Religious Liberty

2005 Report on the State of Religious Liberty in Malaysia

        Author: Religious Liberty Commission




(Submitted in August 2006)




The Barisan Nasional (BN), under the leadership of Prime Minister Dato’ Seri Abdullah Haji Ahmad Badawi, won a landslide victory at the eleventh general elections contested on March 21, 2004. The coalition secured 64% of the popular vote, reclaimed the state of Terengganu, almost won Kelantan, and handed defeats to Parti Islam Se-Malaysia (PAS)’s president, information chief and youth head. Parti Keadilan Negara was also virtually wiped out and left with a solitary Parliamentary seat. Under Abdullah, UMNO also fully recovered from its embarrassing showing in 1999 by winning 107 out of the 117 Parliamentary seats it contested. The party came within three Parliamentary seats of getting an absolute majority to form the government on its own.

It was clear from the results that the electorate resonated with not only Abdullah’s platform but values, beliefs and attitudes. These include, among others:

• Open, participative and accountable leadership

• Anti-corruption and integrity

• Efficiency of the public services

• Reform of the Royal Malaysian Police

• Islam Hadhari (or progressive Islam)

• National integration

• Care for the poor and marginalized

• Performance of government-linked companies

On assuming power, the Abdullah government postponed several large infrastructure projects that favoured politically-connected businessmen, initiated proceedings against a leading corporate figure and senior civil servants, abstained from interfering in the Federal Court’s decision to overturn former Deputy Prime Minister Anwar Ibrahim’s appeal of his conviction for sodomy, and established a Royal Commission on the Police. This was followed by the non-renewal of the contracts of key appointees in government-linked corporations, changes in procedures for luxury car importation and distribution, removal of capital controls and the unpegging of the ringgit. Importantly, there was also a relaxation of what had hitherto been a tightly controlled media.

These were generally well-received moves and generated a great deal of goodwill among non-governmental organisations and the public at large. By being strong on corruption and waste, Abdullah denied Opposition parties a major ground for attack. By emphasising government delivery systems, Abdullah, as with Prime Ministers before him, sought to increase popular support by putting the welfare of the people first. And by offering a more progressive, vision of Islam, albeit one that does not overturn orthodox religious worldview, he sought to make Islam more acceptable. These moves have effectively neutralised Anwar Ibrahim’s potency on the domestic political scene although there continues to be substantial support for him both within and outside the country.

As Prime Minister Abdullah nears his mid-term mark, however, there are clear signs that the challenges are mounting. There is noticeable disillusionment at the scope or depth of the Abdullah reforms and, indeed, his leadership. His first and second Cabinet appointments were seen as compromises, not having removed those widely seen as corrupt and, at the same, introducing individuals of questionable merit. More and more, his leadership is being characterised as weak, indecisive and uncoordinated, from matters such as the repatriation of illegal immigrants, rises in the price of petrol and other essentials, and relations with Malaysia’s two neighbouring countries. The latest to add a disapproving voice was former Prime Minister Tun Mahathir Mohamed on the issue of the proposed Malaysia-Singapore Bridge, among others issues.

Support for the Abdullah agenda is undoubtedly still strong but the public appears to be increasingly weary and cynical about the tenacity of his vision and/or the results that can be expected. For example:

• Stiff resistance to measures to improve public accountability are being met with a reversal of the Prime Minister’s position, notably the Independent Police Complaints and Misconduct Commission (IPCMC).

• Complaints about poor public service delivery continue to be made despite repeated encouragements and warnings.

• The campaign against corruption is seen by some as having run out of steam (Economic Intelligence Unit, Jan ‘05).

• Members of the current administration and family members are themselves being rumoured to be involved in dubious practices.

• As a result of a perceived weakening of the position in UMNO, the Administration has been responsible for playing the ‘pro-Malay’ card in economic and social matters (the so-called New National Agenda).

• Despite having won back Terengganu, the BN government has not retracted the hudud law which it opposed when PAS was in power.

• Malaysian women in general but Muslim women in particular are disappointed at the introduction of the Islamic Family Law despite promises to amend provisions to make them more responsive to the former’s concerns.

• Unwillingness to take a firm stand and move boldly to review the articles of the Federal Constitution to resolve discrepancies between civil and Islamic law following the M. Moorthy/S. Kaliammal case.

