(Pic by Jan Tabery / sxc.hu)
THE attacks against churches and other places of worship that ushered in 2010 have brought into sharp focus the intolerance of an unruly minority in Malaysia. This minority is determined to destroy the delicate balance reached through compromise and consensus in a plural society by our founding leaders, which forms a critical component of the social contract under the Federal Constitution.
Rage and emotional reactions must not take centre stage in national life. Instead, a calm and reasoned analysis of the constitutional position of religious freedom, which has served the nation well for half a century, must be undertaken.
I suggest the following propositions:
Islam is the religion of Malaysia, but other religions can be freely practised.
All citizens have the right to freedom of speech and expression.
Everyone has the right to profess and practise a religion of their choice.
Every religious group has the right to manage its own religious affairs and activities, free from state interference, and the right to acquire and own property.
Every religious group has the right to establish schools and other educational institutions for the education of children in its own religion.
As religion is a state matter, there is no national head of Islam for the whole of Malaysia. Instead, the nine Malay rulers are the heads of Islam in their respective states; and the Yang DiPertuan Agong is the head of Islam in the federal territories.
As part of the religion of the nation, federal and state laws have been passed regulating the worship of Islam. No similar laws have been enacted for religions other than Islam. Thus, insofar as religions other than Islam are concerned, there is a wall of separation between the state and those religions.
It follows that state action cannot regulate or govern the practice of religions other than Islam.
(Pic by F Lorences / sxc.hu)
It is therefore not the state’s business how religions other than Islam conduct their worship in churches, temples or gurdwaras, how priests are trained or appointed, what religious books are read in places of worships, what songs are sung, what sermons are delivered and in what language and by whom, and the like. All these are matters solely and exclusively for the religious group to determine.
The right of every person to profess and practise a religion of his or her choice, and for every religious group to govern its own affairs and own property — that is, the individual and collective rights to religious freedom — are fundamental liberties enshrined in Part II of the Federal Constitution.
They are inalienable rights, and cannot be diminished by the state even during an Emergency. Indeed, religious rights form the backbone of fundamental rights, which are themselves part of the constitution’s basic structure. Therefore, these rights cannot be the subject of parliamentary repeal.
It follows that, save for Islam, the state has no power over the religious books that any religious group worships or treats as holy. That is a matter entirely for the religious group concerned. The state has no power over the contents of the Bible, Vedas, Buddhist Sutra, Guru Granth Sahib, and other holy books. They are the word of God. The state cannot censor or rewrite these holy books. Neither a comma nor a full stop in these holy books concern the state, whether in their original languages or in translations.
In consequence, it is beyond the legal power of any government officer to stop the distribution and use of bibles and church publications that are restricted to Christians in whatever language containing whatever words. The only exception is when these publications are intended to be used to proselytise Muslims, because converting or attempting to convert Muslims is prohibited under the constitution.
But once a religious group declares that its holy book and other worship materials are not intended to convert Muslims, the state’s powers ends. This is fundamental to the social contract and to the Federal Constitution, the supreme law of the land.
Respecting the courts
Accordingly, in constitutional law terms, the High Court was correct in holding that a civil servant had no power in law to prohibit the use of “Allah” in a Catholic publication, the Herald, where there was no evidence of conversion of Muslims.
Hence, it was profoundly disappointing to read in the mass media the criticisms leveled against the High Court decision by government leaders and politicians. The only possible inference is that pressure is being applied on the appellate courts to overrule the High Court decision.
Tun Salleh Abas It is one thing for chauvinists to play the religious and racial cards for political reasons, which they do with masterly effect; but it is altogether another thing for ministers not to uphold the law of the land.
Confidence in the judiciary is damaged when the executive publicly wages battle against a court decision. That is exactly what happened when Prime Minister Tun Dr Mahathir Mohamad challenged Justice Harun Hashim in 1986-87. Eventually, that collision between the executive and the judiciary led to the dismissal of Tun Salleh Abas and two supreme court judges in 1988.
Until an appellate court sets aside a decision, the state must use all its powers to give effect to it. If the government does not respect a court decision, it cannot expect its citizens to show respect either.
Political will
Twentieth-century history is replete with illustrations of religious persecution of the minorities, whether Jews in Hitler’s Germany, Christians in Stalin’s Russia, Muslims in Mao’s China, all religions under Pol Pot’s brutal regime, or Palestinians in Israel.
