The Politics of Religious Expression in Malaysia 9789814620338

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Trends in Southeast Asia

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The Institute of Southeast Asian Studies (ISEAS) was established in 1968. It is an autonomous regional research centre for scholars and specialists concerned with modern Southeast Asia. The Institute’s research is structured under Regional Economic Studies (RES), Regional Social and Cultural Studies (RSCS) and Regional Strategic and Political Studies (RSPS), and through country-based programmes. It also houses the ASEAN Studies Centre (ASC), Singapore’s APEC Study Centre, as well as the Nalanda-Sriwijaya Centre (NSC) and its Archaeology Unit.

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2014 #11  

Trends in Southeast Asia THE POLITICS OF RELIGIOUS EXPRESSION IN MALAYSIA MOHD AZIZUDDIN MOHD SANI

ISEAS Publishing INSTITUTE OF SOUTHEAST ASIAN STUDIES

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Published by:

ISEAS Publishing Institute of Southeast Asian Studies 30 Heng Mui Keng Terrace Pasir Panjang, Singapore 119614 [email protected] http://bookshop.iseas.edu.sg

© 2014 Institute of Southeast Asian Studies, Singapore All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission. The author is wholly responsible for the views expressed in this book which do not necessarily reflect those of the publisher. ISEAS Library Cataloguing-in-Publication Data Mohd. Azizuddin Mohd. Sani. The Politics of Religious Expression in Malaysia. (Trends in Southeast Asia, 0219-3213 ; TRS 11/14) 1. Freedom of expression—Religious aspects—Islam. 2. Freedom of expression—Malaysia. 3. Freedom of religion—Malaysia. 4. Islam and state—Malaysia. I. Title. II. Series: Trends in Southeast Asia ; TRS 11/14. DS501 I59T no. 11(2014) 2014 ISBN 978-981-4620-32-1 (soft cover) ISBN 978-981-4620-33-8 (e-book, PDF) Typeset by Superskill Graphics Pte Ltd Printed in Singapore by Mainland Press Pte Ltd

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FOREWORD The economic, political, strategic and cultural dynamism in Southeast Asia has gained added relevance in recent years with the spectacular rise of giant economies in East and South Asia. This has drawn greater attention to the region and to the enhanced role it now plays in international relations and global economics. The sustained effort made by Southeast Asian nations since 1967 towards a peaceful and gradual integration of their economies has had indubitable success, and perhaps as a consequence of this, most of these countries are undergoing deep political and social changes domes­tically and are constructing innovative solutions to meet new international challenges. Big Power tensions continue to be played out in the neighbourhood despite the tradition of neutrality exercised by the Association of Southeast Asian Nations (ASEAN). The Trends in Southeast Asia series acts as a platform for serious analyses by selected authors who are experts in their fields. It is aimed at encouraging policy makers and scholars to contemplate the diversity and dynamism of this exciting region.

THE EDITORS Series Chairman: Tan Chin Tiong Series Editors: Ooi Kee Beng Terence Chong Editorial Committee: Francis E. Hutchinson Daljit Singh

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The Politics of Religious Expression in Malaysia By Mohd Azizuddin Mohd Sani

EXECUTIVE SUMMARY • Religious freedom of expression remains a contentious issue in Malaysia. Even liberal proponents of freedom of speech are divided as to whether or not religious expression is part of constitutionally protected rights. • What the Malaysian Constitution offers is freedom of speech including the right to religious expression. At the same time it proclaims Islam to be the official religion of the Federation. The Islamic law system called ‘Shariah’ runs parallel to the civil law system, and this odd situation has triggered endless debates about whether Malaysia is an ‘Islamic state’, a ‘secular state’ or a ‘hybrid state’. • Malaysia is at the same time a multi-religious one prone to interand intra-group controversies, and as a rule, the government favours preventive and restrictive measures in order to elude religious strife and hate speech. • The concept of freedom of religion in Malaysia is different from that in the West. Article 3(1) of the Constitution states that Islam shall be the religion of the Federation but other religions may be practiced in peace and harmony in the Federation. There are several important restraints such as Article 11(5) that gives deference to public order, public health or morality and Subsection 4’s restriction on the propagation of religion among Muslims. • Religious expression in Malaysia has been a highly contentious issue ever since the 1980s when then-Prime Minister Mahathir Mohamad embarked on his ‘Islamization policies’ project. This project was in response to Islamic revivalism in Malaysia,

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spearheaded by the opposition Islamic party, PAS, and other Islamic resurgence movements such as the Islamic Youth Movement of Malaysia (ABIM) and Darul Arqam. • This paper examines recent cases of blasphemy, hate speech and the contentious ‘Allah’ issue. The government, on one hand, tries to maintain political stability and racial harmony in Malaysia but on the other attempts to maintain the status-quo especially with regards to declaring Malaysia an ‘Islamic state’ and imposing Islamization policies.

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The Politics of Religious Expression in Malaysia By Mohd Azizuddin Mohd Sani1

INTRODUCTION The freedom of expression is the freedom to communicate one’s ideas and thoughts; and in a political context this includes freedom of the press, the right to peaceful assembly, the right to petition the government for the redress of grievances, freedom of religion, access to public information, and the right of association.2 Freedom of expression is a fundamental liberty that all modern states have enshrined in their constitutions and is implemented in varying ways and degrees in society. It is thus not an absolute right, not even to many of its most ardent defenders. Article 19 of the Universal Declaration of Human Rights adopted in 1948 states that: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.3 Freedom of expression is today also recognized in international and regional human rights law. It is enshrined in Article 19 of the International Mohd Azizuddin Mohd Sani is Associate Professor at the School of International Studies, College of Law, Government and International Studies, Universiti Utara Malaysia. He was a Visiting Fellow at the Institute of Southeast Asian Studies (ISEAS) in 2014.

1

I.A. Cruz. 1991. Constitutional Law. Quezon City: Central Lawbook Publishing, Inc.

2

United Nations (1948). The Universal Declaration of Human Rights. UN.org. 10 September. Available at: http://www.un.org (Retrieved 25 June 2013).

