Article 11 and The Freedom of Religion: A Matter of Interpretation

By Safuan

"Thou shalt keep thy religion to thyself." — George Carlin

The article was originally written in 2008 for a law school yearbook. It is republished here with minor amendments (because the writer insists it’s still a relevant read).

Sometime last year I attended a forum where the topic of apostasy was discussed, arising probably from the Federal Court’s decision in the Lina Joy case — when it denied her her right to remove "Islam" from her IC.

The court’s 2/3 majority ruling stated that "a person who wanted to renounce his/her religion must do so according to existing laws or practices of the particular religion. Only after the person has complied with the requirements and the authorities are satisfied that the person has apostatised, can she embrace Christianity…. In other words, a person cannot, at one’s whims and fancies renounce or embrace a religion."

In a nutshell, the ultimate decision in Lina Joy was achieved as a result of a restrictive interpretation of Article 11. This restriction is a result of the heavy emphasis put on the supremacy of Islam as provided by Article 3. Some agree with the court’s decision. Some don’t. I am one of the people who disagree with decision. I even disagree with the main issue linked to her conversion: I don’t think the civil court’s jurisdiction to hear the case should have been an issue at all.

"Every person has the right to profess and practise his religion (…)"

That’s part of Article 11 of the Federal Constitution of Malaysia. It’s always been tiring for me to understand what the Article means and what it has got to offer.

Article 11 guarantees freedom of religion to every person. (The aspects of this Article are many, but I am only concerned about one.) Looking at cases in the past, it’s rather obvious that non-Muslims’ right to change of religion has always been upheld. But when a Muslim attempts to be legally recognised as having left the religion of Islam, it stirs wildfire. So, is there really such a thing as freedom of religion in the law? I am referring to Muslims’ freedom to convert, which is often the source of confusion. I honestly don’t know the answer to that, but from my constitutional perspective I strongly think that there should be.


Federal Constitution: Supreme law of the land

Firstly:

Even though the Syariah law, the Syariah Criminal Offences (Federal Territories) Act 1997 for instance, governed at state level prohibits apostasy among Muslims, we should always pay the highest regard to our Federal Constitution and its spirit, as it’s been repeated time and time again that the Constitution is the supreme law of the land. As we recognise the Rule of Law, no other law should ever be allowed to run contrary to the wording of the Constitution. More specifically, no one in the Legislature should ever go against the intention of the Constitution drafters, i.e, members of the Reid Commission — unless such an act is blessed with majority approval.

Let us glance through history:

Prior to the formation of Malaysia, the Reid Commission Report revealed that in "the memorandum submitted by the Alliance Government it was stated that the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practicing their own religions and shall not imply that the State is not a secular State."

Subsequent to Independence, Tunku Abdul Rahman, one of the founding fathers of Malaysia announced in Parliament, "I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provided that Islam shall be the official religion of the State."

In 1962, former Lord President of the Federal Court, the late Tun Mohamed Suffian in The Relationship between Islam and the State in Malaysia observed that Islam is "primarily for ceremonial purposes, for instance, to enable prayers to be offered in the Islamic way on official public occasions such as the installation of the birthday of the Yang di-Pertuan Agung, Independence Day and similar occasions."

In this respect, a constitutional provision that ought to be looked into is Article 3(1). It provides that:

"Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation."

With regard to this Article, former Chief Justice Hashim Yeop A. Sani, in the bookOur Constitution, expressed his view:

"The words "Islam is the religion of the Federation" (…) has no legal effect and that the intention was probably to impose conditions on federal ceremonies to be conducted according to Muslim rites."

Further, Tun Salleh Abas has also defined the function of the word "Islam" in Article 3 in the case of Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 as referring to "only such acts as relate to rituals and ceremonies rather than an all-embracing concept which consists not only of the ritualistic aspects but also a comprehensive system of life, including its jurisprudence and moral standard." (As per Lee Min Choon in his book "Freedom of Religion in Malaysia")

So, what does it seem to you? It looks to me like Malaysia is not an Islamic State. My interpretation of the abovementioned excerpts tells me that it’s only proper to say that Malaysia is, as a matter of fact, a secular State. I see this as a sign that Islam shall not have precedence over other religions except in terms of ceremonial purposes.

However, in reality this isn’t the case. Perhaps because Malaysia has gone through a process of Islamisation over the years. Incidentally, the Islamic religious authorities took heed of this, hence the endless attempts to implement anti-apostasy laws. Yet it’s noticeable that insufficient constitutional amendments were made to reflect this transformation process. Through this view, bearing in mind the inferior nature of the Syariah Criminal Offences (Federal Territories) Act 1997 when compared to the Constitution, I might be right in saying that the former is ultra vires.


Syariah Court: No jurisdiction over apostates

Secondly:

The Syariah Court should have no jurisdiction over apostates. (In my opinion. In many others’ too.)

Article 74(2) states:

"Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matter enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the concurrent list."

Meanwhile, the Second List set out in the Ninth Schedule provides:

"(…) the constitution, organisation and procedure of Syariah courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph (…)"

Rightfully, the Syariah Court, falling under the administration of the state government has jurisdiction to decide on issues revolving around Muslims ("persons professing the religion of Islam") in each state. The question is: why should an apostate be subject to the Syariah Court in the process of legitimising his conversion?

Technically, a person is already a non-Muslim once he has renounced Islamic faith. More importantly, an apostate no longer professes the religion of Islam and is no longer bound by state Syariah laws. Due to this, Article 74(2) and the Second List of the Ninth Schedule deserve no mention in any court of law hearing such a case.

