Status of religious freedom in Malaysia
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The status of religious freedom in Malaysia is a controversial issue. Islam is the official state religion and the Constitution of Malaysia provides for freedom of religion. However, questions including whether Malays can convert from Islam and whether Malaysia is an Islamic state or secular state remains unresolved.
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Religious demography
Malaysia has a population of just over 23 million. According to government census figures, in 2000 approximately 60.4 percent of the population were Muslim; 19.2 percent practices Buddhism; 9.1 percent Christianity; 6.3 percent Hinduism; and 2.6 percent Confucianism, Taoism, and other traditional Chinese religions. The remaining percentages were accounted for by other faiths, including animism, Sikhism and the Bahá'í Faith. However, this figure may be misleading as all Malays (the majority race of the country) are required to be Muslim as defined by the Malaysian Constitution.
Non-Muslims are concentrated in major urban centers.
Scope of Islamic law in Malaysia
The nation maintains two parallel justice systems in the country (see: Courts of Malaysia). One is the secular justice system based upon laws gazetted by Parliament. The other is sharia (syaria, Islamic law). Ostensibly syariah courts only have jurisdiction over persons who declare themselves to be Muslims. Consequently, this results in non-Muslims not having legal standing in syariah courts.
Where decisions of the syariah court affect a non-Muslim, he or she can seek recourse in the secular courts who, in theory, overrule the syariah courts as the Syariah courts are limited in their jurisdiction by Article 121 of the Federal constitution. In 2006 a judge ruled that Article 121 limited the federal courts from ruling on matters ruled on by the Syariah court. This was seen as a misinterpretation of the article and the case is under appeal in the court of appeals.
The rules of sharia are set by the various sultans of the states. Historically a sultan had absolute authority over the state. Prior to independence, Tunku Abdul Rahman managed to convince the sultans to cede some states' powers to the federal government. One of the terms of this agreement is that the sultans still are the ultimate authority of Islamic law in their respective states.
Constitutionally, one of the four tests for being Malay in Malaysia is that one must be a Muslim. Therefore, all Malays are regarded to fall under Islamic law. The rationale for this is that Islam is considered intrinsic to Malay ethnic identity.
On September 29, 2001, the then Prime Minister, Tun Dr. Mahathir bin Mohamad declared that the country was an Islamic state (negara Islam). The opposition leader at the time, Lim Kit Siang, is actively seeking support to declare Mahathir's move as unconstitutional by repeatedly clarifying that Malaysia is a secular state with Islam as its official religion as enshrined in the Constitution. However, the coalition government headed by Mahathir at the time held more than two-thirds of the seats in parliament. A two-thirds majority vote in parliament is required for constitutional amendments in Malaysia.
Status of religious freedom
Government in general supports Islamic religious establishment and it is the official policy to "infuse Islamic values" into the administration of the country.
In May 2001, the government decided not to approve the Falun Gong Preparatory Committee’s application to register as a legal organization. This action is believed to be more related to the governments wish to improve relations with China rather than an attempt to undermine the Falun Gong in favour of Islam. The government has not prevented Falun Gong members from carrying out their activities in public.
For Muslim children, religious education according to a government-approved curriculum is compulsory in public schools. There are no restrictions on homeschooling, although primary school is compulsory. However, private schools and colleges do have some legal requirements.
Several religious holidays are recognized as official holidays, including Hari Raya Puasa (Muslim), Hari Raya Korban (Muslim), the Prophet's birthday (Muslim), Wesak Day (Buddhist), Deepavali (Hindu), Christmas (Christian), and, in Sabah and Sarawak, Good Friday (Christian).
Inter-faith efforts in Malaysia
Image:Descrimination against the shia.jpg In April 2002, the Human Rights Commission (Suhakam) initiated an interfaith dialog aimed at promoting better understanding and respect among the country's different religious groups. Participants included representatives from the Malaysian Islamic Development Department, the Malaysian Ulama Association, and the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS).
