Freedom of Religious Expression in Malaysia

There are always debates on the freedom of expression in today’s modern world more so in response to issues like freedom of religion, religious expression, hate speech, interfaith dialogues etc. In Malaysia, issues especially those concerning race and religion are considered sensitive and therefore pose as obstacles to the implementation of complete religious freedom. Great care is taken not to impinge on the religious sensitivities of the various groups. It is understood that no one including the media can carry articles that question the faith or ridicule the religion and culture of the people in the country. Given that Islam is the religion of the Federation, great care is taken not to publish articles that cast slur, intended or otherwise, on the religion or its adherents. All media, including those operated by the opposition, follow this policy. Thus, religious expression has always been monitored by the government in order to protect the racial harmony in the multiracial, multicultural and multi-religious society of Malaysia. And this protection is provided for in the Constitution. This paper looks into some important issues that has caused some concern recently such as the position of Islam and freedom of religion, use of religion in politics, religious expression in the media, use of the word Allah by Christians, the publication of the Bible in the Malay language and the controversy over the so called attempt by an opposition party to make Christianity the official religion of Malaysia. The paper explains how these issues have been tackled by the government and society.


MALAYSIAN EXPERIENCE ON RELIGIOUS EXPRESSION
In Malaysia, the government is willingly to suppress religious expression in order to ensure the Malay-Sunni Islam remained dominant and political stability will allegedly ensure longevity of ruling party Barisan Nasional (BN) or United Malays National Organisation (UMNO) to be in power.Instead of defending secularism, Malaysia has never a secular or Islamic state because its leaders were always claimed and counter-claimed on the issue.First Prime Minister, Tunku Abdul Rahman Putra Alhaj once admitted that Malaya/Malaysia was a secular state.However, the status has changed during the Mahathir"s period.Mahathir unilaterally, probably in the intention of challenging Islamic Party (PAS) concept of Islamic state, announced that Malaysia is an Islamic state.It brought controversy within the non-Malays community who rejected such notion in Malaysia.Current Prime Minister, Abdullah declared that Malaysia is an Islamic state, but Malaysia is not a secular or theocratic state.He argued that Malaysia will be ruled by following Islamic principles and the Parliamentary democratic principles as stated in the Federal Constitution (Lee B.C. 2008: 48).
It is essential also to note that the concept of freedom of religion in Malaysia is rather different from what have been practised in the West.It is important to first understand article 3(1) of the Constitution, and appreciate its origins as envisioned by Malaysia"s forefathers.It states that Islam shall be the religion of the Federation, but other religions may be practised in peace and harmony in the Federation.It also gives due regard to the elements and traditions of the Malay states long before the colonial period i.e. the Sultanate, Islamic religion, Malay language, and Malay privilege (Thomas 2006: 31).Historical evidence suggests that the memorandum discussed the idea of Islam as a religion for Malaysia, but emphasized that this should not affect non-Muslim nationals to profess and practise their religion, and there is no implication that the State is not a secular State (Thomas 2006: 18-19). 1 Mr Justice Abdul Hamid, the Reid Commission member from Pakistan opined that the provision on Islam as the religion of the State is innocuous.But the use of the word "secular" by the founding fathers was never intended to suggest an anti-religious or anti-Islamic state of governance (Sarwar 2007).The Constitution envisages Syariah laws would be enacted to fulfill the personal law requirements of Muslims, but manifestly recognizes that the Syariah would not be made the supreme law. 2 In the landmark case of Che Omar bin Che Soh v. Public Prosecutor, 3 the Supreme Court was called upon to determine the meaning of article 3. It was emphasised that the British intervention in Malaya separated Islam into the public aspect and the private aspect; Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and in heritance only (Thomas 2006: 28).It is only in this sense of dichotomy that the framers of the constitution understood the meaning of the word Islam in article 3. Scholars like Ahmad Ibrahim also observed that the intention in making Islam the official religion of the Federation was primarily for ceremonial purposes (Thomas 2006: 29), while Shad Faruqi stressed that "[t]he implication of Islam as religion of the Federation is that Islamic education and way of life can be promoted 1 The White Paper issued by the British Government on 14 June 1957, which contained the constitutional provisions for an independent Malaya, reiterated that a declaration of Islam as the religion of the Federation will in no way affect the present position of the Federation as a secular State. 2 Sarwar also argues that "Unlike the Constitution of Pakistan that entrenches the Syariah as the basis of all law, the Federal Constitution does not accord the syariah law such status." 3 Che Omar bin Che Soh v. Public Prosecutor [1988] 2 MLJ 55.In that case, the accused was faced with a mandatory death sentence for drug trafficking.He challenged the sentence on the basis that the imposition of death penalty for the offence is contrary to Islamic injunction and therefore, unconstitutional and void.
