*Dr. Eisa Al-Enezy
Introduction
Part I International Law Perspectives on Minority Rights to Religious Freedom
Part II Islamic Law Perspectives on Minority Rights to Religious Freedom
i) Kuwait
ii) Malaysia
Conclusion
Abstract
The right of religious minorities to practice their religions in freedom is enshrined in international human rights law and many Muslim nations’ constitutions. In practice, however, the implementation of these protections remains inadequate. Muslims were subject to violations in Sri Lanka during 2019 and in Myanmar between 2017-2019, about which the international community was silent. This article assesses the efficacy of international and domestic legislative protection in the member countries of the Organisation of Islamic Cooperation. I argue that failure to protect the right of minorities to practice their religions in those countries cannot be attributed solely to Islamic law. Other factors such as culture, ethnic mix and politics play enormous roles in shaping the states’ reactions to minority religious freedom.
Keywords: minority, religion, right, international law, Islamic law, Sharia.
1. Introduction
All states have social, political, religious, ethnic, cultural, racial and linguistic minorities. Yet, there have not been dependable and coherent state practices in the safeguarding of minority rights. Minorities, especial religious ones were subject to atrocities by government or under the auspice of the government. For instance, Christians, until recent years, were not able to, freely, worship in Kuwait, Saudi Arabia, Qatar or UAE. Muslims, in several countries, cannot practice their religion or, at least show any symbol tie their personality to Islam, such as the veil of women (Hijab). Recently, in 2019, Muslims were Killed in New Zealand, during the prayer of Friday, just because they were Muslims, similarly, Christians were killed in Sri Lanka, during their prayer, in several churches, Muslim community in Sri Lanka was subject to local Christians revenge.
In Pakistan, the country’s blasphemy laws prohibited the Ahmadi sect from preaching their ideologies, requiring them to declare themselves to be Muslim or risk being sent to jail. This law has been used to jail Ahmadis and confiscate their property. In 2010, a Christian woman was recently sentenced by a Pakistani court, by the death penalty, for blasphemy. Fortunately, the Supreme Court upheld the verdict.
In Nigeria, religious rights of minorities have been violated by some ‘religious’ sects such as the Boko Haram sect (though the sect’s religiosity is doubtful). The reason is that the sect kills Muslims as well as non-Muslims. Some Islamic scholars have been killed by the sect. The Nigerian Constitution also prohibits adopting any religion as a state religion. Undoubtedly, some contemporary Muslim states infringe minority rights to religion in violation of the Islamic law and international law.
Most of the OIC countries suffer from similar atrocities.
Despite the remarkable number of human rights and Islamic law protections, brazen religious intolerance and violations of religious freedoms continues unabated in some contemporary Muslim states. Explanation for these violations have centered on Islamic culture. This article argues that while the impact of religious sectarian cultures must be recognized, it is international legal architecture generally, the faulty interpretation and implementation of Islamic law sources, and political climate that determine the shape of religious freedom within a state.
International law seems to have found it difficult to espouse firm guidelines for the determination and protection of minorities. This is compounded by the fact that unlike individual human rights, protecting minority rights may threaten the territorial sovereignty of a nation or those who otherwise hold power. For instance, the Kurdish communities in Turkey are demanding similar rights to their comparators in Iraq, which has escalated into armed conflict. Similar fear in Myanmar toward Muslim minorities demands, and in Saudi Arabia towards (Shiits) demands.
The protection of minorities under international law is relatively new. Its origins can be traced back to agreements between ancient states, relating to the legal status of the aliens, which were concluded to protect religious minorities and to guarantee some measure of religious equality. Similar provisions can be found in the 1555 Augsburg Peace of Religion, the peace of Westphalia at the end of the Thirty Years' War, the Congress of Vienna and the 1878 Congress of Berlin. Consequently, the United Nations has shifted attention away from the rhetoric of safeguarding of minority rights, and towards the protection of individual rights. For example, the Universal Declaration of Human Rights safeguards the rights of individuals. However, the Human Rights Commission, one of the principal commissions of United Nations Economic and Social Council (‘ECOSOC’), has through its sub-committee, made efforts to prevent the discrimination against perceived minorities and recognition of minority rights in the international arena. These efforts have not yielded results because of the claims put forward by minorities and the intractable definition and identification of minorities.