In early 2005, much debate was stirred up by a proposed Inter-Faith Commission put forward by various individuals some of which included academics and lawyers from the Bar Council.
The steering committee behind the proposal for a draft bill for the commission organised a national conference that saw about 200+ people from all religious backgrounds attending it. There they hashed out the framework for a commission that could advise the relevant parties on the many inter-faith issues that arise in pluralistic Malaysia - such as conversion from Islam to another faith, which is deemed as apostacy in Malaysia.
However, mainstream Islamic groups in Malaysia boycotted the event by saying that the commission would undermine the religion. They also misunderstood the purpose of the commission. The commission had it come to fruition was only to advise on such matters (because currently people have nowhere to turn to for advice), and not to enforce.
After much fan-fare in the local newspapers, the draft bill was put on hold by Prime Minister Abdullah Ahmad Badawi in view of the controversy surrounding it.
Conversion to Islam
Voluntary conversion of minors
Conversion to other faiths is allowed in Malaysia once one has reached an age of majority. A minor may not convert to another faith without explicit permission of his or her guardian as described in the Guardianship of Infants Act(1961) and the Federal Constitution (Articles 11 (1) and 12 (3) and (4)).
This case was tested by Teoh Eng Huat v Kadhi of Pasir Mas Kelantan 1986. Teoh Eng Huat's daughter was a ward of the state. She was married off to a Muslim. Hence then a minor, converted to Islam. The high court ruled that the father's right to decide the religion and upbringing of the infant is allowed "subject to the condition that it does not conflict with the principles of the infant's choice of religion guaranteed to her under the Federal Constitution". Through the proceedings, Susie Teoh never appeared in court to testify to willingness.
The decision was overruled on appeal to the Supreme Court, who held "in all the circumstances and in the wider interests of the nation no infant shall have the automatic right to receive instruction relating to any other religion other than (her) own without the permission of the parent or guardian".
The Supreme Court further held that this was "only of academic interest" as Susie Teoh was no longer a minor at the time of hearing.
In response several states (Islamic laws are passed by individual states) passed laws providing for conversion by 15 (defined as "baligh" in Islam or the age of majority). Federal law still provides for the age of majority as 18.
Forcible conversion of minors due to conversion of one parent
The state of Selangor passed a legal amendment in 1989 that if an adult converts to Islam, any infant children become converted at the same moment. This amendment was quietly removed by its non-inclusion in future amendments of the state bill.
Conversion of minor by one parent
In the case of Chang Ah Mee v Jbt. Hal Ehwal Agama Islam (2003) heard in the Sabah High Court. The father converted to Islam and converted the child to Islam without consent or knowledge of the mother, Chang Ah Mee, on July 28, 1998. The mother gained custody of the child on Nov 13, 1998 and subsequently sued to declare the conversion void.
The court determined that as a state court, it had jurisdiction over all state matters even those concerning Islam. Further, based upon the Federal Constitution (article 12), The Guardianship of Infants Ordinance (Sabah) 1999, The Law Reform (Marriage and Divorce) Act, 1976 and The Administration of Islamic Law Enactment 1992 (Sabah) determined the conversion of a two year old child to be void.
In 2003, this issue became prominent again in the case of Shamala Sathiyaseelan v Dr. Jeyaganesh C. Mogarajah.
In the first hearing before the High Court, Shamala Sathiyaseelan sought (1) to bring committal proceedings against the father of the infants for breach of the interim custody order of the High Court of April 17, 2003, and (2) to declare that she was not bound by any decisions, order or proceedings of the syariah court.
Earlier the High Court had granted custody to Shamala Sathiyaseelan with access for the father. He failed to return the children to her on May 25, 2003.
Shamala and Jeyaganesh were married under Hindu rites registered under the jurisdiction of the Law Reform Act. The husband converted to Islam on Nov 19, 2002. On Nov 25, 2002 he converted the children without the mother's knowledge or consent. They were still not divorced at the time.
