Malaysian Islamic Legal System Assignment(LAW 499)

Group Members : Muhammad Aiman bin Mohammad Puzi (2014525573)

Nurul Farhana binti Ismail (2014164841)

Rosidah binti Saad (2014564165)

Course/Class : LW224 2A

Lecturer’s Name : Prof Madya Sue Valquis Md. Mashor

Date of Submission : 10th December 2015

Acknowledgement

Alhamdulillah, we feel grateful to Allah S.W.T. for giving us the opportunity to complete this

assignment. In performing the assignment, we had to take the help and guideline of some

respected persons, who deserve the greatest gratitude. The completion of this assignment gives

us so much pleasure.

Here we would like to express our deepest appreciation to all those who provided us the

possibility to complete this assignment. A special gratitude we would like to dedicate to our

enthusiasm lecturer, Prof Madya Sue Valquis Md. Mashor, whose contribution in stimulating

suggestions and encouragement, helped us to coordinate the assignment especially in writing

this report.

Furthermore, a special thank goes to our classmates for giving support, contribution and

cooperation in the process of completing this assignment. A lot of obstacles and problems had

been faced by us toward the completion. However, we manage to handle and solve the

problems or difficulties efficiently.

Last but not least, we would also like to expand our deepest gratitude to all those who

have directly and indirectly guided us in writing this assignment and those who have made

valuable comment suggestions on this proposal which gave us an inspiration to improve the

assignment.

Question

With reference to cases, explain the methods how state law and federal law control or restrict

the propagation of any religious of any religious doctrine or belief among persons professing the

religion of Islam.

Introduction

Article 3 of the Federal Constitution states that Islam is the religion of the Federation. However,

this recognition provides space for followers of other beliefs or religions to practice their faith in

peace and harmony anywhere in the Federation pursuant to Article 11. Article 11 provides that

every person has the right to profess and practice his own religion and, subject to Clause (4), to

propagate it. Every person has the right to propagate his religion, but state law and, in respect

of the Federal Territories, federal law may control or restrict the propagation of any religious

doctrine or belief among Muslims.

Provisions in the Federal Constitution of Malaysia allow a Muslim to preach the

teachings of his religion among non-Muslims. A non-Muslim is permitted to preach the teachings

of his religion or beliefs among people or followers of other faiths except to the Muslims. As with

other rights of basic freedom, freedom of religion, which covers the right to profess, practice and

propagate religious teachings as well as to administer religious affairs, is not an absolute right.

All of these rights are subject to general laws relating to public order, public health and public

morality, as stated in Article 11(5) of the Federal Constitution. General laws relating to public

order are contained in Article 3(a), Ninth Schedule, Federal List and any provisions by the state

and federal governments under Article 11(4). Affairs of public health are enshrined in Article 7,

Ninth Schedule and Concurrent List. Matters of public morality relate to offences under Article

4(h) of the Federal Constitution. With the exception of matters stated in Article 9, State List, the

State government may share jurisdiction with the federal government under Article 11(5) relating

to matters of public health and public morality. The federal government has the jurisdiction to

impose any reasonable restrictions on any religion or belief to secure public order, health and

social morality, even though such restrictions may be seen as restricting the freedom to practice

religion.

State laws and Article 11(4) of the Federal Constitution contain provisions to control or

restrict the spread or propagation of non-Islamic religious beliefs or faiths among followers of

the Islamic religion. Thus, it is a crime to persuade, influence, force or instigate a Muslim to

embrace or become a member of a religion other than Islam. Islamic affairs in the Federal

Territories are subject to the jurisdiction of the federal government through the control of the

Prime Minister's Department and legal provisions. For instance, Administration of Islamic Law

(Federal Territories) Act 1933 (Act 505) and the Syariah Criminal Offences (Federal Territories)

Act 1997 (Act 559).