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Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples’ Rights. Although freedom of expression is a fundamental right in many constitutions, religious expression, as one of the different types of free expression, faces resistance for inclusion under constitutional protection. Ironically, staunch defenders of free expression may themselves reject the right to freedom of religious expression. Gregory P. Magarian explains that there are arguments for normative constraints on religious argument and the translation imperative on the grounds that religious argument threatens liberal democracy.4 This holds two distinctive dangers. First is the contention that religious beliefs are not adequate justification for coercive governmental action in a democratic pluralist society. Members of a liberal democratic political community should not offer religious arguments in public debate because such arguments by definition urge improper grounds for government action. Any coercion based on religious arguments is thus unfair to nonbelievers because it denies non-believers equal respect and full and fair access to the process of political decision-making.5 Second, religious arguments undermine public political debate and thus threaten liberal democracy by fostering social and political instability. Religious arguments, on the restrictive theorists’ account, carry a distinctive capacity to inspire intolerance of opposing political viewpoints. Therefore, in order to protect nonbelievers, religious expression does not deserve constitutional protection by the state and can be restricted.6

G.P. Magarian. 2010. Religious Argument, Free Speech Theory, and Democratic Dynamism. The Divine Conspiracy. 16 February. Available at: http://www. thedivineconspiracy.org/Z5241W.pdf (Retrieved 3 June 2011) 4

R. Audi. 1989. The Separation of Church and State and the Obligations of Citizenship. Philosophy and Public Affairs 18: 259-276, A.S. Greene. 1993. The Political Balance of the Religion Clauses. Yale Law Journal 102: 1611-1633.

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6 R. Rorty. 1994. Religion as Conversation Stopper. Common Knowledge 3(1): 1-6, and K.M. Sullivan. 1993. Religion and Liberal Democracy. University of Chicago Law Review 59: 195-199.

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Conversely, some argue that religious expression does not pose any threat to liberal democracy. They compare what they believe to be overblown claims of religion’s divisiveness to the genuine divisiveness of political advocacy by or for historically disadvantaged racial and ethnic groups.7 They reject the assertion that religiously-informed public political debate denies non-believers equal respect and regard and maintain that whatever features of insularity or exceptionalism that might cause religious arguments to alienate non-believers are equally likely to cause certain non-religious arguments to alienate believers or others. In any event, they contend, religious argument in public political debate does not dictate policy outcomes but simply makes ‘one contribution among others in a debate about how political power is to be used’.8 They also deny that religious arguments are less accessible than nonreligious or secular arguments to the political community in general.9 They maintain that non-believers can access the distinctive sources of religious knowledge in the same way anyone accesses any source of knowledge – by reading or listening. The debate is approached from the argument whether or not religious expression causes political instability through political transformation.10 In most democratic countries, the right not to subscribe to a religion is constitutionally protected. However, according to Shad Saleem Faruqi,

M.W. McConnell. 1999. Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded From Democratic Deliberation. Utah Law Review 1999: 639-648, and R.J. Neuhaus. 1984. The Naked Public Square: Religion and Democracy in America. Grand Rapids Mi: Eerdmans. 7

8 L. Alexander. 1993. Liberalism, Religion, and the Unity of Epistemology. San Diego Law Review 30: 775-776, and J. Waldron. 1993. Religious Contributions in Public Deliberation. San Diego Law Review 30: 817-829.

M.W. McConnell. 1999. Five Reasons to Reject the Claim That Religious Arguments Should Be Excluded From Democratic Deliberation. Utah Law Review 1999: 639-648,

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Magarian, Religious Argument, Free Speech Theory, and Democratic Dynamism.

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atheism may not be protected in Malaysia, at least for Malays.11 In addition, Malaysia may be considered to practice illiberal democracy. The restriction on freedom of expression, for example, through legislation with less democratic elements such as the Sedition Act and Official Secrets Act, indicate that Malaysia is more of a ‘quasi democracy’12 since it only partially practices Westminster democracy. It is also referred to as ‘soft authoritarianism’,13 or a ‘semi-democracy’.14 Therefore, the assertion that freedom of religious expression must go hand in hand with liberal democracy cannot be argued in the Malaysian context because it is clearly not the latter. Religious sensitivities are seen to be one of the main obstacles to the implementation of religious freedom in Malaysia. Great care is taken not to impinge on the religious sensitivities of various faith groups. Given the fact that Islam is the religion of the Federation as stated in the Federal Constitution, articles or opinions that cast a slur, intended or otherwise, on the religion or its adherents are not published. No media can carry articles that question the faith or ridicule it. Thus, religious expression has always been monitored by the government. This protection is guaranteed by the constitution and it can clearly be seen in practice in certain issues such as religious expression in the press, blasphemy, and hate speech. Can religious expression harm Malaysian society? What is allowed and disallowed? This paper will examine each of these issues and explain how both the government and society tackle the issue of religious expression. Shad Saleem Faruqi. 2004. Constitutional Perspectives on Freedom of Religion, Secularism and Theocracy. In Ibrahim A.S. (ed.), Islam, Democracy and Good Governance: The Malaysia Experience. Shah Alam: UPENA. 81. 11

Haji Ahmad, Zakaria 1989. Malaysia: Quasi Democracy in a Divided Society. In Larry Diamond, Juan J. Linz and Seymour Martin Lipset (eds.), Democracy in Developing Countries: Asia. Vol. 3. Boulder: Lynne Rienner. 349. 12

Gordon P. Means. 1996. Soft Authoritarianism in Malaysia and Singapore. Journal of Democracy 7 (4): 103-117.

13

William Case. 1993. Semi-Democracy in Malaysia: Withstanding the Pressures for Regime Change. Pacific Affairs 66 (2): 183-205; Khoo Ying Hooi. 2013. The NGO-Government Relations in Malaysia: Historical Context and Contemporary Discourse. Malaysian Journal of Democracy and Election Studies 1(1): 76-85.

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LEGISLATION AND FREEDOM OF EXPRESSION In Malaysia, freedom of expression is assured by Part II of the Federal Constitution under Article 10(1) entitled ‘Freedom of Speech, Assembly and Association’. This Article states that 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. Citizens have a right to freedom of speech, but Section 2 of the Article limits the right where Parliament may by law impose… 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. The government is thus obliged to protect institutions such as the Parliament, Courts, and federal and states governments from scandalous criticism by citizens and foreigners. Furthermore, Article 10(4) explains the reasons for restricting freedom of expression. The provision of Article 10(4) was part of the amendment of the Federal Constitution in 1971 and was enforced on 10 March 1971 as a reaction to the racial conflict of 13 May 1969. In this incident, the government blamed the opposition for manipulating freedom of expression to incite racial sentiments and provoke dissatisfaction among non-Malays, particularly Chinese and Indians, over the special rights of Malays with respect to particular occupations and higher posts in the public sector.15 A State of Emergency was declared after the racial clash, and the Federal Constitution was amended to prohibit citizens and non-citizens, including members of parliament during Parliamentary sessions from questioning Part III 15 Leon Comber. 1983. 13 May 1969: A Historical Survey of Sino-Malay Relations. Kuala Lumpur: Heinemann Asia. 63.

