Freedom of Religion in Malaysia

I am what I believe

MALAYSIA has seen a fair share of cases involving religion. These include cases of people wanting to convert out of a religion, bodies being taken by religious authorities for burial and citizens being charged with spreading “deviationist teachings”.

FREEDOM OF RELIGION

Article 11 of the Federal Constitution states that every person has the “right to profess and practise his religion”. But what does that mean? What is “to profess”? And what is “to practise”?

The word “profess” is often associated with religion. The Shorter Oxford English Dictionary defines “profess” as “to affirm, or declare one’s faith in or allegiance to (a religion, principle, God or saint, etc.)”. I think this is a good definition. Other synonyms of the word in a number of dictionaries include “claim”, “acknowledge”, “state”, “avow”, “assert”, “annunciate”, “enunciate”, “aver”, “pronounce” and “announce”.

A few things can be derived from these definitions:

> I determine my own religious views;

> No one else defines my religious views; and

> I am free to believe in what I want to believe in.

It is therefore my opinion that for someone to renounce her religion, following the Federal Constitution, she merely has to make an open declaration of that fact, so long as that declaration is meant seriously, with free will and has not been retracted.

So if I were to ask a person: “What do you profess?” – and he says: “There is no God but Allah, and Muhammad is His Messenger” – he would be a Muslim.

To me, Freedom of Religion and Article 11 is as simple as that. It is what that person says she is – not what other people say she should be.

An individual shapes her thoughts which determine her beliefs, while her conscience directs her life. Any action compelling her to believe in a certain religion whether through administrative red tape (for example by denying her the right to change her religion on her identification card) or whether through force (for example by putting her in a “religious rehabilitation centre” to indoctrinate her), would be a violation of her freedom of religion.

What about “practice”? It is a distinctive word that is also related to religion. “Practice” would reasonably mean a manifestation of what one professes; it is the actions that arise from one’s beliefs. It is the manner in which you worship, your prayers, the rituals you perform; how you celebrate birth and how you mourn death. It is the aspect of your life that exists because of your faith.

In my opinion, in the event one does not declare his religion, we can ascertain what religion he adopts by considering his “practice”. If we see him convert to a new faith, that is sufficient to indicate that he has left his previous religion and his open declaration of faith will be unnecessary.

DEFINITION OF A "MUSLIM"

In Malaysia, the Federal Constitution only defines who a “Malay” person is in Article 160. The constitution does not define who is a “Muslim”.

It is nonetheless stated within the Ninth Schedule, List II of the constitution that Islamic Laws are only to apply to “persons professing the religion of Islam”.

A “Muslim” is instead defined by the Administration of Islamic Law (Federal Territories) Act 1993 (and all other state enactments) in Section 2 as (a) a person who professes the religion of Islam;
(b) a person either or both of whose parents were, at the time of the person’s birth, Muslims; (c) a person whose upbringing was conducted on the basis that he was a Muslim; (d) a person who has converted to Islam; (e) a person who is commonly reputed to be a Muslim; or (f) a person who is shown to have stated, in circumstances in which he was bound by law to state the truth, that he was a Muslim.

A cursory reading of the definitions would show that provisions (b) - (f) are not in line with the constitution. Provisions (b) - (f) hinders a person in professing the religion she wants to by labelling her a “Muslim” based on circumstances that are beyond her control, for example by her parents’ religion, her upbringing and the perception of others. These provisions also seek to bar her from thinking, contemplating and changing her mind on her religious world view.

Your religion and beliefs cannot be determined by someone else arbitrarily. It can only be determined by you. Nobody knows you better than yourself. Nobody has the right to force you to believe in something you do not want to. It would be interfering with your individuality, your uniqueness and your freedom.
LINA JOY

The present position in Malaysia since the Federal Court case of Lina Joy is that a Muslim wanting to leave the religion has to get a syariah court order. In some states, it is a syariah criminal offence to be an apostate. Why should a person be compelled to face imprisonment or a fine in order to leave the religion?

This matter can easily be resolved by state governments enacting clear provisions to enable people to convert out of Islam without any restrictions. This used to be the case in Malaysia, for instance by Section 146(2) of the now repealed Perak Administration of Muslim Law Enactment 1965 which allowed a person to state to the syariah court that he had decided to leave the religion, and the court must make a declaration of it. Some states used to maintain a register for those “converting out” – a purely administrative task.

Profession of religion in Malaysia is a question of fact. It is a constitutional issue and a matter for the individual’s conscience.

This nation can only progress if its citizens learn to inculcate a culture of understanding, pluralism and broadmindedness.

by ASTON PAIVA is a member of the Constitutional Law Committee, Bar Council Malaysia (www.malaysianbar.org.my/constitutional_law_committee). The views expressed in this article are personal to the writer and may not necessarily represent the position of the Bar Council. Please visit www.perlembagaanku.com for more information and to download the Rakyat Guides and the Rakyat Service Advertisements. If you are interested in collaborating with us or to obtain hard copies of our Rakyat Guides, please drop us an email at perlembagaanku@gmail.com. Follow us also on www.facebook.com/MyConstitution, www.twitter.com/MyConsti and www.youtube.com/user/PerlembagaanKu