Report on the State of Religious Liberty in Malaysia for 2009 & 2010

7/29/2019 Report on the State of Religious Liberty in Malaysia for 2009 & 2010

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REPORT ON THE

STATE OF RELIGIOUS LIBERTY IN MALAYSIA

FOR THE YEARS 2009&2010

Prepared by

the Religious Liberty Commission

National Evangelical Christian Fellowship Malaysia


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1 BACKGROUND TO THE TWO YEARS UNDERREVIEW

1.1 IntroductionIn 2009, Malaysia witnessed a change in her political leadership when Najib Tun

Razak became the nations sixth Prime Minister. In contrast to the start of Abdullah

Ahmad Badawis administration in early 2004, the Christian community was

noticeably less optimistic about the political environment surrounding issues of

religious liberty when Najib assumed office in April 2009. As is well known, Abdullah

was forced to step down because of his perceived poor leadership of his party, the

United Malay National Organisation (UMNO), and to accept responsibility for the

results of the March 2008 General Elections which saw the Barisan Nasional (BN)

lose its two-thirds majority in Parliament as well as the governments of three major

West Coast states. UMNO is the senior member of BN, the ruling coalition.

On assuming the Prime Ministers office, Najib, like those before him, began his

tenure by defining his vision and direction for the country. Abdullah and Dr Mahathir

Mohamad had also done so but Najibs was in trumping spades, going by the sheer

number and breathtaking level of ambition. Through the introduced 1Malaysia

concept, he implied the promise of more social cohesiveness and less ethnically- and

religiously- motivated governance. He also introduced the slogan People First,

Performance Now to counter the public image that the BN was an elitist

organisation that only looked out for itself and whose policy results fell far short of

its rhetoric. Less remembered but important in its own right was Najibs call for a

new national discourse, one that was based on transparency and accountability

and that embraced respect and fairness in public dialogue.

To give this new national discourse a sense of substance, he instituted three major

initiatives, viz. the New Economic Model (NEM) to lay out economic goals and


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strategies, and the Government and Economic Transformation Programmes (GTP

and ETP); both far-reaching attempts to (as their names imply) thoroughly overhaul

the national governance and the Malaysian economy. It was obvious that he saw

himself and was unafraid to be seen more as a chief executive officer rather than

politician. Being enamoured by the blue ocean strategy he enlisted its main

founder, the Harvard management guru, W Chan Kim as an advisor.

Najib was a man in a hurry. He needed to prove his bona fides in hope that these

would convince the voting public that he was the right man for the job. It must also

be noted that Najib assumed office immediately after the September 2008 global

financial crisis and there were immense concerns of severe economic recession. In

order to ensure that his reform initiatives were not held back and confounded by a

slow, unwieldy and ill-equipped civil service, he relied on foreign and local private

consultants and highly-paid talent from the private sector to staff PEMANDU, a

vehicle established in the Prime Ministers Department to drive the changes.

Naturally, this did not endear him to the civil service. But of much greater

consequence was the fact that his reform initiatives also did not endear him to the

political hardliners within his party.

In Najibs efforts to get things moving, he had to court wealthy businessmen,

professionals and foreign investors and was seen as ignoring the Malay agenda.

Three things that he did, in particular, seemed to fuel the latter belief: First, the

significant reduction in the scope and powers of the Foreign Investment Committee

(FIC), second, the removal of the need to reserve a portion of all initial public

offerings in equity to Bumiputera and, third, the abolishment of the Ministry of

Entrepreneur Development.

It was obvious that Najib was not going to settle for anything less than an all-out

effort to craft Malaysia in the image of what he thought the Malaysian public wanted


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and needed, notwithstanding growing disaffection by his party. He and his coterie of

advisors must have surmised that their policies and programmes were the antidote

to the marked political shift and drift that had led to the outcome of the previous

general elections.

In terms of religious liberty and for the Christian community, initial expectations

varied. There are those who were sceptical and doubted that the state of religious

liberty would improve given the shocking and unexpected firebombing incidents

involving three churches and others which were vandalized. But there were others

who looked at the positive side and preferred to give him a chance especially in light

of his three new major initiatives pursuant to his People First, Performance Now

philosophy. The question that lingers on everyones mind is whether the state of

religious liberty has improved and been substantially enhanced during the tenure of

the Najib administration, given the bold initiatives he had laid out?

In contrast to previous years, this report will encompass a two-year period for the

years 2009 to 2010. The Religious Liberty Commission is of the view that this is

necessary and of upmost interest as many of the issues and violation of religious

liberty occurred not only in 2009 but followed through to 2010. The following pages

are the report in substantially the same format and layout as previous years.


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2 ISSUES CONCERNING RELIGIOUS FREEDOMIntroduction: Constitutional Issues

The Federal Constitution of Malaysia is the supreme law of the land which expressly

provides for the fundamental right to freedom of religion. Article 11 of our

Constitution stipulates and guarantees that every person has the right to profess and

practise his religion subject to State law (for the federal territories, Federal law)

which may control and restrict the propagation of any religious doctrine and belief

amongst the people professing the religion of Islam.

This means the Constitution recognises that all persons have the right and freedom

to choose his or her own religion according to ones own choice, conscience, belief

and conviction. This expression of every person must include all people of any and

all ethnic groups and cannot be confined to a segment of society to the exclusion of

any. To do so would be a mockery to the Constitution. The right to profess and

practise one's own religion would imply the right to choose a religion without the

need to be subjected to any conditions. It also means the right to manage one's own

religious affairs and institution without undue interference or discrimination.

As regards the right to propagate, Article 11(4) stipulates that state law (in the case

of the federal territories, Federal Law) may control and restrict the propagation of

religious doctrine or belief among Muslims. It is argued that such provisions allowing

the state to control the propagation of non-Islamic religions is clearly contrary to the

intention of the Constitution and indeed ultra vires against the backdrop of

Article 11.

This is arguably the case as the Constitution envisages a secular policy; Malaysia is

not a theocratic but a secular state with Islam being declared to be the religion of the


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Federation under Article 3 of the Constitution. This, however, cannot be taken to

mean that Malaysia is an Islamic state as it only provides that the nation espouses a

national religion but does not exclude the practice of other religions. Such is

expressly provided in Article 3 which states that that provision does not derogate

from any other provision of the Constitution (including Article 4 entrenching the

principle of the supremacy of the Constitution). It also goes on in the same breath to

pronounce that all religions may be practised peacefully and in harmony in any part

of the Federation.

It is rather unfortunate that the process of Islamisation which started more than 25

years ago has altered this fundamental perception and outlook within Malaysian

society. Today, Islamisation continues to constrict the free and legitimate exercise of

religious rights guaranteed under the Federal Constitution while incessantly

undermining the secular basis and character of Malaysia.

2.1 Right to Profess2.1.1 Conversion Issues/Cases

Article 121(1A) of the Federal Constitution provides that the two High Courts in

Malaysia referred in Article 121(1) shall have no jurisdiction in respect of any matter

within the jurisdiction of the Syariah courts. This clause has been inserted with the

purpose of delineating the judicial jurisdiction of Malaysias dual system of civil and

Syariah courts and to prevent the High Courts from exercising its powers of judicial

review over the decision of a Syariah court. However, far from clarifying the judicial

ambit, the contesting interpretation of the clause has led to much controversy and

social tension, especially when the cases involved are inter-religious in nature and

the parties include Muslims as well as non-Muslims.


