|
Freedom of religion under the Constitution
If in the presence of a large number of police officers, an
unlawful group of intimidators can so easily subvert a lawful assembly,
then the constitutional right to assembly and association is indeed
illusory.
by Shad Saleem Faruqi
LAST SUNDAY a public forum was scheduled to be held in Penang on " The
Federal Constitution: Protection For All". The forum was organised by an
umbrella group of 13 NGOs. A police permit had been obtained.
Sadly, about 500
placardwaving, slogan-mongering protesters, without a police permit,
heckled, disrupted and intimidated the speakers. The police reacted to
the emotionally charged situation by ordering the forum participants to
disperse after half an hour of deliberations.
I was slotted to
be a speaker at the forum and witnessed first-hand the triumph of mob
rule over the rule of law.
If in the presence
of a large number of police officers, an unlawful group of intimidators
can so easily subvert a lawful assembly, then the constitutional right
to assembly and association is indeed illusory.
My paper entitled
"Constitutional Perspectives on Freedom of Religion" intended to survey
the legal landscape of this most fundamental freedom.
I intended to
point out that Malaysia has a record of racial, cultural and religious
tolerance that should be the envy of all plural societies. Cultural and
religious pluralism are not only tolerated; they are celebrated both
officially and privately.
Legislation
provides for Muslim and non-Muslim religious institutions. Financial
allocations, gifts of land and tax exemptions are granted to all
religions.
Cultural and
religious tolerance extends to the use of minority languages in trade
and commerce, and the establishment of private schools using the
English, Chinese and Tamil languages.
The Malaysian approach towards matters of faith is that the state should
not be indifferent to, or hostile towards, religions. It must promote
tolerance. Tolerance comes not from the absence of faith but from its
living presence.
In Article 3(1) it is provided that Islam is the religion of the
Federation but all other religions may be practised in peace and
harmony. This adoption of an official faith is not a unique
constitutional phenomenon. Scores of countries around the world, both in
the East and the West, prescribe a state religion.
The alternative
secular model of confining religion to the private sector and separating
the state from the church, and law from religion is, of course, even
more common.
The implication of
adopting Islam as the religion of the Federation is that Islamic
education and way of life can be promoted for Muslims. Islamic
institutions can be established. Islamic courts can be set up. Muslims
can be subjected to the syariah in areas assigned by the Constitution.
Nevertheless, the
forefathers of the Merdeka Constitution did not intend to launch a
theocratic state. In Che Omar Che Soh (1988), the Supreme Court said in
unmistakable language that though Islam is the religion of the
Federation, it is not the basic law of the land. Despite Article 3,
Islam applies to Muslims only in areas outlined in the Constitution.
Article 11
The Constitution in Article 11(1) shows special tenderness for religious
liberty. In respect of religion, every person has the right to three
things: » To profess; » To practise; and » Subject to Article 11(4), to
propagate his religion.
The right to
religion is avail able not only to individuals but also to groups and
asso ciations: Article 11(3) and 12(2). Every religious group has the
right to: » Manage its own affairs. » Establish and maintain insti
tutions for religious purposes. » Acquire and own property and
administer it: Article 11(3). » Establish and maintain insti tutions for
religious education:
Article 12(2).
The right is
available to citizens as well as to non-citizens: Article 11(1).
There is no
compulsion on anyone to support a religion other than his own. No person
shall be compelled to pay any tax the proceeds of which are specially
allocated to a religion other than his own: Article 11(2).
There is to be no
discrimination on the ground of religion in relation to the rights of
students to education or in public support for educational institutions:
Article 12(1) and 8(2).
No person shall be
required to receive instructions in or to take part in any ceremony or
act of worship of a religion other than his/her own: Article 12(3).
There can be no
discrimination on the ground of religion against employees in the public
sector; in the acquisition, holding or disposition of property; and in
any trade, business or profession: Article 8(2).
A preventive
detention order cannot be issued on the ground that a convert out of
Islam is involved in a programme for propagation of Christianity amongst
Malays: Minister v Jamaluddin bin Othman (1989).
Article 150 (6A) provides that freedom of religion cannot be restricted
even in times of emergency by an emergency law under Article 150.
Areas of concern
In the last few years, however, racial and religious polarisation has
set in. Narrow-mindedness, intolerance and bigotry, like the type
evidenced in the Penang protest, are gaining ground.
As is the case in
all societies, there are areas where religious, cultural, and ethnic
interests are competing and clashing.
What is needed is
a fair balancing of interests with the least friction and waste. For
four decades such a balance was maintained.
Now as new challenges emerge, bold vision and courage are needed to
steer the ship through the looming storms. (To be continued.) Dr Shad
Saleem Faruqi is Professor of Law at Universiti Teknologi Mara.
|
