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32 of 129 DOCUMENTS © 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) The Malayan Law Journal Articles 2010 Volume 2  2 MLJ cx;  2 MLJA 110 LENGTH: 6236 words TITLE: Article: PROPAGATION OF RELIGIOUS DOCTRINES TO MUSLIMS: A LEGAL PERSPECTIVE AUTHOR: Shamrahayu A Aziz Assistant Professor Islamic Law Department International Islamic University Malaysia TEXT: INTRODUCTION The propagation of religious doctrines and beliefs among Muslims is considered a controversial activity in Malaysia. It has far-reaching implications on the social and political environment of the country and is likely to cause conflicts between various religious/racial groups in the country. Furthermore, the propagation may open rooms for Muslims to apostate. Islam does not compel anyone to embrace it but it does not tolerate apostasy, n1 which is incompatible with its sacred nature as a divinely revealed religion that is based on immutable principles. n2 Since apostasy is prohibited in Islam, any move to encourage apostasy, such as the propagation of other religious doctrines and beliefs among Muslims, must be controlled and restricted. State law (or Act of Parliament, in the case of Federal Territories) may restrict the propagation of any religious doctrines or beliefs among persons professing the religion of Islam. This essay seeks to argue that in Malaysia, the Federal Constitution sanctions restrictions to the propagation of any non-Islamic doctrine and belief among persons professing the religion of Islam. In pursuance of this constitutional endorsement, almost all states have a law controlling and regulating the propagation of religions among Muslims. While the Constitutional Commission did not give any obvious reason for the power of the state to control the propagation, it is submitted that the special position of Islam and the compromise between Muslims and non-Muslims in the process to achieve independence are the foundations for such restrictions. PROPAGATION DEFINED The word 'propagation' is used in art 11(1), (4) and Item (1), Second List of the Ninth Schedule of the Federal Constitution without definition and without any statutory or judicial interpretation. Laws passed in pursuance of these provisions use the same word. The Control and Restriction of the Propagation of Non-Islamic Religions Enactment of the various states n3 merely describes offences amounting to propagation without giving a proper definition of the word.
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Generally, the legislation prohibits the act of persuading, influencing or inciting Muslims to change their religion, n4 approaching and subjecting a Muslim to speech or display of any matter concerning non-Islamic religions, n5 sending, delivering, or distributing any publication concerning non-Islamic religions to Muslims. n6 Though the description of the prohibited acts is almost comprehensive, these acts cannot be said to provide a conclusive definition of what amounts to 'propagation'. The word 'propagation' is from the word 'propagate', which means 'transmit or be transmitted in a particular direction'. n7 In this context, it is submitted that 'propagation' connotes the transmission or dissemination of religion by the exposition of its tenets to Muslims. However, looking at the Control and Restriction of the Propagation of Non-Islamic Religions Enactment provisions, the word 'propagation' connotes 'proselytism', which is derived from the word 'proselyte'. 'Proselyte' means 'a convert from one opinion, religion or party to another'. n8 In the same vein, 'proselytise', means 'convert from one religion, belief, or opinion to another'. n9 Thus, to proselytise connotes to make converts. Thus, 'proselytising' or 'propagating' is the act of trying to convert another individual from the convertee's religion to the converter's religion. Perhaps the word 'propagation' may also connote 'propaganda', which means 'the systematic dissemination of doctrine'. It is interesting to note that the Pahang Administration of the Religion of Islam and Malay Custom 1982 uses the word 'propagandising', instead of 'propagation'. n10 The Constitution uses the word 'propagation'. The other two words, proselytise and propaganda, are not found in the Constitution. Nonetheless, the three words, that are propagation, proselytise and propaganda have some common elements though not necessarily the same elements. Thus, though the words 'proselytise' and 'propaganda' are not found in the Constitution, some elements in propagation are found in the other two words, and therefore, the word 'propagation' may include 'proselytise' and 'propaganda'. It is no doubt that the ultimate aim of propagating a religion or belief is to convert another to such religion. However, one may argue that there is a difference between 'propagation' and 'conversion'. It