APOSTASY AS A CRIME IN MALAYSIA

APOSTASY AS A CRIME IN MALAYSIA

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Complexity of Freedom of Religion in Malaysia?

Article 11(1) of the Federal Constitution of Malaysia guarantees the right of all to profess and practice one’s religious beliefs freely. However, this freedom is restricted by Article 11(4) which proscribes propagation of any religious doctrine or belief among persons professing the religion of Islam.[i] There is also a dichotomy of religious laws in Malaysia between State and Federal law whereby States are able to legislate specifically on Syariah laws in their respective states, amongst others as stated in the State List under the Federal Constitution.[ii] Islam is also acknowledged as the religion of the Federation of Malaysia in Article 3 of the Federal Constitution.[iii] If a Muslim wishes to renounce or leave his/ her faith, the Syariah Court in the respective state has the jurisdiction to decide on the matter. Issues of apostasy, conversion of minors and proselytism among Muslims remain highly controversial and are sensitive issues in Malaysia. [iv] Historical factors from the pre-colonial era of Malaysia, religion and custom have determined how the issue of religion for Muslims has developed in Malaysia.[v]

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Issue of Apostasy in Malaysia

Apostasy or ‘Murtad’ is a serious offence under Islamic beliefs. Apostasy is a crime in some States in Malaysia which have enacted legislation to criminalize it. States are able to do this because the Malaysian Federal Constitution by virtue of Article 74(2) grants States power to legislate on matters in the 9th Schedule State List II which includes “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion”.[vi] It must be noted that Syariah Law in Malaysia only applies to those who profess the religion of Islam in Malaysia.

The states which have criminalized apostasy are Perak, Pahang, Kelantan, Terengganu, Melaka, Negeri Sembilan, Sabah.[vii] The remaining states i.e. Selangor, Wilayah Persekutuan, Kedah, Perlis, Johor , and Sarawak have chosen to remain silent on this issue and have not criminalized apostasy explicitly.[viii]

It is also relevant to consider that the States are limited in their jurisdiction to legislate on the punishment of Syariah offences by virtue of the Syariah Court Criminal Jurisdiction Act 1965 which provides for the “3-6-5 formula” i.e. that Syariah Courts sentencing powers limited to 3 years, six strokes of rotan, and RM5,000.00 fine.[ix] This is one reason why there can be no punishment of death imposed for apostasy by States. Some States like Kelantan and Pahang have imposed the maximum allowable punishment which is 3 years or 6 strokes or RM5,000.00 or combination of all for the offence of attempted apostacy (percubaan keluar dari Islam).[x] [xi] Terengganu have imposed punishment of 3 years or RM500.00 or both; whereas Perak has imposed 2 years or RM3,000.00 or both.[xii] Sabah and Melaka have imposed punishments of detention at Counselling Centers and repentance by the accused whereas Negeri Sembilan has imposed punishment of repentance only.[xiii]

It is crucial that the issue of apostacy in Malaysia be discussed with view of Article 11(1) of the Federal Constitution (read with Article 11(4)) which essentially protects the freedom of religion of all persons in Malaysia but allows States to restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.[xiv] The scope of this fundamental protection has been limited by judicial decisions and the encroachment by States in enacting legislation which appear to be in conflict with the Federal Constitution. The issue has been raised in civil courts on many occasions, however, there are numerous decisions which hold that the issue whether a person has converted out of Islam is a matter within State jurisdiction of Syariah Courts under Article 121(1A) of the Federal Constitution and not a matter under Article 11(1) of the Federal Constitution.[xv] [xvi] Notwithstanding these learned views, reference is made to the Federal Court decisions in Semenyih Jaya and Indira Ghandi Mutho which have re-asserted that the jurisdiction to review constitutional matters lies solely with the civil courts.[xvii] If these decisions are to be followed, it is submitted that the proper avenue to decide on matters touching on Article 11(1) would be the civil courts and not the Syariah Courts. The civil courts however have consistently evaded the issue or acquiesced jurisdiction to the State to decide on the matter due to its highly sensitive nature.[xviii]