Since September 11, 2001, there has been national and international momentum to protect the religious freedom of minorities. One recent significant event was the adoption by the United Nations of a global policy framework to combat ‘religious intolerance, stigmatization, discrimination, incitement to violence and violence against persons based on religion or belief’ laid out in Human Rights Council Resolution 16/18 in March 2011. This came after numerous human rights treaties and conventions on religious freedom, the first of which was created in 1966 (the International Covenant for Civil and Political Rights (‘ICCPR’)).
Against this backdrop, this article analyses the rights of the minorities in two of the OIC countries (Kuwait and Malaysia) to freedom of religion, from international and domestic Islamic law (Sharia) perspectives. Part I examines international law perspectives on minority rights to religious freedom. Part II examines Islamic law (sharia) perspectives on minority rights to religious freedom. This comprises an overview of domestic provisions for protecting these rights in two case-study countries: i) Kuwait; ii) Malaysia. The conclusion summarises the status of minority's rights to religious freedom in these OIC countries and offers a set of recommendations for improving the legal regime to better afford protection to some of the most vulnerable communities.
Part I: International Law Perspectives on Minority Rights to Religious Freedom
Defining what a ‘minority’ in a sovereign state constitutes is not an easy task. Pursuant to Article 27 of the ICCPR, people belonging to ethnic, religious and linguistic minorities are a: “group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion, or language.” Despite the fact that this definition is widely accepted in the international sphere, it has been criticised on several grounds. The first is that since the primary object of the definition relates to objective and subjective elements in determining minorities, identifying minority groups might remain difficult. The second has to do with the numerical strength of the group as emphasised in the definition. It has been argued that to constitute a minority, an entity need not be numerically inferior as this would be a heavy burden on the group, for instance, minority like of black community during apartheid in South Africa. The third issue arises from the position of a non-national within a state. It has been argued that non-nationals may constitute a significant percentage of a state’s population. Although the focus of international law seems to be on minority nationals within a state, the rights of the non-national are today being increasingly taken into consideration, such as in the Child Rights Convention of 1989, and CEDAW of 1979. In Kuwait, stateless are not nationals, but are suffering from minority-like position.
The UN Human Rights Committee has noted that Article 27 of the ICCPR refers to those groups of people who share common language, religion and culture. It noted further that those individuals may not necessarily be citizens or members of a state party. Article 2.1 obliges state parties to make sure that provisions of the Covenant apply to individuals within their territories except the provisions that apply to citizens. Therefore, Article 27 cannot be restricted to citizens only. They need not be permanent residents or nationals. What is important is that groups need to be given the right to enjoy their language, practise their religion and enjoy their culture. This implies that foreigners in a state should not be denied the protection offered in Article 27.
Despite the above definition, there still appears to be confusion in some states as to the requirement(s) of nationality for the claimant group. Some domestic instruments still use the term ‘national’. This leads some States to claim that the Article 27 rights are limited in scope. Those States, such as Sri Lanka, Myanmar and Iraq, argue that nationality is an important condition for making any claims to minority protection. However, it should include individuals who “a) reside on the territory of that state and are citizens thereof; b) maintain longstanding, firm and lasting ties with that state; c) display distinctive ethnic, cultural, religious or linguistic characteristics; d) are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state; e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.”
It is important to also note that any minority group in a population may be a minority by virtue of force or will. The minority that desires to be assimilated but is refused, is known as minority by force. But the one who refuses being assimilated is minority by will. Both minorities may enjoy the protection provided by the national and the international legal system.
The modern day world has witnessed a considerable agitation for minority rights. These conflicts have become a global phenomenon, transcending national boundaries. For instance, the Turkish conflict regarding Kurdish rights affected Iraqi, Iranian and Syrian stability. The Myanmar government persecution of the Rohingya affected Bangladesh. The right to the freedom of religion is one major driver for these conflicts.
Minority rights rest upon the known framework of individual rights outlined in the UDHR and the ICCPR. Existing human rights like freedom of speech, right to life, right to dignity of human person, freedom of expression, right to enjoy culture and freedom of religion, constitute minority rights as well as individual rights. The main difference is the collective dimension of minority rights. In other words, while individual rights focus on single persons, minority rights have group(s) as its targets. For instance, the right to equality and freedom against discrimination raises discrimination against groups who have long been deprived of equal opportunities. In the same vein, freedom of religion and of cultural, linguistic and political autonomy for minorities is sometimes related to the notion of independent statehood and self-determination, which is often the political context for abuses of minority rights.