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of the Federal Constitution on Citizenship, Article 152 on National Language, Article 153 on Malay special rights and Article 181 on Saving for Rulers’ sovereignty.16 The Malaysian government justified the 1971 constitutional amendment by citing the need to safeguard racial harmony via the restriction of public discussion on sensitive issues. It said that interracial conflict was unavoidable if no action was taken to protect peoples’ rights and interests in the constitution.17 The protection of Article 10 of the Constitution is available to citizens only. Based on the Attorney General versus Wain (No. 1) (1991) case, a non-citizen or a foreign company or news agency cannot lay claim to this right. Article 10(1)(a) must be read in the light of other Articles of the Constitution which curtail this freedom. For instance, Article 126 empowers the courts to punish speech or action that amounts to contempt of court. Articles 63(4) and 10(4) subject Parliamentary proceedings to the law of sedition. Under Article 25(1)(a), an order to deprive a person of his citizenship can be based on his disloyal conduct as manifested in his speeches irrespective of the fact that free speech was his constitutional right.18 In addition to the justification for restricting freedom of speech in the constitution, Part XI under Article 149 lists subversive conducts and activities including expressions that are detrimental to national security including religious hatred.

RELIGIOUS EXPRESSION IN MALAYSIA It is essential to note that the concept of freedom of religion in Malaysia is different from that in the West. It is important to first understand

Rais Yatim. 1995. Freedom Under Executive Power in Malaysia: A Study of Executive Supremacy. Kuala Lumpur: Endowment Sdn Bhd. 168. 16

Malaysia. 1971. Towards National Harmony. Kuala Lumpur: Government Printer. 2.

17

Shad Saleem Faruqi. 2002. Principles that Govern Free Speech. The Star. 3 February. Available at: https://groups.yahoo.com/neo/groups/bmalaysia/ conversations/messages/22481 (Retrieved 10 November 2014).

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Article 3(1) of the Constitution and appreciate its origin as envisioned by Malaysia’s founding fathers. It states that Islam shall be the religion of the Federation but other religions may be practiced in peace and harmony in the Federation. It also gives due regard to the elements and traditions of the Malay states such as the Sultanate, Islamic religion, Malay language, and Malay privilege.19 Historical evidence suggests that although the Alliance memorandum discussed Islam as a religion for Malaysia, it emphasized that this should not affect non-Muslims’ right to profess and practice their religion, and that this did not imply that that the State was not secular.20 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 in the Alliance memorandum was never intended to suggest an anti-religious or anti-Islamic state of governance.21 The word ‘secular’ never appears in the Federal Constitution, and though it envisages that Shariah laws would be enacted to fulfil the personal law requirements of Muslims, it manifestly recognizes that the Shariah would not be made the supreme law. In the landmark case of Che Omar bin Che Soh v. Public Prosecutor (1988), the Supreme Court was called upon to determine the meaning of Article 3. It was emphasized that the British intervention in Malaya separated Islam into the public and the private aspects; Islamic law was narrowly confined to the laws of marriage, divorce, and inheritance.22 It is in this sense 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

19 T. Thomas. 2006. Is Malaysia An Islamic State? Malayan Law Journal Article (MLJA). 31. 20

Ibid., 18-19.

M.I. Sarwar. 2007. Latifah Mat Zin: Reaffirming the Supremacy of the Constitution. 16 August. Available at: http://malikimtiaz.blogspot.com/2007/07/ latifah-mat-zin-reaffirming-supremacy.html (Retrieved 20 September 2007). 21

22

Thomas, Is Malaysia An Islamic State? 28. 7

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of the Federation was primarily for ceremonial purposes,23 while Shad Saleem Faruqi stressed that ‘[t]he implication of Islam as 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 Shariah laws in certain areas provided by the Constitution’.24 However, the constitutional amendment inserting Article 121(1A) in 1988 subsequently erodes the role of civil courts as the ultimate adjudicator of inter-religious litigations. Faruqi characterised this evolving trend in the judiciary system as a case of ‘silent re-writing of the Constitution,’ undermining critically the originally ‘secular’ foundation of the nation.25 Furthermore, then-Prime Minister Mahathir Mohamad sparked public debate in 2001 by claiming that Malaysia was an Islamic state. This raised concern among the non-Malay communities, who rejected this claim.26 Mahathir’s successor, Abdullah Ahmad Badawi, subsequently declared that while Malaysia was an Islamic state it was also neither secular nor theocratic. He propagated the concept of Islam Hadhari and asserted that Malaysia was ruled in accordance with both Islamic and Parliamentary democratic principles as stated in the Federal Constitution.27 The current Ahmad Ibrahim. 1978. The Position of Islam in the Constitution of Malaysia. In Tun Mohamed Suffian, H. P. Lee, and F. A. Trindade (eds.) The Constitution of Malaysia: Its Development: 1957-1977. Kuala Lumpur: Oxford University Press. 41-47.

23

Shad Saleem Faruqi. 2006. Freedom of Religion under the Constitution. The Sun. 18 May. Available at: http://www.sun2surf.com/article.cfm?id=14147 (Retrieved 20 May 2006). 24

H. Ting. 2009. The Politics of National Identity in West Malaysia: Continued Mutation or Critical Transition? Tonan Ajia Kenkyu (Southeast Asian Studies) 47(1): 31-51.

25

See Lim Kit Siang. 2003. Five questions on the incompatibility of the PAS Islamic State blueprint with democracy, human rights, women rights and pluralism. DAP Malaysia.16 November. Available at: http://dapmalaysia.org/allarchive/English/2003/nov03/lks/lks2748.htm (Retrieved 3 January 2012).

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27 See Lee Ban Chen. 2008. Bagaimana Keris diganti dengan Merpati? Kuala Lumpur: Oriengroup Sdn. Bhd. 48, Abdullah Ahmad Badawi, 2006. Islam Hadhari: A Model Approach for Development and Progress. Petaling Jaya: MPH