Without knowledge of Shamala he then obtained a custody order in the syariah court on Jan. 30, 2003.
The High Court ruled that the custody order issued by the syariah court "did not change the interim civil court order". They ruled that the syariah court order "is not binding on the plaintiff wife who is non-Muslim". The interim custody order of the High Court and proceedings were binding on the now Muslim husband as matters arising out of the Hindu marriage registered under the Law Reform Act. As his Hindu wife did not file for divorce, she remains "his unconverted wife" under this law.
On April 13, 2004 Shamala once again went to the high court. This time to seek an order that the conversion of the infants was void. As in Chang Ah Mee, she cited the Federal Constitution (Article 12), the Guardianship of Infants Act 1961 and the Administration of Islamic Law (Federal Territories) Act, 1993.
The Guardianship of Infants Act for the Federal Territories differed from that of Sabah in one aspect as it used the term "parent or guardian" and not "both parents or a guardian" as in AMLE Sabah.
In this case the High Court ruled that only the consent of one parent is required in the conversion to Islam of a person below 18 in the Federal Territories.
Article 12(4) of the Federal Constitution reads "For the purposes of cl. (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian."
The High Court interpreted the term parent to mean father. The equality of rights granted to both parents under the Guardianship of Infants Act, 1961 was held inapplicable on the Muslim father.
In its judgement the High Court held the fatwa or the Mufti of the Federal Territory as persuasive (legal term). The Mufti stated that the father had the right to unilaterally convert the infants to Islam. No Fiqh (Qu'ranic or Sunnah basis) was cited in his opinion.
Shamala once again went to the high court on July 20, 2004 to apply inter alia for custody, care and control of the infants. The court awarded it with access for the father. In its judgement, it stated that "the right of religious practice of the two infant children shall be exercised equally by both parents" based on the Guardianship of Infants Act 1961. This was in spite of the earlier ruling that this act does not apply to Jeyaganesh who was now a Muslim.
The court also held that the applicable law at the time of conversion was civil law. It even ruled that the infants were "still Hindus at the time of conversion" and that the father should have consulted the mother before converting the infants.
However the court explicitly cautioned the mother from "influencing the infants' religious belief by teaching them her articles of faith or by making them eat pork" or she would risk losing her children. The rationale given was that the court "cannot run away from the fact that the two infant children are now muallaf" (converts to Islam).
As the case has gained prominence various religious organizations, human rights organizations and women's issues organizations have registered watching briefs. En. Haris Bin Mohamed Ibrahim has registered a watching brief on behalf of the Women's Aid Organisation, (WAO), All Women's Action Society (AWAM), Women's Center for Change, Penang (WCC) and Sisters In Islam (SIS). A. Kanesalingam, held watching brief for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS). Amnesty International, Human Rights Watch and the Bar Council are also holding watching briefs for this case.
The various organizations holding watching brief in this case now call themselves loosely Article 11 after the article of the Federal Constitution guaranteeing freedom of religion.
Conversion from Islam
Muslims who wish to convert from Islam face severe obstacles. For Muslims, particularly ethnic Malays, the right to leave the Islamic faith and adhere to another religion is a controversial question, and in practice it is very difficult for Muslims to change religions. The legal process of conversion is unclear; in practice it is very difficult for Muslims to change their religion legally.
In 1999 the High Court ruled that secular courts have no jurisdiction to hear applications by Muslims to change religions. According to the ruling, the religious conversion of Muslims lies solely within the jurisdiction of Islamic courts.
The issue of Muslim apostasy is very sensitive. In 1998 after a controversial incident of attempted conversion, the Government stated that apostates (i.e., Muslims who wish to leave or have left Islam for another religion) would not face government punishment so long as they did not defame Islam after their conversion. However, whether the very act of conversion was an "insult to Islam" was not clarified at the time. The Government opposes what it considers deviant interpretations of Islam, maintaining that the "deviant" groups’ extreme views endanger national security. In 2005 international media attention focused on the Sky Kingdom sect whose founder Ayah Pin claimed to be God, and whose members - mostly Malays - were accordingly charged with religious "deviancy" and "humiliating Islam."