Apart from the general rights stated above, one important and inalienable right of the minorities relates to the right to life. This right has been violated in many jurisdictions by the killing of groups of people because of their colour, race, religion, and/or culture. In a recent example in New Zealand, a gunman attacked two mosques during an assembly to Friday prayers, killing tens of innocent Muslims including women, children and the elderly. Last but not least, Muslims are killed in Central Africa based on their religion.
Where such killing takes place with the compliance of a state authority, the crime of genocide may be invoked. The seeming endless commission of genocide can be traced to gaps in the implementation of the Convention and the Convention itself. First, the Convention does not identify specific political and other groups for them to enjoy protection. It merely protects ‘national, ethical, racial and religious groups’. Furthermore, the Convention does not make the destruction of language, religion or culture a crime. In addition demographic changes, such as forced expulsion, are not covered by the Convention, nor is putting in place hard measures such as starvation to drive away certain groups of minorities. However, this lacuna was treated by recent international legal instruments which have condemned forced or mass expulsions and an emerging jurisprudence of international criminal tribunals have held that forcible expulsion of racial, religious and ethnic minorities constitute acts of genocide.
The right to religious, cultural and linguistic autonomy are not a novel concept in minority rights discourse. In fact, it has been argued that there are revealing instances where religious minorities had long enjoyed some measures of autonomy, such as during the Ottoman Empire. However, after the Second World War, minority rights were neglected because of political upheaval. The focus then moved to protecting minority rights through protecting individual rights; which is now the goal of the United Nations. That is perhaps why the Universal Declaration of Human Rights (‘UDHR’) omits mention of minorities. Despite the controversy over the legal value of the UDHR, its provisions can serve as basis for protecting the minorities.
Unlike the UDHR which does not specifically mention minorities, subsequent human rights instruments have given more attention to group or minority rights. For instance, the International Covenant on the Elimination of All Forms of Racial Discrimination (‘ICERD’) aims to protect racial minority groups by emphasising racial discrimination. It clearly recognises affirmative policies and permits minorities to institute a complaint procedure. It also recognises the value of cultural rights within the framework of human rights. It recognises the right to take part in cultural life. Legitimate differences in beliefs and traditions are also provided for in Articles 13(3) and 13(4) of the International Covenant for Economic, Social and Cultural Rights (‘ICESCR’). Similarly, Article 27 of the International Convention on Civil and Political Rights 1966 (‘ICCPR’) provides direct protection to ethnic, linguistic, as well as religious minorities, with Article 18 providing for religious freedom.
Article 10 of the UDHR which deals with the freedom of religion provides:
Everyone has the right to freedom of thought, conscience and religion, this right includes freedom to change his religion or belief and either alone or in community with other and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Another significant development in the international arena regarding freedom from discrimination is the UN’s General Assembly’s adoption of the 1981 Declaration on the Elimination of all forms of Intolerance and of Discrimination Based on Religious Belief. This Declaration attempted a more detailed exposition of this right. It defines intolerance and discrimination based on religion or belief as when a person or group is excluded, restricted or preferred on account of his belief or religion. However, I note that if the UN were serious about providing such protection, it would use a binding, rather than a non-binding document such as the Declaration.
In the same vein, there are also many regional legal instruments which seek to safeguard religious freedom. For example, the European Convention on Human Rights (ECHR) in Article 9, repeats Article 10 of the Universal Declaration of Human Rights but with a proviso that subjects the right to manifest one’s beliefs or religion to a necessary law in a democracy for public safety, order, health and for protecting the rights and freedoms of others.” Similarly, Article 8 of the African Charter on Human and Peoples’ Rights (ACHPR) provides that a guaranteed freedom of religion, freedom of conscience, the profession and free practice of religion shall be guaranteed. It should be noted that instruments in the international law vary in terms of their legal force and domestic implementation.
The Universal Islamic Declaration of Human Rights (‘UIDHR’) provides minority religious rights: “a) The Qur'anic principle ‘There is no compulsion in religion’ shall govern the religious rights of non-Muslim minorities. b) In a Muslim country religious minorities shall have the choice to be governed in respect of their civil and personal matters by Islamic Law, or by their own laws.” However, similar to all declarations, in the UIDHR there are no guarantees to assure compliance with such provisions.