is said that the right to propagate allows a person to disseminate his knowledge about his religion. This is done by informing or disseminating (in whatever means) to others the tenets of his religion and by expounding the teachings. Conversion refers to the situation where one renounces, or changes his religion. One has a limited right to propagate his religion, but he does not have the right to convert, or to demand any person, not being the adherent to his religion to convert to his religion. Considering the facts that the ultimate aim of the propagation in its true meaning and concept is to convert a person, it is therefore unrealistic to say that both, 'propagation' and 'conversion' are two different aspects. Both are intertwined and it is no doubt that the main objective of the propagation is to invite the others to convert to the religion, or otherwise the propagation has no purpose. An issue that is worth considering at this juncture is whether humanitarian activities or activities of organised missionaries is 'propagation' within the meaning of the relevant laws mentioned above. Due to lack of interpretation given to the word 'propagation', it is uncertain whether humanitarian services are included. However, I am of the view that activities such as organised missionary works are 'propagation' within the meaning of the law, even if the act was done without a view to convert the Muslim from his religion or without the intention to facilitate the Muslims to renounce Islam or to convert them to other religions. However, there is still room for discussion as the answer to the question depends on the circumstances or the facts of the case and this should be decided on a case-to-case basis. On the issue of humanitarian activities, one may argue that humanitarian activities under a religious ticket are not 'propagation' within the meaning of the law to the extent that the purpose of the activities is not to expose the tenets or the teachings of the religion to Islam. The activities were done merely to extend humanitarian assistance to the needy. Be that as it may, considerations have to be made on the situations and the facts of a particular case. In addition, the propagation of the non-Islamic religious doctrines and beliefs among Muslims may not employ physical force such as by the use of arms, by use of the sword or by coercion though mental pressure may be an element of propagation. Furthermore, genuine intellectual (religious) discussions conducted in good faith and in temperate language cannot be said to be 'propagation' or 'proselytism' or 'propagandism'; however, no wanton vilification or attack on any religion shall be permitted as this act may amount to an offence under the law n11 and may be a prejudicial
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NON-ISLAMIC DOCTRINES DEFINED The Constitution is silent on the scope of Islamic religion; neither does the Constitution define the word 'doctrine'. Relevant legislations are also silent on the definition of the phrase 'non-Islamic doctrines'. However, the legislation on the Control and Restriction of the Propagation of Non-Islamic Doctrines and Beliefs defines 'non-Islamic religion' in s 2 as: Christianity, Hinduism, Buddhism, Sikhism, Judaism, or any variation, version, form or offshoot of any of the said religions, and includes any creed, ideology, philosophy, or any body or a system of practices or observances -- (a) which has as one of its characteristics the worship of some spiritual or supernatural being or power, whether real or supposed: or (b) which purports to have as its aim or one of its aims the attainment of spiritual enlightenment, spiritual protection of spiritual existence, being a creed, ideology, philosophy, or body, or a system of practices or observances which is not recognized by the religion of Islam as Islam. This definition is wide and subjective, especially when it mentions that the non-Islamic religion is 'a system or practices or observances which are not recognised by the religion of Islam as Islam'. It includes any doctrines that have spiritual elements, whether in terms of the character and the aims of the religion. The question that may be asked is whether the words 'non-Islamic doctrines' include other religious doctrines or beliefs or other Islamic sects. According to Tun Salleh Abas in Mamat bin Daud's case, n12 the word 'doctrines' under art 11(4) may be said to include beliefs other than the recognised Islamic school of thoughts. In the words of the Lord President, the power of the state under art 11(4) includes 'the power which enables the states to pass a law to protect the religion of Islam from being exposed to influences of the tenets, precepts and practices of other religions or even of certain school of thoughts and opinions within the Islamic religion itself'. n13 Therefore, the court's inclination in this case