Haji Abdul Rahim Sinwan & Azril Mohd Amin, Muslim Lawyers Association of Malaysia
This is the unedited version – please excuse any errors.
It is with regret that we must respond to the statement issued by the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) on 5th February 2013. A number of misleading points were made in the statement and this has caused gross misinterpretation of several pertinent aspects on the position of Islam as the religion of the Federation.
On the special position of Islam in the Federal Constitution
As admitted by MCCBCHST, the fact is that Islam is the religion of the Federation as enshrined by Article 3 of the Federal Constitution. This is not disputed by anyone. It must be stated further that although Article 3 (1) says other religions may practice their religions in peace and harmony, due to Islam’s special position, they can only do so without interfering with the peace and harmony of the practice of Islam.
In simple words, disrespect for Islam’s special position can be construed a bane to other religions, which according to the Federal Constitution, “may be practiced in peace and harmony”. Certainly an encroachment and misuse of Muslim beliefs, percepts and religious doctrines in non–Muslims religious context and even though among non-Muslims themselves is sacrilegious and blasphemous to Muslims in Malaysia. Indeed the intention of the framers of the Federal Constitution not wanting such discontentment, discord and uneasiness from the amongst the Malaysian Muslims to arise framed the whole of Article 11 and in particular Article 11(4).
Article 11 (1) Every person has the right to profess and practice his religion and subject to Clause (4), to propagate it.
Take note that freedom to practice religion is subject to Clause (4), reading it gives the notion that there is no absolute freedom. In wanting other religions to practice in peace and harmony other than the special of Islam in Article 3, other religions must understand in tandem that States can restrict and control other religion from encroaching and misusing Muslim beliefs, percepts and religious doctrines in non–Muslims religious context and even though among non-Muslims themselves. Non-Muslims can propagate their religious doctrines to other non- Muslims but not Muslims. The Constitution does not accord such protection to non Muslims.
On Article 11 (4)
It must be made clear that Article 11 which provides for freedom of religion must be read subject to clause (4), where these supreme laws of ours allow for the “controlling or restricting the propagation of any religious doctrine or belief among persons professing the religion of Islam.” In other words Federal Constitution guarantees and affirms the rights of Muslims, that non-Muslims cannot be practicing Muslims beliefs, percepts and religious doctrines in what to be perceived as non-Muslims using and practicing Muslim beliefs, percepts and religious doctrines in non–Muslims religious context. Indeed the need to control and restrict such notion against non-Muslims is to prevent confusion which may cause discontentment, discord and uneasiness of Muslims that the non-Muslims practices had encroached into or run contrary to Muslims beliefs, percepts and religious doctrines.
While the Constitution recognizes every individual’s right to freedom of religion, including the right to propagate the religion, but the Federal Constitution allows for the promulgation of laws to control and restrict non-Muslims from encroaching the rights of Muslim as enshrined in the Federal constitution. The perception that non-Muslims can use and propagate Muslims beliefs, percepts and religious doctrines among non-Muslims in their religious practices and doctrine is in actual fact a misuse and misnomer. Certainly what does not come under the purview of freedom of other religion is to misuse Muslims beliefs, percepts and religious doctrines in their religious context. It must be noted that the freedom however is not an absolute one.
In respect of the right to propagate the religion, the Constitution provides the State Legislature the power to legislate law to control, or even to restrict the right to propagation of any religious doctrines or beliefs among Muslims.
It is important to note that laws controlling propagation are meant not only to maintain public order, but more importantly to prevent Muslims from being exposed to heretical religious doctrines, be they of Islamic or non-Islamic origin and irrespective of whether those propagating the doctrines are Muslims or non-Muslims.
MCCBCHST’s claim that the right to freedom of religion as provided for under Article 11(1) connotes an absolute right to propagate the non-Islamic religion is therefore inaccurate in light of the Federal Constitution.
At paragraph 5 of its statement, MCCBCHST has stated that “there are no laws whether Federal or State that enables Muslims body or organization to impose “fatwa” or rulings on non-Muslims. While that may not be a false statement, failure to explain the roles and effects of a “fatwa” will leave a distorted view of its functions in the Malaysian context.
What a “fatwa” exactly does is to affirm that the word “Allah” is indeed within the realm of the Islamic beliefs and precepts. Since a “fatwa” is the highest authority for Muslims, Muslims take it as blasphemous for non Muslims to use it in their practices and religious context.
On the statement of the Selangor Islamic Council
The stand made by Muslim non govermental organizations has been clear in many preceding media statements and public declarations. But since MCCBCHST has chosen to provide a misleading picture of MAIS’ statement on issues related to the name of “Allah’, we shall again clarify this matter.
We submit that MAIS’ statement had been made in accordance with His majesty’s the Sultan of Selangor’s decree on the prohibition of the word of Allah. His Majesty had in fact acted in accordance with his powers and in accordance with the provisions of the Non-Islamic Religious Enactment (Control of Propagation amongst Muslims) 1988, which had been in force since gazetted on July 7, 1988.
This is further strengthened by Section 9 of the Non-Islamic Religious Enactment (Control of Propagation amongst Muslims) 1988 which was promulgated in accordance with Article 11 (4) of the Federal Constitution, expressly inter-alia forbids the use of the term “Allah” by non-Muslims in any matter pertaining to their religion. Charges and penalties in Civil Courts can be meted out for those who violate these provisions.
In addition, the ruling on the prohibition of the use of the term Allah had been enacted in the State of Selangor on February 18, 2010.
On Che Omar bin Che Soh v PP
It is not surprising that MCCBCHST has chosen to provide selective quotation in this respect. The case of Che Omar bin Che Soh, if understood correctly, does not say that Malaysia is a secular nation.
It only said that at the time of the judgment, the laws of the nation were secular laws.
Notwithstanding, the position of Islam had been clarified further by the Federal Court in the case of Lina Joy, where Tun Ahmad Fairuz bin Sheikh Abdul Halim, the then Chief Justice had said that “Islam is not only a collection of dogma and rituals but it is also a complete way of life comprising of all kinds of human, individual or public, legal, political, economic, social, cultural or judicial activities.” And when reading Articles 11(1), 74(2) and item 1 in second list of the Ninth Schedule of the Federal Constitution it was obvious that Islam among others included of (sic) Islamic law.”
For MCCBCHST to keep harping on this matter and misleading the public on the effects of Che Omar by saying it implies that Malaysia is a secular nation is indeed a manifestation of their ill-intentions towards the religion of Islam. It is a blatant disregard of Islam’s true position within the Federal Constitution. We urge MCCBCHST to discontinue from further misusing Che Omar as a point of reference when discussing about the status of Malaysia as defined by the special position of Islam in the Federal Constitution.