The Ambiguity of Federal Constitution and Reluctance of Judiciary to Protect Religious Freedom of Minorities

The problem in Malaysia, however, is the ostensibly overzealous arbitrary approach by the Syariah courts and the reluctance of the civil courts to make a forceful stand to protect non-Muslim citizens.

P. Waytha Moorthy

Malaysia takes great pride in being a melting pot of different cultures, races and religions, co-existing under a secular sphere.

Nevertheless, the vibrant development of human rights awareness and advocacy throughout the past decade introduced an additional element into the dynamics of pluralism in the country. Human rights have become standard talking points even amongst those in the vanguard of cultural, political, and religious conservatism.

In Malaysia, race and religion are important, interconnected issues, that has been longstanding and of late continues to be a hot debate due to conflict between what is clearly stated in the Federal Constitution and how the laws of the nation are being promulgated. There is reluctance at least in the public domain—to openly debate these matters through the pretext of protecting multiethnic sensitivities.

However, several cases invoking the constitutional right to religious freedom have been brought to the public eye and caused considerable uproar in our nation. They include, but are not limited to, apostasy, religious conversions, custody and acceptance of non-mainstream religious doctrines. These cases raise pertinent questions about the boundaries of religious freedom for Muslims and non-Muslims alike, especially when pitted against considerations for religious rules, societal norms, and the grander idea of collective social responsibility and national stability that is embedded in the Federal Constitution.

Looking at the International level, the Universal Declaration of Human Rights (1948) (UDHR) and the International Covenant of Civil and Political Rights (1976) (ICCPR) represent two important documents that are intended to safeguard freedom of religion. According to Article 18 of the UDHR:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

Universal laws of human rights apply to all regardless of their religion, and nation/ states cannot deny the duties of humanity on the mere basis of religious differences.

The Malaysian constitutional framework enacted in 1957 came about after the UDHR therefore the intention of the provision in the UDHR would have been extensively considered by the drafters, more so being for a heterogeneous community.

To conceptualize freedom of religion in Malaysia, it is important to understand several provisions of the Constitution. First, although the Malaysian legal system is modeled after the Westminster system, it is often taken for granted that there is a written Constitution in place. The Constitution, according to Article 4, is the supreme law of the land. It is at the apex of the legal hierarchy, so any Acts of parliament to the contrary may be deemed unconstitutional.

The framers of the Federal constitution understood the secular state of the nation therefore created secular law and governance system but however made provisions for Islam to coexist bearing the treaties between the Malay rulers and the English masters to confine it as a personal law amongst the Muslimats of the country without infringing into the rights of non-Muslims.

Article 11 of the FC seeks to define and guarantee the constitutional right to freedom of religion of all individuals in a complex multiethnic and multireligious society such as us. Article 11 is also bolstered by other constitutional provisions.

First, to combat subversion, Article 149 permits the enactment of laws which 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 is also notable that freedom of religion is in no way affected by Article 3’s establishment of Islam as the religion of the Federation.

Further Article 3(4) states that nothing in Article 3 shall derogate from any other provision in the Constitution.

Despite such clear constitutional grounding for religious freedom in the Federal Constitution, the issues remain challenging especially for the non-Muslim community in Malaysia.

There are major salient issues affecting non-Muslims in our nation of late since the amendment to Article 121 of the Federal constitution since 1988.

The inclusion of the new clause (1A) into Article 121 states that: “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”

The above clause has initiated the reluctance of the civil courts to provide relief or remedies to the non- Muslim community which extends to marriage, child custody, guardianship, alimony, burial, inheritance, succession, purported apostasy etc.

In marriage life, a non-Muslim’s marriage is severed on the mere fact that the other spouse converts into Islam. Here one is totally deprived of one’s parental rights as well as one’s maintenance and alimony from the convertee because the Syariah Court has declared so as well as the non-Muslim’s ability to obtain any relief from the said court.

The only solution to recourse is through the civil courts and even this is shut down without any remedies as the judges are prone to act with a hands-off attitude while merely skirting with technicalities.

In custody and guardianship, although basic definition for defining custody and religion of the minor is governed under Article 12(4) of the Federal Constitution & Sec 5 Guardianship of Infant Act 1961 whereby consent of both parents is required, this has been totally hijacked by the reluctance of the civil courts to have a firm stand on the civil rights of the aggrieved non-Muslim party.

The argument of the singular ‘parent’ meaning does not hold water as the Interpretation Act 1948 & 1967 clearly indicates otherwise and further, the term ‘parent’ in Art 12 (4) must necessary mean both the father and mother. To construe otherwise would mean depriving, for example, a mother of her rights as a parent to choose the religion of her infant under Art 12 (4), if the father alone decides on the religion to be followed by the infant as this would invariably mean depriving the mother of her constitutional right under the Federal Constitution.