seems to be that any doctrine other than the recognised doctrine is also subject to the law regulating the propagation of religion. In this respect, it can be said that dissemination or propagation of beliefs or thoughts other than the recognised school of thought may be restricted accordingly. In addition, it is obvious that there can be regulatory provisions regarding the propagation of deviant religious teachings and the right to freedom of religion should not include the right to profess, practice and propagate deviant teachings. State Power to Restrict the Propagation The Constitution allows the Enactment of laws restricting the right to propagation. Article 11(4) and Item 1, Second List of the Ninth Schedule to the Constitution provides for the state legislative power (or, in the case of Federal Territories, the Parliament) to legislate law restricting or controlling the propagation of religious doctrines and beliefs among Muslims. Article 11(4) states: 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. Meanwhile, Item 1, Second List of the Ninth Schedule, which grants to all State Legislature legislative powers says:
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... the control of propagating doctrines and beliefs among persons professing the religion of Islam; ... There is no clear reason found in the Constitutional Commission Report as to the allocation of the legislative power concerning controlling and restricting the propagation of other doctrines and beliefs among Muslims in the states. It is submitted that the state's power to legislate on restriction to propagation is a pact of an agreement in negotiation between the Malays and the non-Malays at some point on the way to achieve independence. It is also submitted that the simple reason for such a grant of power is due to the fact that Islam is a state matter and therefore, any matters involving the religion of Islam shall be placed within the powers of the state. In addition, it may be suggested that restriction to the propagation of religious doctrines and beliefs among Muslims is to respect and acknowledge the constitutional status of Islam as the religion of the Federation. It is also to acknowledge the privilege given to Muslims as the majority population in the country or to promote a broader and more significant role of Islam in the country. Furthermore, it is to prevent Muslims from being converted to other religions and to prevent any form of injury to the religious feelings of all Muslims. More importantly, given the fact that religion is a sensitive subject to most people, such restrictions to the right to propagate are also needed to prevent unnecessary religious or racial conflicts between the different races. n14 This would sustain as a valid effort to maintain public order and to prevent religion from ever being a source of conflict in a multi-religious community. Harding has similar views on the issue. However, Harding raised an issue that the restriction of propagation of non-Islamic religions among Muslims is contrary to the overarching principle of religious freedom and that this would restrict the right to freedom of religion. According to Harding, 'An acute example of this problem is that of conversion'. n15 In this respect, it is submitted that the issue should be seen in the light of the country's historical, religious and social situation. It is a well-known fact, and a constitutional position that Islam is the religion of the country. Furthermore, Islam is the religion professed by the majority of Malaysians; therefore, being an established state religion, the religion and those who adhere to the religion should be protected of their position. Propagation of other religions to the adherence of the state religion may be considered as undermining the position of the state religion and it may cause damage to the central element of the country. One may doubt this argument as public order is not within the state's power or jurisdiction. However, it may be argued that, although 'public order' is not within the legislative list of the state Legislature and art 11(5) provides for clear grounds to restrict the right to profess, practice and propagate religion under art 11(1), naturally, restrictions to propagation of religious doctrines or beliefs among Muslims would contribute to the preservation of public order and national tranquillity for the reasons stated above. Due to the fact that the power to restrict or control the propagation falls within the scope of the state legislative power, it may be argued that propagation among Muslims may be carried out unless and until there is a state legislation making it an offence. In this respect it is important to note that the Constitution does not impose any direct limitations on the right to propagate, but merely provides avenues for the state Legislature to legislate law on this subject.