• The lack of support to even consider the proposal by the Malaysian Bar Council to establish an Inter-Faith Commission.

• Attempts to rid the economy of subsidies have resulted in reduction of real income, widened greater disparities and fuelled public anger.

• Failure to support the former Chairman of the Parliamentary Backbenchers Club who took a stand on principle against the alleged abuse of power of a fellow Parliamentarian.

No doubt expectations may have been too high and unrealistic to begin with. After more than two long decades of highly centralised administration, it might have been unreasonable to expect a turnaround in just two years. There is also no question that political and bureaucratic interests, after having had an opportunity to gauge the strength of the Prime Minister’s reform programme, is now starting to more effectively resist reforms. Finally, the policy of ‘openness’ has clearly been a double-edged sword. While it has brought into the open numerous cases of political and administrative abuse, it has also been effectively used by the religious orthodoxy to crush any attempts at less unfavourable treatment and more balanced dialogue with minorities. The less centralised and more responsive form of government now in place is being severely tested by racial and religious extremists, leading to the racial and religious card being played more often and in a demanding manner.


1.2.1. The Constitution as Basic Features of Malaysian Legal Order and Polity 

It is significant that two of the five fundamental principles of the national philosophy, the Rukunegara, pertain to the Constitution and the law. They are, firstly, ‘Upholding the Constitution’, and secondly, ‘the Rule of Law’.

The Constitution lays down the basic structures and foundational principles for the governance of the country. Provisions concerning the character of the nation, the nature and form of the institutions and organs of government, the division of powers between the state governments and the federal government, and the fundamental rights of its citizens are carefully enshrined in the Constitution.

The Constitution envisages a secular legal system based on the polity founded upon the Westminster model of parliamentary democracy. Malaysia is to be a democratic nation established firmly upon the principle of the Rule of Law. The principle of constitutional supremacy, spelled out in Article 4 of the Constitution, is the fundamental feature of the nation’s governance, and therefore the Constitution is the grundnorm by which all governmental action, legislative or executive, stands to be judged for their validity.

Firmly enshrined in the Constitution is also the principle of separation of powers. Legislative, executive and judicial powers of governance are accordingly conferred among the three principal organs of government, to wit the Parliament, the Cabinet and the Judiciary. These separate branches also perform the function of limiting each other's exercise of power in a system of checks and balance.

The Constitution, intended to establish a strong central government with the states enjoying “a measure of autonomy,” divides various matters upon which legislative and executive authority may be exercised into three lists, viz. the Federal list, the State list and the Concurrent list. In general, the Federal Parliament has authority to enact laws over the whole of the Federation and beyond (Article 73 (a)), with the power enumerated in the Federal List (List 1), while the state legislative assemblies are only competent to enact laws for the whole of the state or any part thereof, pertaining to the matters listed on the State List (List II).

1.2.2. Judicial Power Vested in the Judiciary

Article 121 vests the judicial power of the Federation upon the High Court (of Malaya and the High Court of Sabah and Sarawak) and on the inferior courts set up under federal law. An additional clause 1A was inserted to the said Article under the amendment Act A704/88 introduced on 10 June 1988 to exclude matters within the jurisdiction of the Syariah Court from the High Courts. This amendment lies at the heart of the controversy surrounding the case of M. Moorthy/S. Kaliammal.

1.2.3. Fundamental Liberties

The fundamental liberties, viz., right to life and liberty, freedom of speech, freedom of assembly and association, equality before the law, right to education, right to property, and freedom of religion are guaranteed by the Constitution. They are however not absolute for the sake of public interests, e.g. peace, public order and security, and public health.  Hence, except on certain grounds, individuals enjoy the basic rights to live in dignity without interference from the government or its officials.

1.2.4. Religion in the Federal Constitution

Article 3 of the Constitution provides that Islam is the religion of the Federation. It has been upheld by the apex Supreme Court [now Federal Court] that this provision was for official and ceremonial purposes, and was never intended to extend the application of Syariah to the sphere of public law. It therefore does not make Malaysia an Islamic State. Article 162 preserves the continuity of secular law, i.e. “the existing laws…shall continue in force on and after the Merdeka (Independence) Day”.

