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Religious Liberty

Title: Qualified Religious Freedom ? a Report
Description: Berita NECF March-April 2004 Issue
        Author: ES (Research)

It is said that the United States of America is the foremost example based on the protection of religious and political liberty afforded by its Constitution. Nevertheless, its historical development and happenings evidently indicate many limitations in granting freedom to religious practices. Moreover, the International Report of Religious Freedom 2003 draws our attention to the tendency in some nations to give the authorities the power to define what are the acceptable forms of religion.

 

Clearly, the religious freedom in many countries including Malaysia is not an absolute one. While Article 11 of the Malaysian Federal Constitution grants every person, citizens or non-citizens, in Malaysia, the freedom to profess, practice and propagate his religion, other Constitutional provisions must be taken into serious consideration in the interpretation of such liberty. In addition, the pluralistic nature of this nation creates greater sensitivity with respect to the scope of religious liberty.

 

The freedom of profession, practice and propagation is subject to general laws that seek to maintain public order, public health or morality (Article 11(5)). For example, the Section 298 of Penal Code reads: "Whoever, with deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or place any object in the sight of that person, shall be punished with imprisonment for a term which may extend to one year, or with fine or with both." The rationale here is to preserve public welfare and is therefore constitutionally justifiable. In other words, the State or Federal Territory laws may not restrict the right of profession, practice and propagation except it is done in any manner or method of propagation that causes public disorder.

 

The Constitution also permits state law (or Federal law in Federal Territories) to "control and restrict the propagation of any religious doctrine" among Muslims (Article 11(4)). By the virtue of Clause (4), attempts have been made by certain State Legislative Assemblies to restrain activities of proselytising to Muslims. Several states except the Federal Territories, Sabah, Sarawak, Perlis and Pahang have adopted the Control and Restriction Bill.

 

For example, Section 4 of the bill states: "Persuading, influencing or inciting a Muslim to leave Islam or to embrace another religion is liable to a fine of RM10,000 or to imprisonment for one year or to both." The same punishment is applicable in Section 5 which covers those who cause "a minor Muslim (under the age of 18 years) to be instructed in or to participate in the rites of non-Islamic religion (the offence can be committed by a body or institution)."

 

Other sections of interests are:

     

  • Sec 6: Approaching or contacting a Muslim for the purpose of subjecting him to any speech or display of material concerning a non-Islamic religion (approach can be by any means of communication including telephone)

     

       

    • Sanction: Fine of RM5,000 or to imprisonment for 6 months or to both.

       

    • Sec 7: Sending or delivering to a Muslim any unsolicited publication concerning a non-Islamic religion.

       

         

      • Sanction: Fine of RM3,000 or to imprisonment for 3 months or to both.

         

         

      • (Unrequested advertisement of publication would also be included in the above and under s.7(2), there is a deeming provision that a publication sent or delivered to or at the address of a person shall be held as delivered to that person)

         

      • Sec 8: Distributing in a public place any publication concerning a non-Islamic religion to a Muslim.

         

           

        • Sanction: Fine of RM1,000.

           

        • Offence relating to the use of certain words and expressions of Islamic origin. The four terms that are prohibited in any Christian publications are: Allah, Baitullah, Kaabah, and Solat.

           

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The former Chief Justice of the Supreme Court, Tun Haji Mohd. Salleh bin Abbas, once remarked that such limitation was "logical as it is a necessary consequence of the fact that Islam is the religion of the Federation...to protect Muslims from being exposed to heretical religious doctrines, be they of Islamic or non-Islamic origin and irrespective of whether the propagators are Muslims or non-Muslims." (The Constitution of Malaysia: Further Perspectives and Development by F. A. Trindade & H. P. Lee)

Obviously, the issue of religion and freedom of religion is extremely sensitive in Malaysia. Most people would agree that limitations on freedom of religion or belief are necessary for the public order and welfare, a question may be asked whether these are imposed by law in a non-discriminatory manner.

While freedom of religion is guaranteed in article 11 of the Federal Constitution, article 3 states that Islam is the official religion of Malaysia. This raises another question: should priority be given to Islam as the dominant religion in Malaysia, or to the freedom to choose one's religion, including the right to convert?

 

Reference:

Lee Min Choon. Freedom of Religion in Malaysia. Kuala Lumpur: Kairos Research Ctr., 1999

Philip Koh Tong Ngee. Freedom of Religion in Malaysia – the Legal Dimension. Petaling Jaya, SEL: Graduates Christian Fellowship, 1987.



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