Restrictions in Freedom of Religion in Malaysia: A Conceptual Analysis with Special Reference to the Law of Apostasy

Abstract

The right of freedom of religion is one of the fundamental rights guaranteed in the Malaysian Constitution. The provision over the right to freedom of religion is seen as one of the most crucial provisions ever stated in the Federal Constitution. Article 11(1) has never been amended. Indeed, provision in Article 3(1) reiterates the right of individuals, especially the non-Muslims to profess and practise their religion freely, without any fear and interference. The special status of the religion of Islam enshrined in Article 3(1) does not mean that non-Muslims have no right in matter of freedom of religion. However, the Federal Constitution seems to restrict the right to freedom of religion, in the sense that freedom of religion in Malaysia is not absolute. There have been several restrictions imposed not only within the constitutional framework but also other general legislations. Among provisions that furnished such restrictions can be seen in Articles 11(4), 11(5) and 10(2) of the Federal Constitution. Moreover, the Parliament had also passed several legislations allowing such restrictions. This can be seen, among others, the Internal Security Act of 1960 (ISA), the Societies Act of 1966, the Police Act of 1967, the Printing Presses and Publications Act of 1984, the Town and Country Planning Act of 1976 and the Penal Code. As such, Muslims and non-Muslims alike must adhere to certain religious constraints for the sake of public order, public health and morality. While freedom of religion is guaranteed for individuals in the Malaysian Constitution, some states in Malaysia have penalised Muslims who renounced the Islamic faith. Although there is no death penalty for apostasy in Malaysia, apostates are subject to punishments like fine, imprisonment and to a certain extent whipping. In certain states, apostates are detained at the rehabilitation centre for up to 36 months. These have brought concern to human rights activists because such punishments and detention may seem contrary to the right to freedom of religion enshrined under Article 11(1) of the Federal Constitution and Article 5(1) that guarantees individual liberty. This article attempts to investigate whether restrictions over the right of freedom of religion particularly when Muslims ∗B. Shari’a (Hons) (Malaya), LL.M, Phd in Law (SOAS, London), Lecturer, Centre for Islamic Thought and Understanding (CITU), Universiti Teknologi MARA, Shah Alam, Malaysia (e-mail:mazamadil@hotmail.com). This article is based on a paper presented at the 2nd ASLI Conference, Organised by the Faculty of Law, Chulalongkorn University, Bangkok, 26-27 May