What is the state of freedom of religion in Malaysia?

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Freedom of religion in Malaysia is a delicate matter – that is no secret. And with the marriage of religion and politics, along with “human rights-ism”, this freedom is slowly eroding.

Law professor Dr Azmi Sharom at the forum on "Colloquium on Freedom of Religion".

In June, the Selangor Islamic Religious Council (Mais) and the Selangor Islamic Religious Department (Jais) refused to obey the Selangor state government’s order to return the Malay language Bibles that had earlier been seized from the Bible Society of Malaysia (BSM). The Mais chairman even decided that there was a legal case against BSM, contradicting the Attorney-General’s statement that there was none as the seized Bibles did not involve issues of national security.

So you have religious authorities vehemently disobeying and contradicting the state executive and the top federal legal advisor. This was only the latest of many instances over the years where legal, political and religious authorities have clashed over religious issues.

As always, there are political agendas behind such clashes. But the legal boundaries governing such matters are unclear to many. What does the Federal Constitution say about such matters? Law professor Dr Azmi Sharom provides some answers at the forum on "Colloquium on Freedom of Religion" in KL, which was jointly organised in May by the Penang Institute and the Islamic Renaissance Front.

A PAS supporter during GE13. In the 1980s, when the idea of religiosity playing a much bigger role in politics emerged, PAS became the primary threat to Umno.

On the marriage of religion and politics in Malaysia...

Azmi: The relationship between religion and politics has been around for the longest time, but it wasn't until the 1980s when this whole idea that religiosity had to play a much bigger role in politics emerged. That was the period when there was resurgence in a greater expression of one's faith in public, spurred by the 1979 Iranian Revolution. PAS became the primary threat to Umno.

Thus began the political game of “Anything Islamic you can do, I can do better.” This led to a greater amount of power being given to religious authorities like Jais, Jawi and Jakim.

This was not unusual in our context. In the early 20th century, there was a schism in Islamic thought in the country between the more conservative Kaum Tua and the progressive Kaum Muda. The Kaum Tua ultimately won partly because literacy wasn't high in those days, and partly because they associated themselves with the traditional feudal power – the sultans – in a mutually beneficial relationship.

This kind of relationship between the political masters and the religious authorities became stronger from the 1980s onwards. Religious authorities advocated certain ideas which any ruling power would enjoy – for example, obedience. This extended to the suppression of intellectualism in the name of protecting the faith.

Religious conservatism has grown in this country because we have never had a critical mass of Islamic intellectualism in our education system. In Indonesia, even the pesantren (religious schools) encourage students to question and debate points of view that are contrary to their own personal beliefs to ensure that they are strong enough to withstand trial. We do not have that here, and when you do not have that ability and space to question, it becomes very easy for any political power to retain control.

As the political masters find that it is good to have the religious authorities on their side, the latter's influence has increased over the years. Laws are becoming more awful. For example, the Islamic Family Law in the past was a lot better than it is today. Before, you had to prove necessity and justness to be allowed to marry a second wife. Now, you only have to prove either one.

Women’s rights take a backseat. Conservatism is becoming ever more powerful in our makeup. With it, religious liberty is suppressed.

On Prime Minister Datuk Seri Najib Tun Razak’s "Human Rights-ism" threat...

Under the Universal Declaration of Human Rights, the preamble declares that we deserve to live in a world where there is freedom of expression and belief, freedom from want and freedom from fear. What is so deviationist about those aspirations?

Religion is being used as a distraction from real political issues, and today’s situation in which religious liberty, political development and democracy are curtailed results from the close relationship between politicians and religious authorities. It is too late now for the government to do anything about it; they have associated themselves too closely with the religious authorities. To back down now would mean to be un-Islamic.

Prime Minister Najib Razak, who warns that Islam is being tested by an ideology which can be termed as "human rights-ism".

On the tools of persecution in the country...

The Printing Presses and Publications Act (PPPA) allows great control over what is published – particularly books – and on what grounds books can be banned. Any publication found to be prejudicial to public order – morality, security or whatever is likely to alarm public opinion – can be banned. It is extremely broad and can be used very freely and easily.