FREEDOM OF RELIGION AND RIGHT TO PROPAGATE Article 11(1) of the Federal Constitution grants every person the right to freedom of religion. Though the title to art 11 uses the phrase 'Freedom of Religion', the substantive or the contents of the article merely provides for some aspects in freedom of religion. Those aspects of the freedom include the right to profess, practice and subject to certain law, to propagate the religion. Since freedom to propagate may be subject to restriction (to be imposed by the state law), propagation of religion cannot be said to be an absolute right though it may be part of the right to freedom of religion. Though one may argue that disseminating or propagating religious doctrines and belief is part of religious duty within the purview of religious
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freedom, constitutionally speaking this right is not completely guaranteed by the provisions in art 11(1). Since art 11(1) explicitly allows restriction to the right to propagate one's religion it is submitted that the right to propagate one's religion is not absolute. The freedom also does not comprehend the right to convert or the freedom to cause the conversion of Muslims to other religions. In the international arena, it must be mentioned that the right to propagate one's religion is not included as part of the universal right to freedom of religion. Article 18 of the Universal Declaration of Human Rights ('UDHR'), which concerns the right to freedom of religion and which provides almost comprehensive right to the freedom, is silent on the right or the freedom to propagate. Similarly, the International Covenant on Civil and Political Rights ('ICCPR') also does not recognise 'propagation' as part of the right to freedom of religion. Article 18(3) of the ICCPR states that: Freedom to manifest one"s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. This provision allows restriction to the freedom to manifest a religion or belief. Although these two international documents do not form the hard law of the country, many have actually looked at them as forming certain standards on human rights issues. The considerations or the grounds for the restriction include the importance of public safety or public order, which, in the context of the Malaysian social and political fabric imply a strong basis for the imposition of restrictions on the freedom to propagate a doctrine which is against the majority religion. As far as the Malaysian experience in the issue regarding 'propagation' of other doctrines among Muslims is concerned, the Malaysian Government has taken the initiative to prevent that from happenning. In Minister for Home Affairs, Malaysia & Anor v Jamaluddin Othman n16 ('Jamaluddin'scase'), Jamaluddin was detained under the Internal Security Act ('ISA') for planning to propagate Christianity among the Malays and was alleged to have caused the conversion of six Malays into Christianity. The Act was contended to have affected the public order of the country. Jamaluddin applied for a writ of habeas corpus in order for him to be released from detention. He argued that he had freedom of religion guaranteed by art 11(1) of the Federal Constitution. On the part of the government, the detention under the ISA was to indicate the government's inclination to assume that the act of a Muslim in attending seminars on Christianity would cause public disorder. This assumption could be due to the fact that propagation may cause religious or racial conflicts. The High Court in that case, however, was mainly concerned with the right to freedom of religion and the interpretation of art 11 and decided that the person cannot be detained under the ISA as he is guaranteed of the right to freedom of religion. On appeal, although the Supreme Court agreed with the decision of the High Court, it cautioned that freedom of religion was restricted by law, and limited by regulations relating to public order. The Supreme Court however, held that the act of merely attending seminars on other religions was part of the exercise of one's right to freedom of religion. The court held that every person has the right to freedom of religion and Muslims could attend seminars on Christianity. The court decided that the alleged act of propagating Christianity among Muslims was not sufficiently proven and even if it was proven, the act would not affect public order. The decision in this case has disregarded the Muslim religious sensibilities on the apostasy issue. This is something risky as one religion remains a sensitive issue and apostasy is not something tolerable among Muslims. In addition, one may say that propagating a religion is part and parcel of the right to practise a religion. It is a fact that some religions, such as Christianity and Islam, consider propagation as the believers' responsibilities towards the religion. Be that as it may, it is obvious in the Constitution that restrictions to the right to propagate non-Islamic doctrines and beliefs among Muslims are allowed. It is worth mentioning at this juncture that the Constitution does not allow restrictions to the propagation of any religion to the adherence of any other religions other than Islam. That is to say, only Muslims are to be made free from any possibility of being exposed to the teachings of other religions, or even deviant teachings of the religion itself. With the exception of the Muslims, the followers of other religions may still propagate their religions.
