Tuesday, June 2, 2009

Article 11 of the Federal Constitution

Article 11 of the Federal Constitution provides the freedom of religion and it contains the freedom to profess, practice and propagate his religion. But we should bear in mind that the right to propagate his religion is subject to clause 4 of the article which states that State law and in respect of federal territories, federal law may control or restrict the propagation of any religious doctrine or belief among person professing the religion of Islam. It means that no person can propagate muslim to convert to other religions but at the same time muslim can propagate non-muslim to convert to Islam and non- muslim can propagate others except muslim to convert to their religion.

The special position of Islam has been discussed in the controversial case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor [2004] 6 CLJ when Faiza Tamby Chik J said that: “article 11 grants every person the freedom to profess and practice his religion. However in respect of an act of conversion out of Islam, the same must be subject to the relevant syariah laws to be determined by Syariah courts. Freedom of religion under article 11 must be read together with article 3(1) which places Islam in a special position as the main and dominant religion of the Federation, with the Federation duty bound to protect, defend and promote Islam”.

In the case, the learned judge dismissed her application to marry a Christian man, to change her name from Azlina Binti Jailani to lina Joy and to remove the word ‘Islam’ on her identity card. Her appeal to Federal Court also has been dismissed.

In some other case like Minister of Home Affairs, Malaysia v Jamaluddin Bin Othman [1989]1 MLJ 368, the court seems not give decision on favor of Muslim when it was held that the police could not detain a Malay who was had allegedly converted to Christianity and preached it as it was against the provision of religious freedom under article 11. The judge in this case although appreciate the position of Islam in Federation but at the same time not prepared to impose any punishment to a Muslim who has converted.

On the issue of whether all citizen includes a minor have right to choose his religion, the answer can be seen in the case of Re Susie Teoh[1986] 2 MLJ 228. Abdul Malik J before the High Court said that: “ I can find no definition of ‘person’ either in the Federal Constitution nor in the Interpretation and General Clause Ordinance 1948 which govern it and I must conclude that this applies to every person irrespective of age … I decide for herself in the exercise of her constitutional to profess and practice her chosen religion.”

In Re Susie Teoh, the minor was 17 years old when she ran away from home and converted to Islam. Unfortunately the decision was overturned on appeal to the Supreme Court.
The right under freedom of religion is also subject to clause 5 of the article when it provides that the article does not authorize any act contrary to any general, law relating to public order, public health or morality. Means that a person can profess, practice and propagate his religion as long as his act does not contrary to law on public order, public health and morality.

In Hjh Halimatussaadiah Bt Hj Kamaruddin v Public Services Commission Malaysia & Anor [1994] 3 MLJ 61, the court held that public order under clause 5 put the limit on the right to religious freedom. The case is about a lady public servant who was dismissed from her office after refusing to comply with a service circular which prohibiting lady public servant from wearing ‘purdah’ during office hours. The court contended that the act of wearing purdah during office hours may cause unsafe situation to public since a criminal may take advantage on it to cause harm.

Contrary to it, in the case of Meor Atiqurrahman Bin Ishak & anor v Fatimah Bt Sihi & anor [2000] 5 MLJ 375, the court held to the favor of the plaintiff and allowed students wearing ‘turban’ at school. The ratio is the act of wearing ‘turban’ was not against public order since it did not cover face so no harm may be cause by wearing it. This decision was not only applicable to Muslim since Sikh believers also wearing such thing.

It indicates that people are given right on religious matters but at the same time restrictions are provided in order to maintain the harmonious situation among people from different religions and beliefs. At the end it is up to the court to use their power on protecting all the liberties under fundamental liberties provisions or just follow whatever passed by parliament. On the absent of a proper interpretation of the provision by court, the fundamental liberties will no more become the right of people but ill will be the burden for people.