These thoughts were substantially written while I was away for a fortnight in the US, where the mass media highlighted our religious intolerance. When I was asked where I came from, the invariable response was, “That’s where they burn churches.” If Malaysia does not wish to attain that kind of notoriety in the international arena, the government must take all immediate steps to arrest the descent into violence and anarchy by a minority group of Nazi storm troopers.
Metro Tabernacle Church in Kuala Lumpur, which was burnt in an arson attack on 8 Jan 2010
(Pic courtesy of Sivin Kit)
This is the appropriate time for Prime Minister Datuk Seri Najib Razak to demonstrate that 1Malaysia is not limited to symbolic window dressing, but includes taking right decisions for the public good; even if they are electorally unpopular in the short run.
There should be immediate condemnation of these acts and assurances of protection to members of the minority faiths. And if the argument is that such matters are not suitable for judicial determination, then the prime minister should use the prestige of his office to solve the problem politically.
This would mean consultations among all the relevant stakeholders, as occurred in the run-up to Merdeka some 50 years ago, and to which his illustrious father made a notable contribution.
In addition to establishing the long overdue Interfaith Commission, I call upon the prime minister to demonstrate leadership by urgently inviting leaders of all political parties, religions and civil society to resolve the matter peacefully through dialogue. For the sake of national interest, I hope that is what the prime minister will do. 
Tommy Thomas is a constitutional lawyer and a student of history and politics.
For related stories, see In the Spotlight: Political Islam
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jules says
This is of course only the second best solution, the best one being that the state should not be involved in religious matters at all. Religion should be relegated (or elevated, some may say) to the realm of the personal.
Farouq Omaro says
By virtue of the Malaysia Agreement 1963, the states of Sabah and Sarawak have no official religion. The declaration of Islam as the state religion in Sabah in 1973 does not change the provisions in the Malaysia agreement. And Article 11(4) of the Federal Constitution that forbids non-Muslims from propagating their religions to Muslims does not apply in Sabah and Sarawak.
Tan says
I do not expect too much from the present government, when even their own law minister, who is supposed to act impartially, publicly criticised the judgement by the High Court judge. [The minister should have] followed the Rule of Law instead of commenting on the decision, with racial undertones, based on emotions to gauge public sentiment.
VT Raj says
Excellent article, could not have said it any better.
It is crucial that we highlight the fourth point that “every religious group has the right to manage its own religious affairs and activities, free from state interference, and the right to acquire and own property.” In the midst of all the political turmoil, many have forgotten about this salient point. This is especially crucial when a country like ours has decided not to draw a clear distinctions between state and church (read: religion).
It is quite interesting to observe that despite the glaring constitutional issues which vest the issue of Islam to state regulation, the Federal Government has intervened several times to usurp this part of the state’s power.
It is also quite sickening that politicians keep stating that Malaysia is a multicultural country and has to be sensitive. We are not the only multicultural country in the region; there are other neighbouring nations with more diverse multiculturism, and they do not face as many issues that we do in this country. This speaks volumes about our country and its political will and psyche.
Knowall says
What more is there to say? The corrupt and useless ruling politicians have said it all — that they are and will be always right even if they killed their parents with their bare hands. Such is the fate of Malaysia when ruled by mad raving greedy bigots.
Gopal Raj Kumar says
The Constitution is clear on the fact of Islam’s paramouncy [sic] as the religion of Malaysia. It is unambiguous about the limited or qualified right of others to practice their own religions subject to certain exceptions which is a lot more than Germany is prepared to concede to Scientology and its many powerful believers […]. The religion is outlawed in other places as well and placed on a watch list in the US.
In the current controversy commentators are so divided that they fail to accept that a controversy arose over the use off the word and regardless of how others see it, government exercised its powers to put paid to the use of the word (otherwise seemingly harmless) to avoid a greater mischief or disturbance which they have the power to.
One need not go too far back in history to see how Muslims were and continue to be treated in the US and in Europe pre- and post-9/11 and the state-sponsored and manufactured lie that followed the “weapons of mass destruction†hype.
[…]
Religious intolerance and burning of churches? Mr Thomas had no right to feel embarrassed by such questions about Malaysia coming from Americans. But that’s an indulgence you are entitled to if you think it validates your other arguments.
