Constitutional and legislative restrictions on religious freedom

DAP’s Lim Kit Siang has a point that there should be a public clarification of a deputy minister’s claim that laws were being drafted to control non-Muslim religions.

But it does not need Prime Minister Ismail Sabri Yaakob to make the clarification. It should be the deputy minister himself – Deputy Minister in the Prime Minister’s Department (Religious Affairs)  Ahmad Marzuk Shaary.

It was his remarks about the proposed laws that have caused anxiety, including among the Malaysian Consultative Council on Buddhism, Christianity, Hinduism, Sikhism and Taoism.

And he should make it a priority to explain matters to Malaysians.

Religious freedom is a constitutional guarantee under Article 11 of the Federal Constitution. But it must be noted that while Article 11 provides for freedom of religion, it draws a sharp distinction between the profession and practice of religion, on the one hand, and its propagation on the other hand.

Article 11(1) says that every person “has the right to profess and practise his religion and, subject to Clause (4), to propagate it.”

Clause (4) reads as follows:

“State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.”

There are already laws in 10 states prohibiting propagation of religions other than Islam amongst Muslims.

For example, the State of Selangor Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment, 1988.

Only Penang, Sabah and Sarawak as well as the federal territories of Kuala Lumpur, Labuan and Putrajaya do not have such legislation.

Now, Clause (5) allows further legislative restrictions on religious freedom on the basis of maintaining public order, public health or morality. And these restrictions have applied to Muslims as well.

An example of this is the case of Halimatussaadiah v Public Service Commission (1992), in which the Supreme Court (now Federal Court) upheld a prohibition on a public servant wearing a veil that covered her face while on duty on the basis of public order.

The case can be contrasted with Meor Atiqulrahman v Fatimah binte Sihi (2000), in which the High Court overturned the dismissal from school of three Muslim boys for wearing a serban rather than a songkok as required by the school authorities, but no issue of public order or morality arose there.

The point here is that there are constitutional restrictions to religious freedom and they extend to Muslims as well as non-Muslims.

That is why Ahmad Marzuk has got to clarify what he meant when he stated earlier this week that the government plans to draft four new Shariah laws, including the Control and Restriction on the Propagation of Non-Muslim Religions Bill.

If it means a federal law in respect of the federal territories of Kuala Lumpur, Labuan and Putrajaya to “control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam”, then it is within the ambit of Article 11(4).

Now, according to Parti Bersatu Sabah president Maximus Ongkili, the party is saying no to the proposed legislation on Control and Restrictions on the Expansion of non-Islam Religions.

He said the party will hold firmly to the principle of religious freedom as declared in the Federal Constitution and the Malaysian Agreement 1963.

While Sabah may not have legislated a state law to control or restrict the propagation of non-Muslim doctrines or beliefs among Muslims, it has section 52A of the Syariah Criminal Offences Enactment 1995 which penalises a Muslim “who propagates religious doctrines or beliefs other than the religious doctrines or beliefs of the religion of Islam among persons professing the Islamic faith.”

The offence carries a penalty of a fine “not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.”

Constitutional and legislative provisions are designed to maintain a long-standing inter-religious balance and for maintaining public order, public health or morality [see Andrew Harding, Malaysia: Religious Pluralism and the Constitution in a Contested Polity (2012)].

These provisions are restrictions on religious freedom. They extend to Muslims and non-Muslims.

In short, every person. – September 10, 2021.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.

Sign up or sign in here to comment.