for Muslims.Islamic institutions can be established.Islamic courts can be set up, Muslims can be subjected to Syariah laws in certain areas provided by the Constitution" (Faruqi 2006: 1).
The Constitution also devotes an entire section to detailing fundamental liberties guaranteed for the citizens.Freedom of speech is formally assured by Part II of the Federal Constitution under Article 10(1) entitled "Freedom of Speech, Assembly and Association".Article 10(1) allows a) every citizen has the right to freedom of speech and expression; b) all citizens have the right to assemble peaceably and without arms; and c) all citizens have the right to form associations.However, although citizens have a right to freedom of speech, Section 2 of the Article limits the right where Parliament may by law impose: "(a) On the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;" Article 11 provides for the freedom of religion. 4On its literal wording, it seems comprehensive enough to guarantee religious freedom for the plural Malaysian society.A citizen reserves the right to profess, practice andsubject to article 11(4)to propagate his religion.It is also suggested that this freedom can be construed to mean that one is free to relinquish or change a religious belief (albeit with limitations for Muslims under specific religious laws), and even to not be religious (Thomas 2006: 34).Article 11 is further supported by other Constitutional provisions.For instance, article 149 provides that Parliament may enact laws which would be inconsistent with the fundamental liberties under articles 5, 9, 10 or 13 only if action has been taken or threatened by a substantial body of persons against the nation.Thus, laws which would impinge on article 11 are unconstitutional.Even if a state of emergency is declared, any emergency laws enacted thereafter cannot curtail freedom of religion. 5Article 8 also prohibits discrimination on the grounds of religion against public sector employees; in the acquisition or holding of property; and any trade, business or profession.
Be that as it may, the freedom of religion is subject to several important restraints.A clear example would be article 11(5) which gives deference to public order, public health or morality.The effect is that any religious act which is contrary to general laws relating to these grounds cannot be sustained under article 11.Another controversial limitation is subsection 4"s 4 Article 11 reads: (1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of religion other than his own.
(3) Every religious group has the right -(a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law.(4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
(5) This article does not authorize any act contrary to any general law relating to public order, public health or morality. 5Article 150 (6A) of the Constitution.restriction on the propagation of religion among Muslims.It is argued that laws controlling propagation are meant to prevent Muslims from being exposed to heretical religious doctrines, be they of Islamic or non-Islamic origin, and irrespective of whether the propagators are Muslims or otherwise (Masum 2009: 3).Shad Faruqi (2001) adds that restrictions are meant to protect Muslims against well-organised and well-funded international missionary activities, and are more concerned with preserving public order and social harmony than with religious priority.The restraints on religious freedom are also developed through case laws, especially on the scope of the word "practise" in article 11, culminating in the "non-mandatory practices" doctrine.In essence, this means that freedom of religion extends only to those practices and rituals that are essential and mandatory (Masum 2009: 4).In Hjh Halimatussaadiah bte Hj Kamaruddin v. Public Services Commission, Malaysia & Anor6 , the court rejected a woman"s contention to be allowed to wear a purdah (a headdress covering a woman"s entire face except the eyes) to work because the government was entitled to forbid a religious tradition that was non-essential and optional in the interests of the public service.Similarly, in Meor Atiqulrahman bin Ishak & Ors v Fatimah Sihi & Ors7 , the court rejected demands by Muslim boys to be allowed to wear turbans to school.