Further, the Interpretation Acts of 1948 and 1967 which generally apply to all Acts of Parliament states that words in the singular shall include the plural. Therefore the Constitution ought to be interpreted in like manner.

How and where does the Syariah court acquire such arbitrary power contrary to the FC to decide in divorce or custody matters where the non-Muslim party’s natural rights are denied when the civil court is unable or unwilling to provide any solution to the non-Muslim party even when the marriage came into force by way of the Law Reform (Marriage and Divorce) Act 1976.

Only the Civil High Court has the jurisdiction and powers to dissolve a marriage solemnized under the Act of 1976 and further, any obligation of the converting spouse to Islam is not vitiated in any way as provided in the provision of Section 51(2) of the Act of 1976.

In enacting section 51 of the of 1976 Act, the legislators must have had in mind to give protection to non-Muslim spouses and children of the marriage against a Muslim convert because it would result in grave injustice to non-Muslim spouses and children whose only remedy would be in the civil courts if the High Court no longer has jurisdiction since the Syariah Courts do not have jurisdiction over non-Muslims.

By not applying such lucid and clear laws, the civil court judges continue to abdicate their duties to uphold the non-Muslim’s constitutional rights to equality and freedom of religion as entrenched in our Constitution.

All aggrieved non-Muslims especially in legal tussles with converted Muslim partners exposes them to a legal lacunae on jurisdictional propriety where the Syariah law appears to have the upper hand to conveniently curtail constitutionally granted rights.

The civil courts, government and the lawmakers fail to heed that any state legislative lists of power such as the Syariah court are subordinate to fundamental rights of the Constitution. The continuous side-stepping by the civil courts in an area as important as the constitutional right to religious freedom renders the issue uncertain. It is also frustrating for citizens who resort to the highest court in the land to uphold their rights, only to see the judges shy away from their responsibility.

Amongst the political organs, there is a lack of consensus not only on what the doctrine means, but also whether it is tenable at all given continuous infringement of the non-Muslim community who are left without remedy.

It is worth emphasizing that the basic responsibility of a State is to safeguard and prevent encroachments on the freedom of religion for all citizens not just the Muslims. The problem in Malaysia, however, is the ostensibly overzealous arbitrary approach by the Syariah courts and the reluctance of the civil courts to make a forceful stand to protect non-Muslim citizens of their fundamental rights as embedded in the Federal Constitution.

Malaysia is represented by at least 45% of the population of other faiths besides Islam. The important question one needs to address is the line between maintaining social stability and securing individual rights of religious practice and freedom of religion. This needs to be reevaluated where the politicization of the Muslim rights over the non-Muslim citizens and fear mongering has had considerable effect in defining the parameters of the fundamental rights afforded to the citizen by the Constitution.

The restriction on rights and remedies of others due to more political insecurity by steamrolling personal law such as Syariah laws over the Federal Constitution cannot be tolerated if we are to uphold human rights and respect religious convictions.

Religious belief and human rights are complementary expression of similar ideas, although the former invokes duties rather than rights. The duties are of a personal nature and not an overriding status that affect other communities and their beliefs. The rights of the community such as those from different religious beliefs lie in the Federal Constitution and not in a superimposed position of the Syariah court where its assertion is grounded upon highly conservative and counter-progressive conceptions against the aggrieved non- Muslim in such cases as marriage, custody, inheritance, etc.

Religious issues in a plural society such as Malaysia must be open to debate by all sections of the community. Sensitivities can only be resolved through civilized deliberation and dialogue between races in which decisions must be reached in consensus and compromise.

While concerns of social stability are understandable, actions must be reasonable and not at the expense of basic human rights and dignity.

If there are genuine concerns about a pandemic of conversions and apostasy in a particular religion, then the root cause of the problem should be examined, and not by the simplistic solution of curtailing rights of others for political expedience such as that observed with the difficulty the non-Muslims face with blanket usurpation of power by the Syariah courts without any regards to the Federal Constitution.

The ultimate resolution lies in focusing on morality, which is grounded upon the notion of human dignity—that all human beings are born free and equal.

Below are the links to Chinese and Malay renditions:
1. 联邦宪法模棱两可条文存在   司法罔顾少数民族宗教自由
2. Kekaburan Perlembagaaan Persekutuan dan Keengganan Badan Kehakiman untuk Melindungi Kebebasan Beragama Minoriti