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Another provision in the Federal Constitution which has raised public concern is

Article 12(4) which provides that the religion of a person under the age of eighteen

years shall be decided by his parent or guardian. Of late, the courts have been

interpreting this clause, particularly the word parent, literally, instead of adopting

a purposive approach. It was ruled that unilateral conversion of a child to Islam can

be done without the consent or knowledge of the non-converting spouse. This has

led to a spate of controversial cases, some of which occurred within the two years

under this review.

2.1.1.1 Muhammad Ridzuan Abdullah (formerly known as K Patmanathan) had converted toIslam from Hinduism on 11 March 2009. He then converted his three children Tevi

Darsiny, 12, Karan Dinish, 11 and baby Prasana Diksa, 1, to the same on 2 April 2009

without consent and/or knowledge of their mother (his Hindu wife), Indira Gandhi.1

The children were converted without their knowledge and in their absence, using

only their birth certificates. Muhammad Ridzuan further proceeded to take away

their infant child on 4 April 2009.2

Muhammad Ridzuan and Indira Gandhi had been having a bitter relationship and

there stands a pending divorce suit filed by Indira Gandhi in December 2008. The

Syariah Court in Perak initially awarded the interim or temporary custody of the

children to Muhammad Ridzuan but on 24 April 2009 the Ipoh civil High Court

granted Indira Gandhi interim custody of the three children together with an

injunction preventing her husband from entering their home. The court also ordered

the police to assist Indira Gandhi in carrying out the court's orders.

On 11 March 2010, the Ipoh High Court granted the custody of the baby, Prasana

Diksa, to Indira Gandhi.3

However, Muhammad Ridzuan filed a notice of appeal to

the court and an application for a stay of execution of the order made by the Ipoh

1Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), pp 115 116

2

The Star, 25 and 26 April 2009; Earlier, it was reported that the infant was taken away by her husband on 31March 2009. See also: New Straits Times, 23 April 2009 and The Star, 24 April 20093The Star, 11 March 2010


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High Court to return Prasana Diksa (about 2-3 years old at that time) to the mother.

This application was subsequently dismissed by the High Court.4

On 28 July 2010, Indira Gandhi was granted leave by the Ipoh High Court for a judicial

review to quash her children's conversion to Islam5

but has yet to be reunited with

her youngest daughter.6

To date, the case has not been resolved.7

2.1.1.2 Banggarma Subramaniam filed a suit in the Penang High Court on 23 December2009, seeking a declaration that her alleged conversion to Islam at the age of seven

was invalid. Named as defendants in her suit were former Prime Minister Dr

Mahathir Mohamad in his capacity as president of the Muslim Welfare Organisation

Malaysia (Perkim), Perkim official Raimi Abdullah, the Penang Islamic Council (Majlis

Agama Islam Pulau Pinang, MAIPP) and the Penang City Kadi (Islamic judge).8

The

said conversion was alleged to have occurred on 28 December 1989 during the time

she was placed in a government welfare home, namely Rumah Kanak-Kanak Taman

Bakti. Additionally, she sought to have the name on her identity card (presently

being Siti Hasnah Vangarama Abdullah) changed to her original Hindu name and

for the designation of Islam to be deleted from the same.9

This was disputed by the Welfare Department who maintained that it was her

natural father who converted her to Islam (allegedly on 30 November 1983) when

Banggarma was one year old. This assertion contradicts the Certificate of Conversion

in Banggarmas possession (as handed to her by the welfare home officer) that states

her conversion had occurred in 1989; i.e. when she was seven years old.

4 The Star, 1 April 2010; With Muhammad Ridzuans application being set aside, he risks being jailed for

contempt should he still fail or refuse to return the infant (Prasana Diksa) to Indira Gandhi5The Star, 28 July 2010; Justice Zainal Adzam finally granted this leave after the case was postponed many

times pending the Federal Courts decision on the S. Shamala conversion case.6The Star, 31 July 2010; Muhammad Ridzuan went on to caution Indira Gandhi against pursuing the matter

and warned that Indira Gandhi can forget about seeing her youngest daughter again7

As of 31 December 20108The Sun, 23 December 2009

9Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), pp 114 - 115


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Denying the Welfare Departments assertion, Banggarma contended, by virtue of

Section 80 of the Penang Administration of Islamic Affairs Enactment 1993 (PAIAE

93), that her conversion was unlawful and sought a court order to nullify the

conversion. Section 80 of the PAIAE 93 states that no child under the age of 18 can

be converted to Islam without ones parents permission.10

On 29 August 2009, Banggarma joined a group claiming to be the Human Rights

Party of Malaysia seeking to hand over a memorandum pleading for the Sultan of

Perak to intervene into issues concerning religious conversions. The delivery of the

memorandum, however, failed as police only allowed a limited number of people

into the palace grounds.11

On 6February 2009, the Malay daily Utusan Malaysia reported that the Majlis

Agama Islam Pulau Pinang (MAIPP) had rejected Banggarmas assertion and further

contended that when her parents had embraced Islam in Rompin, Pahang on

30 November 1983, her parents had converted her, too. It is MAIPPs stand that her

alleged conversion on 28 December 1989 is false and suspicious as she (Banggarma)

had only been sent to the welfare home on 5 March 1990.12

On 4 August 2010, Justice Yaacob Md Sam (of the Penang High Court) dismissed

Banggarmas originating summons with costs after ruling that the High Court did not

have jurisdiction to hear her case. The court held that either the parents or a

caretaker has the right to determine the religion of a child or children of minor age.13

The court was of the view that Banggarma is a Muslim since her parents had

converted themselves as well as their five children to Islam.

2.1.1.3 On 25 July 1998, Siti Fatimah Tan binti Abdullah (formerly known as Tan Ean Huang)converted to Islam to marry an Iranian, Ferdoun Aslanian. They were married on

10The Star, 20 November 2009; Malaysiakini, 20 November 2009; The Sunday Daily, 24 November 2009

11

The Star, 29 August 200912Utusan Malaysia, 6 December 2009

13New Straits Times, 4 August 2010; The Star, 5 August 2010


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4 August 1999 but separated a few months later. In May 2006, she filed an

application under Section 61 (3) (b) (x) of the Administration of the Religion of Islam

(State of Penang) Enactment 2004 seeking a declaration that she was no longer a

Muslim as she wished to renounce Islam and return to Buddhism.

14

On 8 May 2008, the Penang Syariah High Court allowed her application but the

Penang Islamic Religious Council, being dissatisfied, appealed against this decision.

On 19 March 2009, the Syariah Court of Appeal dismissed their appeal and upheld

the decision of the Penang Syariah High Court. The Syariah Court of Appeal further

stated that her uttering of the two clauses of Affirmation of Faith (Syahadah oath)

was invalid. Accordingly, she could not be considered as a Muslim and hence was not

an apostate.15

2.1.1.4 Mohammad Shah @ Gilbert Freeman, 60, applied to the Seremban Syariah HighCourt to declare himself a non-Muslim after the National Registration Department

refused to accept he was a Christian and disallowed him to drop his Islamic name

when he applied for a new identity card. He also asked the court to remove his

Malay name in his identity card.

