The violent attacks against churches and other places of worship that ushered in 2010 have brought into sharp focus the intolerance of an unruly minority determined to destroy the delicate balance reached through compromise and consensus in a plural society by the founding fathers, which form a critical component of the social contract under the Federal Constitution, the supreme law of the land. Rage and emotion must not take centre stage of national life. Instead, a calm and reasoned analysis of the constitutional position of religious freedom, which has served the nation well for half a century, must be undertaken.
I suggest the following propositions:-
1. Islam is the religion of Malaysia but other religions can be freely practised;
2. All citizens have the right to freedom of speech and expression;
3. Everyone has the right to profess and practise a religion of his choice;
4 Every religious group has the right to manage its own religious affairs and activities, free from state interference, and the right to acquire and own property;
5. Every religious group has the right to establish schools and other educational institutions for the education of children in its own religion;
6. As religion is a state matter, there is no national head of Islam for the whole of Malaysia. Instead, the nine Malay rulers are the Heads of Islam in their respective states, and the Yang DiPertuan Agong is the Head of Islam of the Federal Territories;
7. As part of the religion of the nation, federal and state laws have been passed regulating the worship of Islam. Such laws however only extend to Muslims and do not apply to non-Muslims;
8. No similar laws have been enacted for religions other than Islam. Thus, insofar as religions other than Islam are concerned, there is a wall of separation between the state and those religions. It follows that state action cannot regulate or govern the practice of religions other than Islam.
9. It is therefore not the state’s business how religions other than Islam conduct their worship in the churches, temples or gurdwaras, how priests are trained or appointed, what religious books are read in places of worships, what songs are sung, what sermons are delivered and in what language and by whom, and the like. All these are matters solely and exclusively for the religious group to determine.
10. The right of every person to profess and practise a religion of his choice, and for every religious group to govern its own affairs and own property – that is, the individual and collective rights to religious freedom – are fundamental liberties enshrined in Part II of the Federal Constitution. They are inalienable rights, and cannot be diminished by the state even during an Emergency. Indeed, religious rights form the backbone of fundamental rights which are themselves part of the basic structure of the Constitution, and therefore cannot be the subject of Parliamentary repeal.
11. It follows that, save for Islam, the state has no power over the religious books that any religious group worships or treats as holy. That is a matter entirely for the religious group concerned. The state has no power over the contents of the Bible, Vedas, Buddhist Sutra, Guru Granth Sahib and other holy books. They are the Word of God. The state cannot censor or rewrite these holy books. Neither a comma nor a full stop in these holy books concern the State, whether in their original languages or translations into other languages.
12. In consequence, it is beyond the legal power of any government officer to stop the distribution and use of Bibles and church publications which are restricted to Christians in whatever language containing whatever words, save for the very limited power to do so if they are intended to be used for propagation of Christianity among Muslims because converting or attempting to convert Muslims is prohibited under the Constitution. Once a religious group declares that its holy book and other medium of worship are not intended for purposes of conversion of Muslims, the State’s writ ends. This is fundamental to the social contract and to the Federal Constitution.
2. All citizens have the right to freedom of speech and expression;
3. Everyone has the right to profess and practise a religion of his choice;
4 Every religious group has the right to manage its own religious affairs and activities, free from state interference, and the right to acquire and own property;
5. Every religious group has the right to establish schools and other educational institutions for the education of children in its own religion;
6. As religion is a state matter, there is no national head of Islam for the whole of Malaysia. Instead, the nine Malay rulers are the Heads of Islam in their respective states, and the Yang DiPertuan Agong is the Head of Islam of the Federal Territories;
7. As part of the religion of the nation, federal and state laws have been passed regulating the worship of Islam. Such laws however only extend to Muslims and do not apply to non-Muslims;
8. No similar laws have been enacted for religions other than Islam. Thus, insofar as religions other than Islam are concerned, there is a wall of separation between the state and those religions. It follows that state action cannot regulate or govern the practice of religions other than Islam.
9. It is therefore not the state’s business how religions other than Islam conduct their worship in the churches, temples or gurdwaras, how priests are trained or appointed, what religious books are read in places of worships, what songs are sung, what sermons are delivered and in what language and by whom, and the like. All these are matters solely and exclusively for the religious group to determine.
10. The right of every person to profess and practise a religion of his choice, and for every religious group to govern its own affairs and own property – that is, the individual and collective rights to religious freedom – are fundamental liberties enshrined in Part II of the Federal Constitution. They are inalienable rights, and cannot be diminished by the state even during an Emergency. Indeed, religious rights form the backbone of fundamental rights which are themselves part of the basic structure of the Constitution, and therefore cannot be the subject of Parliamentary repeal.