Freedom of religion with respect to minorities connotes the right of an individual or community to, publicly or in private, practise his religion. This comprises belief in the practice, teaching, worship, and observance of the dictate of the religion. It includes the right not to follow any other religion apart from one’s religion. In a country with a state religion, the freedom of religion is considered to mean that the government permits and protects the religious practice of other sects besides the state religion, and does not persecute believers of other faiths. While lip-service is usually paid to this principle of non-discrimination, a number of states discriminate against certain groups by treating their religions unfavourably. In Kuwait, Islam is a primordial condition to obtain citizenship.
The principles embodied in the UDHR, ACHPR, ECHR and UIDHR are now enacted in the constitution of the countries of the world including African states. For instance, section 38 in the Nigerian Constitution provides for freedom of religion. This includes the freedom to change religion or belief, as well as right to propagate and manifest religion or belief through worship, teaching, and observance.
With the various provisions examines above, the provision of Article 8 of the African Charter gives a comprehensive definition of religious rights. This article protects two different but related rights. It protects the distinct religion of every person and it also guarantees the right of an individual not to be discriminated against on the grounds of religious belief. Therefore, any instruments which tend to promote a religious right must speak in like terms with article 8 of ACHPR. The right to religious freedom entails the right to freedom from discrimination on the grounds of religion, race, sex, colour language and political creed.
Accordingly, the International Court of Justice (‘ICJ’) has examined the question of minority religious rights, holding that there is an obligation of countries to ensure de facto equality for minority communities, including the right of a community to maintain its cultural identity, language, and religion and to educate its children in its own schools.
The ICJ first considered the rights of religious minorities in 2004, in its Advisory Opinion relating to the legality of the wall constructed by Israel to separate between the Israelis and the Palestinians. In its Advisory Opinion, the Court held that the right to freedom of movement included the right to access holy sites that were central to one’s religious beliefs.
In another case, the Court in 2007, applied the Genocide Convention to the massacre of Srebrenica, it held that, in the crime of genocide requires acts targeting a particular group because of their religious beliefs.
Part II Islamic Law Perspectives on Minority Rights to Religious Freedom
Islamic Sharia harmonies its rules with the international law, where, for instance, aliens can deal with Muslims and enjoy full security for their selves, families and properties. Whenever there are a treaties that approved between the Islamic State and any other State, should be bound by all Muslims (leaders or citizens.) On the other hand, Islamic Sharia require domestic laws to comply with its basics, without preventing it from adopting rules that are needed for the best interests of the local citizens, but does not contradict with the basics of Sharia. Accordingly, 1439 years ago, Jewish used to life with Muslims in Madinah (Saudi Arabia), applying their rules and practicing their religion without any interference from Muslim ruler. Today, Jewish are living in several OIC countries, such as Tunisia, Christians in Kuwait and most of the OIC countries, without any interference with their affairs, as long as it does not threat the security and peace of the country.
Islamic law permits people of other religions or beliefs the right to practice their religions or beliefs. In the past, the notion of ‘no compulsion in religion’ was dominant. People were not mandated to practice Islam. They had enormous freedom to retain their religions. This is line with the Qur’an, where Allah says “If it had been your Lord’s will, they would all have believed – all of who are on earth! Will you then compel humankind, against their will, to believe?”
While Islamic law commands people to worship Allah, people of other religions or beliefs cannot be forced to accept Islam. Allah says: “(O Glorious Messenger!) Invite towards the path of your Lord with strategic wisdom and refined exhortation and (also) argue with them in a most decent manner. Surely your Lord knows him well who strayed away from His path and He also knows well the rightly guided.” In another verses of Quran (ayah), the Qur’an says: “There is no coercion in religion. Verily, guidance has manifestly been distinguished from error.” This also implies that people of other faiths should not be discriminated against.