However, the full implications of a secular state are not intended. The Federal Government is constitutionally authorized “to establish or maintain Islamic institutions or provide or assist in providing instruction in the religion of Islam” and to incur expenditure thereof. State governments can intervene in the affairs of Islam and Muslims. They are vested with extensive and specific powers in regard to the religion of Islam, Islamic institutions, religious revenue, the determination of matters of Islamic law and doctrine, and the creation of offences against Islamic precepts and hence over Muslims with regard to the practice of Islam.

1.2.5. Freedom of Religion

Article 3 goes on to state in the broadest terms possible that other religions may be practised in peace and harmony in any part of the Federation. This can be read in two aspects: firstly everyone is to practise his religion peaceably and harmoniously; secondly, everyone must be permitted to practise his religion in peace and harmony, i.e. without unconstitutional compulsion, interference, discrimination, restrictions or acts of intolerance.

Article 11 specifically guarantees every person the right to profess, practise and to propagate his or her religion. It includes the right to adopt a religion where he had no religious convictions previously; to adopt another religion, to change one's religion or to convert to another religion of one's conviction; not to have a religion and that a person cannot be subjected against his wish or will to profess or to belong in any religion, to receive instruction in any religion or to be engaged in any religious practices of any religion other than his own.

This right may not, however, be exercised by a person who has not attained the age of majority, i.e. 18, prescribed by the Age of Majority Act 1971. The parent or lawful guardians of a minor have the right to determine the religion of the minor and that his religious and moral upbringing shall be in conformity and in accord with the wishes of the parent or lawful guardian.

The right to practise consists of the freedom to take part in various forms of worship, prayer, observances, rites, ceremonies and rituals; the right to assemble and associate for religious purposes; free and fair access to the principal scriptures as well as other religious literatures. The right to own, to publish and to disseminate these literatures and the use of modern media of communication is an integral part of this right. 

The right to propagate is clearly provided in recognition of the missionary character of some religions, e.g. Christianity and Islam whose followers are enjoined to spread their religion to others.  It is however subject to a proviso in clause (4) that “state law, and in respect of the Federal Territories, federal law may control or restrict the propagation of any religious doctrine among Muslims.” This restriction is also used in respect of the other fundamental liberties, e.g. freedom of speech, assembly and association. Nonetheless, the power to control or restrict freedom of speech by federal law cannot conceivably confer the power to absolutely prohibit the right to speech, assembly or association.

Article 11(5) limits the exercise of religious freedom on three grounds, viz., public order, public health and morality. No one is entitled to claim that in the exercise of his religious freedom he can commit acts which are contrary to any general law relating to the three public interests. 



2.1.1. Legislation

There was no new legislation passed in 2005 that affected the freedom of religion. There were also no review or repeal of existing legislation which impinged on religious rights. Following Moorthy’s case in December, there were calls to amend Article 121 (1A) of the Constitution to restore jurisdiction to the civil courts in deciding on the question of whether a person had converted into or out of the religion of Islam. The Government has announced that there will be no amendment to Article 121(1A).

2.1.2. Court Decisions

In recent years, the ruling laid down by the Federal Court in Soon Singh’s case was refined and extended by the High Courts in a number of cases. The Soon Singh ruling stated that the Syariah court had the sole jurisdiction to determine whether or not a Muslim had left the religion of Islam. The High Courts, based on this decision, dismissed various applications filed by those who had left the religion of Islam and sought to make declaration of their status.

One such example was Lina Joy’s case, heard by the Court of Appeal in September. A Malay woman who had converted to Christianity applied to the High Court to drop the word ‘Islam’ on her identity card. The High Court in 2001 dismissed her application on the grounds that Malays could not renounce Islam because an ethnic Malay was defined by the Constitution as "a person who professes the religion of Islam," and the jurisdiction in conversion matter laid solely in the hands of Syariah Court. The Court of Appeal turned down her appeal on the grounds that her renunciation of Islam was not confirmed by the Syariah Court or any other Islamic authority and therefore the National Registration Department could reject her application to amend her identity card.