In its relationship with article 3, it should be noted that the freedom of religion is in no way affected, because article 3(4) states that nothing in article 3 derogates from any other provision in the Constitution.However, as stated by article 3(1), the exercise of religious freedom must be done in peace and harmony.It follows that any practices that would contradict "peace and harmony" cannot be supported by this provision.In the case of Muslim citizens, there may be additional restraints to religious freedom by virtue of Schedule 9, List II, Item I of the Constitution.This grants power to State Assemblies to enact laws to punish Muslims for offences against the precepts of Islam, such as khalwat, adultery, apostasy, gambling, drinking and deviationist activities (Masum 2009: 3).Despite the foregoing arguments, it is notable that the establishment of a particular religion over the State is not unique to Malaysia.In Norway, primacy on Christianity means that the king and a majority of the cabinet are required to be members of the state church (Shelton and Kiss 2007 : 575), and in England, the Anglican Church remains at the centre of public policy and has substantial support from the state.Furthermore, as mentioned in article 11(4), the right to propagate any religious doctrine or belief among persons professing the religion of Islam may be controlled or restricted by State law and Federal law in respect of Federal Territories, Kuala Lumpur and Labuan.Mohamed Salleh said to this limitation as following: "This limitation is logical as it is necessary consequence that follows naturally from the fact that Islam is the religion of the Federation.Muslims in this country belong to the Sunni Sect which recognizes only the teachings of four specified schools of thought and regards others school of thought as being contrary to true Islamic religion.It is with a view to confining the practice of Islamic religion in this country within the Sunni Sect that State Legislative Assemblies and Parliament as respects the Federal Territory are empowered to pass laws to protect Muslims from being exposed to heretical religious doctrines, be they of Islamic or non-Islamic origin and irrespective of whether the propagator are Muslim or non-Muslim".(Abas 1984: 10) This limitation would affect both Muslims and non-Muslims.State law may prohibit attempt by not only non-Muslims to convert Muslims to other religion, but also to restrict deviation from Islam, Sunni Sect.For non-Muslims, if his religion requires propagating it as practice, his right to practice would be severely limited.As long as there are no state laws restricting on the right to propagate any religion among Muslim, theoretically this right would be unlimited and any person may exercise the right to propagate any religion among Muslims as well as non-Muslims, unless their acts do not violate Article 11(5).
Malaysia is definitely reluctant to have political change.This is proven by allowing the ruling government BN (used to be known as Perikatan) to rule Malaysia since Independence in 1957.Without doubt, political stability is always the agenda of BN in every general election and how BN was portrayed as the protector of multiracial society in Malaysia.Hasny Md Salleh (2004), a Colonel in Malaysian Army, argues that Malaysia exercises "controlled democracy" which simply means that as much as Malaysia is a democratic nation, the government rigidly stipulates what can be done and said.The media community is not spared this restriction.The government provides the guidelines to the media community of what can and cannot be reported through the media.The media is used by the government as its informational tool to reach out to the population, reporting successes for the country and reports of the failures and defamation of the opposition party.He admits that all these can be seen as the downside of the Malaysian government.Malaysia views the media as a "double-edged weapon" and thus, must be controlled and exploited to the advantage of the government of the day.However, argued Hasny (2004), political instability means lost of foreign direct investment and could give rise to internal security problems such as racial clashes or religious confrontations.Therefore, Malaysia must understand that the fragility and diversity of the religious and social structures are potentialities for instability.Efforts must be maintained to ensure that a strong government and racial integration remain intact to facilitate and accommodate further development for the nation.However, these are sensitive issues that if not handled accordingly, could give rise to terrorism.Malaysia also realised that it needs to have a strong system of government.Most terrorist organisations are found in countries that have weak and unstable government or failed states.These states become easier targets, easily influenced and enable the terrorists to promote terrorism.Terrorism will have little or no support at all from a country that has a strong and stabilised form of government.The government remained sensitive over issues such as race, culture, religion and ethnicity and every opportunity was taken to deny the terrorists from exploiting theses issues.The government also ensured that the general social system was viewed as stable with the equitable distribution of power and rights, both politically and socially.According to Hasny (2004), if all the issues such as the fragile social structure (social integration), extremist religious groups, national security and the role of the media are not handled diplomatically, there will be dire prospects for political instability.Therefore, Hasny advocates that Malaysia needs all its legislative tools such as the restrictive laws of the Internal Security Act (ISA) that allows detention without trial, Official Secret Act (OSA), Sedition Act (SA), and Printing Presses and Publications Act (PPPA) to remain politically and economically stable.This is in line with a statement once made by former Prime Minister of Malaysia Mahathir Mohamad to the Far Eastern Economic Review on 28 October 1996 that "The threat is from inside….So we have to be armed, so to speak.Not with guns, but with the necessary laws to make sure the country remains stable" (Mendes 1994: 2).