The Mormons, a powerful and significant Christian sect who widely practice polygamy in the US in conformity with the tenets of their religion, when discovered are still subject to US law, arrested, tried and jailed for it. Again there is religious freedom in the US and arrests, trials and jailings are all part of sovereign powers implied and expressed in a democractic constitution and Malaysia’s is no different in this respect.
In order to be well-informed on a topic such as religion and its relationship to the constitution, the constitutional limits on practice of religion even in a democracy that has a bill of rights, one ought to read a little more widely apart from the “Bush Doctrines of the New world Order†or the outdated and irrelevant pronouncements of ancient English judges which have little application in the real world.
Lau Bee Lian […] misread the core issues with respect to what the government was and remains empowered to do under the constitution and at law generally.
She instead introduced and expanded unnecessarily on the historic use of the word Allah to the extent it did not address the core of the issues pleaded in the matter. The historic use of the word and the many publications she quoted from has little persuasive force or bearing on the powers of the state on such issues in a postcolonial Malaysia. The constitution is unequivocal on the powers of the state and federal government on those conditions imposed on whatever right there is to the freedom of religion. She failed to read it properly or demonstrate even a cursory knowledge of its application to the issues that were placed before her.
The plea to allow the appeals court to decide the matter in isolation is absurd. The Court of Appeals needs to now more than ever before inform itself of much more than ancient outdated British concepts of state and religion and get real.
[…]
The separation of church and state in a secular society has a host of different meanings and interpretations on the subject. Thomas’s suggestion that religions be given autonomy (my words) in the practice or freedom to practice is to seek to undermine the sovereignty of the state and to hand too much power to undemocratic institutions as the churches (all religions) are. Consider for a moment the likelihood of the prospect and the effect of a prosecution of a pedophile in the Catholic Church (or other deviants in the other religions) if Thomas’s suggestions were to be implemented.
In concluding let me say that Thomas’s suggestions that these separate measures in dealing with religion be implemented as a panacea for the Malaysian Bar’s ignorance of the constitution would only play into hands of those who seek to establish a
theocracy in Malaysia. Because the majority and more vocal proponents of a theocracy remain with the majority in a precarious democracy as Malaysia is. And with that suggestion of Thomas’s it may not now be hard to achieve.
Gopal Raj Kumar
Gopal Raj Kumar says
It is pathetic that you again “edit” what’s written to distort the substance of the response I have given to Thomas’s pathetic and weak article on this subject.
You failed to publish the example of the Branch Davidian cult, a recognised church in the US, burnt to the ground by the FBI and ATF. It was a response in context to Thomas’s statement that he was confronted with a response to where he came from with “oh, isn’t that where they burn churches” whilst in the US.
The point is that the US has by far more examples of where they burn churches, both the state and individuals and organisations supported and tolerated by the state like the KKK.
I suppose your idea of what’s worthy of publication in your “democratic” publication
is a statement like “well done, Nut Graph. And well done, Thomas” inspite of the embarassment and abject ignorance you both demonstrate time after time.
===
From the comments and columns policy: https://www.thenutgraph.com/comments-and-columns-policy
POLICY ITEM: “Stay on topic. Keep your comments relevant, brief and to the point.”
Your comment was more than 1,000 words long. If you want to write something that long, it would be better sent to us as a letter to the editor.
POLICY ITEM: “Please make it easier for everyone to digest your ideas by reviewing your comment for grammar, spelling, punctuation, and, above all, coherence. If you are unable to do so but are making an important point that we want to publish, we reserve the right to edit your contribution for grammar, brevity and coherence.”
Your sentences and paragraphs are all over the place, ungrammatical and some sentences are more than 50 words long. There are also numerous spelling and punctuation errors. Many sentences are incoherent. As moderator, it is my job to edit for grammar, brevity and coherence.
POLICY ITEM: “Finally, and most importantly, The Nut Graph reserves the absolute right to publish at our discretion.”
The editors read all comments, and then make a judgment. The comment is published or rejected at the editors’ discretion after keeping in mind all the policy items, which as you have discovered are available on the website for everyone to read. How did the edits make your comment read as though you were saying “Well done, Thomas, well done, The Nut Graph?” We let through all your criticisms against what you perceive as our bias and unprofessionalism, so that much is clear. Sometimes paranoia is a mask for a lack of logical argument.
Shanon Shah
Columns and Comments Editor