In the past, the Government imposed restrictions on certain Islamic groups, primarily the small number of Shi'a. The Government continues to monitor the activities of the Shi'a minority.
In April 2000, the state of Perlis passed a Shari’a law subjecting Islamic "deviants" and apostates to 1 year of "rehabilitation" (under the Constitution, religion, including Shari’a law, is a state matter). Leaders of the opposition Islamic party, PAS, have stated that the penalty for apostasy should be death.
Loss of right to marry
Azlina Jailani was a Muslim who converted to Christianity adopting the name Lina Joy. She was denied the right to register her marriage with the Registrar of Marriages. She is currently going through the secular courts to seek a declaration that she is free to practise the faith of her choice, and have the word 'Islam' dropped from her identity card. Her legal case is based on the freedom of religion clause in the constitution.
Torture by police
Joshua Jamaluddin was incarcerated under the ISA for converting to Christianity. He later detailed his torture during his incarceration. Now he is an activist for allowing greater religious freedom in Malaysia.
Illegal imprisonment by family members
Aishah was captured and imprisoned by her own family members for wanting to convert before marrying her boyfriend(This fact is still doubted and maybe wrong). Eventually she escaped and has since left the country.
Loss of right to work
Hilmi Mohd. Noor in his book "Circumcised Heart" describes his experiences during his detention resulting from religious persecution by the Malaysian authorities. Concurrently, there was lobbying by some Muslims in his company to get his job terminated.
Christian proselytization
Proselytizing of Muslims by members of other religions is not technically prohibited by federal law. It is however prohibited in most states and can lead to lengthy jail sentences and many strokes of the rotan (whipping). Most Christian and a few other religious groups in Malaysia put a standard disclaimer on literature and advertisements stating "For non-Muslims only".
In 2002 the government banned the Bible in Malay (Al Kitab) and in Iban (bap Kudus). Other materials such as books or tapes translated into Bahasa Melayu (local Malay) or Bahasa Indonesia (Indonesian Malay) are also discouraged. However, Malay-language Christian materials are available. Some states have laws that prohibit the use of Malay-language religious terms such as usage of the term "Allah" for God by Christians, but the authorities do not enforce them actively. The distribution of Malay-language Christian materials faced few restrictions in East Malaysia prior to the banning of the Bup Kudus. The Kudus uses the term "Allah Taala" for God. The ban has since been rescinded. The then Home Minister Abdullah Badawi claimed it was the work of an overzealous bureaucrat and he had then repealed the ban personally.
In recent years, visas for foreign clergy no longer are restricted, and most visas were approved during the period covered by this report. Beginning in March 2000, representative non-Muslims were invited to sit on the immigration committee that approves such visa requests.
Places of worship
The government generally respects non-Muslims' right of worship; however, state governments carefully control the building of non-Muslim places of worship and the allocation of land for non-Muslim cemeteries. Approvals for such permits sometimes are granted very slowly. After a violent conflict in Penang between Hindus and Muslims in March 1998, the government announced a nationwide review of unlicensed Hindu temples and shrines. However, implementation was not vigorous and the program was not a subject of public debate.
The new pre-planned capital of Malaysia, Putrajaya, features a grand mosque as a prominent feature of the planned community. No land has been gazetted for places of worship for any other faith.
The Catholic Society of Shah Alam - Shah Alam is the capital city of Selangor state - had been lobbying the state government for a permit to build a church in that city for 10 years. It was not until recently that permit was finally granted. The church opened its doors on 10 September 2005.
Ownership of dogs
Generally, the Malaysian practice of Islam frowns upon dogs; the rationale being that they are unclean. However, this view is not universal as some have taken the view that the Prophet prayed with dogs around [Al-Nawawi, Sahih Muslim, 3-4:465] and dogs entered the Prophet's mosque. [Ibn Hajar al-‘Asqalani, Fath al-Bari, 1:334].