He told the court that he was raised according to the Christian faith and had adhered

to the religion since childhood. He also explained that his late mother, who was a

Christian, had cared for him then. He was also baptised in Seremban Visitation

Church at the age of three (on 17 April 1948), was married according to Christian

rites to P Anjalie (on 3 August 1974) and had never lived according to the Muslim

faith nor adhered to any of its cultures or practices. Mohammad Shah had never

seen his father, known as Mohd Said, who had left him and his mother when he was

only two months old. In fact, his mother and Mohd Said had never married according

to either the Muslim or Christian faiths.

14Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), pp 114 115

15Majlis Agama Islam Pulau Ping lwn Siti Fatimah Tan Binti Abdullah [2009] 27 Jurnal Hukum Bhg II 185


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On 5 March 2009, the Seremban Syariah High Court (by Judge Mohd Nadzri Abdul

Rahman Ibrahim) ruled that Mohammad Shah is not a Muslim. The learned judge

went on to say that even though Shah's father is a Muslim, Section 108 of the

Administration of the Religion of Islam (Negeri Sembilan) Enactment 2003

16

does not

apply because he was never raised as a Muslim and had not embraced the religion as

stated under the law. He was not practising Islam and he had not applied to be a

Muslim.17

He added that there is also no proof of a valid marriage, according to

either Muslim or Christian rites, between Mohammad Shahs father, Mohd Syed @

Mohammad Said, or his late mother, Doris Josephine Freeman.

This was a rare case as while Muslims are governed by the Islamic Syariah courts and

civil courts have jurisdiction over non-Muslims, inter-religious disputes usually end

up in Syariah courts, and end in favour of Muslims. The judge, however, rejected his

application to have his name changed as such an application to remove Mohammad

Shahs Malay name falls under the purview of the National Registration

Department.18

2.1.1.5 On 5 March 2009, Chew Yin No, age 23, filed a petition at the Seremban SyariahCourt seeking the dissolution of her marriage to Hoo Ying Soon, a Buddhist, under

section 46(2) of the Administration of Islamic Law (Negri Sembilan). She had

converted to Islam on 28 January 2009 and adopted a Muslim name, Siti Zubaidah

Chew Abdullah. She registered her religious status at the Pusat Dakwah Islamiah in

Paroi in January 2009. She also had a declaration card which confirmed her status as

a Muslim. On 3 February 2009, she had also converted the couple's 15-month-old

daughter whose name was changed from Hoo Joey, to Nurul Syuhada Chew

Abdullah. Siti Zubaidah and her 28-year-old husband were married on 14 February

16Section 108 of the Administration of the Religion of Islam (Negeri Sembilan) Enactment 2003 provides that

[a] person is converted to the religion of Islam and becomes a Muslim as soon as he finishes uttering the

two clauses of the Affirmation of Faith provided that the requirements of section 107 are fulfilled; and that

person shall thereupon be referred to as a muallaf.17New Straits Times, 6 March 2010;Associated Press, 6 March 2010

18For details, see Re Declaration on Religious Status of Mohd Shah @ Gilbert Freeman [2009] 4 Sh LR 90.


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2007 and they have yet to finalise their divorce in the civil court. The Syariah High

Court gave interim custody of Hoo Joey to Siti Zubaidah.19

2.1.1.6 On 22 April 2009, the Cabinet decided that civil courts are the right place to dissolvea marriage in the event of a spouse converting to Islam. It also decided that if either

spouse were to convert to Islam, the children should follow the faith that the parents

had agreed on at the time of marriage, or implied by their common religion. The

Cabinet made the decision following Indira Gandhis case where her three children

were converted to Islam by her husband K Patmanathan, now known as Mohd

Ridzuan Abdullah, without her consent.20

The Cabinet had also instructed the

Attorney-General to look at all relevant laws needing amendment in line with the

decision.

A day later, Minister in the Prime Ministers Department Datuk Seri Nazri Aziz

announced plans to amend the three laws - Law Reform (Marriage and Divorce) Act

1976, Islamic Family Law (Federal Territories) Act 1984 and Administration of Islamic

Law (Federal Territories) Act 1993 - to accommodate these decisions.21

While the Bar Council, the Malaysian Consultative Council of Buddhism, Christianity,

Hinduism, Sikhism and Taoism, the Council of Churches Malaysia, National

Evangelical Christian Fellowship, Joint Action Group (JAG) for Gender Equality, MCA

and Sisters in Islam welcomed this Cabinet directive, it was opposed by the

Malaysian Syariah Lawyers Association (PGSM), PEMBELA (a coalition of Muslim non-

governmental organisations) and Jamaah Islah Malaysia (JIM).22

On 29 June 2009, the 217th

(special) meeting of the Conference of Rulers decided

that any amendments to the laws pertaining to matters of conversion and religion

19The Star, 5 March 2009; New Straits Times 6 March 2009.

20New Straits Times, 24 April 2009; The Star, 24 April 2009.

21

New Straits Times, 30 June 2009.22The Star, 24 and 25 April 2009; Bar Councils press release on 28 April 2009; The Malaysian Insider, 30 April

2009.


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must be referred to the state religious authorities first. Consequently, the proposed

amendments to the Law Reform (Marriage and Divorce) Act 1976, Administration of

Islamic Law (Federal Territories) Act 1993 and Islamic Family Law (Federal Territories)

Act 1984 which were to be tabled in Parliament on 1 July 2009 were held back.

2.1.1.7 On 12 November 2010, the Federal Court dismissed a referral application byShamala Sathiyaseelan,

23stating that as Shamala had avoided contempt proceedings

against her by her husband, Dr Muhammad Ridzwan Mogarajah (formerly known as

Dr Jeyaganesh C Mogarajah), she would not be granted the opportunity to be heard

on constitutional issues regarding the validity of the childrens conversion to Islam.

Shamala and Dr Muhammad Ridzwan were married according to Hindu rites in

1998.24

On 19 November 2002, Dr Muhammad Ridzwan converted to Islam and

proceeded to convert their two children on 25 November 2002 without Shamalas

knowledge and/or consent. In July 2004, the High Court granted Shamala actual

custody of the children, but she was ordered to share legal custody with Dr.

23Five questions were posed for the consideration of the Federal Court:

i. Whether Section 95(b) of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) is

ultra vires Article 12(4) and Article 8 of the Federal Constitution read in their proper context?

ii. Whether Section 95(b) of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505), as

State law, is by reason of Article 75 of the Federal Constitution, inconsistent with a Federal law, namely,

Section 5(1) of the Guardianship of Infants Act 1961 (as amended) and is therefore invalid?

iii. In the context of Article 121(1A) of the Federal Constitution, where a custody order is made by the

Syariah Court or the High Court, on the basis that it has jurisdiction to do so, whether there is jurisdiction for

the other court to make a conflicting order?

iv. Where there has been a conversion of the children of a civil marriage into Islam by one parent without

the consent of the other parent, whether the rights of remedy under Part II of the Federal Constitution of

the non-Muslim parent read with the Law Reform (Marriage and Divorce) Act 1976 is vested in the High

Court?

v. Whether in the context of Articles 8, 11, 12 (4) and 121 (1A) of the Federal Constitution, the Syariah Court

has exclusive jurisdiction to determine the validity of conversion of a minor into Islam once the minor has

been registered by the Registrar of Muallafs (Majlis Agama Islam)?

