Is the right to practise one’s religion absolute? - Mohamad Hafiz Hassan

Is the right to practise one’s religion or belief absolute?

The Malaysian Bar certainly thinks so following its view that the words “in peace and harmony” in Article 3(1) of the Federal Constitution in their ordinary meaning provide for the right of other religions to be practised unmolested and free of threats.

But such a view is tenable only if there is no distinction between the right to profess, have or adopt a belief and the right to practise or manifest a belief.

A reading of Prof Shad Faruqi’s Document of Destiny: The Constitution of the Federation of Malaysia is instructive on this. At page 329 of the book, the widely respected constitutional scholar writes:

“Article 11(1) grants to all individuals protection in matters of conscience…. Under this clause citizens as well as non-citizens have the right to three things:

·  to profess
·  to practise, and
·  subject to Article 11(4), to propagate their religion.

The first refers to beliefs and doctrines. The second refers to exhibitions of these beliefs through acts, practices and rituals. The third is about attempts at propagation and transmission of one’s belief to others in order to convert them to one’s faith. The law distinguishes between inner beliefs and overt acts. The right to beliefs and doctrines is generally regarded as absolute. Practice and propagation are, however, allowed by Article 11(5) to be regulated on the ground of public order, public health or morality.”

Prof Shad Faruqi’s reference to the distinction between inner beliefs and over acts mirrors another legal view that refers to the freedom of religion as consisting of freedom in two components:

·         the forum internum, and
·         the forum externum.

The first represents the right to profess, maintain, change, have, or adopt a religious belief. It relates to an individual’s inner faith and conscience. The second, which is distinct from the first, is the freedom to manifest one’s religion or belief in worship, teaching, practice and observance. [see e.g P Van Dijk and G J H Van Hoof, et. al., Theory and Practice of the European Convention of Human Rights (1998)].

International instruments on freedom of religions [such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention)] provide for, and embrace, both the forum internum and forum externum.

Importantly, however, the freedom to manifest one’s religion or belief (theforum externum) is not an absolute right [see Johan D. van der Vyver, 'Limitations on the Freedom of Religion or Belief: International Law Perspectives', 19 EMORY INT’L L. REV. 499, 505 (2005)]. The freedom to manifest one’s religion or belief if often referred to as the more public freedom of religion. Because the public manifestation of religion has the potential to interfere with the rights of others or to pose a danger to society, it is not absolute. It is subject to limitation such as can be seen under Article 10 IPPR and Article 9 European Convention.

The above should suffice as a reply to the view that Article 3(1) of the Federal Constitution provides for the right of other religions to be practisedunmolested.

Prof Shad Faruqi though offers a more direct reply. At page 332 of the book, he writes, short and succinct:

“Under Article 3(1) the practice of religion must not disturb peace and harmony.”

This is in addition to the restriction under Article 11(5) of the Federal Constitution that allows for regulation of religious practices on the ground of public order, public health or morality. This in turn is consistent with provisions under international instruments which recognize and permit limitations on the right to freedom of religion such as “in the interests of public safety, for the protection of public order, health or morals, or for the protection of rights and freedoms of others.” [see Article 9(2) European Convention].

Undoubtedly freedom of religion is one of the foundations of a democratic society, but where several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected. In a democratic society, the State may limit the freedom to manifest religion with the aim of protecting the rights and freedoms of others, public order and public safety.[see Baspinar v Turkey, App. No. 45631/99, (2003) 36 E.H.R.R. CD 1].

Needless to say the State’s ability to impose limitations is not without boundary and must be subject to very strict scrutiny.

* Mohamad Hafiz Hassan reads The Malaysian Insider.