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STATE LAW RESTRICTING THE PROPAGATION As mentioned earlier, art 11(4) and Item 1 of the Second List, Ninth Schedule of the Federal Constitution recognise the states' power to control or to restrict the propagation of doctrines among the Muslims. n17 In pursuance of this constitutional recognition, all states have provided for provisions of laws on the subject. These offences, which relate to the propagation of non-Islamic doctrines and beliefs, are found mainly in two sets of State Enactments. Some states provide for the provisions in the Control and Restriction of non-Islamic Religions Enactment and some states prefer them to be included under the Syariah Criminal Enactment.As mentioned earlier, generally nine states in Malaysia have enacted specific legislation to control or restrict the propagation of non-Islamic religions among the Muslims. n18 The provisions of all these legislations are all identical. Offences under the control and restriction of propagation Enactment The Control and Restriction of Propagation of Non-Islamic Religious Act aims at controlling and in fact, criminalising any form of dissemination of non-Islamic beliefs among Muslims. There are six offences prescribed by the law. The first offence is persuading, influencing, coercing or inciting a Muslim to become a follower, or member of a non-Islamic religion. It is provided for under s 4(1) of the Enactment. The punishment for the offence is either fine, for an amount not exceeding RM10,000 or imprisonment for a term of four years, in the states of Pahang, Perak and Johor -- or three years in Negeri Sembilan, one year in Selangor, Malacca, Terengganu and Kelantan or a combination of both punishments in all the states. In Kedah, however, the punishment is mandatory imprisonment for a period of not exceeding four years for the first offence or five years for the second or subsequent offence. The second offence under the Enactment is, to subject a Muslim under the age of 18 to influences of a non-Islamic religion. This is an offence under s 5(1) of the Enactment. In Pahang, however, the offence is to subject any Muslim to the influence of non-Islamic religion, and is not only restricted to those below 18 years of age. In Selangor, the section uses the term 'minor' which has been defined as to mean person under the age of 18 by s 2 of the same Enactment. The punishments are the same as the offence under s 4(1) above. The third offence is provided for under s 6(1). It is the offence of approaching a Muslim and subjecting him to any speech or display of any matter relating to a non-Islamic religion. Perak, Negeri Sembilan, Pahang and Johor Enactments provide for the punishment of a fine of no more than RM5,000 or imprisonment for not more than two years or a combination of both. The law of the States of Kelantan, Terengganu, Malacca and Selangor provide the same amount of fine, but imprisonment for a term of not more than six months or a combination thereof. Kedah Enactment provides for punishment of three years imprisonment for the first offence and four years for the second or subsequent offence. The fourth offence is found under s 7(1). It is the offence of sending or delivering publications relating to any non-Islamic religion to a Muslim. The Kelantan, Terengganu, Malacca and Selangor Enactments punish the offender with a fine, not exceeding RM3,000, or imprisonment for not more than three months, or both. In Pahang, Perak, Negeri Sembilan and Johor, the prescribed punishment is either a RM5,000 fine or two years imprisonment, or both. Kedah, however, provides for three years imprisonment for the first offence and four years imprisonment for the second or subsequent offence. Section 8(1) provides for the offence of distributing any publication or any publicity material relating to non-Islamic religions to a Muslim. The punishment for the offence in the States of Pahang, Perak and Johor is either a fine, for no more than RM5,000 or imprisonment, for no longer than two years, or the combination of both. In Negeri Sembilan, the punishment is a fine of not more than RM3,000 or imprisonment for no more than one year or a combination of the two. In Kelantan, Terengganu, Malacca and Selangor the punishment is a fine only; that is, for an
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amount not exceeding RM1,000. In Kedah, the punishment is three years imprisonment for the first offence and four years imprisonment for the second or subsequent offence. The last offence is provided under s 9(1) and (2). This is an offence relating to the use of certain words and expressions derived from Islam. The punishment for the offence in the States of Pahang, Perak and Johor is a fine, for not more than RM5,000 or imprisonment for no longer than two years, or a combination of both. In Negeri Sembilan, the punishment is a fine of not more than RM3,000 or imprisonment for no more than one year or a combination of the two. In Kelantan, Terengganu, Malacca and Selangor the punishment is a fine only; that is, for an amount not exceeding RM1,000. In