In here, it is clear that Malaysia"s arguments for and against religious expression is consistent with the Restrictive Theory rather than Permissive Theory and support the political stability approach rather than dynamism.In the next sections, this paper will proof those consistencies in relation to the issue of religious expression.Thus, several main issues will be explored as for the following sections.

Religious Expression in the Press
The talk show Sensasi, which was aired by private station "TV3", was banned by the Malaysian Communications and Multimedia Commission (MCMC) for an "inappropriate comment" made about one of the prophet Muhammad"s wives.The Centre for Independent Journalism (CIJ) reported that the Ministry of Internal Security has banned numerous books in 2007 which among other are a translation of Charles Darwin"s Origin of Species for advocating an alternative religious view (North 2007).On 12 June 2007, it was revealed in a dialogue between civil society groups and the Internal Security Ministry that most of the assessments of books on religion and decision to ban are made by the Department of Islamic Development, Malaysia (Jabatan Kemajuan Islam Malaysia, JAKIM), a department separate from the ministry (Suaram 2010: 77).
In Malaysia, no pictures of pigs are used and pornographic expressions are banned because they are considered unIslamic or sometimes against Islam especially for pornography.However, there is strong consensus amongst Malaysians whether they are Malays (or other indigenous tribes), Chinese, or Indians, which rejects materials of a pornographic or sexual nature as immoral and obscene against any religious teachings.Pornography is also seen as a kind of exploitation as it degrades, endangers, and harms the lives of women.Although many in the business argue that the women"s involvement in pornography is voluntary, many Malaysians believe that there is an element of exploitation by the pornographic industry.Mahathir argues in this context: …there are limits to freedom, and I believe it is important for every member of a society to know these limits.One good example is pornography.You can have computer animation, which may be ever so creativeand thus should be freely available -but if this "freedom" is used to produce pornographic films that are purveyed to the impressionable young, then the fruits of the freedom should not be accepted and allowed by society.In Malaysia, it is not my impression that business ingenuity or creativity has been stifled by our Malaysian value system which sets clear limits to individual freedom and generally emphasises the community over the individual.To the contrary, I believe that our value system has been the foundation for our society"s stability and prosperity, at least until the economic crisis struck.(Mahathir 1999: 73-74) In post-Mahathir period in Malaysia, pornography is still being considered as taboo, and strict policies and actions have been taken by Abdullah"s government to combat it.There are several cases with regard to combating pornography in Malaysia.For instance in 2007, Fahmi Kassim, chief enforcement officer at Johor"s domestic trade ministry, mentioned that Malaysia"s movie bootleggers are selling more pornography to offset financial losses following a government crackdown using two sniffer dogs, Lucky and Flo owned by the Motion Picture Association of America (MPAA), that have found huge stashes of pirated Digital Versatile/Video Discs (DVDs) (Inquirer 2007).Pornographic discs, including some featuring under-aged girls, comprised nearly a quarter of some 180,000 illegal DVDs found in raids over the past four days in southern Johor state.A pirated DVD sells for about RM10 (USD2.80),but pornographic movieswhich are not all piratedcan fetch at least RM3 (USD0.85).The pornographic discs found in Johorwhich attracts many pirated DVD buyers from neighbouring Singaporemostly originated in the US and Europe, but some included Chinese and other Asian-looking actresses.Neil Gane, senior operations executive of the MPAA, said that "What is disturbing is this growing proof that the piracy syndicates are working with the pornographic industry, especially when the seized items now include child pornography" (Inquirer 2007: 1).According to the Malaysian government, five million discs were seized in more than 2,000 raids nationwide in 2006, and 780 people were arrested.