11. It follows that, save for Islam, the state has no power over the religious books that any religious group worships or treats as holy. That is a matter entirely for the religious group concerned. The state has no power over the contents of the Bible, Vedas, Buddhist Sutra, Guru Granth Sahib and other holy books. They are the Word of God. The state cannot censor or rewrite these holy books. Neither a comma nor a full stop in these holy books concern the State, whether in their original languages or translations into other languages.
12. In consequence, it is beyond the legal power of any government officer to stop the distribution and use of Bibles and church publications which are restricted to Christians in whatever language containing whatever words, save for the very limited power to do so if they are intended to be used for propagation of Christianity among Muslims because converting or attempting to convert Muslims is prohibited under the Constitution. Once a religious group declares that its holy book and other medium of worship are not intended for purposes of conversion of Muslims, the State’s writ ends. This is fundamental to the social contract and to the Federal Constitution.
Accordingly, in my opinion, in constitutional law terms, the High Court was correct in holding that a civil servant had no power in law to prohibit the use of the word “Allah” in a Catholic publication, the Herald, in circumstances where there was no evidence of conversion of Muslims. It was profoundly disappointing to read in the mass media the massive criticism leveled against the High Court decision by Government leaders and politicians. The only possible inference is that pressure was being applied on the appellate Courts to overrule the High Court decision. It is one thing for chauvinists to play the religious and racial card, for political reasons, which they do with masterly effect. But it is altogether another thing for Ministers of the State not to uphold the law of the land. Confidence in the Judiciary is damaged when the Executive publicly goes on a war footing against the decision of a Court. That is exactly what Prime Minister Mahathir did against Justice Harun Hashim in 1986-7 which immediately led to a collision between the Executive and Judiciary, and ultimately to the dismissal of Tun Salleh Abas and 2 Judges of the Supreme Court in 1988. Until an appellate court sets aside a decision, the State must use all its powers to give effect to it. If the government of the day does not respect the decision of a court, it should not expect its citizens to show respect.
The Home Minister’s handling of the violent Church attacks has been dismal. He seems to be powerless to act. If he needs historical precedent, he should be reminded of the firm and fair handling of law and order issues by his most famous predecessor, Tun Dr Ismail in the wake of the 13th May 1969 riots which helped to restore calm speedily.
And what can one say about the police? Their raison d’etre is the protection of the weak, the powerless, the minority and the marginalized. In these difficult days it is the task of the police to protect the minority Christians and their places of worships. There can be no compromise on the matter. The police should get on with that task. Despite more than a dozen attacks in the past 2 weeks, not even one person has been arrested or charged. Only the arrest and prosecution of those involved in the dastardly acts will restore public confidence. Again if precedent is needed, mention should be made of the Hussein Onn administration’s speedy prosecution of those who destroyed idols in Hindu temples in the late 1970’s which immediately stopped that criminal activity.
20th century history is replete with illustrations of religious persecution of the minorities, whether Jews in Hitler’s Germany, Christians in Stalin’s Russia, Muslim’s in Mao’s China, all religions under Pol Pot’s brutal regime and Palestinians in Israel. This note was substantially written while I was away for a fortnight in the United States, where the mass media highlighted our religious intolerance. When I was asked where I came from and Malaysia was mentioned, the invariable response was “that’s where they burn churches”. If Malaysia does not wish to attain that kind of notoriety in the international arena, the government must take all immediate steps to arrest the descent into violence and anarchy by a minority group of Nazi storm-troopers. This is the appropriate time for Prime Minister Najib Razak to demonstrate that 1Malaysia is not limited to symbolic window-dressing but includes taking right decisions for the public good, even if they are electorally unpopular in the short run. There should be immediate condemnation of these acts and assurances of protection to members of the minority faiths. The Prime Minister should use the prestige of his office to solve the problem politically, which would mean consultations among all the relevant stake-holders, as occurred in the run-up to Merdeka some 50 years ago, and to which his illustrious father made a notable contribution. In addition to establishing the long overdue Inter-Faith Commission, I call upon the Prime Minister to demonstrate statesmanship, courage and the political will by urgently inviting leaders of all the political parties, leaders of all religions and civil society to a dialogue to resolve the matter in a calm, civilized and peaceful manner and in the national interest.
Tommy Thomas
20th January 2010
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