RIGHTS TO RELIGIOUS AND OTHER MINORITIES IN MALAYSIA1
Introduction
1.
The right to religion is one of the fundamental rights guaranteed
by the Federal Constitution of Malaysia. The guarantee of such
right is of utmost important because Malaysia is multi-racial,
multi-cultural and multi religious.
2.
Malaysia, which is a Federation of States consisting of eleven
states in Peninsular Malaysia, and the Borneo states of Sabah
and Sarawak has a population of 28 million. The population
consist of 66.7% Malays, 24.6% Chinese, 7.4% Indians and the
rest the natives of Sabah and Sarawak. The natives of Sabah
and Sarawak is further divided into many groups. In Sarawak
the largest group is the Iban, while in Sabah, the Kadazan and
the Dusun forms the largest group.
3.
In Malaysia, each race practices their own religion. Islam by
the Malays, Buddhism by the majority of the Chinese, Hinduism
by the Indians and Christianity by some Chinese, Indian and by
some of the natives of Sabah and Sarawak. Thus, we have
four major religion being practiced in Malaysia.
1
A paper delivered by Justice Raus Sharif, a Judge of the Federal Court of Malaysia at the 17 th Commonwealth Law
Conference 2011, Hyderabad, India
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4.
With such diversity in race and religion, the right to religion is
clearly spelt out by the Malaysian Federal Constitution. Article
3 (1) provides that:
“Islam is the religion of the Federation, but other
religion may be practiced in peace and harmony in
any part of the Federation.”
Further it is declared under Article II (1) that:
“Every person has the right to profess and practiced
his religion and, subject to clause 4, to propagate it”.
5.
Article II (1) indicate that every person has the right to three
things:
(i)
to profess;
(ii)
to practice; and
(iii)
subject to Article 11 (4) to propagate his religion.
Article II (4) basically prohibited the propagation of any religion
doctrine or belief among persons professing the religion of
Islam.
6.
The right under Article II (1) is available to citizens as well as
non-citizens. It is also available to individuals, groups and
associations.
In addition to Article II (1), religious liberty is
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further guaranteed in many Articles if the Federal Constitution.
For example, there is no compulsion on anyone to support a
religion other than his own and no person shall be compelled to
pay any tax the proceeds of which are specially allocated to a
religion other than his own. Also, no person shall be required to
receive instructions in or take part in any ceremony or act of
worship of a religion other than his own. The Federal
Constitution
also
by
Article
8(2)
does
not
allow
for
discrimination on the grounds of religion against employees in
the public sector, in the acquisition, holding or disposition of
property; and in any trade, business or profession.
7.
However, this fundamental right is by no means absolute. Like
all freedom, there are restrictions. Thus, Article II (1), which
guarantees freedom of religion cannot be read in isolation. This
Article must be read together with Article 3 (1) which states that
the practice of religion must not disturb peace and harmony.
This to say that one is allowed to exercise his right to religion
on condition it must not disturb peace and harmony in any part
of the Federation. Further, Article II (5) states that the right to
religion does not authorize any act contrary to any general law
relating to public order, public health and on morality. Basically,
it means that all religious conduct is subject to the power of
Parliament to restrict it on the grounds stated earlier.
8.
The Articles in the Federal Constitution relating to right of
religion had been subjected to judicial interpretation by the
3
Malaysian Courts. But due to time constrain, I am not able to
discuss it here.
9.
Admittedly, like in all societies there are areas where religious,
cultural and ethnic interest are competing and clashing.
Malaysia being a multiracial society faced some of this
competing interest directly or indirectly. There are 3 areas of
concern:
(i)
Status of Malaysia, whether Islamic or Secular State.
There is still a clash of opinion on the status of Malaysia
i.e. whether Malaysia is an Islamic or secular state. This
is despite the fact that Supreme Court (now Federal
Court) in one case had declared that although Islam is the
religion of the Federation, Malaysia is a secular state.
(See Che Omar bin Che Soh [1988] 2 MLJ 55)
(ii)
Issue of Conversion and Apostacy.
Universally, it is accepted that the right to religion includes
the right to convert to another religion. For non-Muslim
there is no problem. For example, a Chinese who is a
Buddhist can opt out of his religion to embrace another
religion. It is part of his religious liberty. But for Muslim,
despite the constitutional guarantee of freedom of
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religion, it cannot be done easily. No Muslim can lay a
claim to opt out of Syariah Law easily.
(iii)
Conflict of Jurisdiction between Civil and Syariah Courts.
By virtue of Article 3 of the Constitution i.e. by adopting
Islam as the religion of the Federation, Islamic education
and way of life can be promoted for Muslims. Islamic
institution can be established, Islamic Court can bet set
up and Muslims can be subjected to the Syariah Court in
areas assigned by the Constitution.
Thus in Malaysia, in addition to the Civil Courts system
which is based on the English Common Law, we also
have the Islamic Courts (Syariah Courts) running side by
side with the Civil Courts. The Constitutional amendment
in 1988, saw the separation of jurisdiction between these
two courts i.e. the Civil Court has no jurisdiction in respect
of any matter within the jurisdiction of the Syariah Courts
(see Subashini v Saravanan [ 2007] 7 CLJ 584). But
conflict of jurisdiction is still a living issue especially
dealing with conversion involving adults and children as
well as Muslim marriages. For example, it is taken for
granted that a non-Muslim’s right to opt out his religion is
an implicit part of his religious liberty.
However, the
exercise of this liberty is not free from the thorny issues
like if a Buddhist husband converts to Islam, the religion
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of the children become contentious issue. Though the
marriage is not automatically dissolved, the Syariah Court
will have power to end it. Custody and guardianship of
children will become issue.