24

The Star, 12 November 2010, Federal Court rejects Shamalas referral application (Updated)http://thestar.com.my/news/story.asp?file=/2010/11/12/nation/20101112141055&sec=nation last accessed

on 19 February 2011


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Muhammad Ridzwan. Shamala left the country with the two children pending

appeal. The Federal Court allowed the preliminary objection by Dr Muhammad

Ridzwan to the referral, insisting that Shamala was required to return to Malaysia to

be present at the contempt proceedings before she would be allowed the right to be

heard.25

2.1.2 Snatching of Children2.1.2.1 Kedah PKR Youth vice-chairperson Gooi Hsiao Leung expressed his concern of a

growing trend in child snatching cases where a converted Muslim parent uses the

authority accorded by Syariah law to affect the seizure of a child. In such cases, the

Muslim parent can do this because he or she manages to secure a Syariah Court

order, which encroaches on the constitutional and civil law rights of the non-Muslim

parent over the right to the child. This causes a serious constitutional problem as the

rights of the non-Muslim parent suddenly becomes subjected to Syariah laws and

the Syariah courts. The matter is made worse and more complicated when the child,

once snatched, is converted by the Muslim parent without consent of the non-

Muslim parent, thus throwing the entire dispute into Syariah law in which the civil

courts have no jurisdiction.26

One case that highlights the plight of such a parent caught in this situation is that of

Tan Cheow Hong, 36, who lives in Butterworth, Penang. Tan had separated from his

wife, Fatimah Fong (now a Muslim convert) in 2007 and since then their daughter,

Tan Yi Min, had lived with her father while Fatimah moved to Kuala Lumpur.

25The Star, 12 November 2010, Decision by Federal Court over Shamalas bid regrettable, says Loh

http://thestar.com.my/news/story.asp?file=/2010/11/14/nation/7427596&sec=nation last accessed on

19 February 2011. For the details of the Federal Court decision on 12 November 2010, see Shamala

Sathiyaseelan v Dr Jeyaganesh C Mogarajah & Anor[2011] 1 CLJ 568 (FC).26Malaysiakini, 16 November 2010, http://www.malaysiakini.com/news/148356 and

http://www.malaysiakini.com/news/148410


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The mother had obtained a court order from the Shah Alam Syariah Court for

custody of Yi Min and had gone to her school accompanied by representatives from

the religious council and the police to implement the court order. Teachers and the

principal of the school had tried to prevent Yi Min from being taken away but failed

when the mother produced the Syariah Court order.

The father, Tan, was only informed of such proceedings after this incident. He come

to understand that Fatimah had filed for divorce at the Shah Alam Syariah Court on

26 October 2010 and the next day obtained an ex-parte order for the custody of the

child, notwithstanding that the couple had separated since 2007.

Gooi Hsiao Leung further added that the sequence of events leading up to the

snatching of Tan Yi Min suggests that it had been planned right from the beginning

where Fatimah had used the backdoor approach to obtaining the child from a non-

Muslim parent.

Tan Cheow Hong has filed for custody at the civil court and hearing has been set for

24 November 2010. However, the Penang High Court has granted custody of the

child to Fatimah Fong27

as the child had converted to Islam on 9 November 2010 at

the Selangor Islamic Affairs Department.28

Although this may seem an isolated and singular incident, its implications are drastic

to the community at large. Should the courts uphold Fatimah Fongs custody of her

daughter or merely fail, refuse and/or neglect to intervene in upholding Tan Cheow

Hongs rights, it sets a precedent that decisions of the Syariah Court may override

the civil liberties of non-Muslims. If the compulsion imposed by Fatimah Fong (and

her party) upon Yi Mins school to release her based on the Syariah Courts order is

27Malaysiakini, 4 January 2011, Custody goes to Muslim convert mother,

http://www.malaysiakini.com/news/152390, Last accessed 11 January 201128Malaysiakini, 6 January 2011, Can a 7-year old declare faith?,

http://www.malaysiakini.com/columns/152589, Last accessed 11 January 2011


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indeed legal, this too affirms that rights and liberties of non-Muslims are subject to

Syariah laws or principles.

2.1.2.2 In March 2010, civil servant Faizal Wong Abdullah, 54, filed an application in theKuala Lumpur Syariah High Court to renounce Islam and to return to Buddhism. He

had embraced Islam on the persuasion of friends on 6 October 1999 at the

Pertubuhan Kebajikan Islam Malaysia (PERKIM).

He insisted that his conversion has only been nominal as he had not adhered to any

Islamic practices and that his heart had remained a Buddhist. When questioned

outside the courtroom, Faizal explained that his desire to return to Buddhism was

caused by pressure from family and relatives.

During the second hearing of this case on 18 May 2010, Farah Wahida Mohd Amin

acting as counsel for The Federal Territory Islamic Council (Majlis Agama Islam

Wilayah Persekutuan), raised a preliminary objection to Faizals application seeking

to have Faizal undergo counselling instead.29

The court then set 2 June 2010 for the

next hearing.

There has been no further update in the media on this case.

2.1.3 Disputed Religious Status2.1.3.1

Human Resources Minister Dr S Subramaniam, who is also Deputy President of theethnic Indian party, MIC, issued a statement that the Federal Government intends to

launch a nationwide My Daftar Campaign from 19 to 26 February 2011 in an effort

to resolve problems faced by Malaysian Hindu-Malays who do not have or have

insufficient documents pertaining to their identification, birth and/or citizenship. He

29Malaysiakini, 18 May 2010; Utusan Online, 19 May 2010


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said that the campaign was organised by the Special Implementation Taskforce on

the Indian Community and in collaboration with the Ministry of Home Affairs.30

The campaign would also seek to identify individuals who possess a birth certificate

but have not applied for a 'MyKad', and those who do not possess a birth certificate

and are therefore unable to secure a 'MyKad'. (Without a birth certificate, a child

cannot attend school.)

Official records show that there are 32,000 Indians with birth certificates but without

MyKads. The figure for those without even a birth certificate is expected to be

staggering.31 One cause for the figure is the difficulties faced by the Hindu-Malay

community whose applications for a MyKad are refused for various reasons.

M Saraswasthy (not her real name), 15, had her application for a MyKad rejected

because she had been born of a Muslim mother and a Hindu father and had chosen

to retain her Hindu identity, Saraswathy a/p Muniandy. Officers from the National

Registration Department had insisted that she use the Muslim name 'Saraswathy

binti Kamal Shah Kamal Shah being a name that was forced onto her father by

religious authorities although he had never converted. The National Registration

Department had recognised him as a Hindu. According to Muniandy, his family, living

as Hindus for the past 17 years, have had to move at least five times in the past years

as they faced raids from religious departments and threats from parang-wielding

vigilantes who found them at their new location.

