GIVEN that Article 29 (1) of the Universal Declaration of Human Rights (UDHR) is silent on how individual religious denomination conducts its religious affairs in each state, the formulation of specific duties remains an issue of domestic law.
Catalogues of human duties differ from one state to another, which is a reflection of the cultural heritage of each community that has been moulded by its historical, economic, social and political discourses.
The constitution of each state is perceived as a historical, economic, social, cultural and political testament to the embodiment of assumptions and values of a community as a whole. The Federal Constitution of Malaysia (FCM) is no exception. It represents the choices and values accepted by Malaysians for the good and benefit of all.
In the case of Malaysia, how human rights are to be translated into practice depends upon the vision of the Malaysian communities to provide a scale of values governing their exercise and manifestation.
In a plural society such as ours, the constitution rests on fundamental values and assumptions, which mirror the character of the society at large. These, in turn, influence the essence and nature of the constitution, determining its viability and progress.
In particular, the FCM must always be read in light of the history of Malaysia, which encompasses various historical documents, including the Rukun Negara (Principles of State). Although none of these documents have the status of law, the ideas embodied in them may assist in understanding and appreciating the realities of today and to study the FCM from a historical perspective.
The FCM, after six decades, still rests on assumptions and values agreed to by the bulk of the communities through their representatives in 1956 and 1957, although the challenge facing the FCM today is the maintenance of these assumptions and values.
We would do well to remember that the Rukun Negara indirectly reflects the preposition that rights conferred on a citizen of democracy entails not only individual liberty but also duties and responsibilities to the community at large.
Whilst the parameters of such freedoms, as underlined in the FCM, would not necessarily be apt for everybody else, it is a law that suits and exemplifies the Malaysian temperament. Given that there is no single model of democracy that fits all societies, the FCM reflects the reinforcement of democratic practices, institutions and values, including the freedoms of expression, assembly and association, taking into account the domestic cultural values and traditions. Democracy should not be imposed from outside but instead should be nurtured through a gradual process that takes place internally.
In Malaysia, the Constitution defines the parameters of human rights and fundamental freedoms, including individual rights of freedom of religion and religious practice.
Article 11 of Part II of the Constitution reads:
“(1) Every person has the right to profess and practise his religion and subject to Clause (2), to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
(3) Every religious group has the right — (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and, (c) to acquire and own property and hold and administer it in accordance with law.
(4) State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
(5) This article does not authorise any act contrary to any general law relating to public order, public health or morality.”
An issue arising from Article 11(4) restriction is that state laws may prohibit the propagation of other doctrines within Islam itself, such as the Shia doctrine.
Tun Mohamed Salleh Abas argues that: “[T]his limitation is logical as it is a necessary consequence that follows naturally from the fact that Islam is the religion of the Federation. Muslims in this country belong to the Sunni sect, which recognises only the teachings of four specified schools of thought and regards other schools of thought as being contrary to true Islamic religion. It is with a view to confining the practice of Islamic religion in this country within the Sunni sect that state legislative assemblies and Parliament, in respect of the Federal Territory, are empowered to pass laws to protect 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”.
Although there is an absence of any constitutional provision entrenching the position of Sunni teachings among Muslims in Malaysia, the states’ legislation provides that Muslims must conform with Sunni teachings, with emphasis given to the Shafi’i school of thought.
Under Article 11(5), the FCM gives every person, including a Muslim, a right to profess and practise his religion save to the extent that he/she does not endanger public order, public health or morality.
However, Muslims are subject to additional religious restraints due to the power of states in accordance with Schedule 9, List II, Item 1 of the Constitution.
In essence, state enactments are permitted to create and punish offences by persons professing the religion of Islam against precepts of that religion. Therefore, persons of the Islamic faith and Muslim religious groups that are not mainstream may be subject to restraints in relation to what are deemed to be “deviationist activities”.
In Malaysia, the parameters of freedom of religion are shaped by historical, social and religious discourses as reflected in the FCM, as well as its laws and regulations.
Recent decided cases in Malaysia have grappled with the ramifications of the meaning and parameters of freedom of religion and the related role and position of the Syariah Court, as, respectively, enshrined in Articles 11 and 121 (1A) of the Constitution.
At the forefront is the legal debate on whether freedom of religion includes freedom of a Muslim to renounce the Islamic faith and whether the validity of a Muslim’s renunciation of the Islamic faith is to be solely determined by the Syariah Court in Malaysia.
In response, human rights advocates argue that firstly, any rules, man-made or otherwise, that prohibit or seriously impede the renunciation of the Islamic faith, would seem difficult or impossible to reconcile with the universal human right to renounce one’s religion, as contemplated by the UDHR; secondly, no court, including the Syariah Court, or authority should be easily allowed to curtail renunciation of faith.
The FCM, as it stands today, determines to a large extent the position and status of Islam in Malaysia. Article 3(1) states: “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”.
Malaysia is a federation of 13 states and the Ninth Schedule outlines the matters into Federal and State Lists. The federal Parliament can only legislate on matters dealing with Islamic law and religion for the Federal Territories, and has no power to legislate for the rest of Malaysia.
Article 76 stipulates that Parliament can legislate on matters pertaining to the State List in order only to realise “uniformity of law and policy” and in matters of Islamic law and the Malay custom “if so requested by the legislative assembly of any state”.
Legislation and personal status relating to non-Muslims is within the federal legislature’s jurisdiction (governed by the Malaysian Law Reform (Marriage and Divorce) Act 1976 that repealed all previous statutes on marriage and divorce governing non-Muslims).
The State List specifies personal law, which includes matrimonial law.
As the personal law of Muslims in Malaysia is a matter under the jurisdiction of the states, each of the 13 states are able to enact its own set of laws governing the personal laws of Muslims in that state. Thus, personal matters of Muslims are to be regulated by the state enactments and the power to
legislate on these matters is vested
in the state legislature and
the sultan.
Malaysia operates a dual legal system, based on both civil law and syariah. The competent body to decide on syariah matters is the Syariah Court, its role and position enshrined in 121(1A) of the Constitution. Article 121(1) states that the civil courts have no jurisdiction in matters that fall within the Syariah Court jurisdiction.
The reference to the syariah courts is the Ninth Schedule to the Federal Constitution, List II, Item 1, which enumerates matters that fall under the legislative powers of the state. The syariah courts have jurisdiction only over persons who are of the Islamic religion and on matters which are enumerated in the said item.
In the Lina Joy case, the Federal Court, in a majority decision, opined, inter alia, that an order by the Syariah Court concerning the religious status of Lina Joy is required as the issue of renunciation of the Islamic faith is a matter of Islamic law, which falls under the jurisdiction of the Syariah Court. The Federal Court further opined that “[t]he way a person renounces a religion must essentially be carried out pursuant to the rules or laws or practice followed or set by the religion itself” and that “one cannot at one’s whims and fancies renounce or embrace a religion”.