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Prime Minister, Najib Tun Razak, has never claimed that Malaysia is an Islamic state but he did publicly state, as Deputy Prime Minister on 17 July 2007, that Malaysia was not a secular state but an Islamic nation with its own interpretation.28 Solicitor Pawancheek Marican argues that ‘secular’ is defined as concern with the affairs of this world and not with the spiritual, religion or religious belief.29 Therefore, there are two questions that need to be answered – does Malaysian society fit this definition? And is this what the Federal Constitution says? The answers to both questions are negative. There are many articles of the Constitution that place Islam in a special position, such as Article 74(4) (the right of the states to pass civil and criminal laws relating to Islam); Article 12(2) (the right of the government to pass laws to grant financial assistance to Islamic institutions and for Islamic education); Article 160 (the definition of ‘Malay’ requires one to be a Muslim); and Article 150(6A) (the Yang di Pertuan Agong cannot pass laws touching on Islamic matters when declaring an Emergency). In Malaysia, the constitutional structure is also such that the Islamic law system runs parallel to the civil law system due to an amendment passed in 1988. The various articles of the Federal Constitution, as described above, not only epitomise this duality of the constitutional structure, but also enhance Islam’s special position. Marican submits that the special status of Islam in this structure is the very antithesis of a secular state. Therefore, he concludes that Malaysia is certainly not a secular state. However, it would not be wrong to give Malaysia the appellation of ‘a hybrid state’.30

Publishing, and Berita Nasional (Bernama). 2007. Abdullah chides Opposition for spinning out issues. 27 August. Available at: http://www.bernama.com/ bernama/v3/news.php?id=281491 (Retrieved 20 April 2010). Bernama. 2007. Malaysia Not Secular State, Says Najib. 17 July. Available at: http://www.bernama.com/bernama/v3/news_lite.php?id=273699 (Retrieved 20 April 2010). 28

See Pawancheek Marican. 2009. Is Malaysia a Secular State? On Malaysian Law. 23 September. Available at: http://www.onmalaysianlaw.com/2009/09/ismalaysia-secular-state.html (Retrieved 17 January 2012). 29

30

Ibid. 9

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In its literal wording, Article 11 of the Federal Constitution seems comprehensive enough to guarantee religious freedom and religious expression for a pluralist society. A citizen reserves the right to profess, practice and – subject 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 one’s religious belief (albeit with limitations for Muslims under specific religious laws), or even not to be religious.31 Article 11 is further supported by other constitutional provisions. For instance, Article 149 provides that Parliament may enact laws that 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 that 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. Article 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, freedom of religion is subject to several important restraints. A clear example would be Article 11(5) that gives deference to public order, public health or morality. The effect is that any religious act that is contrary to general laws relating to these grounds cannot be sustained under Article 11. Another controversial limitation is Subsection 4’s 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 nonIslamic origin, and irrespective of whether the propagators are Muslims or otherwise.32 Faruqi 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.33 The restraints on religious freedom 31

Thomas. Is Malaysia An Islamic State?. 34.

Ahmad Masum. 2009. Freedom of Religion under the Malaysian Federal Constitution. Current Law Journal (CLJ) 2(1): 3.

32

Shad Saleem Faruqi. 2001. Support for Religious Liberty. Sunday Star. 25 February.

33

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are also developed through case laws, especially on the scope of the word ‘practice’ 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.34 In Hjh Halimatussaadiah bte Hj Kamaruddin v. Public Services Commission, Malaysia & Anor (1994), the court rejected a woman’s contention to be allowed to wear a purdah (a headdress covering a woman’s entire face except her 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 & Ors (2006), the court rejected demands by Muslim boys to be allowed to wear turbans to school. With regards to Article 3, it should be noted that 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 practice 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 (close proximity between a man and a woman who are not married to each other), adultery, apostasy, gambling, drinking and deviationist activities.35 Despite the foregoing arguments, it is notable that the establishment of a particular religion over the state is not unique to Malaysia. For instance in Norway the primacy of Christianity means that the king and a majority of the cabinet are required to be members of the state church,36 and in England the Anglican

34

Masum, Freedom of Religion under the Malaysian Federal Constitution. 4.

35

Ibid. 3.

D. Shelton and A. Kiss. 2007. A Draft Model Law on Freedom of Religion. In Henry J. Steiner et al. (eds), International Human Rights in Context: Law, Politics, Morals. Oxford: Oxford University Press. 575. 36

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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 such as Kuala Lumpur and Labuan. Mohamed Salleh Abas, the former Lord President of Malaysia, noted that: This limitation is logical as it is a 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 [is] Muslim or non-Muslim.37 This limitation would affect both Muslims and non-Muslims. State law may not only prohibit attempts by non-Muslims to convert Muslims to other religions, but also to restrict deviation from Islam according to the Sunni Sect. If a non-Muslim’s religion requires one to propagate one’s faith, this right to propagate would be severely limited. As long as there are no state laws restricting the right to propagate any religion among Muslims, theoretically this right would be unlimited and any person may exercise the right to propagate any religion among Muslims as well as non-Muslims, as long as their acts do not violate Article 11(5).

Mohamed Salleh Abas. 1984. Selected Articles & Speeches on Constitution, Law & Judiciary. Kuala Lumpur: Malaysian Law Publishers. 45.

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RELIGIOUS EXPRESSION BECOMES CONTENTIOUS In the 1980s, then-Prime Minister Mahathir Mohamad embarked on what is known as his ‘Islamization policies’ project.38 This was in response to Islamic revivalism in the country as spearheaded by the opposition Islamic party, PAS, and other Islamic resurgence movements such as the Islamic Youth Movement of Malaysia (ABIM) and Darul Arqam. In 1982, Mahathir attempted to Islamize Malaysian society and state laws to prove the ‘Islamic credentials’ of the dominant United Malays National Organization (UMNO) by embarking on several related policies.39 Mahathir announced his intent to “Islamise government machinery’ in 1984, describing ‘the inculcation of Islamic values in government ... the laws of the nation although not Islamic based, can be used so long as they do not come into conflict with Islamic principles”.40 This meant that the government machinery would not become Islamic but would adhere to Islamist principles so long as they did not discriminate against other ethnic groups. The Bahagian Ugama (Division of Religious Affairs) became the Bahagian Hal Ehwal Islam (Division of Islamic Affairs) in 1984.41 The Division later became Jabatan Kemajuan Islam Malaysia (JAKIM, Department of Islamic Development) in 1997 to further develop Islamic institutions and the administration of Islamic law. JAKIM has since been spearheading the standardisation of Islamic legislation. Official

Francis Loh, 2002. Developmental and the limits of democratic discourse. In F. Loh, & Khoo B.T. (eds.), Democracy in Malaysia: Discourses and practices. Surrey: Curzon. 31. 38

Noraini Othman. 2006. Muslim women and the challenge of the Islamic fundamentalism/extremism: An overview of Southeast Asian Muslim women’s struggle for human rights and gender equality. Women’s Studies International Forum 29: 344.

39

S.S. Islam. 2005. The Politics of Islamic Identity in Southeast Asia. Singapore: Thompson Learning. 126.

40

M. Ryan. 2010. Islamizing The Malaysian Economy: The Politics Behind Developing A Malaysian Syariah Economy (unpublished Master thesis). Lund: Lund University Center for East and Southeast Asian Studies, Lund University.

