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Freedom of Religion: Legal Explanation

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“A Muslim in Malaysia is not only subjected to the general laws enacted by Parliament but also to the State laws of religious nature enacted by Legislature of a State. This is because the Federal Constitution allows the Legislature of a State to legislate and enact offenses against the precepts of Islam. Taking the Federal Constitution as a whole, it is clear that it was the intention of the framers of our Constitution to allow Muslims in this country to be also governed by Islamic personal law.” (Zi Publications Sdn Bhd & Anor v Kerajaan Negeri Selangor; Kerajaan Malaysia & Anor (Interveners) [2015])

Being a multi-racial country with citizens who hold various religious beliefs, the freedom of religion forms part of the fundamental rights enshrined under the Federal Constitution (FC). Article 11,1states that “every person has the right to profess and practice his religion”. However, there are two restrictions placed on the freedom of religion, firstly, the propagation of any religious doctrine or belief among persons professing the religion of Islam may be controlled or restricted by the individual states in Malaysia and secondly, the freedom to profess and practice ones religion must not result in any act contrary to any general law relating to public order, public health or morality.

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Nevertheless, the freedom of religion under Article 11 is bolstered by other constitutional provisions. First, to combat subversion, Article 149 permits the enactment of laws that would otherwise be inconsistent with selected fundamental rights such as freedom of speech or personal liberty. However, it does not permit any encroachments on religious freedom. Second, even if a state of emergency is declared, any emergency laws enacted thereafter cannot curtail freedom of religion. Third, Article 8 prohibits discrimination on the grounds of religion against public sector employees; in the acquisition or holding of property; and in any trade, business or profession.

It must also be noted that Islam is established as the religion of the Federation under Article 3 of the FCThis however does not affect the right of non-Muslims to practice and profess their own religion, as the wording of Article 3(4) states that nothing in Article 3 derogates from any other provision of the FC.

From 2015-2016, Suhakam received a total of 9 complaints about the issue of freedom of religion. Among the issues that were raised to the Commission included, the right of Sikh students to keep their facial hair as part of their religious beliefs; the freedom of Ahmadiyya Muslims and Shia Muslims to practices their beliefs; cases concerning the renouncing of Islam; and the unilateral conversion of minors into Islam.

About the courts in Malaysia, there is a dual system in place, whereby the civil and criminal courts have jurisdiction over most matters, while the Shariah courts adjudicate on a limited number of matters such as marriage, divorce, and inheritance.(Zi Publications Sdn Bhd & Anor v Kerajaan Negeri Selangor; Kerajaan Malaysia & Anor (Interveners) [2015])

In this case, Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor [2004] 6 CLJ when Faiza Tamby Chik J said that: “article 11 grants every person the freedom to profess and practice his religion. However in respect of an act of conversion out of Islam, the same must be subject to the relevant Syariah laws to be determined by Syariah courts. Freedom of religion under article 11 must be read together with article 3(1) which places Islam in a special position as the main and dominant religion of the Federation, with the Federation duty-bound to protect, defend and promote Islam”.

In this case, the learned judge dismissed her application to marry a Christian man, to change her name from Azlina Binti Jailani to Lina Joy, and to remove the word ‘Islam’ on her identity card. Her appeal to Federal Court also has been dismissed. (n,n.2009)

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