And the non-converting
spouse will not be eligible for inheritance.
Nevertheless, despite the issues that we faced in the context of
freedom or right to religion, Malaysia generally are able to
practice their religion in peace and harmony. The Muslim can
freely go to the mosque, the Christian to the church and
Buddhist and the Hindus to their respective temple.
Rights of Other Minorities
10.
As stated earlier, natives of Sabah and Sarawak comprises of
many group. In Sarawak the largest group is the Iban, while in
Sabah the Kadazan and Dusun forms the largest group.
However, in terms of numbers they are comparatively small.
As a minority group, their interest is being protected by the
Federal Constitution.
One example is Article 153 (1) of the
Federal Constitution which imposed a duty on the Government
to safeguard the special position of the native of Sabah and
Sarawak. Another example is to allow the system of justice
based on native law and custom to continue. This system has
been in existence for a very long time.
Even before the
introduction of the English Common Law, the Native Customary
Law are being practiced in these two states.
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11.
During the British Administration, the native laws were
institutionalized through the establishment of Native Courts.
When Sabah and Sarawak gained their independence, the
administration of justice by Native Courts and the existence of
Native Law and Customs were given due recognition by their
incorporation in the Federal Constitution as State Legislative
matter.
Natives Courts in Sabah
12.
The establishment of the Natives Court in Sabah and Sarawak
is a clear example of the preservation of rights of the minorities.
Thus, in Sabah and Sarawak in addition to the Civil Courts and
the Syariah Courts, we also have the Natives Courts.
In
Sabah, the Natives Courts Enactment 1992 provides for a
three-tier system of courts consisting of a Native Court of
Appeal, a District Native Court and a Native Court. In Sarawak,
there are six levels of courts:
(i)
Natives Court of Appeal;
(ii)
Resident Natives Court;
(iii)
District Natives Court;
(iv)
Chief’s Superior Court;
(v)
Chief’s Court; and
(vi)
Headman’s Court.
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13.
Basically, both the Natives Courts in Sabah and Sarawak hear:-
(i)
case arising from a breach of native law or custom where
all the parties are natives;
(ii)
cases involving native law, custom relating to:
(a)
betrothal, marriage, divorce, nullity of marriage and
judicial separation;
(b)
adoption,
guadianship
or
custody
of
infants,
maintenance of dependants and legitimacy;
(c)
(iii)
gifts or succession testate or interstate; and
other case if jurisdiction is conferred upon it by the
Enactment or any written law.”
14.
However, the administration of the Native Laws and Customs
in the two states by the Native Courts is not without restriction.
In both Sabah and Sarawak the law provides that Native Courts
shall have no jurisdiction in respect of any cause or matter
within the jurisdiction of the Syariah Courts or the Civil Courts.
With regard to criminal offences the power to impose
punishment is restricted by Native Court (Criminal Jurisdiction)
Act 1961. The Act only confers jurisdiction of the Native Courts
of Sabah and Sarawak to try any offences (relating to natives
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customary law and customs) punishable for a term not
exceeding RM 5,000 or combination of both.
Criminal
jurisdiction cannot be exercised in respect of an offences which
is also an offence under the Penal Code. Further, the decision
of the Native Courts in both Sabah and Sarawak are subject to
judicial review by the Civil Courts.
There have been cases
where the decision of the Natives Courts had been quashed by
the Civil Court by way of Judicial Review on ground of
jurisdictional error. In the case of HAJI LAUGAN TARKI BIN
MOHD NOOR v. MAHKAMAH ANAK NEGERI PENAMPANG 2
the Supreme Court of Malaysia quashed the order made by
Penampang Native Court and set aside on the ground that the
court had acted without or in excess of jurisdiction when it
imposed the sentence of imprisonment on the appellant.
15.
Now I will deal briefly on the natives in Peninsula Malaysia
where we have the smallest minority group known as Orang
Asli or the Aborigines. On the last count, their total population
stood at around 150, 000 people. They come from 18 ethnic
subgroups and officially classified for administration purposes
as Negrito, Senoi and Proto-Malays. These groups of people
are scattered all over Peninsular Malaysia and are considered
as the original or first people of Peninsular Malaysia.
16.
The rights and status of the Aborigines is to be found in the
Aborigines Peoples Act 1954.
2
(1998) 1 LNS 147
9
It empowers the Minister
concerned to declare, through publication in the gazette certain
plots of land to be protected as aboriginal reserves and areas.
However, the Act does not treat the Aborigines as the legal
owners of these reserves or areas nor does it mandate
compensations for the government’s acquisition of these
reserves. The Aborigines are considered as a mere tenant of
their ancestral land. While section 10 of the Act recognizes that
compensation “shall” and must be paid by the Government for
acquisition of Orang Asli’s crops but section II of the Act merely
states that the authorities “may” pay compensation for the
acquisition of the aboriginal reserve or areas.
17.
However, through landmark case of Sagong Tas and Ors v
Government of Negeri Selangor [2002] 2 CLJ decided by the
High Court and affirmed by the Court of Appeal has brought a
tremendous victory to the Aborigines, where it was declared
that the establishment of the ancestral ties would confer upon
the natives as actual ownership of the customary land and thus
entitled to compensation for the loss suffered, which is the
value of the land.
18.
In conclusion, I can safely say that the rights of Religion and
other minorities is guaranteed and well protected in Malaysia.
8 February 2011
10
RAUS SHARIF (FCJ)
Federal Court
Malaysia
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