In Moorthy’s case, decided in December, the Kuala Lumpur High Court ruled that the civil courts had no jurisdiction to determine whether or not a person had validly converted into the religion of Islam. The presiding judge invoked Article 121(1A) and held that civil court could not act to review the decision which had already been decided by the Syariah court. As a result, the widow who challenged the conversion of her deceased husband to Islam was left without any legal remedy in her claim for the right to bury her husband. Such decision, however, did not take into account that the applicant, i.e. the widow, was not a Muslim and had therefore no locus standi to file any case in the Syariah court, and that the deceased was publicly known to be a Hindu which was theoretically not outside the civil jurisdiction. 

The abdication of jurisdiction by the civil courts has caused great hardship to (1) those who have converted out of Islam, and (2) non-Muslim family members of those who converted into Islam. The conversion of one member of a family affects the status of a non-Muslim marriage, custody rights to children and inheritance rights. The civil courts are literally washing their hands off this problem. The government refuses to resolve this issue with appropriate legislation for fear of providing political capital to their opponents like PAS. This problem has been raised with the previous and present Prime Ministers, SUHAKAM, various political parties, the Bar Council and other authorities. Solution is yet to be in sight.


2.2.1. Restrictions on the Al-Kitab

The seizure and detention in 2003 of 1,000 copies of the Indonesian Al-Kitab (the Christian Bible in the Indonesian language) imported by the Bible Society was “resolved” by the Minister of Home Affairs requiring the importers to imprint the mark of a crucifix and the word “Penerbitan Kristian” (Christian Publication) on every copy before they are distributed. This requirement violates the right of religious practice of the Christian community because: (a) it is discriminatory in that no other religious communities are required to imprint similar wordings on their scriptures; and (b) it is oppressive to dictate the form and appearance of the scriptures against the wishes of the religious community, especially when they are meant to be used by the adherents and within their own places of worship.

The reason given is that the Al-Kitab contains words also found in the Koran, e.g. “Allah” (God) and “nabi” (prophet), which would confuse Muslims. However, Muslims cannot have access to the Al-Kitab because it has already been banned from general public circulation and consumption under a ministerial order since 1983, with the exception to be sold to Christians at designated places and to be used by Christians only in churches.

On 12 April 2005, Datuk Seri Mohd. Nazri Abdul Aziz, Minister in the Prime Minister’s Department said that Bibles in Bahasa Malaysia or Bahasa Indonesia could not be circulated in the country as this could be seen as an effort to spread Christianity among the Malays. He added that the prohibition had been in force since Independence and was in line with the Constitution.

The right to freedom of religion carries with it the right to have the scriptures of one’s religion in a language of one’s choice and which one understands. The restrictions on the Al-Kitab for whatever reason infringe upon the right of Christians to have scriptures in the national language.

2.2.2. Errors in MyKad

In June, there began the reports on complaints concerning the error on religious status, particularly of the Christians, in the newly introduced identity card, Mykad. When Christians applied to have the error corrected, their verbal affirmations appeared to be insufficient and were instead told to produce statutory declarations and baptism certificates as proof of ‘conversion’. They were also asked to pay the penalty. The problem was resolved only in November when the Minister concerned announced that there was no need to produce any proof but simply to fill in a form to have the errors corrected without having to pay any fine.

The above problem demonstrates the inability of bureaucrats to understand the manner in which a religion is professed and exercised. The right to religion is exercised as a matter of conscience and therefore an individual becomes the adherent of a particular religion when he/she verbally affirms his/her faith on personal conviction. The demand for formal proof or documentation amounts to an official denial of a person’s religious status unless it is proven according to the standards set by the bureaucrat.

2.2.3. Headscarf Ruling on Non-Muslim Students

In October, a student from the International Islamic University complained to the leader of the opposition party, Lim Kit Siang, saying that she was forced to wear a headscarf or tudung at her graduation ceremony. In response, Datuk Dr Maximus Ongkili, Minister in the Prime Minister’s Department in charge of national unity, claimed that the headscarf was part of the university’s uniform and not “religious in nature.” After a public outcry, the Cabinet in November made a ruling that no undergraduate shall be compelled to wear tudung during convocation.

This incident appears to be another case of grassroot administrators making decisions influenced by their personal religious conviction. The tudung is clearly part of the Islamic dress code. Requiring non-Muslims to wear a tudung contravenes Article 12(3) of the Federal Constitution which stipulates that no person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.