On one occasion of a raid by religious authorities on Muniandys house, Muniandy

was beaten up, had his wife and children taken away from him and asked to go to

the religious department to negotiate. He asserted that he was placed in a small

room with the azan playing on a loudspeaker in efforts to make him convert to Islam.

30Bernama, 30

thDecember 2010, "My Daftar" Campaign For Indians In February,

http://www.bernama.com/bernama/v5/newsindex.php?id=553346, Last accessed 8

th

January 201131Malaysiakini, 31

stDecember 2010, Growing MyKad woes for kids of Hindu-Muslim birth,

http://www.malaysiakini.com/news/152085, Last accessed 8th

January 2011


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Though the session failed and Muniandy survived the ordeal, he was released only

after agreeing to change his name to a Muslim name on his identity card, albeit not

converting.32

Subramaniam, however, asserted that complainants who brought their problems to

the taskforce and worked closely with the National Registration Department have

nothing to fear. According to him, they have committed no wrong and thus should

have no fear of prosecution.

2.1.3.2 In a press statement issued by Sarawak PKR State Liaison Chief, Baru Bian 33 on30 November 2010, there is a growing concern among native parents as a handful of

their children have had their race reclassified as Malay instead of Lain-lain.

In particular, a school in Miri (the Temenggong Datuk Muip School) was found to

have reclassified six of its students who are of the Orang Ulu and Iban community.

According to a school report card of a student sent to Bian, an 11-year-old student

who is of Kelabit and Lun Bawang parentage was classified as Malay by the

school.34

This is a cause of great concern as, according to Bian, it may be the tip of an iceberg.

Should this issue remain unresolved, it may have drastic implications on the status

and classification of the childs religion and faith.

Article 160 of the Federal Constitution states that a Malay means a person who

professes the religion of Islam, habitually speaks the Malay language [and] conforms

to Malay custom. The Federal Constitution further defines native under Article

161A (6) (a) as: in relation to Sarawak, a person who is a citizen and either belongs

32Malaysiakini, 30 December 2010, MyKad burden for children of Hindu-Muslim parentage,

http://www.malaysiakini.com/news/152016, Last accessed 8 January 201133

Press Statement issued by Baru Bian, PKR State Liaison Chief, Sarawak on 30 November 2010 at the Keadilan

Stampin Office34

The Malaysian Insider, 30 November 2010, Race change to Malay in Sarawak schools spook parents,http://www.themalaysianinsider.com/malaysia/article/race-change-to-malay-in-sarawak-school-spooks-

parents/ Last accessed 12 January 2011


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to one of the races specified in Clause (7) as indigenous to the State or is of mixed

blood deriving exclusively from those races. The races to be treated for the

purposes of the definition of native as indigenous to Sarawak are the Bukitans,

Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs

(including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans,

Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans,

Sians, Tagals, Tabuns and Ukits.35

With such a definition, a Malay cannot attend church, celebrate Christmas and/or

Gawaii, thus further complicating matters as some of these children are of the

Christian faith, having being born into a Christian household. According to one

parent, the Education Officer there cannot make any alterations to correct the flaw

as the information is already within the system.36

President of Sarawak teachers' union, William Ghani Bina, has also expressed his

concern over the matter and says that he has taken up the matter to the state

deputy director of education. He further expressed his intention to discuss the

matter with the Director-General of Education in Kuala Lumpur.

2.1.4 Body Tussle Cases2.1.4.1 Art director for film and television commercials Mohan Singh a/l Janot Singh passed

away on 25 May 2009 from a heart attack in his Damansara Damai apartment. His

body was sent to Hospital Sungai Buloh for a post-mortem.

37

A legal battle thenensued when his immediate family members sought to claim his body; the hospital

35Article 161A(7) of the Federal Constitution.

36Free Malaysia Today, 30 November 2010, Native kids being classified as Melayu,

http://archive.freemalaysiatoday.com/fmt-english/politics/sabah-and-sarawak/13539-native-kids-being-classified-as-melayu, Last accessed 12 January 201137

Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 115


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authorities believed that the late Mohan Singh had converted to Islam and thus

refused to release the body to them.38

At the same time, the Selangor Islamic Religious Council also attempted to claim the

body with the intention to conduct a burial according to Islamic rites. Selangor

Islamic Religious Council (MAIS) claimed that based on a conversion certificate issued

by the Penang State Islamic Affairs Department, the deceased had converted to

Islam on 11 August 1992. However, the immediate family members of the deceased

contended that the deceased was never a Muslim as he had professed the Sikh

religion all his life and they were not aware of the purported conversion. Jaswant

Kaur (Mohan Singhs sister) added that the hospital was keeping Mohans body in

the non-Muslim section of the mortuary and that she could not understand how

MAIS could still claim her brothers body if it was kept in the non-Muslim section. In

court, the family contended that Mohan was not a Muslim at the time of his death

because he married a non-Muslim woman in 1997, after his alleged conversion in

1992. Mohan Singhs counsel has also submitted that the marriage certificate and

the birth certificate of Mohans daughter born in 2000 bore his Punjabi name, and

Sikhism as his religion.39

On 1 June 2009, Shah Alam High Court judge Justice Rosnaini Saub granted an

interim order not to allow the hospital to release the body to any party until disposal

of the civil proceedings.40

This prolonged tussle caused the family much anxiety as

Sikh rites demand that the body be cremated within 24 hours of a person's death

and that prayers be performed for the deceased's soul after 16 days.

On 6 July 2009, the Shah Alam High Court held that the Administration of the

Religion of Islam (State of Selangor) Enactment 2003 has expressly conferred the

Syariah Court with jurisdiction to determine the religious status of a deceased

38Malaysia Today, 29 June 2009, http://mt.m2day.org/2008/content/view/23702/1/

39

The Nut Graph, 29 June 2009, http://www.thenutgraph.com/who-was-mohan-singh40The Star, 17 June 2009,

http://thestar.com.my/news/story.asp?file=/2009/6/17/courts/4130596&sec=courts


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person. In the absence of any evidence that the conversion certificate was a forgery

or fraudulently issued, the Court should accept it as a sufficient proof that the

deceased had converted to Islam.41

2.1.4.2 On 6 October 2010, Brian Eustale Steele @ Steele Shah Abdullah, 56, a productionoperator, had septicaemia shock or blood poisoning and died at the Universiti

Malaya Medical Centre. His remains were cremated at the Jalan Kuari crematorium

in Kuala Lumpur according to Christian rites on 7 October 2010 and kept at the

Urban Cleanliness Control Unit of DBKL's Landscaping and Urban Cleanliness Control

Department.42

The Federal Territories Islamic Religious Council (MAIWP) applied to the Kuala

Lumpur Syariah High Court to obtain and manage his ashes according to Islamic law.