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efforts to infuse ‘Islamic values’ into the administration of the country were executed through JAKIM at the federal level and through Majlis Agama Islam dan Adat Istiadat Melayu (Council for Islamic Religious Affairs and Malay Customs) at the state level. Mahathir also created the Islamic Development Foundation in alignment with his statement of intent.42 Other measures included standardizing the interpretation and implementation of Islamic laws by setting up the International Islamic University, Islamic banking and insurance schemes, Shariah courts, Quran reading competition and an Islamic centre within the Prime Minister’s office which aimed to link Malaysian Islam with the nonMuslim world’s technology, skills and procedures.43 Mahathir also centralized the functions and authority of Muslim scholars or ulamas at the federal level under JAKIM. The government’s aim was to direct the Islamic resurgence away from dogmatism and conservatism towards modernity and progression.44 However UMNO and PAS worked from different agendas and beliefs, making it difficult at times for some issues to be resolved. Islamization policies by UMNO were intended to offer a liberal interpretation of Islam so that the party and government could appeal to non-Muslims, especially in light of PAS’s desire to implement Islamic criminal law (hudud) and form an Islamic state.45 In competing with PAS for Malay support, the Mahathir administration portrayed the opposition as archaic, too traditional,

John Funston. 2006. Malaysia. In Greg Fealy and Virginia Hooker (eds.) Voices of Islam in Southeast Asia: a contemporary sourcebook. Singapore: ISEAS.

42

A. Ong. 1999. Muslim feminism: Citizenship in the shelter of corporatist Islam. Citizenship Studies 3(3): 355.

43

R. Foley. 2004. Muslim women’s challenges to Islamic law: The case of Malaysia. International Feminist Journal of Politics 6(1): 57.

44

Loh. Developmental and the limits of democratic discourse. 31. See Sulastri Yahya. 2013. A Discourse Analysis of Malaysian English Media Texts on Muslim Gender Issues. Unpublished PhD thesis. Tohoku University, Japan. Available at: http://ir.library.tohoku.ac.jp/re/bitstream/10097/56455/1/Sulastri-Binti-Yahya2013-Tour03-302.pdf (Retrieved 20 May 2014).

45

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and lacking a progressive ideology.46 UMNO’s image as modern and progressive allowed it to garner popularity among the Malays because the incumbent party seemed to favour a progressive Islamization that accommodated the economic boom of the country. Throughout his 22 years as Prime Minister (1981–2003), Mahathir consistently called for an ideological and cultural renaissance among the Malaysian people to promote economic progress and renounce stagnant values of tradition.47 The Islamization policy continued under Abdullah Ahmad Badawi who promoted Islam Hadhari in 2004 in order to bring the ummah (the worldwide community comprising all adherents of the Muslim faith) back to the basics of Islam and back to the fundamentals as prescribed in the Quran and the Hadith which form the foundations for an Islamic civilisation.48 On closer inspection, the concept of Islam Hadhari is, however, little more than a repackaging of old ideas especially from Mahathir’s ‘Penerapan Nilai-nilai Islam’.49 Islam Hadhari adheres to shariah law. This has prompted religious officials to use it to shape public morality. For instance in 2005, the Federal Territory Religious Department (JAWI) practiced ‘moral policing’ by raiding a nightclub where Muslims were asked to take breathalyzer tests to determine if they had consumed alcohol while Muslim women were

46 Amrita Malhi. 2003. The PAS-BN Conflict in the 1990s. In Virginia Hooker and Norani Othman (eds.) Malaysia: Islam, Society, and Politics. Singapore: Institute of Southeast Asian Studies. 243.

Joel S. Kahn. 2003. Islam, Modernity, and the Popular in Malaysia. In Virginia Hooker and Norani Othman (eds.), Malaysia: Islam Society, and Politics. Singapore: Institute of Southeast Asian Studies. 150, Malhi. The PAS-BN Conflict. 243, and Candace Garza. 2012. Ethnicity, Progress, and Pluralism: The Role and Future of Islam in Malaysia. 25 April. Available at: https://www. academia.edu/6486451/Ethnicity_Progress_and_Pluralism_The_Role_and_ Future_of_Islam_in_Malaysia (Retrieved 20 May 2014).

47

Abdullah, Ahmad Badawi, Islam Hadhari: A Model Approach for Development and Progress. 3.

48

Kamila Ghazali. 2006. The first keynote address of Abdullah Ahmad Badawi at the UMNO general assembly. Multilingua – Journal of Cross-Cultural and Interlanguage Communication 25(1): 140.

49

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paraded before officers to ensure that they were not indecently dressed. The raid sparked debate over the enforcement powers of religious officers and on their legitimacy to enforce public morality.50 Other cases included one in August 2004 where the Mufti of Perak (the state’s top Islamic official) issued a fatwa (religious edict) that proclaimed the ‘Sure Heboh’ open-air concerts (staged around the country) haram (forbidden) under Islamic shariah law. He claimed that the concerts were corrupting Malay youth, fostering the mixing of the sexes and encouraging Muslims to neglect their religious duties such as praying.51 The Islamic bureaucracy is also playing a major role in the implementation of the Islamization policy. For instance, JAKIM together with the Malaysian Official Radio and Television Broadcasters (Radio dan Televisyen Malaysia or RTM) produced about 16 hours of programmes per week. Forum Perdana Ehwal Islam is a Top 10 programme on RTM1 with 500,000-700,000 viewers.52 JAKIM was given several objectives by the government such as implementing programmes for the advancement of the ummah and the inculcation of universal Islamic values across religions, to evaluate Islamic affairs programmes that were carried out in the country, and also to act as a compiler, disseminator and centre of information on all Islamic affairs.53 William Roff therefore argues that,

50 M.N.M. Osman. 2006. Where to Islam Hadhari? IDSS Commentaries 120. 28 November. Singapore: Nanyang Technological University. 1-4.

James Chin. 2004. Pak Lah’s Islamic Challenge. Asian Analysis. September. Available at: http://www.aseanfocus.com/asiananalysis/article. cfm?articleID=774 (Retrieved 25 March 2005).

51

Wan Mohamad Sheikh Abd. Aziz. 2011. Pemahaman dan Penghayatan Nilai Menjana Kepada Prestasi: Pengalaman Jabatan Kemajuan Islam Malaysia (JAKIM). In Abd. Karim Husain and Zainab Ismail (eds.) Pemahaman dan Penghayatan Nilai Menjana Kepada Prestasi. Kuala Lumpur: Penerbit IKIM. 60.

