Case Study on the Ahmadis’ Religious Status: Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors

The Ahmadiyya community is a religious minority group here, and in every country they live in. They have been subjected to state-sanctioned persecution for their beliefs. At times, some of the persecution has been systematic. There are approximately 5000 Ahmadis in Malaysia, although the exact number is uncertain. While they consider themselves Muslims, they are branded as infidels and forbidden from holding themselves out as Muslims. Further, they cannot share and disseminate their beliefs. In Abdul Rahim Bahaudin, a self-professed Ahmadi was arrested and prosecuted in the Syariah court for distributing religious pamphlets regarding the Ahmadiyya sect. He filed an action to prohibit the Syariah court from trying him because a 1972 Kedah state fatwa (religious edict) had declared the Ahmadis “apostates”. The Kedah Muslim Religious Council confirmed that “a follower of the Ahmadhi sect is not a Muslim”. The civil High Court held that because the applicant was not a Muslim, Islamic law did not apply to him, and therefore, the Syariah courts had no jurisdiction over him: “This means that non-Muslims, (and the Applicant is a non-Muslim as declared by the Majlis itself), are outside the jurisdiction of the Majlis and its Syariah Courts”. A prohibition order was granted, stopping the Syariah court from hearing the case.

Abdul Rahim Bahaudin was decided in 1983. In spite of the decision, the religious authorities continue to police the Ahmadiyya community using Syariah laws. Whether intentionally or otherwise, the Ahmadis are repeatedly treated as Muslims and liable to penal sanctions under Malaysia’s Islamic criminal justice system. They are targeted for their beliefs and practices which are deemed to be “un-Islamic”. They have been arrested and detained on numerous occasions, and their places of worship and homes raided. They are called out as infidels and accused of spreading blasphemy. The plight of the Ahmadis is evidenced in the Maqsood Ahmad litigation.

In April 2014, officers from the Selangor Islamic Religious Department (also known as “Jabatan Agama Islam Selangor” or JAIS) raided the Ahmadiyya Muslim Jama’at’s community centre in Batu Caves arresting 36 adults and three children. Some of them were foreign nationals. They were then performing Friday prayers. JAIS alleged that they did not have permission to use the premises to worship. Such activity can only be done in a mosque. Section 97 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (ARIE) was invoked. No person shall, without the written permission of the Selangor Islamic Religious Council (also known as “Majlis Agama Islam Selangor” or MAIS), use “any building for purposes which may only be carried on in or by a mosque”. On conviction, one may be sentenced to prison for up to one year or fined up to RM3000, or both. Pending their prosecution in the Syariah court for the offence, JAIS released the 39 on bail.

Maqsood Ahmad and 38 others filed judicial review proceedings in the civil High Court. They sought, among others, a declaration that JAIS had no jurisdiction over them and an order prohibiting the authorities from pursuing further investigations and the prosecution. The applicants asserted that they are not subject to Syariah law because they were declared “apostates” according to two religious edicts in 1998 and 1999. They are categorised as non-Muslims and do not have any of the rights and privileges of Muslims, such as those relating to marriage and inheritance.

The High Court decided on two legal issues. The first question was whether the Selangor State legislature could regulate mosques or any Islamic places of worship and create offences related thereto (such as section 97). The judge held that it could. He said this:

[30] Applying the above principles of constitutional interpretation, I find that in pith and substance, s 97(2) of the ARIE is related to the regulation of mosques, ie places used by Muslims for Friday prayers and other prayers and activities which are enjoined, required, recommended, or approved by religion of Islam. And of course the obligatory prayers are one of the five pillars of Islam. Hence, I find that the offence created by s 97(2), ie the contravention of the restriction on establishment of mosques in Selangor without the prior written permission of the Majlis Agama Islam Selangor, is in substance an offence that is against the ‘precepts of Islam’, for worship or prayers is a fundamental tenet of the religion, and the regulating of places of worship is necessary for the purpose of ensuring, preserving and/or promoting right beliefs, right attitudes, right actions and right conduct amongst the followers of Islam.

