeed and Saeed 2004: 164). As Amnesty International pointed out in the report, there has been a significant increase of politicization of religion during the year 2008 with people facing obstructions while converting from Islam (Amnesty International 2009).
Political elites are the core point in keeping the policy of human rights and freedom of religion at today’s levels. On the one hand, the ruling elite from UMNO is pushed towards more Islamization as PAS is against them with a rhetoric of endangerment from Christian influence and proselytizing and since they want to win they need to have Malays comprising around 50 % and Muslims around 60 % of the population on their side. On the other hand, there is the growing concern for human rights from foreign investors who keep the economic policy on the current level and the government almost certainly does not want to alienate the rest of the voters: Hindus, Christians, Chinese and others that can unify towards them. Abdullah Saeed and Hassan Saeed are of the opinion that the acceleration of Islamization or establishing an Islamic state would likely result in unification of diffused Non-Muslim groups or migration of the wealthy people mostly Non-Muslims with the economic development put in jeopardy (Saeed and Saeed 2004: 163).
Judicial dual system, possible dual jurisdiction in cases regarding Muslims and Non-Muslims alike along with the questionable impartiality and independence of judicial system contributes to the fragmented positions regarding freedom of religion.
Firstly, there seems to be the nontrivial connection of judges to religion breaching their impartiality. Judicial independence has been placed in doubt since the end of the nineties after the dismissal of the Chief Justice and also five other Supreme Court judges (Eldridge 2002: 94). We offer the reader to consider the impartiality on the following example. Joshua Neoh with regard to Ahmad Fairuz CJ, The Chief Justice who delivered the majority judgment in the case of Lina Joy stated: “Fairuz CJ has effectively accorded Islam an expanded role in the life of the nation …One cannot but ask whether a common law judge has, in this case, become an Islamic jurist and theologian as well.“ (Neoh 2008: 11). A few months later Ahmad Fairuz CJ made a public statement that in order to escape the clutches of colonialism, Malaysia needs to abolish common law and give priority to Islamic law (The Star Online 2007). The description of impartiality was sharply suggested by Tun Mohamed Suffian, that in a multi-national and multi-religious society nobody reading the judgment could with the name removed identify the race or the religion of the judges (The Malaysian Bar 2007).
Secondly, Malaysian unification of the law system would ensure better predictability of the decisions held by courts. There is still inconsistency in terms of law, procedure and practice in the case of renouncing ones religion that contributes to keeping the freedom of religion on nowadays level (Ahmad 2005: 13). In this matter, certain measures have been undertaken. In April 2009, Prime Minister's Department announced possible future unification of Islamic laws that can replace state Islamic laws (U.S. Department of State 2009). In June, three amendments to pieces of legislations concerning inter alia Islamic family law or administration of Islamic law were introduced. At the end of the month the amendments were put on hold. Conference of Rulers decided that such amendments pertaining to religious and converting matters must first be referred to state religious authorities (SUARAM 2009: 22 – 23), so despite the efforts, unification has been so far unsuccessful. As Andrew Khoo says with relation to possible recommendations towards human rights violations in Malaysia: „In short, it will take nothing less than a legal and judicial revolution.“ (Khoo 2009: 11).
Regarding the matter of renouncing one’s religion, the constitution grants people freedom to profess and practise one’s religion, although the respective state enactments provide punishment for apostasy. The recent judgments tend to uphold the jurisdiction of Syariah courts in such cases. There is no constitutional provision dealing with the centrality of Sunni teachings in Malaysia, however, it has been dealt with on the state level. The issue is closely connected with the use of The Internal Security Act of 1960 (ISA) and The Societies Act of 1966 by the government often with no charges pressed against detainees. Finally, the restriction of the propagation of any religious doctrine by the state law among Muslims is constitutionally upheld. The actions include banning the religious literature or the detention of persons suspected of proselytizing Muslims: in the latter case, the Court found a violation of the Federal Constitution.
The possible causes of the current level of religious freedom violations cover in a simplified way the tension between modern and classical Islam, growing Islamization of politics among the elites from the foundation of the Federation and failure to unify the law concerning freedom of religion or possible disputability of the independence and impartiality of the judges. The author does not deny the fact that the possible unification of law does not have to be resolved in favor of freedom of religion however the continuing fragmentation contributes to the possible abuses and has to be considered with the impartiality and independence of the judges as a cause keeping the frequency of abuses on today’s level.
Autor studuje mezinárodní vztahy na Masarykově univerzitě a je redaktorem Global Politics.