The above view is also supported by the sayings and teachings of the Prophet. People should not be forced to accept Islam. During the time of the Prophet, he would normally allow people to continue with their religion or accept Islam. Once they reside in the Islamic state, their personal property as well as their security should be guaranteed. This is the reason why non-Muslim citizens in an Islamic state were referred to as dhimmis who enjoy all his rights, including religious once. Similarly, the practice of the Prophet was that he would warn these commanders at battle fronts to fear Allah, treat their Muslim companions very well and engage in battle for the sake of Allah. He would also warn them not to transgress the limits set by Allah by killing enemies’ children, mutilating their heads or behaving treacherously. He would also ask them to offer three options to their enemies: (i) An invitation to join Islam, which entitles them to equal treatment with existing Muslims except for war booty unless they also fight jihad. (ii) If the first option is not taken, then they would be asked to pay a jizyah, which is identical to the Tax today, individuals pay the government in reward to its services, or (iii) a continuation of battle, Accordingly, the choice is theirs. Islamic law does not permit force in religion even if one desires his/her son to accept Islam. It must not be by force. The Quran also tells the Prophet that “Say, ‘The truth is from your Lord,’ let him who will, believe and let him who will, reject, it. For the wrongdoers We have prepared a Fire whose (smoke and flames are) like the wall and roof of a tent…”. It is noted that Allah is the decision maker regarding all non- believers, but no creature can play such role and decide to force people to believe in this or that.
Furthermore, Islamic law extends religious freedom to preserving the places of worships of other religions. The Qur’an says: “…And was it not that God checks the people, some by means of others, there would have been demolished monasteries, churches, synagogues, and mosques in which the name of God is much mentioned (praised)...”.
It should be observed further that, after the death of prophet Mohamad (s.a.w.), the practices of the caliphs also serve as testimonies to the fact that non-Muslim minorities were given adequate religious freedom in that period. The Muslim caliphs would instruct their military commanders to guarantee religious freedom. The first example was Abu Bakr commanding, one of his military commanders, Usamah bin Zayd, to avoid killing women, children, elderly persons, cutting down of trees, fruits, palm trees, vandalizing homes, wounding or killing camels. They should also avoid treachery, cowardice, leave people alone with their devotions.” Also, in 638 AD, Umar ibn al-Khattab’s encounter with the people of Iliya, Jerusalem, he had a treaty with them. The Treaty guaranteed the “security of their persons, property, churches, crucifixes, and the sick people.” Thus, the period of the caliphs witnessed an era of religious freedom of the Jews and Christians and they were free and secure to conduct their services. For instance, prophet Mohamad himself, took a mortgage from a Jew and gave him his shield as a security. His wife, Maria, was originally Christian.
This part seeks to show how Islamic law does not force non-Muslims citizens who are living in an Islamic state to be governed by Islamic laws. Non-Muslims are also exempted from the payment of zakah. Moreover, Sharia requires able Muslims to participate in military affairs, but exempts non-Muslims from participating in battle. In return for these two major exemptions, non-Muslim citizens are required to pay a nominal tax known as jizya. It actually did not constitute a burden to the non-Muslims.
Similarly, non-Muslims are not governed by Islamic personal laws. They are governed by their own civil laws. In criminal matters however, Muslim jurists would decide cases based on whether an act constitutes an offence in their religion. A good example is theft, which is considered an offence in all religions. But the eating of pork or drinking of alcohol may not be an offence in other religions. The Prophet himself created a charter with the non-Muslims where he permitted non-Muslims to submit to the dictate of their religions and the ruling of their leaders. Yet, the Quran allows the Prophet to judge between them upon request. The Quran says: “…If they do come to you, either judge between them or decline to interfere…. They are also allowed to use their scriptures to judge among themselves. By the same token, non-Muslims minorities in Islamic state were allowed to have their own systems of justice. and in early Islamic periods, non-Muslim minorities were allowed to have their courts for settling their disputes.
The above was also the practice of the Prophet as he allowed non-Muslim minorities to judge themselves by their scriptures on the condition that it does not contradict the treaty for peaceful co-existence of people of the conquest lands, irrespective of their beliefs or religion. Also, during the Amawy State - that established, directly after the era of the four Muslim Khalifahs, between the years 661- 750 - a Muslim ruler, Umar ibn Abdulaziz was worried about the rate at which non-Muslims in an Islamic state was violating the principles of Islamic law with impunity. When he contacted Hasan al-Basra he was told that one of the reasons non-Muslims were allowed to practice their religion was because of their payment of jizya (a governmental tax paid by aliens in reward to the protection of their selves, families and properties).