Kedah, the punishment is three years imprisonment for the first offence and four years imprisonment for the second or subsequent offence. It has to be mentioned that although these Enactments have been in effect for almost 20 years, in some states, yet, there are no reported cases involving these laws. Therefore the discussion is mainly on the provisions of the law. In addition, there are various complications in the enforcement of the law, especially on matters concerning the jurisdiction of the courts and the enforcement or prosecution procedure. This issue is not dealt with in detail in this essay as it is better and proper to have a separate discussion on this issue. Offences under the Shariah criminal legislation The Shariah criminal offences legislation provides two offences on the subject. The first offence is 'teaching and expounding false doctrines'. Bearing in mind the danger that could be brought by 'false doctrine' to the religion, as what happened in Tulaihah, Musailamah al-Kadhdhab and al-Aswad al-'Ansi, n19 where the state legislation criminalised the teaching and expounding of false doctrines. Some 'false doctrines' may constitute apostasy which are punishable with the hadd penalty under Islamic law. Some are not and this is punishable by ta'zir punishment only. n20 Punishing one who is responsible for the dissemination of false teaching would be more effective in curbing the activities rather than in punishing the followers of the teachings. Teaching and expounding false doctrines is an offence in all the states and Federal Territories of Malaysia. n21 The provisions of the state laws on this offence are all identical. They read: Any person who teaches or expounds ... any doctrine ... relating to the religion of Islam shall, if such doctrine ... is contrary to Islamic Law or any fatwa for the time being in force in this state, be guilty of an offence ... 'Teach' and 'expound' are not defined by the law, and neither is there any explanation given. Notwithstanding, the words connote the act of disseminating the views contrary to Islam. The Ayah Pin controversy is an obvious example of the offence. Ayah Pin was alleged to have expounded teachings of false doctrines among Muslims (although not all Ayah Pin's followers were Muslims). In fact, Ayah Pin's teachings were declared deviant by a gazetted Fatwa (Fatwa 1461) issued by the Trengganu Religious Affairs Council in 1997. Despite the havoc caused by the Ayah Pin controversy, to date, there is no prosecution pressed against him. The prescribed punishment for this offence in various State Enactments can be categorised into two categories. The first category includes whipping as one of the punishments, and the second group exclude whipping as a form of punishment. The law in the States of Kelantan, Terengganu, Pahang, Selangor, Johor, Penang, the Federal Territories and Sarawak fall under the first group. The law in these states punishes the offender with a fine of an amount not exceeding RM5,000 or with imprisonment for a term not exceeding three years or whipping or a combination of all the punishments. The amount of the strokes, however, differs. Terengganu, Selangor, Johore, Penang, the Federal Territories and Sarawak provide for the maximum of six strokes. Meanwhile, Pahang limits it to three strokes and Kelantan does not provide for a specific number of strokes. The Enactments in the States of Negeri Sembilan, Malacca,
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Perak, Perlis, Sabah and Kedah fall under the second group. In these states, the offence is punishable with a fine not exceeding RM5,000 or with imprisonment for a period not exceeding three years, or a combination of both. In Kedah, the punishment must not to exceed the maximum of RM1,000 fine or six months imprisonment or a combination of both. From the above, it can be seen that the prescribed punishments for this offence are the most severe that can be imposed by the Syariah courts and some State Enactments even prescribe whipping as a form of punishment. The punishments in the States of Terengganu, Selangor, Johore, Penang, the Federal Territories and Sarawak are the most severe, followed by Pahang, Kelantan and other states. The punishment under the Kedah Enactment is the lightest. The second offence in the Shariah criminal law legislation is the propagation of non-Islamic doctrines and beliefs. There are seven states and Federal Territories laws with provisions on offences relating to the propagation of doctrines and beliefs under the Syariah Criminal Offences Enactment. n22 They are namely s 166 of the Administration of the Religion of Islam and Malay Custom (Pahang) Enactment 1982; s 5 of the respective Syariah Criminal Offences (Johore) Enactment 1997; the Syariah Criminal Offences (Penang) Enactment 1996; the Syariah Criminal Offences (Sarawak) Ordinance 2001; the Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2001; the Syariah Criminal Offences (Federal Territories) Act 1997; and s 10 of the Crimes (Syariah) (Perak) Enactment 1992. Instead of using the word 'propagate', the Pahang Enactment