[1].    Article 11(1) of the Federal Constitution guarantees Malaysians the right to profess, practice, and propagate their religion

This ensures that non-Muslims have the same fundamental right of worship as Muslims.¹See Zuliza Mohd Kurin , Zaini Nasohah, Mohd al-Adib Samuri, and Mat Noor Mat Zain, ‘Legal provisions and restrictions on the propagation of non-islamic religions among Muslims in Malaysia’, Kajian Malaysia, Vol. 31, No.2, 2013, 1–18, for which see http://web.usm.my/km/31(2)2013/km31_2_1_1-18.pdf; Roger Tan in ‘Legally Speaking by Roger Tan’ https://www.malaysianbar.org.my/article/news/legal-and-general-news/members-opinions/religion-and-the-law

[2].    Article 11 falls under Part II,  under ‘Fundamental Liberties’

It is crucial for you to understand the interaction between Articles 11 and 3.²Article 11: Freedom of religion under ‘Fundamental Liberties’: “11(1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.” The limitation in the words ‘subject to clause (4) requires us to cross-refer to Art 11(4) and (5) which state: “State law and … federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.” Article 11 Clause (3) states: “Every religious group has the right— (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law.” Article 11(4) reads: “State law and …, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.” Article 11(5) reads: “This Article does not authorize any act contrary to any general law relating to public order, public health or morality.” Contrast that with Article 3, which states – Art 3. (1) [Religion of the Federation]: “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” See again Art 3(4) which states:  “3(4). Nothing in this Article derogates from any other provision of this Constitution.”

Because Article 11 falls under the chapter on ‘Fundamental Liberties’, your right to practice your religion, is a ‘guaranteed’ constitutional right, but note that it is subject to minimal limitations.

Instead of boring you with legal language, the summary of Articles 3 and 11 read together, amount to the three P’s.

[3].    The Three P’s are the right to ‘profess’, practice’ and ‘propagate’ your religion

You can announce anywhere what your religion is (‘profess’).

You can attend, without fear or limitation, any place of worship (‘practice’): (e.g. churches temples or monasteries or associations made for that purpose) and practice all the religious rituals associated with it) – that is – if you do it in such a way as to keep the ‘peace and harmony in any part of the Federation’.³Article 3(1), Federal Constitution

Except for Muslims, you can teach your religion (‘propagate’) to anyone.

[4].    Limitation-1: The peace and harmony principle

Article 3 clauses 1 and 5 confirm this principle. This is because Article 3 states:

“Art. 3(1):  “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”

[5].    Limitation-2: Propagation to Muslims is prohibited

Other than Muslims, you can also ‘teach your religion’ (‘propagate’ it) to everyone else.  This is because under Art 11(4) either Parliament or State Legislative Assemblies can pass laws prohibiting anyone ‘propagating’ their religion to Muslims.⁴ Article 11(4): “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.”

What else is prohibited?

[6].    Limitation-3:  Cannot practice your religion in such a way that it is ‘contrary to public order, public health or morality’

No one should practise their religions in such a way that it is ‘contrary to any general law relating to public order, public health or morality’: Article 11(5).⁵ Article 11(5): “This Article does not authorize any act contrary to any general law relating to public order, public health or morality.”

On this point, please read Professor Shad Faruqi’s wonderful explanation here.

[7].    Your fundamental religious freedom is guaranteed

Again, Clause 5 of Article 3 clause reaffirms your fundamental liberties: Art 3(4). “Nothing in this Article derogates from any other provision of this Constitution.”

[8].    Although Islam is the religion of the Federation, Malaysia is a secular state

‘Secular’ means, ‘not subject to, or bound by, religious rules’.

To understand this concept, we have to look an interesting story that brought about the ruling of the Supreme Court in Che Omar Che Soh v. PP[1988] 2 MLJ 55. There the court clarified that while Islam is the religion of the Federation, Malaysia remains a secular state, safeguarding religious freedoms for all citizens.⁶ Jurisdiction of State Authorities to punish offences against the precepts of Islam: A Constitutional Perspective28 Sep 2005 12:00am; Prof. Dr. Shad Saleem Faruqi, Professor of Law and Legal Adviser to Universiti Teknologi MARA: https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/jurisdiction-of-state-authorities-to-punish-offences-against-the-precepts-of-islam-a-constitutional-perspective

About two decades ago, Tan Sri Tommy Thomas explained it here, as does Roger Tan’s article here.

