Religion

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Legal framework on freedom of religion and actual application

Under article 3(1) of the constitution “Islam is the religion of the Federation [of Malaysia] but other religions can be practised in peace and harmony throughout the Federation.”[1] Article 11 stipulates that “everyone has the right to profess and practise his religion”, but, at the same time, paragraph 4 of the same article declares that the laws of the states and the federal government “may control or limit the propagation of any religious doctrine or belief among people professing the religion of Islam”.[2]

Article 160 of the constitution defines a “Malay” as, among other criteria, “a person who professes the religion of Islam”.[3] Malays – who represent about 55 percent of the population –  are defined as distinct from ethnic minorities, who are mainly of Chinese and Indian origin. Members of these ethnic minorities – be they of Buddhist, Hindu, Christian or other religions – are in principle free to convert to Islam. By contrast conversion is forbidden to Malays (in the ethnic sense of the term) because, as they are supposedly Muslims, they cannot leave their religion as apostasy is a crime under the law.

In December 2014, a group of 25 Malay Muslims, including former Senior Civil Servants, signed an open letter stating that the country was “slowly sliding towards religious extremism and violence”. They expressed their deep concern at the rise of Islamic radicalism, a situation which, through political calculation, has been tolerated and even encouraged by the Government.[4] Since 2014 the situation has not improved.

Incidents

Muslims fall under the jurisdiction of Islamic courts (Shari‘a Courts) for all matters of personal law (i.e. marriage, divorce and inheritance rules). A constitutional provision stipulates that civil courts do not exercise jurisdiction over areas that fall within the jurisdiction of Shari‘a Courts.
This causes serious problems when judgments rendered by Islamic courts involve non-Muslims (in the case, for instance, of divorce between a Muslim and a non-Muslim). This can lead to non Muslims being sanctioned by an Islamic judge without any possibility of appeal against the judgment rendered.

In the period under review there has a been a significant development in this area of the law. The background is as follows. Two Hindu Malaysians – Pathmanathan and Indira Gandhi –were legally married in 1993. In April 2009, the husband, K. Pathmanathan, converted to Islam under the name Muhammad Riduan Abdullah, kidnapped his three children (then aged 11 months, 11 and 12 years old) from the marital home, and converted them too to Islam. In March 2010, a civil court granted custody of the children to their mother, but the father refused to obey, claiming that an Islamic court had already given him custody of the children. In July 2013, his now ex wife, Indira Gandhi, obtained a judgment from the High Court of Ipoh. The judges declared as unconstitutional the act of forcing a minor to convert to another religion without the consent of both parents.

However, on 30th December 2015, the Putrajaya Court of Appeal took a different view. It ruled that the eldest child, who is now an adult, could autonomously decide her religious affiliation. However, it also ruled that in the cases of the two children who are still minors “the determination of the validity of [their] conversion to the Muslim faith was strictly a religious matter and, therefore, was exclusively within the jurisdiction of the Islamic Court.”

Unexpectedly, the judgement of December 2015 was overruled by a decision of the High Court of Justice on 29th January 2018. The judges ruled that unilateral conversions, that is to say the change of religious affiliation of a minor child by only one of the parents, were illegal.[5] In doing so, for the first time, the judges broke the jurisprudence putting the Islamic courts at the same level, or even higher, than the civil courts.

Another case highlighted an additional contentious point pertaining to relations between religious communities. While a non-Muslim can convert to Islam, a Muslim cannot leave his religion. This prohibition has provoked a certain number of legal controversies, and, here again, the issue was the pre-eminence or not of civil law over religious law.

On 24th March 2016, the Sarawak State High Court allowed Roneey Rebit, 41, to renounce Islam, the faith he had adopted aged 10. This took place without him having to go through an Islamic court.

Judge Yew Jen Kie who ruled in this case relied on Article 11 of the constitution to render her verdict. She considered that Rebit had followed the wishes of his parents at the time of his conversion and, therefore, could not be considered as a person professing Islam, especially since in 1999 he had been baptised in the Christian faith and had thus freely chosen his religion. As a result, his case did not fall within the jurisdiction of a Shari‘a court because he could not be considered a Muslim.

The judge requested that a letter of renunciation of the Muslim faith be handed to her by the Islamic Affairs Office of the State of Sarawak and that his name and religious affiliation be changed at the Civil Status Office of Malaysia.

For those who support religious freedom in Malaysia, this judgment is a great victory. Howe- ver, related clarifications of the law have been less forthcoming. For instance, Sarawak State Minister-President Abang Johari Openg said on 3rd March 2018 that his government needed an additional six months to study the blind spots in religious legislation before considering an amendment of state law on the subject.[6] Sarawak has the peculiarity of being the only state within the Federation of Malaysia to have a majority of Christians (44.2 percent Christians and 30.2 percent Muslims, according to the latest, 2010 census,).

There have been sporadic acts of violence against individuals of various religions.

On 13th February 2017, a Protestant pastor was abducted in broad daylight in the City of Petaling Jaya. No ransom demand was communicated to the family and there has been no sign of the pastor since.[7] Commentators have drawn attention to the fact that he was accused in 2011 of proselytizing by the Islamic Affairs Office of the State of Selangor (JAIS), but his relatives say that he was only engaged in charitable actions led by his Church Harapan Komuniti (‘Hope Community’).

In November 2016, Joshua Hilmi and his wife, Ruth Sitepu, disappeared. Mr Hilmi converted from Islam to Christianity and became a Protestant pastor. In the same month, the Shia Muslim Amri Che Mat, was also abducted.[8]

Prospects for freedom of religion

The ruling party is in crisis, there are serious corruption charges against the Prime Minister, and the Malaysian economy is showing signs of weakness. For those reasons, the times are uncertain. The recent judgements which have a bearing on religious liberty will only really bear fruit if they are reflected in wider legislative changes.

Endnotes / Sources

[1] Malaysia’s Constitution of 1957 with Amendments through 2007, constituteproject.org,  https://www.constituteproject.org/constitution/Malaysia_2007.pdf?lang=en, (accessed 15th March 2018).

[2] Ibid.

[3] Ibid.

[4] Mong Palatino, ‘Malaysia’s Moderate Voices Urge Islamic Law Reform’, The Diplomat, 25th December 2014, http://thediplomat.com/2014/12/malaysias-moderate-voices-urge-reform-in islamic-laws/, (accessed 15th March 2018).

[5] ‘When conversion leads to abduction in Malaysia’, Ucanews, 2nd February 2018, https://www.ucanews.com/news/when-conversion-leads-to-abducton-in-malaysia/81395, (accessed 15th March 2018).

[6] Trinna Leong, ‘Sarawak could allow converts to renounce Islam’, The Straits Times, 5th March 2018, http://www.straitstimes.com/asia/se-asia/sarawak-could-allow-converts-to renounce-islam, (accessed 15th March 2018).

[7] Hadi Azmi, ‘Suspect Charged in Pastor’s Kidnapping: Malaysian Police’, BenarNews, 16th January 2018, https:// www.benarnews.org/english/news/malaysian/missing-pastor 01162018180751.html, (accessed 15th March 2018).

[8] Vincent Bevins, ‘Christian preachers’ disappearance in Malaysia stokes fears of crackdown on religious minorities’, The Guardian, 6th June 2017, https://www.theguardian.com/world/2017/jun/07/christian-preachers-disappearance-in malaysia-stokes-fears-of-crackdown-on-religious-minorities, (accessed 26th March 2018).

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