Thus, it can be said from the above that non-Muslim minorities in the early Islamic periods had the right to practice their religion in peace and tranquility. They were allowed to follow their laws and were not forbidden what was forbidden to Muslims. The next part will analyse how some contemporary Muslim countries implement the provisions of international human rights law and Islamic laws in relation to the minority right to freedom of religion.
i) Kuwait
In Kuwait, Article 2 of the constitution provides that Islam is the religion of the state, and Islam is one of its legislative resources. Some estimates indicate that approximately 70 percent of citizens, including the ruling family, adhere to the Sunni branch of Islam. Most of the remaining 30 percent of citizens are Shia Muslims. There are approximately 150200 Christian citizens and a small number of Bahai citizens. An estimated 150,000 noncitizen residents are Shia.
Until recent years, religious minorities in Kuwait experienced discrimination as a result of government policies. Indians were prevented from practicing their religious way of burning the bodies of their beloved ones. Vocal minorities opposed the presence of non-Muslim groups in the country and rejected the legitimacy of Shia Islam. Church representatives reported societal pressure on schools to stop allowing churches to gather in their facilities, and members of unrecognized religious groups reported pressure from landlords to stop meeting in unlicensed facilities.
Today there are several official Churches in different locations to facilitate services for Christians in Kuwait. Chit is a Muslim sect, its believers are minorities in most Islamic countries and supported by Iran. Chits have become parliamentary members and members of the Kuwaiti Council of Ministers, and they have their own mosques in most crowded Chit residential areas. In June 2015, a suicide bombing at a Shia mosque took place, killing 26 people and injuring more than 200 others, to which Da’esh (the Islamic State in Iraq and the Levant) claimed responsibility. Seven suspects in connection with the bombing, sentenced to death.
Unfortunately, some religions in Kuwait, such as the Buhrah, are not permitted to worship in a Holly places, which oblige them to worship illegally in rented places. Despite the fact that such believers don’t enjoy a sacred place for their worship, local authorities are, implicitly, prevented from taking any legal or administrative action against such services.
In Kuwait religious minorities are practicing freely, however, when it comes to Municipality licenses to establish worship centers, the decision is under the discretionary power of the government. When this power is misused, the Kuwaiti courts are prevented from examining cases relating to the licensing of places of worship.
The Islamic law that is applicable in Kuwait (family law) prevent Muslim male from marrying out of the three main religions (Islam, Christianity or Judaism), meanwhile, Muslim female can only marry Muslim male.
Recently, the legislator in Kuwait enacted laws that prohibit insulting religious groups. The government arrested and convicted several individuals for insulting Shia doctrine and interrogated several imams for making what it considered to be provocative statements harmful to national unity.
Such violations, however, cannot be detached with or neatly disconnected from issues around politics or ethnicity. Malaysia also declares Islam as the religion of the Federation although other religions are allowed to be practised in the country. This implies that Islam is an official religion of the federation although this does not prevent the practice of other religions.
II) Malaysia
The implementation of the right to religious freedom in the Malaysian legal framework has been deeply debated. Yet, its understanding focuses essentially on Article 11 of the Federal Constitution: Article 11(1) caters for individual right to profess, practise and propagate their religion. However, the right to propagate the religion can be regulated by state laws contained in Article 11(4). The Constitution does not define the words ‘profess, practise and propagate’, thus opening it to judicial interpretation. Article 11(2) protects individuals from being forced to pay tax the proceeds of which will be allocated in whole or in part for the purpose of a religion other than he believes in. Article 11(3) protects the rights of religious groups to manage their own religious affairs, establish and maintain religious institutions, and to acquire, own and administer property. These rights under Article 11 are subject to general laws which border on public order, public health and morality. Article 12 also contains the right of religious groups to establish religious educational institutions (Article 12(2), and that parents or guardians decide religious instructions to be undertaken by a person below the age of eighteen (Article 12(3) (4)).
Courts in Malaysia have decided cases on religious freedom. The issue in contention is the right of non-Muslim to convert to Islam, as well as the right of Muslims to practise their non-obligatory practices. What is perhaps most controversial is the right to renounce Islam. The courts appear to hold the view that Article 11 does not connote the right to change religion: Daud bin Mamat , Kamariah bte Ali and Lina Joy. In Daud bin Mamat, the High Court decided that the Kelantenese descents of Malay parentage had no right to renounce Islam and that freedom to “profess” a religion under art. 11(1) does not include the right to leave Islam as leaving Islam is “exiting from a religion is certainly not a religion or could be equated with the right ‘to profess and practise’ their religion”. Similarly, in Kamariah Ali the Court of Appeal decided that the word “profess” under art. 11 should not be widely interpreted as to give to every person the right to leave Islam. The court held that if such interpretation is given to the word “profess”, it would also be applicable to the word “practise” since both rights are used in the same phrase. If this is the interpretation, it would have a far-reaching effect that all religious laws and such laws will be invalidated.
