Article 11: Malaysia’s Freedom of Religion and its Limitations
Article 11(1) of Malaysia’s Federal Constitution guarantees the right of every person to profess and practise his or her religion, and subject to certain restrictions, to propagate it. The right extends to non-citizens of Malaysia (Maqsood Ahmad). Federal and state law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. No person shall be compelled to pay any tax the proceeds of which are specially allocated for the purposes of a religion other than his or her own. Every religious group has the right to manage its own religious affairs, establish and maintain institutions for religious or charitable purposes, and acquire and own property and hold and administer it according to law. The right to freedom of religion however does not authorise any act contrary to any general law relating to public order, public health or morality.
In practice, inroads have been made by legislation and judicial interpretations to limit the scope of the right. While Malaysia’s Constitution is said to be secular, certain personal laws applicable only to Muslims are governed by Syariah law and its courts (Che Omar Che Soh). A major part of the legal disputes have arisen out of the intersectionality between civil and Syariah laws.
To profess a religion means “to affirm, or declare one’s faith in or allegiance to (a religion, principle, God or Saint etc)” (Re Mohamed Said Nabi). A person has the right to choose his or her religion if it is done on his or her own free will (Re Susie Teoh). Unlike article 18 of the International Covenant on Civil and Political Rights, article 11(1) does not include constitutional protection for “thought” and “conscience”. Article 18 covers theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The forum internum of thought and conscience is broader than religion. It is unclear if article 11 may be read so widely.
For Muslims, the freedom to adopt a religion of choice is circumscribed. Renouncing and exiting Islam to embrace another religion is not part of professing a religion, and article 11 cannot be invoked in support (Daud Mamat). Muslims who intend to leave the religion have to follow the procedures of Syariah law and obtain permission from the Syariah courts (Soon Singh; Lina Joy). Apostasy is punishable as a crime in some states. Nevertheless, where one is not born a Muslim and is later converted by his or her parents to Islam, the civil court has the jurisdiction to recognise the individual’s choice of religion (Azmi Mohamad Azam @ Roneey). The civil court had also struck down the unilateral conversion of children into Islam by a spouse and the conversion documents issued by Islamic state authorities (Indira Gandhi a/p Mutho).
Only practices that are “integral parts” of a religion are protected by article 11(1). Government infringement of observances as to dress, food, ceremonies and modes of worship, if they form an integral part of a religion, are actionable. There was insufficient evidence whether wearing a serban (to school) formed an integral part of Islam (Fatimah Sihi). Public order considerations feature when it comes to religious practices which are non-essential in nature such as the wearing of a purdah (Hjh Halimatussaadiah Hj Kamaruddin). Something that is merely permitted in religion such as polygamy may be restricted by conditions (Zakaria Abdul Rahman).
The rationale for the control of propagation in article 11(4) is to “protect the religion of Islam from being exposed to the influences of the tenets, precepts and practices of other religions or even of certain schools of thoughts and opinions within the Islamic religion itself” (Mamat Daud). For example, the Ahmadis are not recognised as Muslims. They cannot manifest their beliefs by sharing religious teachings with other Muslims or congregating and praying with them. They are also not to be regulated by the states’ Islamic enforcement agencies (Maqsood Ahmad). The act of proselytising is part of the right to practice one’s religion under article 11. By itself, propagating a religion among Muslims is not regarded as a threat to national security justifying the use of preventive detention (Jamaluddin Othman). Yet, such propagation has been criminalised in most states punishable by fine and imprisonment. To protect the integrity of Islam, scholars are required to obtain a permit to preach to Muslims (Fathul Bari Mat Jahya).
There is a long road ahead for the right to freedom of religion in Malaysia to align itself with international human rights norms. Much will depend on the political will of the country’s leaders and the dictates of the people to determine the direction we wish to pursue.
* The law stated is as of 21 February 2021