Constitutional law 2 tutorial 6

ARTICLE 11

Question 1

“Religious rights of a person must be guaranteed under the Federal Constitution. It has
to be clearly defined and must not lead not to any controversy.”

With reference to the above statement, discuss the position in Malaysia. Cite the
necessary case law. (25 marks)

Freedom of religion in Malaysia view, it can be seen in Article 11(1) of Federal

Constitution which stated that every person has the right to profess his religion, the
right to practise his religion, and the right to propagate his religion. However, this right is
subject to Clause (4). Theoretically, the right to beliefs and doctrines is regarded as
absolute where the right is given to all persons in Malaysia. Freedom of religion is not
available to Muslims as numerous laws enacted criminalise apostasy and other
conducts that are regarded as sinful under the syariah. However, in reality, the freedom
of religion is not absolute. As it can be seen in the case of Kamariah bt Ali v Kerajaan
Negeri Kelantan (2002), where the judge implied that Article 11 should not be
interpreted so broadly as to vitiate legislation in the name of Islam that imposes duties
and prohibitions on Muslims.
Next, there is to be no compulsion to support a religion other than our own which was
provided under Article 11(2) where it stated that “No person shall be compelled to pay
any tax the proceeds of which are specially allocated to a eligion other than his own”
This means that a non-Muslim is constitutionally entitled to refuse to contribute to the
funds of zakat, fitrah and baitulmal as these are specially allocated for Islamic purposes.
But a non-Muslim cannot refuse topay a general tax such as income tax even if part of
the revenue is utilized to support Islam,the official religion of Malaysia. But a Muslim is
compelled to pay the relevant tax such as zakat and fitrah.
Article 11(3) provides that every religious group has the right to manage its own
affairs; to establish and maintain institutions for religious or charitable purposes; and
to acquire and own property and hold and administer it in accordance with law.
However, there’s limitation, which were stated under Article 11(4) of Federal
Constitution that missionary activity amongst Muslims may be regulated. State law and
in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may
restrict propagation of any religious doctrine among Muslims. It covers all proselyizing
activities which directed at Muslims whether by non-Muslim or unauthorized Muslims.
Other than that, Article 11(5) which stated that all religious freedom is subject to public
order, public health and morality. Then, non-mandatory practices. For example, in the
case of Halimatussaadiah bte Hj Kamaruddin v Public Services Commission, Malaysia
& Anor, where the issue was whether the wearing of purdah is an Islamic injunction
ought to befollowed strictly by Muslim women. The court held that "...The wearing of the
purdah has nothing to do with the appellant's constitutional right to profess and practice
herMuslim religion. Also, in the case of Zakaria Abdul Rahman v Ketua Polis, where
freedom of religion extends to only those practices and rituals if it is essential,
mandatory and integral to the religion. It does not cover practices if is non-essential and
optional.
Under Schedule 9 List II Para 1, all muslims are subjected to additional restraints
where state assemblies can create and punish offences committed by Muslims whom
againsts the precepts of the religion. Although Malaysia has a freedom of religion,
however, atheism is not recognized in Malaysia. His is due to our Rukun Negara where
it affirms a commitment to belief in God. Thus atheistic practices may not receive much
sympathy in courts. Moving on, minors are not allowed to profess any religion on their
own. Article 12(3) stated that religion of a person under 18 years old iis decided by his
parents or guardian. In the case of Teoh Eng Huat v Kadhi Pasir Mas, Supreme Court
was asked to make a ruling on an appeal by a father whose daughter, who has been
raised as a Buddhist has voluntary converted to Islam. He asserted his claim as the
father and lawful guardian which has the right to decide the religion, education and
upbringing of the children. The court ruled in his favour. Lastly, the right to conversion is
not explicitly stated in the Federal Constitution. Article 18 of UDHR and Article 18 of the
International Covenant on Civil and Political Rights (ICCPR). Article 18 of the UDHR
stated that everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief. It was partially recognized by
Section 4(4) of the Malaysia’s Human Rights Commission aCT 1999. For non-Muslims,
right to conversion is guaranteed by Article 11. For Muslims, it is an issue of apostasy
which is taboo and absolutely abhorrent where there are many disturbing cases that are
unsolved which is first, renounce due to disillusionment with the administration of justice
in Syariah Courts which can be seen in the case of Daud Mamat v Majlis Agama Islam.
It was held that freedom of religion under Article 11 does not include the right to
apostate. Act of exiting from a religion is certainly not equated with the right to profess
and practice their religion. To include the right to renounce the religion of Islam would
stretch the scope of Article 11(1) to ridiculous height. Second, reasons of the heart. For
example, an individual wishes to marry non-muslims but the said non-muslim does not
want to convert to Islamand this is an issue because Muslim Law in Malaysia does not
allow a Muslim to marry a non-Muslim. This can be seen in the case of Tongiah Jumali
v Kerajaan Negeri Johor, where