In further combating pornography, Malaysia is moving to block access to Internet pornography in government departments and schools.Deputy Prime Minister, Najib, argued that action was being taken after news reports that Malaysians could access 1.5 million sex sites.He said that "We are worried by the presence of these websites on the Internet.While we accept the use and application of modern technology, the downside of technology needs to be considered too" (Channel News Asia 2005: 1).While the Internet will not be censored in the MSC, a centre for local high-tech firms, Najib said that the restrictions will be extended outside government offices to other sectors.Malaysia"s Education Minister Hishammuddin Hussein said, in an AFP report, that school computers will soon be fitted with software to block access to pornography.In 2004, the government committed RM800 million to expand access to broadband facilities in rural areas and schools, government offices, universities and research institutions (Channel News Asia 2005).
However, there is criticism that the government is taking these anti-porn measures too far.For instance, the use of filters in the case of Internet Cafés or educational and government networks, as reported by the CIJ, has caused a negative effect which included blocking the access to health sites.These sites offer very useful information related to Acquired Immune Deficiency Syndrome (AIDS) and Sexual Transmitted Diseases (STDs) preventions and are very important for the poorly informed Malaysian society.Sonia Randhawa, the CIJ director, told AFP that up to ten percent of the results obtained from searching the expression "safe sex" are blocked, and that by using the most non-restrictive filters.The CIJ said that the anti-porn measures adopted by the Malaysian government represent the country"s first formal attempt to impose a level of censorship over the Internet.Randhawa concluded that "The Internet is the only place in Malaysia where there are guarantees of freedom of expression...We"re concerned that using the filter approach could easily be a temptation to filter out other sites as well" (Softpedia 2005: 1).
Another issue that has raised concerns over the exercise of religious freedom in multiracial Malaysia is the controversy on the use of "Allah" by Catholics.In January 2008, the Malaysian cabinet banned a Catholic newspaper, The Herald, from using the word "Allah" in their publications.The Malaysian government justified the restrictions on the basis that the word "Allah" refers to God according to the Muslim faith, and as such its use by non-Muslims may arouse sensitivity and create confusion among Muslims in the country (The Sun 2008: 1).
The debate on this issue remains unresolved.Although the High Court held in favour of The Herald, the Malaysian government obtained a stay order pending an appeal.It has been strongly contended that the government"s censure against The Herald violates the freedom of religion under article 11, freedom of speech and expression under article 10, as well as article 8"s guarantee of equality.Proponents of the Government suggest that "Allah" is exclusive for Muslims, and giving Catholics the right to use "Allah" disregards article 3 because such use will somehow erode the position of Islam in the country and cause confusion among Muslims.It is difficult however, to see the wisdom of this argument especially since article 3 does not affect the exercise of other rights espoused in the Constitution.Furthermore, in other Muslim countries, even in the Middle East, where the Muslim and Christian communities together use the word "Allah", one hardly hears of any confusion arising. 8or those who support The Herald's position, they claim a violation of article 11"s right to religious freedom, in that the use of Allah is central to the practice and profess of their religion.But the widespread concern among the Muslims is that such use would strike the prohibition against propagation of other religions to Muslims.It is believed that the Catholic Church would use it as a tool for proselytism among the Muslim majority, against article 11(4) of the Constitution.However, a non-Muslim would only commit an offence if he uses the word "Allah" to a Muslim but there would be no offence if it was used to a non-Muslim.The High Court opined that the use of the word "Allah" is an essential part of the worship and instruction in the faith of the Bahasa Malaysia-speaking community of the Catholic Church in Malaysia, and is integral to the practice and propagation of their faith.