In addition, Article 11(4) merely grants the power to states to control or restrict propagation of religious beliefs among Muslims and nothing else. There is no other provision under Article 11 empowering the state to implement laws with regard to the conversion of a Muslim. Provided that the conversion was done on his own free will, it is immaterial to consider whether the teachings of a particular religion was propagated to an apostate prior to his conversion, as it is something that has already happened. Therefore, any anti-conversion argument rooting from Article 11(4) should be considered invalid.

In the Bar Council press release following the Federal Court decision in Lina Joy, the Council was of the opinion that "the religion that a person in fact professes must be the religion that that person states he or she professes; since there can be no evidential difficulty in ascertaining this in the case of a living person."

The Syariah court should not be given the power to decide on a person’s religion, as it is a matter of individual conviction. It is a realm of deep, personal appreciation that no one will ever truly encompass, but the person himself. It is illogical to have a man’s application to replace the word "Islam" in his NRIC with "Kristian/ Hindu/ Scientology/ etc." presided by a Syariah court. Such an application made to the religious officers is, of course, impractical as Syariah law clearly prohibits apostasy among Muslims.

It must be noted that a change of religion does not result from the say of a religious authority, but rather from a personal change of faith. As an illustration, if the court dismisses a man’s application to drop "Islam" from his NRIC, it would not mean that he remains a Muslim if all the while he claims to be Christian. More importantly, only he himself truly knows that there has been a sway in his religious beliefs. From this angle, I feel that it’s only right for an apostate’s case be referred to a Civil Court, as he has nowhere else to turn to for the legitimisation of his conversion.

A man’s spiritual submission to the Supreme Being is an extremely private matter, for the personal experience is only felt by him alone. It is conceptually wrong for a third party to govern his faith by providing more than mere guidance. In the words of Sisters in Islam, "Faith should be nurtured by education, not coercion."


The higher importance of having the right to conscience

Thirdly:

I found that through the unique wording of Article 11, it was intended that extra emphasis be put in the protection of religious freedom. Unlike Article 9 and 10 where protections are to be given to "citizens", Article 11 employs the words "every person" to describe the class of protected people. The inclusion of this phrase shows the distinct classification of religious rights for legal recognition. This would necessarily mean that the Constitution drafters have recognised the higher importance and significance of having the right to conscience in each of our lives, regardless of sex, race and citizenship (with regard to a minor’s right to choose his religion, however, it was held in the Supreme Court case of Susie Teoh that the parent/ guardian will be entitled to choose). Accordingly, the power to control religious freedom should not be arbitrarily exercised.

Above all, there should be a reformation of the people’s mindset. Members of the public should be professional in interpreting legal arguments brought before the court and the judgments given. It should be noted that legal practitioners are merely carrying out their work professionally, utilising their expertise which requires them to pay high regard to the spirit of the Federal Constitution.

A highly reputable lawyer, Malik Imtiaz, was once victimised, resulting from the public’s one-dimensional view towards his action. He was alleged to have endorsed apostasy after submitting a brief in support of Lina Joy’s conversion while holding a watching brief on behalf of the Bar Council at the Court of Appeal. If actions such as this continue to receive disapproval, we are denying the supremacy of the Federal Constitution. In light of the Rule of Law, one hopes that history won’t repeat itself.

Furthermore, when a judge decides on a case, the judgment given ought not to be associated with His Lordship?s background or identity, especially His Lordship’s religious beliefs. In my opinion, that’s what an independent judiciary is all about.


Everyone is entitled to his/her opinions

As a believer in laissez faire, I think that neither the state nor federal government has a right to meddle with the people’s freedom of conscience. Every opinion has its roots: the perception of what is right and what is wrong. When a person holds on to his opinion strong enough, his opinion turns into a belief. And when he holds on to that belief long enough it turns into faith. Within the legal fraternity, legal minds are taught and highly encouraged in such a way as to openly debate differing opinions. Whether or not a mutually-agreed-upon conclusion is reached is immaterial. What I’m trying to say is: everyone is entitled to his/her opinions.

As long as the Federal Constitution remains unfixed, as long as the constitution does not manifestly state the restriction against Muslims converting out of their religion, the confusion surrounding us all will never cease. The fundamental error in constitutional interpretation will subsist.

Also, there is a loud and urgent call for jurisdictional issues pertaining to hearing of religious freedom cases to be sorted out. In the words of Dr. Thio Li-ann in the Malayan Law Journal article entitled Apostasy and Religious Freedom: Constitutional Issues Arising from the Lina Joy Litigation, "Whether article 121(1A) effectively bars the civil court from exercising inherent, concurrent jurisdiction in apostasy cases remain unclear."

Islamic religious authorities will continue to disapprove apostasy, while non-Muslims (and legal minds) will continue to question the constitutionality of their move (and certain factions will probably claim their right to legally prohibit apostasy among members of their fellowship). It is a clash of principles and no one will ever win.

Seemingly, without a drastic reformation of Bolehland’s supreme law, this constitutional antinomy will only be prolonged. Not to forget, those at sixes and sevens will be wondering: "Where is the right to equality, actually?" Well, that’s a whole different matter deserving equal amount of attention.

In my humble opinion, it is of no use to force someone to retain on a piece of document the name of a religion in which he no longer believes. Islam should not be granted a superior status simply on the basis of the number of Muslims. One day, Muslim pride will wobble once the masses, particularly entrapped "Muslims" voice out to the international community pertaining to this socio-legal predicament. Let everyone have their freedom of conscience, for in the afterlife, it is a matter only between Rahmat, Isabella Teoh, Kumar (for the sake of representing the three major Malaysian races) and the Almighty God, RESPECTIVELY.

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"Faith is faith,

freedom is freedom.

And faith, if it is pure,

will never be affected by freedom."

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Safuan is an ovo-lacto vegetarian who is attracted to aesthetics and symmetry (not necessarily in that order). Courtesy of Loyarburok.com