Question 2
Critically explain the brief facts, relevant issues, judgement and legal principles of Indira
Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other
appeals [2018] 1 MLJ 545. (and)

Facts:
In 2009, Indira Gandhi, a Hindu mother of three children, turned to the courts when her husband
left after an argument, forcibly taking their youngest child, an eleven-month old daughter, with
him. She had learnt that he had converted to Islam and then converted all three of their children
without her knowledge. He had then obtained custody orders for the children from the Sharia
court. Indira Gandhi petitioned the civil courts to quash the unilateral conversions of her children
and obtain custody of them. Initially, the High Court held in favor of Indira Gandhi, quashing the
conversion certificates and granting her custody. The High Court decision was, however,
overruled by the Court of Appeal, which held that religious conversion was a matter exclusively
for the Sharia courts to decide.

Issues:
1. whether the effect of Article 121(1A) allows the entire jurisdiction of power to Sharia
Courts in all matters pertaining Islamic Law including judicial review over Civil Courts?

2. whether the consent of both parents is needed for converting the religion of a child
as the interpretation of Article 12(4)?

Judgement and legal principles:

1. It was evident from the marked differences in the establishment and constitution of the
civil and Syariah Courts that the two courts operate on a different footing altogether.
Clearly both cll (1) and (1A) of art 121 of the FC illustrate the respective regimes in
which each court operates. As the issue in this case was concerned with the
interpretation of art 121(1A), in particular whether the clause had the effect of granting
exclusive jurisdiction on the Syariah Court in all matters of Islamic Law including those
relating to judicial review, a close scrutiny of the same was in order. In effect, cll (1) and
(1A) of art 121 of the FC illustrate that both the civil and Syariah Courts co-exist in their
respective spheres, even if they are dissimilar in the extent of their powers and
jurisdiction. Thus, the amendment inserting cl (1A) in art 121 did not oust the jurisdiction
of the civil courts nor did it confer judicial power on the Syariah Courts. In the present
appeals it was not disputed that the Registrar of Muallafs was exercising a statutory
function as a public authority under the Perak Enactment in issuing the said certificates.
The jurisdiction to review the actions of public authorities, and the interpretation of the
relevant state or federal legislation as well as the Constitution, would lie squarely within
the jurisdiction of the civil courts. This jurisdiction could not be excluded from the civil
courts and conferred upon the Syariah Courts by virtue of art 121(1A) of the FC. In fact,
 the determination of the present appeals did not involve the interpretation of any Islamic
personal law or principles. The subject matter in the wife’s application was not
concerned with the status of her children as Muslim converts or with the questions of
Islamic personal law and practice, but rather with the more prosaic questions of the
legality and constitutionality of administrative action taken by the Registrar in the
exercise of his statutory powers. This is the pith of the question at hand and it was also
clear that cl (1A) of art 121 did not prevent civil courts from continuing to exercise
jurisdiction in determining matters under federal law, notwithstanding the conversion of a
party to Islam. Further, the wife as a non-Muslim had no locus to appear before the
Syariah Court for the present application, and the Syariah Court did not have the power
to expand its own jurisdiction to choose to hear the wife’s application. In these
circumstances it became clear that the High Court was seized with jurisdiction, to the
exclusion of the Syariah Court, to hear the matter, and had rightly done so.

2. It was held that since custody of the children had been granted to the wife, it was the
wife who exercised the dominant influence in their lives and to allow the other spouse to
unilaterally convert the children without the consent of the wife would amount to a
serious interference with the lifestyle of the new family unit. Under the Guardianship of
Infants Act 1961 (‘the GIA’), both parents had equal rights in relation to the custody and
upbringing of the infant children and the wishes of both parents was to be taken into
consideration. The conversion of the husband to Islam did not alter the antecedent legal
position, nor did it bring the children out of the ambit of the GIA. Based on a purposive
interpretation of art 12(4) read with the Eleventh Schedule of the FC, and on an
application of ss 5 and 11 of the GIA, it became clear that the consent of both parents
was required before a certificate of conversion to Islam could be issued in respect of the
children. In the circumstances, the certificates of conversion, which were issued without
the consent of the wife, contravened art 12(4) of the FC and ss 5 and 11 of the GIA. The
certificates of conversion were void and should be set aside