Recent amendments to the PPPA are hilarious. In the past, a newspaper had to renew its printing license annually. Now, they do not have to renew it every year because the government can revoke it at any time.

There is the Sedition Act. What is seditious is anything that promotes "feelings of ill-will between races and classes of Malaysian society". The act doesn't actually mention religion, but under the Constitution, a Malay is defined as a Muslim. So if you promote feelings of ill-will against Islam, then it could be viewed as promoting ill-will between races because Malays are Muslims.

Regarding the case against the late Karpal Singh, the Sedition Act actually says if you raise (feelings of ill-will) against the government or the rulers (the sultans) and if you're doing it for the purpose of pointing out that they're doing something incorrect, that is not sedition.

Karpal was of the opinion that the Sultan of Perak had done something wrong constitutionally. This fell under the exception in the Sedition Act, yet Karpal was found to be seditious.

Finally, there are the Syariah Criminal Offences Laws which differ from state to state, although you can find general themes across the board. For example, if you are spreading false doctrine or false worship, it can land you in jail, but it is the individual state Islamic departments that determine what is considered false doctrine. If they feel that your practice of Islam is somehow not to their liking, they can declare it as deviant.

On how these laws fit under the Federal Constitution...

Article 10 says that we all have freedom of expression except for when national security is concerned – it can be curtailed then. But how far can you curtail it, and on what grounds?

Article 11 says that everyone has freedom of religion. So if a Muslim chooses a particular route that he or she wants to take, then the freedom is there, guaranteed under Article 11. You should not be able to stop that.

Article 3 says that Islam is the religion of the federation, but all other religions can be peacefully practiced in the country. If the Christians want to use “Allah” in their prayers, Article 3 actually allows it, as long as they peacefully practice their faith. Then again, the judge in the Court of Appeal said that the word “Allah” is not actually part of a Christian’s faith; therefore the authorities can stop one from using it. But who is to say what an integral part of one’s faith is?

Likewise, under Article 11, you have no right to stop Shias or Ahmadiyyas from practicing their faith, but the authorities get powers to do so from the Syariah Criminal Offences Laws.

My argument is that Article 3 does not mean that Malaysia is an Islamic state; it is quite clear in the preparatory work for the Constitution that the Alliance leaders did not want Article 3 to mean that Malaysia is an Islamic state.

Palace of Justice at Putrajaya, which houses the Court of Appeal and Federal Court.

On the problem with the Federal Constitution...

The problematic line in the Constitution is in Schedule 9, which lays down the powers of law-making – where Parliament can make laws on such-andsuch topics, and state governments can make laws on a detailed list of Islamic matters such as marriage, divorce, property, inheritance, etc.

Then there’s one little line, which says they can also enforce Syariah Criminal Offences Laws for matters that "go against the precepts of Islam". But what does "precepts of Islam" mean? What if it is deemed against the precepts of Islam to disobey your leaders, and they make a law against people criticising Umno?

What then is the point of having a democracy?

On moving forward...

The answer is institutional change, the most important being the judiciary because it determines whether something is constitutional or not. It controls the limits with which an authority can act.

However, we increasingly see situations where it is obvious that something contravenes the Constitution, but judges refuse to uphold the ruling, such as in cases regarding freedom of religion. In the Lina Joy case, the Federal Court washed their hands of it, saying that it was a matter of procedure and not for them to decide. They did not deal with the fundamental question: is it her right to leave the religion? They passed it back to the Federal Syariah Court despite the fact that Federal Syariah Criminal Offences Laws do not have any provision for leaving of the religion.

Compare and contrast to 1988, when the Supreme Court made a landmark decision on the case of Jalaluddin Osman, who was born to a Muslim family but converted to Christianity and was subsequently detained under the ISA because he was supposedly a threat to national security. The court actually held that the government acted unconstitutionally because his right to choose his religion fell under Article 11 of the Constitution.

There is no easy answer. It is a matter of striving continuously, and what is important is we need to put forward the view that constitutional rights and human rights are actually in the interests of everybody. If they can suppress me now, they can suppress you tomorrow.

Danny Lim is a journalist and photographer devoted to sociopolitical issues, as well as a fixer for international media.



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