uses the word 'propagandising' and 'teaching the beliefs of religions other than Islam to Muslims'. If found guilty for the offence in Pahang, one is liable to a fine of an amount not more than RM5,000 or for a term of imprisonment of no more than three years, or for a combination of the two punishments and to whipping not exceeding six stokes. It is to be noted that the Pahang Enactment provides for a mandatory whipping sentence and it is the only Enactment that provides for whipping the offender. The Johor Enactment 1997, Perak Enactment 1992, Penang Enactment 1996 and the Federal Territories Act 1997 have a provision which is in pari materia with this matter. Section 5 penalises the act of propagating non-Islamic religious doctrines or beliefs among the Muslims with a fine of an amount not exceeding RM3,000 or with imprisonment for a term not exceeding two years, or a combination of the two. The Terengganu Enactment 2001 prescribes for a different amount of punishment, that is a fine not exceeding RM5,000 or a term of imprisonment not exceeding three years or a combination of both for the offence. CONCLUSION It is true that every one has a constitutional right to freedom of religion, including the right to propagate the religion. The freedom however is not an absolute one. In respect of the right to propagate the religion, the Constitution grants the State Legislature the power to legislate law to control, or even to restrict the right to propagation of any religious doctrines or beliefs among Muslims. Therefore, one should not claim that the right to freedom of religion as enshrined under art 11(1) connotes the right to propagate the religion. It is important to note that laws controlling propagation are meant not only to prevent Muslims from being exposed to heretical religious doctrines, be they of Islamic or non-Islamic origin and irrespective of whether the propagators are Muslims or non-Muslims. Though various reasons have been preferred for such restrictions, in my opinion, the restrictions are mainly to respect the constitutional position of Islam and to respect the Muslims. Maintaining public order is undeniably another significant factor, nonetheless, this will be included under the same subject, which is respect to the Muslims, as the majority population of the country.
Return to Text FOOTNOTES: n1 For further reading on apostasy see for instance, al-Sharbini, Mughni al-Muhtaj ila Ma'rifah Ma'ani
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al-faz al-Minhaj, Beirut: Dar al-Ma'rifah (1997), Vol 4 at p 173; Wahbah al-Zuhayli, Fiqh al-Islami wa adillatuh, Beirut: Dar al-Fikr (1997), Vol 7 at p 5577. See also Farid Sufian Shuaib, Murtad, Kedudukannya di Sisi Islam dan Perlembagaan Malaysia, Petaling Jaya: Intel Multimedia and Publication, (2005). n2 Abdul Karim Zaydan, al-Madkhal Lidirasah al-Shari'ah al-Islamiyyah, Beirut: Muassasah al-Risalah (1999) at pp 39-40. n3 Control and Restriction of Propagation of Non-Islamic Religions (Terengganu) Enactment No I of 1980 (wef: 1 April 1986); Control and Restriction of Propagation of Non-Islamic Religions (Kelantan) Enactment No 11 of 1981 (wef: 1 January 1987); Control and Restriction of Propagation of Non-Islamic Religions (Kedah) Enactment No 11 of 1988 (wef: 1 October 1988); Control and Restriction of Propagation of Non-Islamic Religions (Malacca) Enactment No 1 of 1988 (wef: 1 January 1990); Non-Islamic Religions (Control of Propagation among Muslims) (Selangor) Enactment No 1 of 1988 (wef: 7 July 1988); Control and Restriction of Propagation of Non-Islamic Religions (Perak) Enactment No 10 of 1988 (no effective date); Control and Restriction of Propagation of Non-Islamic Religions (Pahang) Enactment No 5 of 1989 (wef: 1 March 1990); Control and Restriction of Propagation of Non-Islamic Religions (Negeri Sembilan) Enactment No 9 of 1991 (wef: 5 April 2007); Control and Restriction of Propagation of Non-Islamic Religions (Johore) Enactment No 11 of 1991 (wef: 19 July 2007); Control and Restriction of the Propagation of Religious Doctrine and Belief which is Contrary to the Religion of Islam (Perlis) Enactment No 6 of 2002 (no record is found on the effective date). No record is found for the law in Wilayah Persekutuan, Penang, Sabah and Sarawak. n4 Section 4(1) of the Control and Restriction of Non-Islamic Religions Enactment. n5 Section 6(1) of the Control and Restriction of Non-Islamic Religions Enactment. n6 Sections 7(1) and 8(1) of the Control and Restriction of Non-Islamic Religions Enactment. n7 The Concise Oxford Dictionary(10th Ed), Oxford University Press, Oxford, 1999 at pp 1145-1146. n8 Ibid at p 1148. n9 Ibid. n10 Section 166 of the Control and Restriction of Non-Islamic Religions Enactment. n11 Penal provisions of contempt against religion are found under Part XV of the Penal Code. Various provisions on contempt against Islam are found under the State Syariah Criminal Offences legislation and in some states, some offences are found under the Administration of Islamic Law Enactment. n12 Mamat bin Daud & Ors v Government of Malaysia 1 MLJ 119 at p 121. n13 (Emphasis added).
