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Perlembagaan Malaysia

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Freedom of Religion & Rights of Minorities in a Secular Polity By Lim Heng Seng 17 September 2020 Introductory remarks: Malaya and Malaysia constituted by the Federal Constitution • Foundational: Constitution forms the Federation laying down basic structures for the governance of the nation. • Fundamental: Constitution is the supreme law of the land, the grundnorm which audits validity of legislative or executive actions • Malaya in 1957 and the enlarged Malaysia in 1963: Result of sustained and deliberative process of enquiry, consultation, negotiations and agreement. • Preparatory documents are important aid in construing meaning of the letter and the spirit of Constitution. 1963: The Federation of Malaysia • Terms and conditions for partnership of equals between Malaya, Sabah (then North Borneo) and Sarawak. • New nation and new Constitution? • Malayan Constitution modified with special provisions engrafted. • Malaysia: Special autonomy for Sabah and Sarawak. • Special position and safeguards engrafted into Federal Constitution. • The Twenty Points for Sabah (Eighteen for Sarawak) • Religion and religious freedom on top item of both lists. Constitutional provision and significance of Article 3 Religion of the Federation 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. … (4) Nothing in this Article derogates from any other provision of this Constitution. Malay text: Perkara 3 (4): Tiada apa-apa jua dalam ini mengurangkan mana-mana peruntukan lain dalam Perlembagaan ini. Constitution’s legislative history behind Article 3: 1957 Merdeka • Malaya remains a secular nation: “There has been included in the proposed Federal Constitution that Islam is the religion of the Federation. This will no way affect the present position of the Federation as a secular State…” [White Paper on the Constitutional Proposal for the Federation of Malaya (Legislative Council Paper No. 41 of 1957) tabled in the Legislative Council] Memorandum of the Alliance Party to the Reid Commission "..... the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising other religions and shall not imply that the state in Members of the Reid Commission after a dinner hosted by Tun Tan Cheng Lock in Malacca on 17th August 1956 not a secular state.” [As seen in Para 169 of the Reid Commission Report] Article 3 intended to be innocuous • “A provision like one suggested above is innocuous. Not less than 15 countries of the world have a provision of this type entrenched in their Constitutions.” [Reid Royal Commissioner Mr. Justice Abdul Hamid] • Hence, non-derogation provision was introduced into Clause 4 of Article 3 Malaya’s first PM clarifies that Malaysia is not an Islamic state "I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provided that Islam shall be the official religion of the State.” [Tunku Abdul Rahman, Hansard, 1st May 1958] Constitutional Legislative History: Malaysia Day Freedom of religion in secular state affirmed when Sabah and Sarawak partnered with Malaya to establish Malaysia Document 1: Malaysia Solidarity Committee on religion and religious freedom “The Committee directed a great deal of attention to the question of Islam as the religion of the Federation. It is satisfied that the acceptance of Islam would not endanger religious freedom within Malaysia nor will it make Malaysia any less secular. The present Constitution of the Federation of Malaya, which would serve as the basis for the new Federation has adequately guaranteed that other religions may be practised in peace and Malaysia Solidarity Consultative Committee members during a meeting at the Selangor Legislative Assembly harmony in any part of the Federation.” Chamber on 6th and 7th January 1962 [Para 13 of Malaysia Solidarity Committee Memo dated 3.2.1962] Document 2: North Borneo Government State Paper - concerns and guarantee “The deliberations of the Consultative Committee have done much to clarify the position of religion in Malaysia. Islam is the official religion of the Federation of Malaya. Although Malaysia would have Islam as the official religion of the enlarged Federation there would be no hindrance placed on the practice of other religions. Complete freedom of religion would be guaranteed in the Federal Constitution. North Borneo, which at present has no established religion, would not be required to accept Islam as its State religion.” [Para 10 of Government Paper “North Borneo and Malaysia” published by Authority of Government of North Borneo dated 31.1.1962] Document 3: Recommendation of the Chairman and British members “The non-Muslim communities are most insistent that there should be complete religious freedom as to worship, education, and propagation, in the Borneo territories… We recommend the insertion in the State Constitution of a specific provision to this effect.” Retention of Article 3 based on religious freedom in a secular Malaysia • Malayan Members of the Cobbold Constitutional Commission when proposing that Article 3 be retained: “Taking these points fully into consideration, we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardizes freedom of religion in the Federation, which in effect would be secular.” Members of the Cobbold Commission [Para 148(e) of the Cobbold Commission Report] Underlying concern: Prospect of Malay/ Muslim domination "This opposition [to the proposal to name the enlarged Federation “Malaysia”] stems from the same cause as the anxieties about Religion, Language and the Head of Federation, with which we deal elsewhere in this Section. They all reflect the fears held by non-Malays and non-Muslims that the effect of Malaysia will be to put them in a position inferior to that of the Malays and Muslims.” [Para 148(d) of the Cobbold Commission Report] Historical background • Previous relations between Malays and other indigenous peoples. • Prospect of Malaysia viewed by non-Malay natives in certain parts of the country within framework of unhappy recollection of Brunei domination in the past. • Regarded as Malay domination and of their fear of its return with new Federation. • Suggested name of Malaysia, of Malay as national language and Islam as the national religion have tended to emphasise these misgivings. [Page 21 of the Cobbold Commission Report] The core permissive rights • Article 3: Right to practice religions in peace and harmony in every part of the Federation. • Article 11 (1): Every person’s right to profess, practice propagate his religion [subject to Clause (4)]. • Article 11 (3): Every religious group has right to manage its own religious affairs, establish and maintain religious and charitable institutions own property. • Article 12 (2): Right to establish and maintain educational institutions • Article 12 (4): Right of parents to determine religion and religious upbringing of children The core protective rights • Article 12(3): Freedom from compulsion to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own. • Article 8(2): Freedom from discrimination on grounds of religion. • Article 11(1): Right to profess means freedom to choose and practise one’s religion and non-compulsion to profess and practise any particular religion other than one’s own religion. • Note: Religion and religious instruction and upbringing of a minor to be determined by his parent or guardian [Article 12(4)]. In peace and harmony • Two aspects to the practice of religions in peace and harmony: > First: One’s religion is to be practised in peace and harmony without interfering with a posing a threat to other citizens. > Second: All persons in the exercise of their religious rights are protected from acts of intolerance or insult (for e.g. acts prohibited by Section 298 of the Penal Code). Prohibition on discrimination on grounds of religion • Discrimination against citizens on the ground only of religion in any law or in public authority appointments, etc. is prohibited [Article 8]. • And specifically administration of any educational institution maintained by a public authority, in admission of pupils or students and payment of fees [Article 12 (1)] Limitations on religious freedom under Article 11(5) • This article does not authorise any act contrary to any general law relating to public order, public health or morality grounds. • Examples: Penal Code offence against crimes of causing injury, murder, etc. Permitted restrictions on propagation [Article 11 (4)] • State laws may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. • With regard to Federal territories, power vested in Parliament. • State not authorized to absolutely prohibit propagation, only to control or restrict. • Law applies not only to non-Muslims but also to Muslims. 1. Imposition on right to profess • Disputed status of religion of a person: the living (NRICs) and the dead (body snatching). • Conversion from Islam to other non-Islamic religions. • Civil courts decline to hear applications for declarations that a person is professing another religion in exercise of his constitutional rights. • Failure to acknowledge that the issue of the fundamental constitutional right to profess one’s religion is in issue and instead viewing the matter
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