Can govt introduce Bills on other faiths?
Published on: Sunday, September 26, 2021
By: Jeyan Marimuttu
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RECENTLY there has been great hype on the statement made by the Deputy Minister in the Prime Minister’s Department, Ahmad Marzuk Shaary on the matter of the Federal Government’s plans to introduce some four Bills on Syariah matters one of which apparently to control or limit the propagation of Non-Islamic Religion. This, no doubt, is of grave concern for Malaysians who professes non-Islamic Religion. The question is, can the Federal Government introduce such bills and make such laws and if so, to what extent and scope would such proposed Bills affect the practice of such non-Islamic faiths.

At this stage, it is uncertain as to the form or shape the proposed Bills will take. This is even more alarming. While, at the end of the day, it may not infringe on the Constitutional and rights and protection of Malaysians, it nevertheless a matter of grave concerns to all Malaysians.

Religious Freedom is enshrined in the Constitution. Article 3 (1) of the Federal Constitution (FC) provides that   “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”  

Article 11 (1) of the FC provides for freedom of religion. It provides that “Every person has the right to profess and practice his religion and subject to Clause (4) to propagate it. 

Clause (4) of Article 11 provides that  State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. 

Accordingly, by Article 11(4) the FC expressly provides that State law and in respect of Federal Territories the Federal Law may control or restrict the propagation of any religious doctrine or belief among persons of the religion of Islam.  Now, in view of this express provisions in the Federal Constitution can Parliament promulgate laws in matters that are expressly reserved within the jurisdiction of the states. The answer obviously must be in the negative.  

It is also interesting to note that Article 3 (4) provides that Nothing in this Article derogates from any other provisions of this Constitution.  Therefore, it further fortifies the position as to Freedom of Religion under Article 11 that every person has the right to profess and practise his religion. Safe as to limitation as provided under Clause (4) of Article 11.

I am of the view that Article 3 and Article 11 must be read in tandem with each other.  While Article 3 provides for the religion of the Federation, it at the same time provides for other religion to be practised in peace and harmony.  Article 11 guarantees and safeguards the rights of Malaysians to practise their respective religion. The only limitation is that the State laws may control or restrict the propagation of non- Islamic faiths to Muslims. This limitation, if at all, is at the discretion of the respective States and it is up to the States to promulgate such laws so limiting.    

It seems clear that matter of religion is a State matter and comes within the State List in the Ninth Schedule of the FC. This is provided under paragraph 1 of List II – State List.

Given the backdrop of the Constitutional provisions, it is perplexing to note how Federal Parliament is proposing to legislate on matters that comes within the purview of the States.  

The constitutional provisions relating to religious freedom as provided under Articles 3 and 11, while providing for freedom of religion, draws a sharp distinction between the profession and practice of religion, on the one hand, and its propagation on the other hand. At least nine of the 13 States already has, relevant laws prohibiting propagation of  non-Islamic faiths amongst Muslims.  It would seem that the Constitution both restricts freedom of religion and discriminates in favour of Islam in the way it restricts that freedom. 

In the High Court case of Jill Ireland bt Lawrence Bill v Menteri Bagi Kementerian Dalam Negeri Malaysia & Anor [2021] 8 MLJ, Justice Nor Bee Ariffin held, relying on an earlier Supreme Court decision  Minister for Home Affairs, Malaysia & Anor v Jamaluddin bin Othman [1989] 1 MLJ 418, where the Supreme Court held that the detention of a person without trial is permitted under the Internal Security Act 1960 but the detention will however be unconstitutional when used against persons practicing their religion. The ground for detention stated that the respondent was involved in a plan or programme to propagate Christianity among the Malays and it was also alleged that the activities of the respondent could give rise to tension and enmity between the Muslim community and the Christian community in Malaysia and could affect national security. On an application by the respondent for habeas corpus, the trial judge took the view that the Minister has no power to deprive a person of his right to profess and practise his religion which is guaranteed under art 11 of the FC and therefore if the Minister acts to restrict the freedom of a person from professing and practicing his religion, his act will be inconsistent with the provision of art 11 of the FC and therefore any order of detention would not be valid. He therefore ordered the release of the respondent. The Minister appealed. The Supreme Court dismissed the appeal and held that The guarantee provided by art 11 of the Constitution, ie the freedom to profess and practice one’s religion, must be given effect unless the actions of a person go well beyond what can normally be regarded as professing and practicing one’s religion.