52

See Jabatan Kemajuan Islam Malaysia (JAKIM). 2006. About JAKIM. Available at: http://www.islam.gov.my/english/jakim.html (Retrieved 23 November 2008), and Airil Haimi Mohd Adnan. 2010. Employing Discourse, Language and Television Media to Reconstruct the Image of Islam: A Case Study of Malaysia. Asian Social Science 6(6): 33-41. 53

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policy-wise and demographically, Malaysia is an ideal testing ground for the development and production of Islamic-nuanced television programmes to spread and popularize a contemporary, intellectual and moderate vision of Islam as a catalyst for national peace, scientific inquiry and universal human rights.54 In 2010 Prime Minister Najib Tun Razak announced the concept of Wasatiyyah (Moderation) through the agenda of ‘1Malaysia 1Ummah’.55 This is also a JAKIM motto. However, Wasatiyyah is not a new idea as it was also promoted by his predecessor, Abdullah Ahmad Badawi. Hence, Malaysia’s idea of ‘Islamic state’ is still alive via the Islamization policy. This is clearly evident in recent cases of blasphemy, hate speech and other issues in the press. These will be explored in the following sections.

Blasphemy On 30 September 2005, blasphemy became a global issue when the Danish daily newspaper Jyllands-Posten (The Jutland Post) published an article that carried cartoon portrayals of the Prophet Muhammad. In Malaysia, Prime Minister Badawi shut indefinitely a Borneo-based paper, the Sarawak Tribune, for reprinting the cartoons. Malaysia’s third-largest Chinese-language daily, Guang Ming, had its evening edition suspended for two weeks for carrying one of the cartoons on 3 February 2006.56 Blasphemy was applied not only to Islam but also to other religions. In another case, a Tamil-language newspaper, Makkal

54 William R. Roff. 1998. Patterns of Islamization in Malaysia, 1890-1990s: Exemplars, institutions, and vectors. Journal of Islamic Studies 9(2): 210-228.

Wan Mohamad Sheikh Abd. Aziz. Pemahaman dan Penghayatan Nilai Menjana Kepada Prestasi: Pengalaman Jabatan Kemajuan Islam Malaysia (JAKIM). 5355.

55

British Broadcasting Corporation (BBC). 2006. Islam-West divide ‘Grows Deeper’. BBC News. 10 February. Available at: http://news.bbc.co.uk/2/hi/ asia-pacific/4699716.stm (Retrieved 10 February 2006), Media Guardian. 2006. Danish paper rejected Jesus cartoons. 6 February. Available at: http:// www.guardian.co.uk/media/2006/feb/06/pressandpublishing.politics (Retrieved 6 February 2006).

56

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Osai, had its operations shut down for a month in 2007 and its permit suspended for publishing a picture that associated Jesus with cigarettes and beer.57 However, the government was criticised for not taking action on the supporters of the ruling UMNO party, who paraded a severed cow’s head in the streets of Shah Alam, the capital of Selangor state, and made speeches to protest the construction of a new Hindu temple in November 2009.58 A recent case concerned former political and social activist Kassim Ahmad. Kassim was charged for insulting Islam at a seminar in Putrajaya on 15 and 16 February 2014 with his presentation entitled ‘The Thoughts of Kassim Ahmad: A Review’ organized by the Perdana Leadership Foundation and officiated by former Prime Minister Mahathir Mohamad. He pleaded not guilty in the Shariah High Court on 27 March 2014. On the first count, he was alleged to have tabled a script of his speech entitled ‘Speech for the National Political Conference to Determine the Direction of Malaysia over the next 30 years’, which was deemed to have insulted Islam by criticizing Islamic practices such as how some ulamas (religious scholars) in Malaysia were supposedly creating a priesthood caste, as well as the wearing of the hijab (Muslim women’s headscarf) since the hair, according to him, was not part of the aurat (parts of the body which have to be covered according to Islamic teachings).59 On the second count, the same script was alleged to have insulted religious authorities and defied the order issued by the Yang di-Pertuan Agong as the head of Islam in the federal territories. Interestingly, he was detained at his home in Kulim, Kedah, whose Sultan is the current

M. North. 2007. World Press Freedom Review 2007: Malaysia. Vienna: International Press Institute. Available at: http://www.freemedia.at/cms/ipi/ freedom_detail.html?country=/KW0001/ KW00 05/KW0123/ (Retrieved 3 June 2009).

57

Azizuddin M.S. 2013. Balancing Freedom of Speech and National Security in Malaysia. Asian Politics and Policy 5(4): 602.

58

The Mole. 2014. Kassim Ahmad arrested. 26 March. Available at: http://www. mole.my/content/kassim-ahmad-was-arrested-controversial-statements-jakim (Retrieved 10 November 2014).

59

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Agong. Kassim filed a leave application for judicial review on 26 June 2014 naming Jamil Khir Baharom, Minister in the Prime Minister’s Department, the chief prosecutor, the Federal Territory Islamic Department (JAWI), and the government as respondents. He sought to strike out the chief prosecutor’s decision on 27 March 2014 to prosecute him for allegedly insulting Islam and defying the religious authorities. He also wanted his case in the Shariah Court to be suspended, pending the decision of the judicial review. Kassim also demanded that all actions and decisions by JAWI enforcement officers who raided and seized his publication materials be revoked. According to him, the action by the JAWI officers and the prosecution against him were ultra vires (beyond powers) and contravened the provisions in the Federal Constitution, Federal Territories Shariah Acts and Kedah Shariah Enactments. Kassim requested a declaration that the offence of violating a fatwa issued in the federal territories applied only to Muslims in that locality.60 Kassim was charged under Section 7 (b) and Section 9 of the Shariah Criminal Offenses (Federal Territories) Act 1997. He faces a fine of up to RM3000 or a jail term of up to two years, or both, upon conviction.61 Another recent event known as ‘I want to touch a dog’ which aimed to help people, particularly Muslims, to overcome their fear of dogs, sparked controversy. The event was held on 19 October 2014 at Central Park in Bandar Utama, Kuala Lumpur, and was severely criticised by the Islamic authorities.62 The event started with a religious talk by Mohd V. Anbalagan. 2014. High Court refuses Kassim Ahmad’s bid to halt case in Shariah Court. The Malaysian Insider. 17 October. Available at: http:// www.themalaysianinsider.com/malaysia/article/high-court-refuses-kassimahmads-bid-to-halt-case-in-shariah-court#sthash.jm9DCpYV.dpuf (Retrieved 10 November 2014) 60

The Malaysian Insider. 2014. Former political activist Kassim Ahmad charged with insulting Islam – Bernama. 27 March. Available at: http://www. themalaysianinsider.com/malaysia/article/former-political-activist-kassimahmad-charged-with-insulting-islam (Retrieved 28 March 2014). 61