It was contended that the deceased had converted to Islam on 20 August 1975 and

had pronounced the Syahadah at MAIWP office.43

On 8 October 2010, Syariah judge Mohd Amran Mat Zain of the Kuala Lumpur

Syariah High Court allowed MAIWPs application and ordered that the ashes be

surrendered to MAIWP to be dealt with according to Islamic rites. Mohd Amran in

his brief judgment said the court allowed the application after studying it and the

affidavit submitted by MAIWP under Section 91 of the Administration of Islamic Law

(Federal Territories) Act 1993. Through this document, the court was satisfied that

MAIWP had managed to prove that the deceased, Brian Eustale Steele @ Steele

Shah Abdullah, was a Muslim before and at the time of his death. The court further

took into consideration that during the lifetime of Brian Eustale Steele @ Steele Shah

41For the details of the case, see Nagamuthu Punnusamy & Ors v Ketua Pengarah Kementerian Perubatan

Malaysia & Ors [2010] 2 CLJ 17442

New Straits Times Online, 8 October 2010,

http://www.nst.com.my/nst/articles/Convert_sashesallowedtobeinterredaccordingtoIslamicLaw/Mobile/articl

e_html43

Berita Harian, 9 October 2010,http://www.bharian.com.my/bharian/articles/MahkamahbenarMAIWPurusabumayatmualaf/Article/index_ht

ml


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Abdullah, the deceased had never stated that he had left the Islamic faith and there

was also no order from any court to say that he was no longer a Muslim.44

2.1.5 Against Non-Orthodox Muslims2.1.5.1 Department of Islamic Development (Malaysia) has identified and blacklisted 55

deviant groups in Malaysia as of year ending 2009.45

2.1.5.2 On 24 April 2009, Selangor Islamic Religious Council (MAIS) issued a notice forbiddingthe national Ahmadiyya headquarters (the Bait-us-Salam Mosque) from performing

Friday prayers at their mosque with immediate effect. The notice was issued under

the Administration of the Religion of Islam (State of Selangor) Enactment 2003 and

threatens the Ahmadiyya Muslim Community (AMC) Malaysia members with

imprisonment and fines if they do not comply.46

MAIS rationalises the issuance of its directive on the grounds that the Ahmadiyya

mosque did not get the council's approval to conduct such Friday prayers. The notice

further states that AMC Malaysia no longer has official permission to use Bait-us-

Salam as a Mosque. To this effect, a notice has been placed around the Bait-us-Salam

Mosque stating Qadiani Bukan Agama Islam; this translates as Ahmadiyya is not an

Islamic Religion.

In 1975, the Selangor Fatwa Council issued a fatwa declaring the Ahmadiyya sect

non-Muslim. The fatwa recommended that the Ahmadiyya be stripped of all special

Malay privileges. The size of AMC Malaysia is approximately 1,500 with the majority

44The Malay Mail, 11 October 2010,

http://www.mmail.com.my/content/51749-converts-ashes-allowed-be-managed-according-islamic-laws45

Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p11746Salem-News.com, 1 May 2009,

http://www.salem-news.com/articles/may012009/malaysia_problems_5-1-09.php


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in Sabah. Most of the AMC Malaysia members are ethnic Malays, and the movement

was founded in Malaya in the 1930s.47

Ahmadiyya spokesperson Ainul Yakin Muhd Zain elaborates that though the Selangor

religious executive committee Datuk Dr Hassan Ali has expressed willingness to

negotiate with the Ahmadiyya community, such dialogue has been limited to their

use of the land and not on the issue of their aqidah (belief system). Ainul adds that

the way the Pakatan Rakyat Selangor government is treating AMC Malaysia is the

same as how the Barisan Nasional used to.

2.1.5.3 On 9 August 2009, Utusan Malaysia reported that in an operation by the JabatanHal Ehwal Agama Islam Negeri Sembilan (JHEAINS) together with the police,

20 followers of a deviant group were arrested. It reported that that among those

arrested included their facilitator who shall be questioned by Jabatan Agama Islam

Selangor officials as well as the police.48

According to police, the said facilitator has

no authority to preach Islam in the state and that the group shared similar

elements with the Negara Islam Indonesia (NII), a banned organisation that is said

to reject government ideologies, the Al-Quran and Hadis. Head of Operation of

JHEAINS further explained that this group has been active since 2003 and operates

in the Klang Valley and Selangor area with followers in excess of 2000. This,

however, is the first case in Negeri Sembilan.49

2.1.5.4 On 24 September 2009, Abdul Kahar Ahmad, a self-proclaimed prophet, pleadedguilty to five charges under the Selangor Syariah Criminal Enactment for proclaiming

himself a prophet for the Malays, conducting deviationist teachings, violating the

47The Nut Graph, 29 April 2009, http://www.thenutgraph.com/mais-forbids-ahmadiyya-worship/;

The Ahmadiyya movement was founded by Mirza Ghulam Ahmad of Qadian, India, in 1889. They are

sometimes inaccurately referred to as Qadianis. Although Ahmadiyya consider themselves Muslim,

mainstream Muslims reject this because the Ahmadiyya believe that Ahmad was the metaphorical second

coming of Jesus.48


Utusan Malaysia, 9 August 2009,http://www.utusan.com.my/utusan/info.asp?y=2009&dt=0810&pub=utusan_malaysia&sec=Dalam_Negeri&p

g=dn_19.htm&arc=hive


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Selangor Muftis order, blasphemy, and spreading false beliefs.50

He was sentenced

to 10 years imprisonment, six strokes of the cane and a fine of RM16,500 on

21 October 2009. The judge ordered him to serve his sentence from the date of his

arrest on 16 September 2009 and to spend the last six months of his jail term at the

akidah rehabilitation centre in Ulu Yam.51

2.1.5.5 On 1 October 2009, while conducting a religious lecture at a house in Kuala Lumpur,former Perlis mufti Dr Mohd Asri Zainul Abidin was arrested by the Selangor State

Department of Religious Affairs together with the police. He was subsequently

released but was later charged under Section 119(1) of the Administration of the

Religion of Islam (State of Selangor) Enactment 2003 for conducting a religious

lecture without the required certification of authority. If found guilty, he would be

liable to a fine of up to RM3,000 or a maximum jail term of two years or both upon

conviction.52

On 18 November 2009, Dr Mohd Asri claimed trail at the Gombak Timur Syariah

Lower Court. He then applied to have the case transferred to the High Court and this

application was dismissed.53

Dr Mohd Asri further appealed on this dismissal to the

Syariah Appeal Court in Shah Alam and on 7 October 2010 the court (through its

Chief Judge of the appeal court Tan Sri Ibrahim Lembut) decided to fix 28 December

2010 to deliver a decision whether to grant leave for Dr Mohd Asris application to

move his illegal lecture charge to the Syariah Court in Shah Alam.54

50Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), pp 117 - 118

51The Star, 25 September 2009; The Star, 7 October 2009,

http://thestar.com.my/news/story.asp?file=/2009/10/7/nation/20091007125721&sec=nation;

The Star, 21 October 2009,

http://thestar.com.my/news/story.asp?file=/2009/10/21/nation/20091021132655&sec=nation52


Bernama, 28 April 2010, http://www.bernama.com/bernama/state_news/bm/news.php?id=494116&cat=tn54The Malay Mail, 7 October 2010,

http://www.mmail.com.my/content/51564-former-perlis-muftis-appeal-decision-dec-28


