Freedom of Religion & Rights of Minorities in a Secular Polity

By Lim Heng Seng 17 September 2020 Introductory remarks: Malaya and 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, (then North ) and . • 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 (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 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:

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 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: Government State Paper - concerns and guarantee

“The deliberations of the Consultative Committee have done much to clarify the position of . 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

[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 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 as a case of apostasy. • Civil courts accede to the argument that apostasy is a matter for the Syariah Courts. • Declining jurisdiction based on doubtful interpretation of Article 121(1A) of the Constitution. 2. Impositions on right to practise

• Restriction on places of worship, literature and publications. • Teaching of Islam to non-Muslim students without parental consent violative of parental rights over religion and religious education. • Restrictions on non-Muslim students in the practice of their faith and religious societies in schools. • Restrictions on right to use of religious terminologies. • Prohibition of Alkitab under ISA 1960. • Bup Kudus, Holy Bible in Iban banned and then unbanned under Printing Presses and Publications Act 1984. • Freedom to practice religion in peace and harmony: Tolerance of acts of intolerance and disrespect of minorities.

MP on distortion of Bible: Utter silence of leaders. Deputy Minister and MP defamation of Veveonah: The scramble to appease East . Sarawak Association of Churches and Sabah Council of Churches on ban of use of “Allah”

• “We therefore find it completely unacceptable that what are common practices of the Church in Sabah and Sarawak for hundreds of years and indeed for generations of Christians even before the very idea of Malaysia was conceived is now proscribed by administrative orders and laws.”

• "What we consider to be a most serious breach of the foundational pillar pertaining to religion and religious freedom is the unrelenting assault on the right of bumiputera Bahasa Melayu-speaking Christians to the use of the Alkitab and the word “Allah” to refer to the Creator God.” Sarawak Council of Churches on insulting statement by MP

• His remarks that ‘Kitab Injil ini dipesongkan ataupun diubah’ (The Bible is distorted or changed) have crossed into the boundary of religious sensitivity and are deemed to be an insult to all Christians who hold the Bible as sacred and holy,”. • It could be deemed as a violation of the highest law of the land, the Federal Constitution as well as the Malaysia Agreement 1963 which guarantees the freedom of religion to all citizens in the country. • As an MP, Zawawi should set an example of civility and work for harmony for the common good of all people. • “When this becomes an insult against religion, ACS strongly rejects such a form of religious imposition from the PAS MP on Christianity and other religions,” 3. Imposition on right to propagate

• Right to control or restrict taken as right to absolutely prohibit. • In exercise of power to control or restrict propagation of religion to Muslims intrude into religious rights of other religions. • Malayan states’ enactments ban use of religious terminologies in speech or publications in profession or practice of a non-Islamic religion. • State Islamic religious authorities raid premises, seize religious publications. • Serious jurisdictional issues as religious authorities do not have jurisdiction over other religions. • And interference with autonomy of non-Muslim religious groups to manage their own affairs by religious authorities. Minorities at Risk • Attempts to subvert supremacy of Federal Constitution. • Assertion of Article 3 as a super-grundnorm and position of Islamic law and Syariah Courts in national legal order. • Executive denial of rights and/or inaction when rights violated. • Parliament’s reticence to enact necessary laws. • Worrying instances of abdication of judicial organ as repository of judicial power as a consequence of Article 121(A). • Minority rights without remedies: religious status, custody rights, inheritance. Nazri: We tracked more heinous criminals in the past, why not Indira Gandhi’s ex-husband? MM 16.9.20 Distorted judicial interpretation of Article 3(1) in disregard of legislative history

• Article 3 places the religion of Islam at par with the other basic structures of the Constitution. • Article 3 is third in order of precedence of articles. • Fundamental liberties (including religious freedom) are to be read with Article 3(1) • “Peace and harmony” given contorted significance: To protect the sanctity of Islam and to insulate against threat to Islam.

[Menteri Dalam Negeri & Ors v Titular Roman Catholic Bishop of Kuala Lumpur [2013] 6 MLJ 468] Startling implications of distortion of Article 3(1) on non-Islamic religions • High Court in Meor Atiqulrahman: “Ugama-ugama lain hendaklah diatur-suai dan dihalatuju ke arah yang menjamin supaya ia diamalkan dengan aman dan damai dan tidak menggugat kedudukan utama ugama Islam bukan saja pada zaman ini tetapi yang lebih penting untuk zaman akan datang dan berterusan …dan sepatutnya termasuk membuat undang-undang bagi menjamin rumah-rumah ibadat ugama-ugama lain tidak melebihi atau bersaing dengan Masjid Negara/Negeri dari segi lokasi dan keterampilan, saiz dan bentuk yang keterlaluan, ataupun terlalu banyak dan di merata-rata tempat yang takterkawal.”

Note: These are part of dhimmi policies which will apply according to certain orthodox visions of an Islamic State.

[Meor Atiqulrahman Isham v Fatimah Shihi & Ors[2000] 1 CLJ 393] Sabah Concerned Citizen’s Open Letter

• Title: “A Covenant Dishonoured – Fulfil the Intentions of Our Founding Fathers” • Recital: Religious freedom in a secular polity as first of 20 Points. • Concerns: > Aggressive Islamization to convert natives through intimidation, deception and inducement particularly targeting remote and poor villagers. > National Registry Department labelling Christians with “bin” and “binti” in names. > Unlawful issuance of MyKads to Muslim immigrants. Concerns and Issues: Blueprint for Unity in Diversity? • Malaysia Nations: Secular or a religious state? • Governed by the Rule of Law or by Rule of Religious Diktats? • Freedom of religion and freedom from religion eroded? • Assurances, promises and undertakings at the making of Malaya and the formation of Malaysia honoured? • Common nationality or fractionized citizenship: a diverse nation divided between full citizens and demeaned, diminished or “dhiminized” half citizens? • Equality before the law and guarantee of equal protection of the law or one where discrimination on ground of religion tolerated? • MA 1963 –A set of foundational pillars which must be honoured in reality and not rhetoric to ensure Unity in Diversity and the territorial unity of a Malaysian nation comprised of 3 territorial entities; the Borneo states of Sabah, Sarawak and who are equal partners of the Malaysia nation. Concluding remarks

• MA 1963 –A set of foundational pillars which must be honoured in reality and not in mere rhetoric. • Religious and racial harmony is anchored on the twin pillars of the supremacy of a non-religious Federal Constitution and the Rule of Law which is not administration by religious diktats. • Erosive conduct undermines foundations of nation, nationhood and nation-building and must not be tolerated but must be countered. • Genuine and assertive efforts to foster mutual and reciprocal respect for all religions and religionists are imperative. • Then will we forge a truly Malaysian nation where there is Unity in Diversity. • And territorial integrity of a Malaysian nation comprised of 3 distinct territorial entities; the 2 Borneo states of Sabah, Sarawak and Peninsular Malaysia who are equal partners of the Malaysia nation. Half a century on: Retrospect and Prospect

“Anang Malaysia sebaka tebu, manis dipon, tabar dihujung”

(Let not Malaysia be like the sugar cane; sweet at the beginning but bland towards the end)

Temenggong Jugah Anak Barieng (Tun Jugah) (1903 – July 1981)