2.3.1. Destruction of Places of Worship

Reports of the destruction of religious sites or places of worship were received in the course of the year. Lee Sang, a devout Buddhist orchard owner in Jasin, Malacca, received a notice from the municipal council to demolish the country’s second largest Buddha statue and Siamese temple built in his orchard, on grounds that they were built without approval. He was given until December 29 to do so. In a bid to save the temple, he hired an Indonesian worker to undertake the task demolishing the statues. (Both statue and temple were eventually levelled on 4 January 2006 by 300-man demolition squad from the local authorities.) 

In December, Johor state authorities demolished a church of the Orang Asli in Kampung Orang Laut Masai settlement. The demolition was carried out in the order of Johor land office claiming that the church was built illegally on state land. Some 300 people from the police, Federal Reserve Unit, Johor Baru land office, Public Works and Religious Affairs Departments and Tenaga Nasional Bhd witnessed the demolition. The Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS) questioned the act saying that the authorities should have resolved the matter through dialogue and consultation with the Orang Asli.

The government has always demanded the populace to conduct themselves with sensitivity and tolerance towards each other’s religion. It is therefore baffling that the government did not give parties concerned the right to be heard and appropriate warning of their actions. In the case of the Kampung Orang Laut Masai church, the members were originally relocated from another site where they had a church building on the undertaking of the authorities to provide them with a similar place of worship. In the words of R. Thiagarajah, secretary of MCCBCHS, "the action by the authorities smacks of high-handedness."

2.3.2. Arrest of Evangelists

In April, Police arrested two Americans in Putrajaya for allegedly distributing Christian pamphlets to Muslims. They were released 10 days later without being charged for any offence.

Article 11 (1) of the Malaysian Constitution confers freedom to propagate one’s religion. This right extends to foreigners. Although it is subject to state laws made for the purpose of restricting and controlling propagation of religion among Muslims, the Federal Territories including Putrajaya have not enacted such laws. (Many states in Malaysia have enacted laws to prohibit various forms of proselytising among Muslims.) Therefore, the actions of the two Americans were perfectly within their constitutional rights and the Police had no legal basis to even arrest them.

2.3.3. Action against non-orthodox Muslims

In July, Islamic religious authorities in the state of Terengganu conducted a crackdown on the Sky Kingdom commune headed by Ariffin Mohamad, known as Ayah Pin. Twenty-one of the followers were arrested and charged in Syariah court but were later freed on bail. The authorities have labelled Sky Kingdom sect as a "deviant group".

Malaysia government has banned Ayah Pin's teachings because they are said to be contrary to Islam. In 2001, a local religious court sentenced Ayah Pin to 11 months imprisonment and RM2,900 fine for demeaning Islam. It was reported that his followers considered him a reincarnation of everyone from Lord Shiva to Buddha and Jesus Christ. His claims to be a living god have attracted a significant followers and his settlement is a popular destination for Muslim, Chinese and Indian Malaysians as well as the foreign tourists. The sect hit the headlines in April after it defied orders to destroy unusual structures built over the years including a giant pink teapot, an oversized vase with ‘holy water’ and an umbrella-like tower.

While the authorities vowed to take on the Sky Kingdom sect, a mob composed of 30 to 35 masked persons dressed in Islamic robes launched a pre-dawn attack on the six-acre commune on July 18. The mob reportedly tossed Molotov cocktails, slashed car tires with machetes, broke the windows of several homes, and partially scorched religious structures. Instead of going after the attackers, the police arrested 59 sect members including five children aged one to four.

The incident demonstrates the state’s intolerance of the existence of any Islamic community outside the established state Islamic system. Various state Islamic enactments make it an offence to have non-orthodox beliefs and practices.

2.3.4. Conflict of Laws

Both individuals who have converted out of Islam (e.g. Lina Joy) and non-Muslim family members of those who are converting or have converted to Islam face another hurdle, i.e. the separate jurisdiction between Syariah courts and the civil courts established by Article 121 (1A) of the Constitution.

The latter category caught much media and public attention this year. In March, the plight of the family of a fireman, Abdul Wahid Lim Abdullah, was raised in the Malacca State Legislative Assembly by an opposition member. Abdul Wahid Lim became a Muslim in July 1992 without his family’s knowledge. Four months later, he died in an accident leaving behind a wife and three young children. He did not leave behind a will and his estate was then placed under the administration of the Malacca Islamic Religious Council.