In 2004, the town council of Subang Jaya made it a pre-condition of dog ownership that anyone applying for a dog license having a Muslim neighbour would be required to seek their "approval" before applying for a license. No actual guidelines were published as to how this approval could be indicated. After a large outcry by dog owners and the kennel club, this measure was quietly removed.
Azan
The first Azan (also spelt Adhan), known as "subuh" (or dawn), occurs at around 5.30 AM with the exact time drifting throughout the year. Most Malaysian business start work at 9 AM so many non-Muslim Malaysians are still asleep at this time.
In 2004 the Bar Council of Malaysia journal "Infoline" carried an article which questioned the need for the Azan as it was disturbing to non-Muslims and not needful. The article was condemned.
In December 2004, Minister of Culture, Arts and Heritage Datuk Seri Utama Dr Rais Yatim mentioned in an interview that the Azan may be disturbing. He stated "...the Muslim call for Subuh (dawn) prayer may disturb the sleep of non-Muslims but they have accepted this as a fundamental part of Islam. But how loud the volume of the PA system in the mosque should be, is another matter." (New Strait Times, 20th December 2004)
Excessive noise however is common matter of uneasiness among some Malaysians because non-Muslims also often practise rituals that cause much discomfort to others (Muslims and non-Muslims alike). Among these are Chinese funeral processions that are often accompanied by drums and cymbals, excessive firecracker use during Chinese New Year celebrations and other ritual not exclusive to the Chinese.
A local daily, The Star reported that a proposal by Kepong MP Dr Tan Seng Giaw to regulate the Azan so that it will not be too loud or disturb non-Muslims caused a stir in the House. 28-Sep-2005 issue Muslim MPs accused him of being insensitive and Minister in the Prime Minister’s Department Datuk Mohamad Nazri Abdul Aziz blasted the DAP member for allegedly trying to destroy the multi-religious tolerance in the country.
Taxation
In Malaysia, there is an income tax. Money paid to "zakat" or the obligatory alm Muslims must give to the poor reduces the tax to be paid while money paid to other religions under similar circumstances is not given similar treatment:
- it reduces tax only if the particular beneficiary has obtained such status from the government, which is difficult in practice.
- even then, if money is donated to a non-Muslim religion it is only deducted from the income on which the amount of tax is based, while zakat is deducted from the amount of tax itself. For example, suppose a person earning RM 50,000 owes a tax of RM 3,000, and donates RM 1,000 to his religion. If he were non-Muslim he would then adjust his assessed income to RM 49,000. If he were Muslim then he would only have to pay RM 2,000 as the RM 1,000 would be deducted from the amount owed.
Censorship
In 2004, Yasmin Ahmad's (herself a Malaysian Muslim) film "Sepet" was rejected by censors who asked that scenes be removed. 10 scenes were objectionable. Among objectionable material queried in the movie was why the movie did not depict any attempt to convert Jason (the Chinese non-Muslim main character) to Islam after he had fallen in love with a Malay girl.
Movies which depict people considered prophets in Islam are generally censored or banned as the depiction of prophets is considered "haraam" (not allowed) under Islam. One notable case was the banning of "The Prince of Egypt" when its producers would not accept censorship of the character Moses (Musa in Islam).
However, in a more recent case, "The Passion of the Christ" was allowed, after the intervention of the Prime Minister Abdullah Ahmad Badawi, under strict conditions restricting its viewership to Christians with sales of tickets being carried out by various churches and para-church organisations.
The prevalence of piracy in Malaysia means most censored or banned movies are in fact easily available uncensored. The authorities have generally shown no great effort to cut down on the sale of banned movies, except in the case of pornography.
References
- International Religious Freedom Report 2003 on Malaysia. United States Bureau of Democracy, Human Rights and Labor.
- Kumar, R. Surenthira (Apr. 13, 2006). Woman can appeal against NRD's refusal to remove 'Islam' on her NRIC. Malaysia Today.