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n14 In the context of the Malaysian social fabric, it is a well known fact that religions are identifiable with races. The Malays profess Islam to the extent that the Constitution declares them as Muslims, Indians usually adhere to Hinduism and the Chinese community largely profess Buddhism. See Abraham, Collin ER, The Roots of Race Relations in Malaysia, Kuala Lumpur: Insan, 1997 at p 4; Ahmad F Yousif,Religious Freedom, Minorities and Islam: An Enquiry into the Malaysian Experience, Selangor: Thinker's Library (1998) at p 56; Asrul Zamani, The Malay Ideals, Kuala Lumpur: Golden Book Center Sdn Bhd (2002) at p 25; for a further reading on race and ethnics in Malaysia, see for instance, Crouch, Harold, Government and Society in Malaysia, Singapore: Talisman (1996) at p 172. n15 Harding, Andrew, Law, Government, and the Constitution in Malaysia, Kuala Lumpur: MLJ 1996 at p 202. n16 Minister for Home Affairs, Malaysia & Anor v Jamaluddin bin Othman  1 MLJ 418. n17 Article 11(4) of the Federal Constitution provides: 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. n18 See fn 3. n19 These people falsely claimed themselves as the prophet after the demise of the Prophet Muhammad SAW. n20 Ibn 'Abidin, Hasyiyat Ibn 'Abidin, (1st Ed), 1294H, Vol VI at p 386; see Ibn Taymiyyah, al-Siyasah al-shar'iyyah, al-Maghrib: Dar al-Ifaq al-Jadidah (1992) at p 85. n21 Section 119 of the Council of the Religion of Islam and Malay Custom (Kelantan) Enactment 1994; s 4(1) of the Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2001; s 162(1) of the Administration of the Religion of Islam and Malay Custom (Pahang) Enactment 1982 as amended in 1987; s 7(1) of the Syariah Criminal Offences (Selangor) Enactment 1995; s 52 of the Syariah Criminal (Negeri Sembilan) Enactment 1992; s 60 of the Syariah Criminal (Malacca) Enactment 1991; s 4(1) of the Syariah Criminal Offences (Johor) Enactment 1997; s 9 of the Crimes (Syariah) Perak Enactment 1992; s 161 of the Administration of Muslim Law (Kedah) Enactment 1962; s 4(1) of the Syariah Criminal Offences (Penang) Enactment 1996; s 34(1) of the Criminal Offences in the Syarak (Perlis) Enactment 1993; s 4(1) of the Syariah Criminal Offences (Federal Territories) Act 1997; s 52 of the Syariah Criminal Offences (Sabah) Enactment 1995; s 4(1) of the Syariah Criminal Offences (Sarawak) Ordinance 2001. n22 The relevant Enactment in Pahang is the Administration of the Religion of Islam and Malay Custom of Pahang 1982, amended 1989.
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