The Star Online. 2014. ‘Touch a dog’ event draws flak from authorities. 21 October. Available at: http://www.thestar.com.my/News/Nation/2014/10/21/ Touch-a-dog-event-draws-flak-from-authorities-Islamic-scholars-question-theneed-for-campaign-and-i/ (Retrieved 11 November 2014). 62

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Iqbal Parjin, a religious teacher and Masters student at UTM’s Centre for Advanced Studies on Islam, Science and Civilisation (CASIS). Lessons were given on the Islamic way to cleanse (sertu or samak) oneself after touching dogs by volunteer ‘sertu coaches’ who showed those in attendance how to wash once with earth and a further six times with clean water.63 It was said to have received the blessing of the Selangor Islamic Council but Selangor Mufti Mohd Tamyes Abd Wahid declared that it was of no benefit to Muslims even though dogs should be treated humanely since they were also God’s creatures and could be useful for hunting, guarding one’s property, and helping law enforcement agencies to combat crimes.64 JAKIM promised to conduct a probe into the event, and its director-general Othman Mustapha said that the event was conducted without good reason. He feared that the organizers might have a hidden agenda and that this could lead to the insulting of Islam. Popular freelance preacher Mohd Kazim Elias has also accused the organizers of trying to legalise something that was clearly haram (forbidden) in Islam by claiming that the event was also a subtle way by certain people to liberalise and pluralise Islam.65 However, Perlis former mufti Mohd Asri Zainul Abidin in his Facebook posting said that it was shallow to say that touching a dog was haram (forbidden) and unclean.66 Since then, Mohd Iqbal has apologized for organizing the event.67

Dina Murad. 2014. Touching success at dog show for Muslims. The Star Online. 19 October. Available at: http://www.thestar.com.my/News/Nation/2014/10/19/ touch-a-dog-event-attracts-over-800-people/ (Retrieved 11 November 2014). 63

64

Ibid.

65

Ibid.

66

Ibid.

Mohd Farhan Darwis. 2014. Ustaz Iqbal mohon maaf program ‘I Want To Touch A Dog’ disalah tafsir. The Malaysian Insider. 21 October. Available at: http://www.themalaysianinsider.com/bahasa/article/ustaz-iqbal-mohon-maafprogram-i-want-to-touch-a-dog-disalah-tafsir#sthash.ei4xc25U.dpuf (Retrieved 11 November 2014).

67

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Hate Speech Hate speech has been a rising concern in Malaysia regarding religion and ethnic relations. As reported by news online portal, The Malaysian Insider, JAKIM was alleged to have, via a Friday sermon entitled ‘Virus Shia’ on 29 November 2013, declared that Shia Muslims propagate beliefs such as encouraging sodomy, celebrating the Karbala on the 10th of Muharam (the first month in the Muslim calendar), defending the practice of mutaah (contract marriage), questioning the sanctity of the Sunni branch of Islam and declaring themselves the true Sunni. According to JAKIM, the Fatwa Council in 1996 had declared that Shia was forbidden or haram in Malaysia and made it compulsory for Malaysian Muslims to follow only the teachings, customs and beliefs of the Sunni branch of Islam.68 Another highly publicised case in July 2013 was the Facebook photograph of Alvin Tan Jye Yee and his partner Vivian Lee May Ling (apparently) eating pork rib soup with the caption “fragrant, delicious and appetising,” in Malay during the holy month of Ramadhan (the fasting month). This upset many Muslims and, to make matters worse, the photo also carried the halal logo indicating that Muslims were permitted to consume the product. The two pleaded not guilty to three charges of violating the Sedition Act, the Film Censorship Act and the Penal Code by “…committing acts likely to cause feeling of enmity on grounds of religion.” The couple has since apologised for the posting, saying it was meant to be humorous. Their case is on-going but one of the three charges which was under Section 298A of the Penal Code was struck out by the Court of Appeal on 21 April 2014.69 Tan is now in exile to avoid legal proceedings against him and is seeking asylum in the US. 68 Azizuddin M.S. 2013. Hate Speech and Free Speech in Malaysia. New Mandala. 23 December. Available at: http://asiapacific.anu.edu.au/ newmandala/2013/12/23/hate-speech-and-free-speech-in-malaysia/ (Retrieved 31 December 2013). On the Shia problem in Malaysia, please refer also to recent op-eds by Ahmad Fauzi Abdul Hamid, Roger Shanahan and Syed Farid Alatas, available at: http://www.mei.edu/content/map/sectarianism-muslim-majorityminority-countries-mena-and-asia-pacific-regions. 69

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On 19 January 2013 Perkasa president Ibrahim Ali called on Muslims to seize and burn copies of Bibles that contain the term ‘Allah’ or other Arabic religious words. According to Ibrahim, under the Non-Islamic Religion (Control on Expansion Among Muslims) Act 1988, nonMuslims were prohibited from using several Arabic religious terms, including ‘Allah’, in their prayers or scriptures. According to him, “Muslims must unite to protect their religion. They must seize those Bibles, including the Malay editions, which contained the term Allah and other Arabic religious terms, and burn them. This is the way to show our anger against disrespect to our sensitivity.”70 Ibrahim was referring to a police report lodged by Penang Facebook Association in January 2013 alleging that two men had distributed Bibles to Muslims pupils at the entrance of a secondary school in Jelutong town, Penang. Ibrahim’s statement was considered seditious by many members of the ruling Barisan Nasional (BN) party and opposition Pakatan Rakyat (PR) who lodged police reports. However, no action was taken against him. Instead, the Attorney-General Chambers (AGC) opined that Ibrahim’s statement was not seditious because he had no intention of creating religious disharmony when he called for the burning of Bibles with the word ‘Allah’. Furthermore, the AGC explained that “It is clear that his intentions were to defend the sanctity of Islam. This can be seen in his speech… This is not a sentiment or intention to cause religious disharmony, but this is defending the sanctity of Islam that is clearly defined in laws”.71 The AGC added that Ibrahim could not be charged under Section 504 of the Penal Code as he did not intend to provoke a breach of peace. There was no offence under Section 298 or 298A of the Penal Code

Athi Shankar. 2013. Burn ‘Allah’ Bibles, Perkasa chief to Muslims. Free Malaysia Today. 19 January. Available at: http://www.freemalaysiatoday.com/ category/nation/2013/01/19/burn-allah-bibles-perkasa-chief-tells-muslims/ (Retrieved 10 November 2014).

