Shad Faruqi on Article 11

Shad Saleem Faruqi

Last week this column looked into the scope and extent of freedom of religion under the Constitution. It was pointed out that the Constitution shows special tenderness for this liberty. Malaysia's record of religious, racial and cultural tolerance is indeed exemplary.

This week we examine the legal and political constraints on this most fundamental freedom.

Non-mandatory practices

It has been held by the courts that freedom of religion extends only to those practices and rituals that are essential and mandatory. In Halimatussaadiah v PSC (1992), the issue was whether a female Muslim public servant could wear purdah to work. The apex court was of the view that the government was entitled, "in the interest of the public service", to forbid in the workplace a religious tradition that was non-essential and optional.

The same reasoning applied in Meor Atiqulrahman Ishak v Fatimah bte Sihi (2000) where Muslim schoolboys failed to get court endorsement of their demand to wear a serban to school.

The decisions in both cases were right. The reasoning was questionable.

In a country with a supreme Constitution, the scope of freedoms as well as the power to impose restraints must conform to the basic charter's provisions. In Article 11(5), religious liberty is subject to only three restraints Ð public order, public health and morality. Vague and general restraints in the discretion of the administration are a violation of the constitutional scheme.

The same result as in the above cases could have been achieved by relying on the often criticised but useful distinction between public and private law. Constitutional principles should apply only in the public sphere. They should not be extended to domestic, commercial and contractual dealings of "private law".

Thus, parent-child, husband-wife, club-member, and employer-employee relationships should be guided primarily by contractual terms and not by the lofty principles of public law.

Permissible restraints

Under Article 11(5), all religious conduct is subject to the power of Parliament to restrict it on the grounds of public order, public health and morality. Even if a speech, conduct, practice or institution is grounded in religious doctrine, if it threatens any of the above three forbidden grounds, it can be exterminated by a parliamentary law.

In the case of Muslims, additional restraints are possible. Schedule 9, List II, Item 1 grants power to State Assemblies to punish Muslims for "offences against the precepts of Islam": Kamariah bte Ali v Kelantan government (2000). This power is used frequently to punish a wide variety of unIslamic conduct like khalwat, zina, gambling, drinking, "beauty contests" and deviationist activities.

However, state power to legislate on Islamic criminal law is subject to a number of restrictions:

It is not applicable to non-Muslims but only to Muslims.

It is not applicable to matters included in the Federal List or dealt with by federal law. Thus, any conduct (like murder, theft, rape, unnatural sex) punishable by federal law cannot be the subject of state legislation.

State power to impose criminal sanctions is subject to the jurisdiction conferred by federal law. For example, the Syariah Courts Criminal Jurisdiction Act, 1965 limits the power of the states to impose sanctions to three years' jail, RM5,000 fine and six lashes.

State power to legislate on Islam cannot be exercised in derogation of constitutional provisions, especially the chapter on fundamental rights. This is due to the constitutional principle that the Legislative Lists in Schedule 9 cannot override the rest of the Constitution.

Propagation of religion to Muslims

Under Article 11(4) of the Federal Constitution, any preaching of religious doctrine to Muslims (whether by non-Muslims or unauthorised Muslims) can be regulated by state law.

Many non-Muslims complain that this amounts to unequal treatment under the law for other religions. Indeed, it does. But it must be remembered that Article 11(4) was part of the pre-Merdeka social contract between the Malays and the non-Malays.

The purpose of Article 11(4) is to insulate Malays against internationally funded and powerful proselytising forces that had become entrenched in the country due to official support from the colonial government.

There is the additional fact that some proselytising activities of evangelical groups like seeking death-bed conversions, generous grant of funds to potential converts, and indirect and subtle proselytising activities amongst minors have distinct implications for social harmony.

Prof Harding in his book Law, Government and the Constitution of Malaysia, 1996, p. 201 is of the view that Article 11(4) was inserted primarily because of public order considerations. His opinion is adequately backed. In India, vigorous, internationally-funded missionary activities have incited religious violence and generated grave political tensions.

To Harding's rationale may be added a unique ethnic and political factor. In the context of Malaysia, renunciation of Islam by a Malay would automatically mean abandoning the Malay community. This is because Islam is one of the defining features of a "Malay" in Article 160(2).

If conversion of Malay-Muslims to other religions becomes a significant phenomenon, that will have distinct political implications for the delicate racial balance between the Malay and non-Malay communities.

Religion of minors

Because of its implications for child-parent relationships, the court in the case of Teoh Eng Huat (1990) held that in matters of religion, a child below 18 must conform to the wishes of her parents.

Thus the conversion of a 17-year-old Buddhist girl to Islam without her parent's consent was of no effect.

This view is in conformity with international law. American courts, however, adopt a different approach. If, in the opinion of the court, a child has reached "the age of discretion" the fundamental right to religion is his unhindered. (To be continued.)


The writer is professor of law at UiTM, Shah Alam.