To preserve the sanctity of the Islamic faith, which is regarded as having the advantage

of legislation over other religions in Malaysia, almost every state in Malaysia has passed and

gazette enactments that control the propagation of non-Islamic faiths among Muslims. Several

provisions state that acts in contempt of the Islamic religion and the propagation of non-Islamic

religions among Muslims in Malaysia are included as crimes under Syariah law. Usually, the

criminal behaviour or offence of propagating non-Islamic religion among Muslims is committed

by non-Muslims or former Muslims who become apostates. In terms of jurisdiction, the Syariah

Court is subject to the limitation of hearing only cases of Muslims, causing the legal provisions

to be inadequately implemented. Restrictions on the propagation of non-Islamic religions among

Muslims are specific. The authority of the state and federal territories governments to restrict the

propagation of religion are only enforceable when the said propagation relates to a group of

Muslims or occurs in Muslim settlement areas. General propagation among Muslims such as

through writings or electronic media channels, are quite difficult to control under Article 11(4).

Moreover, the Internet, which is widespread without borders of territory or time, enables the

teachings of non-Islamic religions to be accessible to all, including the Muslims.

Legal Restrictions at the Federal Level

Federal laws contain the basic rights to freedom of speech, to assemble and to form

associations as guaranteed by the Federal Constitution. Article 10 of the Federal Constitution

states that these freedoms are subject to national interests to avoid any intent, behaviour or

action that is believed to, may or will threaten national security. The following examples are laws

applicable to all citizens; Propagation of Non-Islamic Religions in Malaysia 11 regardless of race

or religion: the Sedition Act 994 (Revised 1969) (Act 15), the Printing Press and Publications Act

1984 (Act 301), the Societies Act (Act 355), the Internal Security Act 1960 (Act 82), the Police

Act 1967 (Act 344) (Revised 1988) and the Penal Code (N.M.B. Chapter 45).

The propagation of a doctrine or religious belief is usually backed and mobilised by an

organisation or group. These groups often possess a place for their headquarters or titles to

certain property assets. All of these matters are subject to a specific act that also functions to

control or restrict activities in opposition to government policies, such as the Societies Act 1966,

the Companies Act 1965 (act 125) (Revised 1973) and the Urban and Rural Planning Act 1976

(Act 172). Hence, any religious organisation believed to be a possible threat to public order is

banned. Religious propagation through publications or pamphlets that may adversely affect

national harmony is controlled through several acts. For example, The Ministry of Home Affairs

is vested with the authority to ban any publications that may threaten national security. In the

case of Menteri Dalam Negeri v. Jamaluddin bin Othman [1989] 1 Malayan Law Journal, 418, defendant was detained under the Internal Security Act (ISA) 1960 for propagating the

Christian faith among Muslims. The High Court directed his release based on the fact that a

person cannot be detained under ISA for his religious beliefs and for propagating those beliefs

to Muslims. The Minister of Home Affairs unsuccessfully appealed the decision in the Supreme

Court. The Honourable Judge of the Supreme Court, Hashim Yeop Sani, stated:

“We do not think that mere participation in meetings and seminars can make a person a

threat to the security of the country. As regards the alleged conversion of six Malays,

even if it was true, it cannot in my opinion by itself be regarded as a threat to the security

of the country”.

In addition, the Penal Code also contains provisions that protect the religions. The

provisions in Penal Code as follows:

a. Section 295 - endangering and polluting places of worship with the intention of

humiliating a religion

b. Section 296 - disturbing a religious gathering that is legally performing a religious

ceremony

c. Section 297 - trespassing or damaging places of burial

d. Section 298 - mentioning words with the intent to hurt the religious sensitivities of a

person

e. Section 298A - causing disharmony, disunity or feelings of antagonism, mutual

hatred or bad intentions or endangering the preservation of harmony or unity based

on religious reasons

In the case of Mamat Bin Daud & Ors v Government of Malaysia [1988] 1 Malayan Law Journal, 119, each of the petitioners was charged for an offence under section 298A of the

Penal Code for doing an act which is likely to prejudice unity among persons professing the

Islamic religion. They were alleged to have acted as an unauthorised Bilal, Khatib and Imam at

a Friday prayer in Kuala Terengganu without being so appointed under the Terengganu