In Lina Joy, the High Court decided that a Malay Muslim cannot change his religious status. In all these cases, the civil courts have refrained from deciding that the Muslims have right to leave Islam. Also, the courts decided that the Sharia court is the proper forum to determine a Muslim’s religious status. However, in an earlier case, Jamaluddin Othman a Malay who converted out from Islam was detained under Internal Security Act in order prevent him from acting in a manner prejudicial to the security of Malaysia. The grounds for the detention order under the Internal Security Act was his conduct and activities – attended and participated in meetings and seminars on Christianity and alleged to have involved in a plan to convert Malays into Christianity. Upon his application, he was granted a writ of habeas corpus. The trial court acknowledged his freedom of religion under art. 11 and decided that the freedom could not be deprived, even under the Internal Security Act. The Supreme Court added a caveat to the decision and stated that one’s freedom of religion may come to an end whenever the act is prejudicial to the security of the country and that freedom of religion under art. 11 “cannot be a complete umbrella for all actions”.
Another controversial issue is the right to revert to Islam. In Teoh Eng Huat v Kadhi, Pasir Mas & Anor the High Court decided that minors had the right to revert to Islam by interpreting the word ‘person’ to include minor. Thus, conversion to Islam by a person at the age of 17 years and eight months was held to be valid. However, the Federal Court held that the parent or guardian should always possess the right to determine the religion of a minor until he turns 18. This decision was based on the right in respect of education under art. 12(3) and (4), which guarantees the right of a parent or guardian to determine the instruction, regarding any religious ceremony and act of worship, that a person below the age of 18 will receive. The Federal Court’s decision was not based on the interpretation of Article. 11.
The right to practise Islamic teaching is still indeterminate. The Malaysian courts have had the opportunity to decide on this issue in two cases – Hjh Halimatussaadiah and Meor Atiqulrahman. In both cases, the right to practise non-obligatory religious practices were denied by the court. In Hjh Halimatussaadiah, a Muslim female officer was denied of her right to wear purdah, which she believed was part of her religious rights and duties. It was upheld by the High Court and also the Federal Court that a service circular prohibiting the wearing of attire covering the face by a female officer in public services during work does not affect the officer’s constitutional right to practise her religion. The court relied on the opinion of the Mufti that Islam does not prohibit or require a Muslim woman to wear purdah. The decisions of the Court of Appeal and the Federal Court in Meor Atiqulrahman introduced the ‘integral test’ which was actually impliedly adopted by the courts in Hjh Halimatussaadiah. The test confines the right to ‘practise’ to the practice of mandatory or compulsory practices only. While some scholars have written in support of those decisions, others have argued that this constitutes a further restriction on the right to practise. In both decisions the courts noted that in deciding on matters concerning Islam, reference must be made to Islamic teachings. The courts however differ in their approach in their reasoning – in Meor Atiqulrahman, the Federal Court judge referred to his expertise on the subject and decided according to his own knowledge of Islamic issues. The judge in Hjh Halimatussaadiah referred to Mufti’s opinion and also to Islamic literature. In summary, the courts have, directly or indirectly, held that only the obligatory and not the recommended practices of Islam are protected by art. 11(1) of the Federal Constitution. The courts also held that the Islamic viewpoint must be consulted before making a decision on Islamic issues. However, there is confusion about the method to be adopted by the court; i.e. whether to refer to the scholars of Islamic law, or whether to rely solely on judicial expertise.