 In Jill Ireland case the high court further held that Right to profess and practise one’s religion should include right to the religious materials. In Jones v Opelika [1941] 316 US 584, it was held that the right to profess and practise one’s religion encompasses the right to have access to religious materials.

The High Court in the Jill Ireland case also held as follows :

“[177]  I make a note that learned counsel for the applicant have undertaken extensive researches into the legislative history of the Merdeka Constitution of 1957 and subsequently of the Malaysian Constitution of 1963. The documents presented to this Court consists of the following: (a) the Report of the Federation of Malaya Constitutional Commission 1957; (b) the White Paper on the Constitutional Proposals for the Federation of Malaya; (c) the Malaysia and Sarawak dated 4 January 1962 (Government Paper) published by the authority of the Government of Sarawak; (d) the North Borneo and Malaysia dated 31 January 1962 (Government Paper) issued by the authority of the Government of North Borneo; (e) the Memorandum on Malaysia submitted by the Malaysia Solidarity Consultative Committee dated 3 February 1962; (f) the Report of the Commission of Enquiry, North Borneo and Sarawak, 1962 (Cobbold Commission Report); and (g) the Report of IGC set up to work out the constitutional arrangements for the new Malaysian Federation including safeguards for the special interests of Sabah and Sarawak. This is to demonstrate that the States of Sarawak and Sabah were guaranteed the freedom of religion before they joined the Federation. These are uncontroverted documents.

The High Court clearly recognised the various Constitutional Documents and more particularly that “…This is to demonstrate that the States of Sarawak and Sabah were guaranteed the freedom of religion before they joined the Federation. These are uncontroverted documents…”

Andrew Harding of Centre for Asian Legal Studies, National University of Singapore 

in his Article  Malaysia: Religious Pluralism and the Constitution in a Contested Polity wrote :

The State (or, for federal territories, the Federal) Government is responsible for Islam, which is defined exhaustively in Schedule 9 of the Constitution (but paraphrased briefly here) as including the personal and family law of Muslims, including: succession, marriage, and divorce; charitable and religious endowments, institutions, and trusts; waqf and zakat; mosques or any Islamic public places of worship; creation and punishment of offences by Muslims against precepts of their religion; the constitution, organisation, and procedure of syariah courts; control of propagating doctrines and beliefs among Muslims; and the determination of matters of Islamic law and doctrine and Malay custom. The issue of propagation is the item on this list that affects non-Muslims most deeply. 

Beyond this structure of religious jurisdiction, Article 3, while enshrining Islam as the religion of the Federation, adds that “other religions may be practised in peace and harmony”. To understand Article 3 further, we need to refer also to Article 11, which guarantees freedom of religion and is discussed further in the next section. Under Article 11, “Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.” Clause 4 provides that “State law and in respect of the Federal Territories ... federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.” Article 11 also attaches religious freedom to religious communities by guaranteeing the rights of religious communities to manage their own affairs. 

It is also interesting to note that Article 12 of the Federal Constitution prohibits discrimination against any citizen on the grounds only of religion, race, decent or palace of birth. This Article 12 (2) further provides that “….every religious group has the right to establish and maintain institution for education of children in its own religion and that there shall be no discrimination on the ground only of religion in any law  relating to such institutions or in the administration of any such law .. “  

Part VI Chapter 1 of the Federal Constitution provides for the  distribution of legislative powers of the

 Constitution provides as to the powers of Parliament and respective State Legislatures to make laws.

 The relevant Articles thereunder will be examined here.  

Article 73 confers   general powers of Parliament to make laws for the whole or any part of the

 Federation and on the State Legislature of a State to make laws for the whole or any part of that State.