Administration of Islamic Law Enactment 1955. The issue before the court is whether the said

section which was enacted by Parliament by an amending Act in 1983 is ultra vires Article 74(1)

of the Federal Constitution, since the subject matter of the legislation is reserved for the State

Legislatures and therefore beyond the legislative competency of Parliament. It was held that the

provision of section 298A of the Penal Code covers all acts or behaviour of a Muslim, Hindu,

Buddhist or Christian is a colourable legislation in that it pretends to be a legislation on the

public order, when in pith and substance it is a law on the subject of religion with respect to

which only the states have power to legislate under Articles 74 and 77 of the Federal

Constitution. There must be a declaration that Section 298A if the Penal Code is a law with

respect to which Parliament has no power to make law and “a declaration that section 2988A of

the Penal Code is invalid and therefore null and void and of no effect.

Legal Restrictions on the Propagation of Non-Islamic Religions among Muslims at State Level

Under state law, state governments are vested with the authority to control any religious

activity among Muslims by virtue of the Syariah Administration Enactment and Syariah Criminal

Offences Enactment. Article 11(4) of the Federal Constitution has given the state authority

through the State Legislature to enact laws to control the propagation of non-Islamic religions or

beliefs to Muslims. Section 5 of the Syariah Criminal Offences (Federal Territories) Act 1997

(Act 559) is related to the prohibition of propagating religious doctrine as follows:

“Any person who propagates a doctrine or religious belief other than an Islamic doctrine

or religious belief among Muslims is deemed to have committed a wrongful act, which if

convicted may be fined an amount not exceeding three thousand ringgit or be imprisoned for not

longer than two years or both”.

This means that a state government has the authority to restrict the propagation of any

religion, creed, ideology or even belief that represents partially non-Islamic teaching in the form

of films or video or any publication material in writing or picture/graphic form with the intent and

purpose of publicizing an ideology or belief other than Islam. At present, most of the states,

such as Perlis, Johor, Kedah, Kelantan, Negeri Sembilan, Pahang, Perak, Selangor,

Terengganu and Malacca, have exercised their powers through their state enactments to

legislate laws relating to the control of non-Islamic religion among Muslims in their respective

states. Kelantan was the earliest state to do so in 1981, and Johor was the last, in 1991.

However, the states of Penang, Sabah, Sarawak and Federal Territories do not have such an

enactment.

For example, the Non-Islamic Religions (Control of Propagation Amongst Muslims)

Enactment 1988 also states the same provision in the Enactment of Negeri Sembilan. In this

provision, Section 4 has explains that a person commits an offence if he or she persuades,

influences or incites a Muslim to become a follower or member of any non-Islamic religion or to

become inclined towards any non-Islamic religion or to forsake or disfavour the religion of Islam.

Recently, in previous year of 2014, Kelantan Legislative Assembly approved the Undang-

Undang Kawalan dan Pengembangan Agama Bukan Islam (1981) Enactment 2014 to curb the

propagation of non-Islamic religion to Muslims.

The Supreme Court of Malaysia reiterated the fundamental right of religious freedom in

the controversial case of Teoh Eng Huat v Khadi, Pasir Mas & Anor [1990] 2 MLJ 300. The

Court held that infants do not have the right to choose their own religion without the consent of

their parents or guardians. This decision is crucial in defusing the potential religious exploitation

of children in the future, a dangerous political issue in Malaysia. The Court thus maintained that

the right to freedom of religion as encapsulated in the FC is not an absolute, fundamental

constitutional right. Moreover, other limitations are embedded in the FC, such as the recognition

that the constitutional guarantee is lost when an act or conduct in pursuance of religious beliefs

conflicts with general law concerning public order, public health or morality.