Under Islamic Law, a non-Muslim is not entitled to inherit the estate of a Muslim. However, a Muslim can by way of a will make a settlement or bequest of his property to a non-Muslim but only up to one-third of its value. Meanwhile, the lacuna of law in the civil system in regards to the deceased’s estate left the family with no legal remedy. The Distribution Act does not apply to the estate of any person professing Islam, and the Inheritance Act does not apply to estates of deceased Muslims or natives of Sabah and Sarawak. Therefore, the non-Muslim family of Abdul Wahid Lim was kept out of his estate.

This situation is clearly unjust for the following reasons: (a) dependent wives and minor children are deprived of support from the deceased father’s estate just because they are non-Muslims; and (b) the non-Muslim family is unable to seek legal recourse in the civil courts as the estate of a Muslim falls under the jurisdiction of Syariah court. Non-Muslims are not permitted to apply for any relief in the Syariah courts.

In April, however, the state government announced that half of the Abdul Wahid Lim’s estate would be returned to the family. It should be noted as follows: Firstly, less than half the property was given to the family. The other half is still kept by the state Islamic council. Secondly, it was given gratuitously. It was never "returned" in the sense that the property was recognised as belonging to the family in the first place. Thirdly, the legal position is that the state Islamic trusts have control over a deceased Muslim's property. If the family members are not Muslims, they are not entitled to claim on the estate. Fourthly, the inequitable situation of dual jurisdictions still exists.

There are people who are caught in between civil law and the Syariah law and cannot have access to justice from either system. The heavily publicised Moorthy’s case, as mentioned above under section 2.1.2, is another classic example of jurisdictional dilemma.

Besides the question of burial, the conversion of a non-Muslim to Islam poses various problems to the non-Muslim family members. When they choose not to follow the new religion of the converting family member, they would be denied of the inheritance rights, which is a form of discrimination.  The non-Muslim spouse would also be denied the right of custody, for the guardianship of children is given to Muslim party only under the Islamic law. Children who are born after the conversion would be considered as Muslims without any say from the non-Muslim parent. Existing children would also be deemed as Muslims by virtue of a broad definition of “Muslim” in state Islamic enactments. In other words, they are automatically being denied the personal liberty to choose their religion. To compound this inequality and inequity, affected individuals cannot obtain legal redress as the civil courts refuse to exercise jurisdiction to entertain their complaints and, as non-Muslims, they cannot petition the Syariah Courts for relief.


Religious liberty in Malaysia further constricted in the period under review. While it is regularly argued that non-Muslims in this country enjoy significant freedoms to worship, these are no more than have been granted by the Federal Constitution since Independence. It is indisputable, however, that the tangible expression and practice of these rights is being curtailed by the formulation and interpretation of laws, policies and administrative procedures. At the present rate of erosion, it may not be too long before a great deal of the substance of this right is only good on paper.

To be sure, there have recently been a few positive developments on the horizon but the landscape remains less than encouraging. (These and other matters will be covered in the next report.) Of even more concern is the fact that certain socio-religious groups, in the name of ‘defending’ the country’s official religion, appear to be more willingness to use the threat of force – if not force itself – to suppress the protests against restrictions of religious freedom and, more generally, the Federal Constitution. Malaysia has had a very good, even if not unblemished, record of keeping religious-inspired violence to a minimum and this tendency therefore ought not to be condoned by the authorities.

With a landmark Federal Court ruling in the offing, an increasing number of conflicts involving religious re-conversions, conflicts between civil and religious family and inheritance laws, and with temperatures rising among certain ethnic groups at what is seen as systematic destruction of their places of worship, religious freedom is expected to remain high on the agenda in the near future. Christians and the Church will need to continue to be watchful, prayerful and truthful in detecting and engaging infringements in religious liberties. They should, as our Lord God commanded, do so out of the spirit of love and concern for the country and not driven by hate and selfishness as is the case of some.


Members of the NECF Religious Liberty Commission:

Mr. Lee Min Choon (Chairman)
Mr. Lim Heng Seng
Dr. David Fung
Mr. Henry Jalin Wat
Rev. Johnson Chua
Crystal Kuek

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