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Dr Asri has, however, expressed an intention to shift his religious lectures to other

states.55

2.1.5.6 On 22 August, the same Dr Asri (as at 2.2.5.5 above) made headlines again when heissued a statement commenting on a Friday prayer in a Penang mosque that prayed

for the well-being of non-Muslims. It was understood that the said mosque came

under heavy criticism after the Friday prayer sermon had prayed for the well-being

of the Penang Chief Minister, Lim Guan Eng. Dr Asri stressed that the issue should

not be politicised by the Barisan Nasional (BN) and Pakatan Rakyat (PR) as it was

acceptable for Muslims to pray for non-Muslims. When contacted by The Malaysian

Insider, Dr Asri explained that prayers fell into four categories. The first two involved

praying that a leader receives guidance and for a leader to be fair and sympathetic to

the people, and that such prayers can be read whether the leader is Muslim or not;

the other two prayers involved wishing for the well-being of a leader even if he were

unfair and outright praising of his leadership, both of which cannot be done.56

2.1.5.7 On 7 June 2009, The Nut Graph reported that a resolution was made by the Pan-Malaysian Islamic Party (PAS) for Sisters in Islam (SIS) to be investigated and if found

to be anti-Islam, to undergo religious rehabilitation.57

It was stated that the liberal

views advocated by SIS were a threat to Muslims faith, especially to the younger

generation and to those who have a secular education. SIS responded by saying that

the action by PAS was retrogressive and undemocratic and urged the party to

retract its resolution, emphasising that for the past 20 years, it has been SISs

fundamental belief that Islam was a just and egalitarian religion.

Additionally, SIS has also been the target of investigations following various police

reports lodged against it by Malay-Muslim groups after SIS had called for a review of

Syariah laws that allowed for whipping as a punishment for Muslims. In November

55Sin Chew Daily, 5 December 2009, http://www.mysinchew.com/node/32449

56

The Malaysian Insider, 22 August 2010, http://www.themalaysianinsider.com/malaysia/article/asri-sees-no-wrong-in-praying-for-leaders-well-being57

The Nut Graph, 7 June 2009, http://www.thenutgraph.com/pas-wants-sisters-in-islam-investigated/


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2009, several SIS members were even called up by the police for investigation.58

Notwithstanding such investigations against it, SIS has been steadfast in its efforts

and has continued to voice its concern, resulting even with the youth arm of PAS

condemning SISs actions.

59

2.1.5.8 SIS has also come under fire for the use of Islam in its name. Then Pakatan RakyatMP for Kulim-Bandar Baru, Zulkifli Noordin (now an independent), called on the

Companies Commission of Malaysia (CCM) to stop SIS from using the word Islam in

its name as it implied that the group spoke on behalf of Islam. However, CCM stated

that it cannot do so as companies are not restricted from using the word Islam in

their name.60

In a statement by Prof Dr Mohammad Hashim Kamali, who heads the International

Institute of Advanced Islamic Studies (IAIS) Malaysia, he expressed his concern that

instead of criticising SIS so heavily, PAS should instead offer guidance (nasihat) in the

spirit of Islam and not ridicule. He also acknowledged that SIS has been involved in

some praise-worthy undertakings though some minor adjustments may be

necessary to make the organisation more effective.61

2.1.6 Right to Profess Observation and Remarks2.1.6.1 The two years under review saw continuing reports of Muslims who, having

converted out of Islam, proceeded to seek declarations from the civil courts that

they were no longer Muslims and were entitled to change their religious status. In

most cases, their application was unsuccessful because of the civil courts declining

jurisdiction to hear the cases and leaving the Syariah court to decide such matters.

This is a disturbing developing trend. As with previous years, the commission views

58Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat Malaysia (SUARAM), p 119

59Utusan Malaysia, 21 February 2010,

http://www.utusan.com.my/utusan/info.asp?y=2010&dt=0221&pub=Utusan_Malaysia&sec=Dalam_Negeri&p

g=dn_05.htm60

The Star, 19 June 2009,http://thestar.com.my/news/story.asp?file=/2009/6/19/nation/4154542&sec=nation61

The Star, 21 June 2009, http://thestar.com.my/news/story.asp?file=/2009/6/21/focus/4166071&sec=focus


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such a position as untenable and represents a further curtailment of the

constitutional rights of citizens to freely choose and profess the religion of their

choice.

2.1.6.2 The reported cases of Siti Fatimah and Mohammad Shah do not reflect the ongoingtrend in these conversion cases. An analysis of these cases reveals that these

individuals had overwhelming evidence before the Syariah Court that they were

either not a Muslim or a practising Muslim. As with the previous years, there were

no reported cases of Malay Muslims who wanted to leave the religion of Islam by

way of a declaration from the Syariah Court. It is doubtful whether a Syariah court,

even with overwhelming evidence of non-practice of the Islamic religion, would

allow a Malay Muslim to convert out of Islam with an order of declaration that he or

she is no longer a Muslim.

2.1.6.3 Concerning individuals who wish to convert out of Islam and who are now seekingrecourse at the Syariah courts as opposed to the civil courts, the commission is of the

view that it is still too early to say whether such an approach is deemed acceptable

as a long-term solution. If at all, the cases on conversion seem to suggest that the

Syariah Court is reluctant to allow Muslims to convert out of Islam with an order of

declaration that they are no longer Muslim, unless confronted with overwhelming

evidence to the contrary.

2.1.6.4 The commission notes the rather disturbing trend involving spouses who haveconverted to Islam who will usually apply to the Syariah court for custody of their

children often without the knowledge or letting the unconverted spouse know. In

such cases, the children will also get converted to Islam without the consent or

permission from the unconverted spouse. This state of affairs presents grave

injustice to the unconverted spouse since the custody and subsequent conversion of

the children to Islam is done without the input, consent and permission of the

unconverted spouse as he or she has no recourse to the Syariah courts. The

unconverted spouse being non-Muslim in such cases is therefore deprived of his orher rights to determine the religion of their children.


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2.1.6.5 The commission wishes to state that this precedent is likely to present one party inmatrimonial disputes the opportunity to take advantage of the other in gaining

custody of children where it would be difficult for them to do so in civil proceedings.

This is an extremely unhealthy trend given that the legal mechanism has been used

and abused to further the ends of individuals against the rights of others.

2.1.6.6 This predicament has been recognised by the Cabinet when they decided that theright place to dissolve a marriage in the event of a spouse converting to Islam is the

civil courts. It also decided that if either spouse were to convert to Islam, the children

should follow the faith that the parents had agreed on at the time of marriage.

However, attempts to amend the law to reflect this decision were held back when

the Conference of Rulers decided that such amendments must be referred to the

state religious authorities first. With no further news or development on this matter,

the problem still persists.

2.1.6.7 The commission also notes the injustice that is manifested when non-Muslims areunable to apply for their MyKads because one parent is Muslim and the other not.

The concern here is that such people will be regarded as Muslim and forced to use

Muslim names in their MyKad when in actual fact they have never practised Islam or

lived as a Muslim. Such an unhealthy practice by the National Registration

Department goes against the rights of individuals to choose and determine the

religion of their choice.