Generally, religious rights in Article 11 of the Malaysian Constitution, although they appear comprehensive, is still open for judicial interpretation. This is particularly true with respect to the right of Muslims to change their religion. This is due to the fact that apostasy had been a criminal offence under various laws legislated even before independence, and it was later acknowledged in the Federal Constitution that state legislatures may create offences against the precepts of Islam. Some courts’ decisions seem to create more restrictions to freedom of religion and to some extent, courts’ decisions on certain issues are still shrouded in mystery and contradiction. In addition, despites these provisions, minority non-Muslim rights to practice their religion have seldom been brought before the courts. Perhaps, there is, to some extent, religious tolerance among people to render this unnecessary. In fact, the Prime Minister was recently seen visiting a place of worship for Indians. This is not to say there is no discrimination against people of other faiths. For instance, the Chinese and Indians cannot hold certain political positions in the country. They are also allegedly discriminated against in certain public institutions. However, the ‘1Malaysia concept’ introduced, Prime Minister Datuk Seri Najib Tun Abdul Razak, as part of the nation’s psyche was to “change the peoples’ mind-set from mere tolerance to total acceptance of the plural society as a political reality”.
In conclusion, Malaysia should be taken as an example for the coexistence between all kind of minorities, where the best interest of the country comes as priority for all.
Part III The Status of Minority Rights to Religious Freedom in Contemporary Muslim States
From the foregoing discussion, the protection of religious minority rights in some Muslim countries is decidedly unimpressive. However, this cannot be attributed entirely to Islamic/Sharia law. I have shown how the Sharia condemns, in strong terms, the maltreatment of minorities in an Islamic state. The right of minorities to practise their religions are well guaranteed in Islam. The problem of the right to practice a minority religion is twofold: one, international law on minority rights lacks the definitions and jurisprudence to enable states to enact proper protection for religious minorities. Two, the interpretation and implementation of Sharia doctrine in Muslim countries has become restrictive in comparison to the implementation of the right in centuries past. As a result, turmoil is witnessed across many Muslim nations. In Muslim countries, such as Pakistan, for instance, the religious rights of minorities who are considered non-Muslims are violated. In non-Muslim countries, such as Nigeria, the laws and practice actually protect the religious freedom of minorities. In fact, no restriction is placed on changing religion as no religion can be declared as a state religion, although ethnic and religious crises are often witnessed. In Kuwait, minorities are starting to fully enjoy their religious rights freely, with expectations of ameliorating their situation in the near future. In Malaysia, courts have made pronouncements on religious rights, although Article 11 is still open to further interpretation. Violations of non-Muslim minority rights has not been brought before the courts, although discrimination on grounds of race or ethnicity are witnessed regularly. It was, practically, proven that discrimination is widely spread in the Malaysian society, where the race plays major role than the qualification of the individual himself. The government, through ‘1 Malaysia’ concept, is trying to move the peoples’ mind-set from mere tolerance to acceptance of minority ethnic groups. It is clear that there is a need for the international community to set up a firmer, effective, realistic and detailed guideline that would safeguard minority rights to religion and culture, of course without prejudice to the rights of the majority as well. Muslim countries also need to comply with the injunction of Islamic law as demonstrated by the Prophet through close study of previous periods of relative peace.
Today, international law is in charge of human rights, including the religious freedom. All states are under continuous watch of the international community. If the national legal system succeeds in providing religious freedom for all individuals, nationals or foreigners, minorities or majorities, then the international law has no application over such state.
In contrast, if the state fail to guarantee religious freedom within its territory, then the international community should interfere to guarantee such freedoms.
The international law established a minimal limit of human rights protection, which includes the religious freedoms in the UDHR and CCPR, as long as such freedoms do not contradict with the safety of public health or the national security of the state.
The only choice of all states today is comply with the international law standards, otherwise, they are permitting the international community to interfere and lift such freedom to the internationally accepted level.
Conclusion:
Religious freedom is one of the basic human needs, provided in both, most national and international law. Islamic law as well guarantee religious freedom.
For instance, the national legal system in Malaysia assure the basic religious freedom of minorities. However, the legal system in Kuwait does not provide equal religious freedom among minorities. But, it cannot be ignored that the practice in Kuwait support minorities to enjoy their religious freedom.
There is a big difference between providing religious freedom by law or by the practice. The law may provide less religious freedom, but it is stable, does not become under the influence of political changes. However, the freedom provided by the practice is subject to increase and decrease according to the changes in the political system of the state.
Today, the world become a small village, which requires identical human rights, including freedom of believe of minorities. There is no reason to find different levels of religious freedom in different countries.
It is recommended that a model religious freedom law should be enacted by the United Nations Human Rights Council to be imposed over all states.
A state which violate religious freedom, should be subject to prosecution in an international court, such as the International Permanent Criminal Court.