Moreover, the Supreme Court of Malaysia’s decision in Hjh Halimatussaadiah bte Hj Kamaruddin v Public Prosecutor Services Commission, Malaysia & Anor [1994] 3 MLJ 61 offers an important insight into the judicial interpretation of the principle of separation of religion

and the state. It served as an invaluable guide pertaining to the regulation of religious dress by

teachers in state schools, even though there has yet to be a case taken by the government

against teachers. The facts of the case were straightforward. A female clerk in one of the state’s

legal adviser’s office persisted in wearing the purdah, a piece of cloth that concealed the entire

face of a woman except the eyes, to the office despite the advice of her employer. This

contravened a government circular which prohibited female civil servants from wearing attire

covering the face during office hours. The disciplinary board decided that proceedings should be

taken against her with a view to her dismissal and informed the Public Services Commission

(PSC) of its decision. The PSC requested the clerk to show cause as to why she should not be

dismissed. The clerk replied by giving reasons for wearing the religious attire and quoted verses

from the Quran. The PSC dismissed the clerk from service. The clerk challenged the validity of

her dismissal. The High Court dismissed her action. She appealed to the Supreme Court. But

her appeal was dismissed. Among the other grounds of the judgment, the court opined that the

prohibition against the wearing of the attire covering the face by female civil officers did not

affect the constitutional right to practice her religion. The wearing of the purdah had nothing to

do with the constitutional right to profess and practice the Muslim religion. The court further held

that the interpretation of Surah 24 was misconceived. Generally, the state exercised strict

control over the wearing of religious dress to school, in particular, the purdah.

In another case, Meor Atiqulrahman Ishak & Ors v. Fatimah Sihi & Ors [2000] 5 MLJ 375, the Federal Court held that the school did not contravene the constitutional provisions

on freedom of religion when it prohibited the pupils from wearing the turban to school. It further

opined that the Quran did not mention about the wearing of the turban. Thus, a public school

teacher who takes a similar action against the government is not likely to succeed following the

principle laid down by the court in Meor Atiqulrahman Ishak’s case.

Furthermore, in 2013, there has been issue of the using of the word Allah in its weekly

publication called 'Herald - the Catholic Weekly' ('the Herald'). The action has been taken into

the court afterward. In this case Menteri Dalam Negeri & Ors v Titular Roman Catholic Archbishop of Kuala Lumpur, the Minister and the second appellant, Government of Malaysia

appealed, and in the circumstances put forth the arguments that the word 'Allah' is sacred to

Muslims and therefore its sanctity should be protected, that the usage of the word 'Allah' as

interpretation of the word 'God' or concept of God by the Herald would cause confusion, hurt

religious sensitivity and create disharmony between Muslims and Christians, that the usage

would also disturb the current life of the community which may result in disturbance of public

order.

After so many issue and argument been made until to the Federal Court, the learned

judges held that the using of word Allah cannot be used by Christian followers in their books.

The prohibition by the Minister only prohibits the use of the word 'Allah' for God in the Herald.

The usage of the word 'Allah' in the Malay version of the Herald to refer to God is not an

essential or integral part of the religion of Christianity. The prohibition is therefore not

unconstitutional and nor does it inhibit the respondent, which represents the Christian

community, to practice their religion. The prohibition is consistent with the obligation of the first

appellant Minister to have regard to Islam as the religion of the Federation in Article 3(1) and its

protection pursuant to Article 11(4). The judgement also been held referred to the case law

authorities such as Hajjah Halimatussaadiah Hj Kamaruddin v. Public Services Commission, Malaysia & Anor, Fatimah Sihi & Ors v. Meor Atiqulrahman Ishak & Ors , a

principle could be distilled that freedom of religion extends only to practices and rituals that are

essential and an integral part of the religion.

The other case can be highlighted under this topic is also Lina Joy v Majlis Agama Islam Wilayah & Anor (2004) 2 MLJ 119. The plaintiff was born as a Muslim bearing the name

Azlina bte Jailani and was born to Muslim parents which without break, in their lifetime practised

the religion of Islam. The plaintiff also was brought up in an Islamic family and environment.

