General statements can cause confusion too - Mohamad Hafiz Hassan

A number of statements continue to be made unabated, all concerning the decision by the Court of Appeal on the Allah issue, and rightly so.

Criticisms are to be welcomed, but a concern may be raised that some statements are too general, if not sweeping, which can further lead to confusion itself... and this is no better than the decision criticised.

In particular, are statements referring to the views of Bar Council that Article 3(1) of the Federal Constitution provides for “the right of other religions to be practiced unmolested and free of threats.” (see Erosion of religious freedom in Malaysia – Proham and Decision is wider than Allah ban in Herald – Jagir Singh)

I have offered a view that the Bar Council’s position on the above is tenable only if there is no distinction between the right to a belief and the right to practise a belief.

The view makes reference to the writings of our own Prof Shad Faruqi and international jurists.

In brief, the right to a belief is absolute but the right to practise a belief is not

To these may be added the views of other jurists who explain that the freedom of religion in the private realm (the forum internum) is “passive” freedom in that the State is prohibited from dictating or forbidding confession to a religion or belief.

The other part of this private realm not subjected to restriction is practice that does not touch upon the freedom and sphere of privacy of others, but practice that “primarily relates to the practice of religious rituals and customs in the home, either alone or in community with others". [see Manfred Nowak, UN Covenant On Civil And Political Rights: CCPR Commentary (1993)].

One does not necessarily have the right “to behave in the public sphere in a manner dictated by a religion or a conviction".

That is why the public manifestation of religion, which has the potential to interfere with the rights of others or to pose a danger to society, is a right that is not absolute. The positive aspect of this view is that the limitations to the right to practise a religion must be prescribed by law and are necessary only to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Even Prof Abdul Aziz Bari has weighed in on this matter in his book Malaysian Constitution – A Critical Introduction (2003) where he writes:

“It appears that the right to religious freedom under art. 11 is subject to certain limitations such as to the position of Islam and the Muslims as well as the legal restrictions pertaining to public order, public health or morality. What appears to be limitation on the basis of Islam is the prohibition of propagating religions other than Islam to Muslims to be found in art. 11(4).”

So, while Islam may not be a limitation to the practice of other religions, legal restrictions pertaining to public order, public health or morality are.

Thus, reported statements of Prof Abdul Aziz Bari that while Islam is the religion of the Federation “non-Muslims may go on practising their religions freely without restrictions” must be read in the light also of Article 11(5) – and perhaps also the view of Prof Shad Faruqi that the practice of religion must not disturb peace and harmony.

Be that as it may, I am all for the call of the Bar Council to all quarters to address the issue with maturity and calmness.

* Mohamad Hafiz Hassan reads The Malaysian Insider.