70

Tan Yi Liang. 2014. A-G: Ibrahim Ali’s bible-burning remark not of “seditious tendency”. The Star Online. 27 October. Available at: http://www.thestar.com. my/News/Nation/2014/10/27/attorney-general-ibrahim-ali-bible-burningspeech-not-seditious/ (Retrieved 10 November 2014).

71

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either as he was clearly defending the sanctity of Islam.72 The act of distributing free Bibles openly outside a secondary school in Jelutong could threaten the faith of Muslim students who lacked an understanding of their religion if they read the Bibles, especially if they contained Jawi script. The AGC’s statement on 27 October 2014 was a response to the earlier statement made on 7 October 2014 by Minister in the Prime Minister’s Department Nancy Shukri who told Bagan Member of Parliament, Lim Guan Eng, in Parliament that for lack of evidence, no action would be taken against Ibrahim. Shukri, who is in charge of law in the Prime Minister’s Department, said that the AGC decided not to prosecute Ibrahim after scrutinising the context of his speech and also the fact that Article 11(4) of the Federal Constitution provided for the control or restriction of the propagation of other religions to Muslims. Former Prime Minister Mahathir Mohamad also supported the decision not to act against Ibrahim.73 This case has raised concerns over the definition of hate speech in Malaysia.

RELIGIOUS EXPRESSION IN THE PRESS Another concern in multiracial Malaysia is the controversy over the use of the word ‘Allah’. A seven-judge panel in the Federal Court ruled on 23 June 2014 that a lower court decision siding with the government stood. In a 4-3 majority decision, it rejected the Catholic Church’s bid to get leave to challenge the Home Ministry’s ban on the use of the word for the Catholic newspaper, The Herald.74 In January 2008, the Malaysian cabinet prohibited The Herald from using the word ‘Allah’ in their

Section 298 makes it an offence to utter words with the deliberate intent of wounding a person’s religious feelings, while Section 298A makes it an offence to cause disharmony, disunity, or feelings of enmity, hatred or ill will on grounds of religion. 72

73

Ibid.

The Star Online. 2014. Respect and abide by ruling over use of ‘Allah’. 25 June. Available at: http://www.thestar.com.my/News/Nation/2014/06/25/ Respect-and-abide-by-ruling-over-use-of-Allah-Govt-calls-on-all-parties-tomanage-differences-peacef/ (Retrieved 26 June 2014). 74

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publications. The Malaysian government justified the restrictions on the basis that the word ‘Allah’ refers to God according to the Muslim faith and its use by non-Muslims may impinge on the sensitivities and create confusion among Muslims in the country.75 This issue remains unresolved. Although the High Court held in favour of The Herald, the Appeal Court allowed for the Malaysian government’s appeal to ban The Herald from using the word ‘Allah’ on 14 October 2013. The three-member bench led by Datuk Seri Mohamed Apandi Ali said that a 1986 directive by the Home Ministry prohibited non-Muslim publications from using four words, namely ‘Allah’, ‘Kaabah’, ‘Solat’, and ‘Baitullah’. The prohibition was imposed in order to protect the sanctity of Islam and prevent any confusion among Muslims. According to the Appeal Court, if the word was allowed to be used by Christians, it could threaten national security and public order. Moreover, the prohibition was deemed reasonable because the word ‘Allah’ was not an integral part of the Christian faith and practice.76 Supporters of the government’s decision argue that ‘Allah’ is exclusive to Muslims and giving Catholics the right to use the word disregards Article 3 and would ‘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 the establishment of Article 3 clearly does not affect the exercise of other rights espoused in the Constitution. Furthermore, in other Muslim countries, even in the Middle East, where both Muslim and Christian communities use the word ‘Allah’, one hardly hears of any confusion arising.77 Proponents of the government’s decision countervail this argument by saying that the concept of god is different

75

The Sun. 2008. Cabinet: Allah for Muslims only. 4 January. 1.

V. Anbalagan. 2014. Court reserves judgment on church’s leave application. The Malaysian Insider. 5 March. Available at: http://www.themalaysianinsider. com/print/malaysia/course-reserves-judgment-on-churchs-leave-application (Retrieved 5 March 2014).

76

Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri & Anor. 2010. Current Law Journal 2: 208 & 214, High Court Malaya, Kuala Lumpur. 2009. Judicial Review No. R1-25-28-2009. 31 December. 77

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between Islam and Catholicism. The former believes in one god, but the latter embraces the concept of Trinity in believing that Jesus is a son of god, not for Muslims who believe Jesus is just a prophet. For Muslims, this can create confusion if ‘Allah’ is allowed to be used by Catholics. For others, the government’s censure violates the freedom of religion guaranteed under Article 11, freedom of speech and expression guaranteed under Article 10, as well as Article 8’s guarantee of equality. But there is concern among Malaysian Muslims that the Catholic Church would use it as a tool for proselytization among the Muslim majority. However, a non-Muslim would only commit an offence if he used the word ‘Allah’ to a Muslim but there would be no offence if it were used with 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 Malay language speaking community of the Catholic Church in Malaysia, and is integral to the practice and propagation of their faith. In response to the Federal Court decision, the Prime Minister’s Office said that Malaysian Christians could still use the word ‘Allah’ in church. It said in a statement that the government was committed to the 10-point Cabinet solution which was made in 2011, prior to the Sarawak state election, allowing Christians in Sabah and Sarawak to use the word ‘Allah’ in their Malay language Bible and aimed at addressing differences in opinion among Muslims and Christians. It called on all parties to respect and abide by the apex court’s decision and said that it was only applicable to The Herald. The government, it said, respected the court decision and called on all parties to also respect and abide by it.78

CONCLUSION Based on the above discussion, Malaysia definitely applies a restrictive approach in dealing with religious expression. Cultural sensitivities,

The Star Online. 2014. Respect and abide by ruling over use of ‘Allah’. 25 June. Available at: http://www.thestar.com.my/News/Nation/2014/06/25/ Respect-and-abide-by-ruling-over-use-of-Allah-Govt-calls-on-all-parties-tomanage-differences-peacef/ (Retrieved 26 June 2014). 78

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especially concerning race and religion, are the main obstacles to the implementation of religious freedom in Malaysia. Great care is taken not to impinge on the religious sensitivities of various groups. Religious expression is allowed only if approved by the state and religious authorities. There are also many restrictions imposed on religious expression such as those on the issues of religious publication, hate speech, and blasphemy. What is obvious is that religious freedom and religious expression are very sensitive in Malaysia. The government, on one hand, tries to maintain political stability and racial harmony but, on the other, attempts to maintain the status-quo especially with regards to understanding Malaysia an ‘Islamic state’ and to imposing Islamization policies.

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