However, she reputed to be a Muslim after that. On February 2, 1997 as "Lina Joy" she applied

to the NRD to have her new Christian name registered on her MyKad. On August 11, 1997, this

claim was rejected. She applied again to the NRD to have her Christian name recognized, and

the NRD approved having the name Lina Joy entered on her MyKad, but refused to designate

her faith as Christian. It remained as "Muslim". Lina Joy is not allowed to marry her boyfriend,

an "official" Christian, as she is still "officially" a Muslim. Under Islamic law, a Muslim man can

marry out of the faith, but not a woman.

In August 2006 the church which had baptized Lina Joy was subjected to a police report,

for contravening this clause. The church of Our Lady of Fatima, Brickfields, was reported to the

authorities by a Muslim. Both Lina Joy and her boyfriend have been issued with death threats by

Muslims. She took her case of registering her conversion on her MyKad to the Federal Court

and after long-hearing trial, the three judges have voted 2 to 1 against Lina Joy's rights to

officially leave Islam.

She contended that she has freedom to profess a religion of her choice under Article 11

(1) of Federal Constitution which supersedes any other Federal or State laws and that her

freedom to profess is a matter of personal choice and not to be dictated by any party. However,

Article 11(1) should be read with Article 11(4) to propagate it. It is clear that Clause 4 of Article

11 preserves and protects the harmony and affairs and preserves the interests of Muslims and

non-Muslims in this country whereby the right of the various races and religions are also

protected.

Conclusion

Federal law and state law have provided several methods to restrict and control the

propagation of any religious doctrine or belief among persons professing the religion of Islam in

Malaysia. From this prohibition of propagation of non-Islamic religion among Muslims, there are

several justifications are identified. The first justification is concerned about the background and

history of position of Islam and its special status in Malaysia. Next, Malay Rulers hold a role to

preserve the sanctity of the Islam from the pre-independence period until today. Besides, it

relates to the nature of Islamic teachings and the maxim that apostasy is a crime and should be

punished.

In Malaysia, the bodies that govern the rules of Islamic religion as well as have power to

control the propagation of non-Islamic religions among Muslims are found in federal and state

provisions. Federal legal restrictions may be enforced against both Muslims and non-Muslims,

whereas state legal restrictions are only enforceable against Muslims. However, there are

several problems of legal enforcement arise for example, the limited jurisdiction of the Syariah

Courts over non-Muslims in Malaysia result in lack of implementation of these provisions.

Among methods that used by state government to restrict the propagation of others

religions among Muslims is enact the law concerning the matter related to restrictions of

propagation others religions. Under state law, state governments are vested with the authority to

control any religious activity among Muslims by virtue of the Syariah Administration Enactment

and Syariah Criminal Offences Enactment. For example, Negeri Sembilan enacted the related

matters in Enactment No 9 of 1991 Control and Restriction (The Propagation of Non-Islamic

Religions amongst Muslims) (Negeri Sembilan) 1991. Under this Enactment, it has been stated

in the Part II (Offences) Clause 4 that the act of persuading, influencing, coercing or inciting a

Muslim to become a follower or member of non-Islamic religion are categorized as an offences.

This means whoever inhabitants of Negeri Sembilan who are not a Muslim but try to propagate

his or her religion to Muslims will be detained by Islamic authorities of that state. The word of

propagation includes holds and organizes any activity, performance, entertainment or

presentation whose content or message is designed to persuade, influence or incites a Muslim

to become a follower or member of any non-Islamic religion or to become inclined towards any

non-Islamic religion or to forsake or disfavour the religion of Islam.

References

František, N. (n.d.). Freedom of religion abuses in Malaysia. Retrieved December 8, 2015, from

http://www.globalpolitics.cz/clanky/freedom-of-religion-abuses-in-malaysia

Legal provisions and restrictions on the propagation of non-Islamic religions among Muslims in

Malaysia. (n.d.). Retrieved December 9, 2015, from

http://ukm.pure.elsevier.com/en/publications/legal-provisions-and-restrictions-on-the-

propagation-of-nonislamic-religions-among-muslims-in-malaysia(26a35f1f-287d-41f2-8057-

5e9896e9a558).html