The other side of the argument suggests that this controversy be looked at through the "non-mandatory practices" lens.This restraint has been invoked by courts to allow only religious practices that are deemed "essential and mandatory."One could make out an argument that other than using the word "Allah", the Catholics could instead use the Bahasa Malaysia equivalent of "God"which is Tuhanin their publications.Hence, the use of "Allah" is neither mandatory nor essential to practice the religion.But it is this very line of reasoning that has drawn concerns from those who believe that it may create problems in areas where some practices, though not mandatory, is however part and parcel of certain religions (Masum 2009: 4).Another potential danger of invoking the "essential and mandatory" reasoning lies in the fact that religious practices often vary not only from one place to another, but also from one community to another.So who is to decide what is "essential and mandatory"?If this reasoning is used to sustain a uniform, blanket rule on "necessary" practices, then we have no business in claiming cultural (or religious) relativism because to impose what is necessary or not contradicts the very heart of the relativist argument.As such, it is clear that arguments from both sides of the divide have some flaws which need to be addressed urgently.
With regard to the freedom of speech, it is contended by the applicants and subsequently affirmed by the High Court that the imposition of the prohibition amounted to an unreasonable restriction on the freedom of speech and expression under article 10(1)(c) of the Constitution (Adil 2007: 238).It is also deemed an unreasonable administrative act which impinged on the first limb of article 8(1) of the Constitution, which demands fairness in any forms of State action.In the international human rights regime, the freedom to "manifest one"s religion or belief in teaching, practice, worship and observance either in public or in private" is clearly recognised.Broadly speaking, we can conclude that this includes the use of a particular word or reference in publications distributed to adherents of a particular faith.The HRC"s General Comments to article 18 of the ICCPR sheds some light in understanding what is contemplated by the human rights regime.It is recognized that the freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts, including ritual and ceremonial acts, as well as customs like the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. 9In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, one of which is the freedom to prepare and distribute religious texts or publications.Given these, it is difficult to the position taken by the Malaysian government is inconsistent with international conceptions of human rights.It is also worth mentioning that international scholars such as Tariq Ramadan seemingly share the sentiments against the prohibition to use "Allah" in Malaysia.Ramadan suggests that for centuries Christian Arabs have been using "Allah" to refer to God, and likewise Muslims have used different words when speaking of God in different languages (Koya 2010).

CONCLUSION
In Malaysia, religious expression is allowed only if it is approved by the state and religious authority as long as it follows the teaching of Sunni sect.This is definitely protected by the constitution as Islam is an official religion, but other religions are allowed to be practised by their followers.Besides, Malaysia is now declared by the government as the Islamic state even though the argument is a little bit blur by non-Muslim because secular or non-religious matters are considered Islamic as well such as learning about non-Islamic philosophy such as Marxism and liberalism is also Islamic in the sense that by learning non-Islamic matters, it will strengthen the Islamic beliefs among the Muslims.There are also many restrictions imposed to the religious expression in which are included in publication, dress codes, blasphemy and the intention to establish inter-faiths commission.What is obvious is that religious freedom and religious expression are very sensitive in the race relations in Malaysia.The government is seen trying to protect political stability and racial harmony in Malaysia, but at the same time it tries to maintain the status-quo as a way of regime security mechanism.Hence, the issue is so complicated but religious issues in a plural society such as Malaysia must be open to civilized, intellectual debates by all sections of the community.While concerns of social stability are understandable, actions must be reasonable and not at the expense of human dignity.