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Another crucial issue to consider is whether applications to convert are allowed in Syariah Courts of Malaysia. There is a mechanism in place in some States to allow applications for conversion, however, Syariah Courts are generally reluctant to allow such applications. Even making such applications could be considered Riddah and the judge allowing the application could be accused of being complicit in apostasy. Therefore, applications are usually rejected unless it is a genuine mistake committed by the National Registry Department or in cases where the persons involved were not born Muslims (or have mix parentage).[xix]

Concluding Comments

The conflict of law between States remains because there is no standardized law that applies to all Muslims in regards to apostasy in Malaysia. The issue of Federal-State conflict also remains unresolved as there appears to be inconsistencies between State legislation and the Federal Constitution, namely the scope of freedom of religion as provided under Article 11(1) of the Federal Constitution.

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[i] Malaysian Constitution (Freedom of Religion) art 11. (1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it. (2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.

(3) Every religious group has the right— (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law. (4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.

[ii] Malaysian Constitution art 74 (2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

[iii] Malaysian Constitution (Religion of the Federation) art 3. (1) Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.

[iv] Mohamed Azam Mohamed Adil, Wan Naim Wan Mansor and Azril Mohd Amin, 'The Right to Freedom of Religion and Jurisdictional Conflicts in Malaysia' (2023) 3(1) SINERGI: Journal of Strategic Studies & International Affairs 69-86.

[v] Ibid.

[vi] Malaysian Constitution art 74(2); see 9th Schedule State List II of Federal Constitution

[vii] Nasir, N. A. M., & Ismail, S. Z. (2016). Keluar Agama Islam di Malaysia: Permasalahan dari sudut undang-undang. Journal of Shariah Law Research, 1(1).

[viii] Ibid.

[ix] s 2 Syariah Courts (Criminal Jurisdiction) Act 1965 (REVISED - 1988) [Act 355]

[x] Kelantan also gives the option of 6 months detention at Counselling Centre.

[xi] Nasir, N. A. M., & Ismail, S. Z. (2016). Keluar Agama Islam di Malaysia: Permasalahan dari sudut undang-undang. Journal of Shariah Law Research, 1(1).

[xii] Ibid.

[xiii] Ibid.

[xiv] Malaysian Constitution (Freedom of religion) art 11. (1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.; (4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

[xv] See Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam [1992] 1 MLJ1; Md Hakim Lee v Majlis Agama Islam [1998] 1 AMR 74; Soon Singh v Pertubuhan Kebajikan Islam [1999] 1 MLJ 489; Tey? Siew Choo@Nur Aishah Tey v Teo Eng Hua [1999] 2 AMR 2779.

[xvi] See Kamariah Ali v Kerajaan Negeri Kelantan [2002] 3 MLJ 657 and Lina Joy v Majlis Agama Islam [2007] 4 MLJ 585, attempted apostasy by Muslims was not regarded as part of freedom of religion in Article 11 and is under jurisdiction of Shariah Courts.

[xvii] Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561 FC.; Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak [2018] 2 AMR 313

[xviii] Emeritus Prof Datuk Dr Hj Shad Saleem Faruqi, R. S. (2020). Between Two Shores: The Courts, The Constitution and The Shariah. Singapore Academy of Law Journal(SAL Journal 2020 Special Issue (Malaysia)). https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-Special-Issue/e-Archive/ctl/eFirstSALPDFJournalView/mid/513/ArticleId/1523/Citation/JournalsOnlinePDF

[xix] Musa, P. I. P., & Ismail, S. Z. (2015). Permohonan Keluar Islam: Kajian Kes Di Mahkamah Tinggi Syariah Negeri Sabah. Jurnal Syariah, 23(1), 53-78.

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