Article 74 provide for specific instances when Parliament and State Legislature may make laws. In this regard Parliament may make laws in respect of matters set out under the Federal List and the Concurrent List (Article 74 (1)) while the State may make laws in respect of matter in the State List and the Concurrent List (Article 74(2)). However, the powers as conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.   

Article 76 then goes on to provide that Parliament may make laws for States in certain cases. In this regard Article 76 is reproduced here as follows:

76. Power of Parliament to legislate for States in certain cases 

(1) Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say: 

(a) for the purpose of implementing any treaty, agreement or convention between the Federation and any other country, or any decision of an international organization of which the Federation is a member; or 

(b)  for the purpose of promoting uniformity of the laws of two or more States; or 

(c)  if so requested by the Legislative Assembly of any State. 

(2)  No law shall be made in pursuance of paragraph (a) of Clause (1) with respect to any matters of Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak and no Bill for a law under that paragraph shall be introduced into either House of Parliament until the Government of any State concerned has been consulted. 

(3)  Subject to Clause (4), a law made in pursuance of paragraph (b) or paragraph (c) of Clause (1) shall not come into operation in any State until it has been adopted by a law made by the Legislature of that State, and shall then be deemed to be a State law and not a federal law, and may accordingly be amended or repealed by a law made by that Legislature. 

4)  Parliament may, for the purpose only of ensuring uniformity of law and policy, make laws with respect to land tenure, the relations of landlord and tenant, registration of titles and deeds relating to land, transfer of land, mortgages, leases and charges in respect of land, easements and other rights and interests in land, compulsory acquisition of land, rating and valuation of land, and local government; and Clauses (1)(b) and (3) shall not apply to any law relating to any such matter. 

In the case of Sabah and Sarawak any amendment to the Federal Constitution or any laws promulgated 

by Parliament needs to take into consideration the Constitutional Foundation documents, the that is

the Malaysia Agreement 1963, the Malaysia Act 1963, the Cobbold Commission Report and the Inter-

Governmental Report (IGC) as well as other the related documents upon which Malaysia was founded. 

In this regard paragraph 30 (2) of the IGC Report is instructive. Paragraph 30 provides as follows:

Constitutional Safeguards

30.    (1)    It is mentioned in other parts of this Report that the Federal Constitution should provide that certain provisions relating to the Borneo States should not be amended or repealed without the concurrence of the Government of the State concerned.  These provisions relate to immigration, citizenship, representation in the Federal Parliament and the High Court of the Borneo States.  In addition, in relation to the Borneo States, special safeguards on these lines will also be needed in respect of the distribution of legislative powers, and the executive authority of the Borneo States on matters within their legislative powers, and related financial arrangements, and in respect of the following other matters:—-

 (i)    religion;

(ii)    language; and

(iii)    the special position of the indigenous races.

(2)    It is considered desirable that modifications to the special constitutional arrangements made in respect of a Borneo State should, subject to the safeguard of the consent of the State Government in cases where this is required, be capable of being amended to the extent of bringing the State into line with the present States of the Federation without the requirement that the Federal Bill making such amendment should be supported by the votes of not less than two-thirds of the total number of members of the Houses of Parliament.  Article 159(3) should not, therefore, apply to such amendments which would then fall under Article 159(4)(bb).  However, Article 159(4)(bb) should be amended so as to ensure that such modifications could not go beyond bringing a Borneo State into line with the present States of the Federation.

Therefore, the proposal by the Federal Government that it is looking into amending or introducing certain Syariah laws in Parliament does not seem to add up, given the fact that administration of Islamic Laws and Syariah matters comes within the purview of the States as enshrined in Constitution. If this is by way amendment to the Constitution, then of course the Constitutional procedures, provisions and safeguards with respect to amending the Constitution must be met. In so far as Sabah and Sarawak is concerned there is the Malaysia Agreement and Malaysia Act 1963 that need to be addressed.   

- Jeyan is a lawyer

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