On the second question of whether the Syariah courts have jurisdiction over the Ahmadis, the judge answered it in the negative. He traced the history leading to the excommunication of the Ahmadiyya community from Islam in Malaysia. After a hearing before His Royal Highness the Sultan of Selangor in 1953, it was determined that the Ahmadis were not Muslims. Following their exclusion, state land was reserved as their burial grounds, separate from Muslim burial grounds. The 1998 and 1999 religious edicts subsequently reinforced the status of the Ahmadis as non-Muslims. The High Court in Maqsood Ahmad, therefore, held that the Ahmadis are “to be treated as a distinct religious group equally entitled to the rights under art 11 of the Federal Constitution, as all other religious groups in Malaysia eg those related to Buddhism, Christianity, Hinduism, Sikhism or Taoism”. As such, Syariah law does not apply to them, and the Syariah court has no jurisdiction over them. JAIS acted in excess of its jurisdiction when it raided the premises and arrested the 39.

The High Court decision was appealed. The Court of Appeal allowed the appeal in part. It agreed with the High Court that section 97 is valid, and the Syariah courts do not have jurisdiction over members of the Ahmadiyya. However, the appeal court held that there was insufficient proof showing that Maqsood Ahmad and the 38 others were Ahmadis on a question of evidence. Their identification papers were not conclusive of their religious identities. The term “Islam” on their national identification cards and passports does not differentiate between one born and raised as a Muslim from one who is Ahmadiyya by original faith. Should the former “change his religion from Islam to Ahmadiyya, just as if he were to attempt to renounce Islam for any other faith, he cannot do so unless by order of the Syariah Court”. For the Ahmadi born into the faith, no such permission of the Syariah court is needed. The High Court was wrong to assume that all the applicants were Ahmadis by birth when JAIS stated that it could not conclude whether the applicants were Ahmadiyya followers or not. A further judicial investigation by the High Court was necessary to determine whether the applicants were Ahmadis by birth or otherwise. The case was then remitted to the High Court to conduct the exercise.

While the Ahmadiyya community self-identifies as “Muslim”, they are not recognised as such by the authorities because of the edicts. At the same time, Malaysia has yet to grant the Ahmadis a separate religious category of their own. As documented in Maqsood Ahmad, the ensuing confusion is palpable. Save for the adherent’s profession of religion and a deep examination of the evidence, no one else can tell an Ahmadi from a Muslim. The Court of Appeal’s parting comments recommending measures to end the conundrum currently besetting the Ahmadis are apt:

[199] This judgment addresses a specific case unique to the facts and the two fatwas which are valid and binding in Selangor. Perhaps it is timely that all the States in Malaysia, along with the federal government work out a unified regime as well as a proper mechanism to determine the religious status of the Ahmadiyya so that they are not perpetually put at risk of Syariah investigation and prosecution. Clarity in the religious status of an Ahmadiyya would go a long way towards preventing similar occurrences in the future.

[200] The proposals for reforms we call for, in our considered view, are necessary if we are to protect and preserve the right to freedom of religion in art 11(1) of the Federal Constitution with due regard to art 11(4) and (5) – a right which the Ahmadiyya are no less entitled to along with the adherents of other religious faiths in Malaysia.

Unfortunately, the basic right to religious self-identification housed in article 11 of the Constitution is illusory for the Ahmadis. They are unable to assert their right to be known and treated as “persons professing the religion of Islam” and as “Muslims”. Both the High Court and the Court of Appeal had little choice but to follow the legally binding edicts, thus perpetuating the Ahmadis’ exclusion from the mainstream of Islam. Ironically, Syariah laws do not govern them but at the cost of bearing the “apostate” label. Neither recognised as Muslims nor able to avoid the over-zealous (but misplaced) application of Islamic law by the authorities; they are additionally caught in the crosshairs of evidence to prove their belief. The Ahmadis bear the burden of establishing their identity as believers before seeking refuge under article 11. Spiritually, they regard themselves as Muslims, but legally, they must show why they are not.

* The law stated is as of 12 July 2021