[9].    It all started with an interesting question: can a Muslim person be sentenced to death for a crime in Malaysia? [This is the  story]

This was the unusual question raised before the Supreme Court in 1988 by two gentlemen, Che Omar Bin Che Soh and Wan Jalil Bin Wan Abdul Rahman.⁷ The two cases heard together were Che Omar Bin Che Soh v public prosecutor; and Wan Jalil Bin Wan Abdul Rahman & Anor v Public Prosecutor [1988] 2 MLJ 55, p. 57

Of the two, one gentleman was sentenced to death for trafficking in dangerous drugs. The other was sentenced to be hanged for possession of firearms.

Their lawyers raised a fascinating point: “Is the mandatory death sentence for the offence of drug trafficking and for the offence under the Firearms (Increased Penalties) Act is against the injunctions of Islam and therefore unconstitutional and void?”

Mr Ramdas Tikamdas, counsel for Che Som, argued that, “because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles”.⁸Ibid, p. 57

Mr Mura Raju, counsel for the other appellants, contended that, “because Syariah law is the existing law at the time of Merdeka, any law of general application in this country must conform to Syariah law”.⁹Ibid

In considering these arguments, Lord President Salleh Abas, Supreme Court judges Wan Suleiman, George Seah, Hashim Yeop A. Sani, and Syed Agil Barakbah SCJJ analysed the Federal Constitution.

Writing for the Supreme Court, the Lord President, Tun Saleh Abbas, traced the history of Islam in Malaysia before and after independence. The Lord President referred to Article 162, which, even after independence, preserved the continuity of secular law prior to the enactment of the Federal Constitution, unless such law was ‘contrary to the constitution’.¹⁰Article 162 reads: “Existing laws”:  (1) “Subject to the following provisions of this Article and Article 163, the existing laws shall, until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day, with such modifications as may be made therein under this Article.” Note that Article 163 was repealed by Act 25/1963, section 8, in force from 29-08-1963. It had to do with The Emergency Regulations Ordinance 1948.

[10].   It is interesting how the court spoke of counsel:

“We thank counsel for the efforts in making researches into the subject, which enabled them to put the submissions before us. We are particularly impressed in view of the fact they were not Muslims.”

[11].  This is what the Supreme Court eventually ruled—and it is the law of the and to this date

“However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law”.

[12].  That Malaysia is a secular state is a principle that has been upheld many times

One recent example is the Federal Court ruling in Dahlia Dhaima bt Abdullah v Majlis Agama Islam Selangor.¹¹[2024] MLJU 1007

There, the Federal Court ruled that while Islamic law only applies to Muslims; that secular laws applied to all, and secular laws were to be interpreted only by civil courts.¹²Ibid, paragraph 46, where the court said: “… Syariah Courts “are creatures of statute (specifically State Enactments) and accordingly their jurisdiction is strictly circumscribed by the laws which establish them. “Absent jurisdictions ratione personae and ratione materiae over a person, Syariah Courts are not empowered by the FC to exercise any power over that person and if exercised, would be ultra vires the FC”. The Federal Court added that “the design was deemed necessary to allow for the continued application of Islamic law exclusively to Muslims and only to a certain degree. In all other instances, the FC vests all judicial jurisdiction and judicial power in the civil courts which interpret laws passed by secular institutions such as Parliament or the State Legislatures within their powers prescribed by the Ninth Schedule (see generally for example Che Omar Che Soh v PP [1988] 2 MLJ 55]. This includes the interpretation of State Enactments promulgated to address issues of Islamic law but only insofar as they relate to secular matters, for example, constitutional issues. The earlier interpretation and application of s 111 of the IFLE 2003 in respect of whether the plaintiff is in the first place a Muslim by virtue of the fact that Ibrahim is a Muslim, is an example of this”.

The court in Dahlia Dhaima spoke of the right of Civil Courts to examine fundamental rights.

It declared that, “Access to justice and equal protection of the law are fundamental liberties guaranteed under the Federal Constitution to persons such as the appellant. In determining whether the reliefs ought to be granted, the Civil Courts will have to examine the facts and the relevant law.” ¹³Ibid, paragraph 56, where the  court continued: “As already explained earlier, that may include examining and interpreting a law specifically passed by the State Legislature for the administration of Islamic law or Islamic matters within item 1 of the State List. That fact alone does not deprive the Civil Court from conducting such scrutiny; on the contrary it is the duty of the Civil Courts to carry out such an exercise”.

It is not odd that politicians are now raising questions that go against these very guarantees?

∞§∞

Gratitude

The author thanks Mr UK Menon, Miss KN Geetha, Miss Lydia Jaynthi, Miss TP Vaani, and Miss JN Lheela.

We thank Red Morley Hewitt of Unsplash, for the image.

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