It’s about preserving national harmony — Hafiz Hassan

JANUARY 4 — Freedom of religion is a fundamental right under the Federal Constitution. And so is freedom of speech.

Let’s compare how the two freedoms are guaranteed under the Federal Constitution.

A plain and ordinary reading of the language employed in Articles 10 and 11 informs us that the two fundamental liberties are not treated equally in the Constitution. This was duly observed by a leading scholar on Malaysian Constitution law, Professor Harry Groves, who wrote as follows:

“An examination of the text of each Article [on fundamental liberties] suggests that the makers of the Constitution regarded some liberties as more fundamental than others. The fundamental liberties can be placed in two distinct categories:

(a) those that are absolute in the terms of the constitutional provision; and

(b) those that are limited by the terms of the constitutional grant itself.”

Freedom to profess a religion is considered by Professor Groves as absolute while freedom of speech is limited. (See The Constitution of Malaysia [1979])

Article 10 expressly empowers Parliament to pass laws restricting freedom of speech provided:

(a) such restrictions are necessary or expedient; and

(b) such restrictions are in the interests of security, public order or morality.

Now, consider what was proposed by the Reid Commission in respect of Article 11. The Commission’s draft reads as follows:

“(1) Subject to the requirements of public order, public health and morality, every person has the right to profess, practise and propagate his religion.

(2) ....

(3) Subject to the requirements of public order, public health and morality, every religious group shall have the right- (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire, own, posses and administer property in accordance with the general law thereof;

(4) Nothing in this Article shall invalidate any federal law prohibiting or restricting the propagation of religion among aborigines, but any such prohibition or restriction shall apply equally to all religions.” (Emphasis added)

The above would have empowered Parliament to enact laws to restrict freedom of religion in the same manner as freedom of speech under the three categories of “public order, health and morality”.

The draft was not accepted by the Malayan Government and the words were deleted from Article 11. The restriction on propagation of religion in clause (4) was retained but differently worded.

As it is now, the freedom to profess and practise one’s religion is subject to Clause (4) on propagation. 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.

Freedom of religion is a fundamental right under the Federal Constitution. And so is freedom of speech. — Picture by Yusof Mat Isa

The rationale for the control of propagation in Article 11(4) is to “protect the religion of Islam from being exposed to the influences of the tenets, precepts and practices of other religions or even of certain schools of thoughts and opinions within the Islamic religion itself”. (See the judgement of Lord President Saleh Abas in the case of Mamat v Daud [1988])

Clearly, Article 11 draws a distinction between practice and propagation of religion. The States have in fact exercised their right to enact restrictive laws such as are envisaged by Article 11(4).

Another leading scholar on Malaysian Constitution law, Professor Andrew Harding considered the restriction of proselytism had more to do with the preservation of public order than with religious priority. (See Law, Government and the Constitution in Malaysia [1996])

A third leading scholar, Professor Dr Shad Saleem Faruqi, wrote of Article 11(4) as follows:

“Under Article 11(4) of the Federal Constitution, non-Muslim may be forbidden by State law from preaching their religion to Muslims. Many Muslims complain that this part of the ‘social contract’ is not being observed by some evangelical groups, some of whom are from abroad.

“On many occasions in recent years news has spread like wildfire that thousands of Muslims have converted or are waiting to convert to Christianity. Invariably this raises tensions.

“In turn, many non-Muslims complain that Article 11(4) amounts to unequal treatment under the law because Muslims are allowed to propagate their religion to non-Muslims.

“It is respectfully submitted that Article 11(4) is part of the pre-Merdeka ‘social contract’. Its aim is to insulate Muslims against a clearly unequal and disadvantageous situation.

“During the colonial era, many non-indigenous religions were vigorously promoted by the merchants, the military and the missionaries of the colonial countries. Even today, the proselytising activities of many Western-dominated religious movements that are internationally organised and funded have aroused resentment in many Asian and African societies.

“Some aspects of their activities, like seeking deathbed conversions, generous grant of funds to potential converts and vigorous proselytising activities among minors have distinct implications for social harmony.

“[The] Malays see an inseparable connection between their race and their religion. Any attempt to weaken a Malay’s religious faith may be perceived as an indirect attempt to erode Malay power.

“Conversion out of Islam would automatically mean deserting the Malay community due to the legal fact that the definition of a ‘Malay’ in Article 160(2) of the Federal Constitution contains four ingredients. Professing the religion of Islam is one of them.

“A Pre-Merdeka compromise between the Malays and the non-Malays was, therefore, sought and obtained that any preaching to Muslims will be conducted only by authorised Syariah authorities.

“Missionary work amongst Muslims — whether by non-Muslims or Muslims — may be regulated by State law under the authority of Article 11(4) of the Federal Constitution.” (See Document of Destiny: The Constitution of the Federation of Malaysia [2008])

On my part, I would humbly say that Article 11(4) is about preserving national harmony in the same manner that ta’ayush seeks to achieve.

* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.