(Pic by Jan Tabery / sxc.hu)
THE attacks against churches and other places of worship that ushered in 2010 have brought into sharp focus the intolerance of an unruly minority in Malaysia. This minority is determined to destroy the delicate balance reached through compromise and consensus in a plural society by our founding leaders, which forms a critical component of the social contract under the Federal Constitution.
Rage and emotional reactions must not take centre stage in 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:
Islam is the religion of Malaysia, but other religions can be freely practised.
All citizens have the right to freedom of speech and expression.
Everyone has the right to profess and practise a religion of their choice.
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.
Every religious group has the right to establish schools and other educational institutions for the education of children in its own religion.
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 in the federal territories.
As part of the religion of the nation, federal and state laws have been passed regulating the worship of Islam. 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.
(Pic by F Lorences / sxc.hu)
It is therefore not the state’s business how religions other than Islam conduct their worship in 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.
The right of every person to profess and practise a religion of his or her 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 constitution’s basic structure. Therefore, these rights cannot be the subject of parliamentary repeal.
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 in translations.
In consequence, it is beyond the legal power of any government officer to stop the distribution and use of bibles and church publications that are restricted to Christians in whatever language containing whatever words. The only exception is when these publications are intended to be used to proselytise Muslims, because converting or attempting to convert Muslims is prohibited under the constitution.
But once a religious group declares that its holy book and other worship materials are not intended to convert Muslims, the state’s powers ends. This is fundamental to the social contract and to the Federal Constitution, the supreme law of the land.
Respecting the courts
Accordingly, 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 “Allah” in a Catholic publication, the Herald, where there was no evidence of conversion of Muslims.
Hence, it was profoundly disappointing to read in the mass media the criticisms leveled against the High Court decision by government leaders and politicians. The only possible inference is that pressure is being applied on the appellate courts to overrule the High Court decision.
Tun Salleh Abas It is one thing for chauvinists to play the religious and racial cards for political reasons, which they do with masterly effect; but it is altogether another thing for ministers not to uphold the law of the land.
Confidence in the judiciary is damaged when the executive publicly wages battle against a court decision. That is exactly what happened when Prime Minister Tun Dr Mahathir Mohamad challenged Justice Harun Hashim in 1986-87. Eventually, that collision between the executive and the judiciary led to the dismissal of Tun Salleh Abas and two supreme court judges 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 does not respect a court decision, it cannot expect its citizens to show respect either.
Twentieth-century history is replete with illustrations of religious persecution of the minorities, whether Jews in Hitler’s Germany, Christians in Stalin’s Russia, Muslims in Mao’s China, all religions under Pol Pot’s brutal regime, or Palestinians in Israel.
These thoughts were substantially written while I was away for a fortnight in the US, where the mass media highlighted our religious intolerance. When I was asked where I came from, 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.
Metro Tabernacle Church in Kuala Lumpur, which was burnt in an arson attack on 8 Jan 2010
(Pic courtesy of Sivin Kit)
This is the appropriate time for Prime Minister Datuk Seri 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. And if the argument is that such matters are not suitable for judicial determination, then the prime minister should use the prestige of his office to solve the problem politically.
This would mean consultations among all the relevant stakeholders, 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 Interfaith Commission, I call upon the prime minister to demonstrate leadership by urgently inviting leaders of all political parties, religions and civil society to resolve the matter peacefully through dialogue. For the sake of national interest, I hope that is what the prime minister will do.
Tommy Thomas is a constitutional lawyer and a student of history and politics.
For related stories, see In the Spotlight: Political Islam