2.1.6.8 In relation to this, the commission views with alarm the report that a handful ofnative children have had their ethnic identity classified as Malay instead of the

usual Dan Lain-Lain. Although the report gives the appearance of the incident as an

isolated case, it is possible such cases may be more wide spread. It reflects a

systemic progression of ongoing Islamisation of native people, thereby depriving

them of the right to freely choose the religious status of their choice.


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2.1.6.9 As with the previous year, the commission reiterates the position that civil courts areusually not prepared to and have declined jurisdiction to hear the grievances of non-

Muslims in cases where one party has converted to Islam or where the religious

status of a person is questioned. The trend seems to suggest that the civil courts are

now more inclined to allow the Syariah court or the Islamic religious authorities to

determine the status of whether a person has converted to Islam or not. This has led

to grave uncertainties and in most cases, led to injustice for such non-Muslims.

2.1.6.10The commission therefore calls on the civil courts not to abdicate their constitutionalrole as the third independent institution of the state, being the judicial arm of

governance in a democratic nation, and to acknowledge the constitutional nature of

the matter and the serious denial of remedies in clear cases of breaches of

fundamental rights and guarantees to religious liberty. The commission calls for a

change in judicial attitudes from that of reticence to one of dutiful performance by

the judiciary to preserve, protect and defend the Constitution before Malaysians

fundamental rights to religious liberty are further eroded.

2.1.6.11The commission further calls on the governing authorities to recognise the plight ofthose who are innocent and the grave injustice against them in such situations. This

commission would wish to see a change in judicial attitude in that the civil courts

should not abdicate their duty to administer the law of the land despite claims of

jurisdiction by Islamic authorities where jurisdiction rightfully resides in the civil

courts. They should be rigorous in ensuring that the twin pillars of the Rukun Negara,

the supremacy of the Constitution and Rule of Law, are upheld.

2.1.6.12This commission affirms the stand taken in previous reports that the right to convertout of a religion, including that of a Muslim to leave the religion of Islam, is a

fundamental human right recognised by Article 11 of the Constitution. This right is to

be exercised by the individual, and to do so, he needs no approval or permission

from any authority. Any law or administrative directive that requires him to apply for

approval or permission to leave a religion is a violation of his right under Article 11.Similarly, any law or administrative directive or action that refuses to recognise the


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exercise of this right by an individual and requires prior approval from some

authority is a violation of his right under Article 11.

2.2 Right to Practice2.2.1 Demolition of Non-Muslim places of worship

In a report on 17 September 2010, a church building in Pos Pasik in the interior of

Kelantan was at risk of being torn down (as was the church in Kampung Jais, Gua

Musang). Construction of the church was about 70% completed when it was issued

stop-work orders via a letter from the Jabatan Hal Ehwal Orang Asli (JHEOA). In the

letter dated 9 August 2010, the JHEOA had written to the village chief, Setmen Bin

Belungei, informing him that the application to build a church was not approved but

had failed to provide any explanation for it.62

2.2.2 Non-Muslim Societies Banned in Schools2.2.2.1 In early July 2010, the Klang High School received a note from the Selangor Education

Department, stating that the Kelab Agama Hindu, Kelab Agama Buddha and the

Christian Union, which had been in existence since 1969, had to be dissolved

immediately. The directive was purportedly made after the newly-appointed senior

assistant in charge of the schools co-curricular activities wrote to the department,

allegedly instructed by the school principal, to check if all its societies had been

approved. An announcement of the dissolution of these non-Muslim societies was

made at the school assembly. Their plight was highlighted in Citizen Nades column

in The Sun based on complaints from parents.63 It was later found that SMK SS17 in

Subang Jaya, Selangor, had without warning ordered the schools Buddhist Society

and Christian Fellowship to stop holding meetings and carrying out religious activities

in January 2009 on the grounds that they were not registered with the state

62The Malaysian Insider, 19 September 2010, Jungle church in Kelantan faces demolition,

http://www.themalaysianinsider.com/malaysia/article/jungle-church-in-kelantan-faces-demolition/, Lastaccessed 30 January 201163

The Sun, 12 July 2010, http://www.thesundaily.com/article.cfm?id=49301


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Education Department. The two non-Muslim religious clubs had been running for

nearly 15 years since the school was established, but were suddenly ordered to

disband.64

Apparently, there was a circular dated 16 December 2000 issued by the former

director-general Dr Abdul Shukor Abdullah in 2000 which set out guidelines on

forming non-Muslim religious societies in schools. The circular quotes Rule 4 of the

Education Regulations (School Associations) 1998, under Section 130 of the

Education Act 1996, which states that the headmaster or principal of a school is to

form societies according to these categories: (i) subjects taught in school; (ii) hobbies

and recreations; (iii) sports and games; (iv) uniformed bodies; (v) any other societies

approved by the Registrar. Thus, the Registrar, who is the state education director,

has the power to approve any other societies that does not come under the first four

categories. However, the circular specifically says the status quo is maintained for

schools which already have non-Muslim religious societies. It also states that the rule

only applies if there are students or teachers who want to form new religious

societies. In other words, school clubs formed before the date of directive were

exempted.

On 24 July 2010, the Education Minister (who is also the Deputy Prime Minister)

Muhyiddin Yassin gave an assurance that non-Muslim societies that had been in

operation before the year 2000 in schools would not be shut down. Subsequently,

the Deputy Education Minister Wee Ka Siong said that only those which came into

existence after that directive need to obtain the necessary approval from the

respective state education departments before they can take in members.

Following public outcry over the closure, Alimuddin Dom, director-general of

education, reportedly said that the directive was a misunderstanding by the

Selangor Education Department and ordered a reinstatement of the affected

64Sin Chew Daily, 26 July 210, http://www.mysinchew.com/node/42396?tid=14


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religious clubs. In fact, the two schools which were directed by the Selangor State

Education Department to dissolve their non-Muslim societies have since reinstated

them.65

2.2.3 Banning of Books on Religion (Banning of Religious Literature)2.2.3.1 In 2009, 15 out of 20 books banned by the government were religious materials.66

2.2.3.2 In March 2009, 5,000 copies of the Malay-language Bible were confiscated, and inSeptember 2009, 15,000 copies imported from Indonesia were held by the

authorities for the use of the word Allah, on the basis that they were prejudicial to

public order.67

2.2.3.3 On 16 February 2009, an order entitled Internal Security (Prohibition on Use ofSpecific Words on Document and Publication) Order 2009 allowing the use of the

word Allah, Kaabah, Baitullah and Solat in the publication of the Roman

Catholic newspaper, The Herald, was gazetted by the government, subject to the

condition of the words For Christians only on the publication.68

This was short

lived, however, as the government rescinded the gazette on 28 February 2009, due

to a purported mistake in enacting the gazette, resulting in the reinstatement of the

previous ban until otherwise decided by the court.69

2.2.3.4 In a statement by the Home Ministry, Deputy Secretary-General Ahmad Fuad Ab Azizsaid the ministry gave its guarantee that no action would be taken on the 5,100copies ofAl-Kitab Berita Baikcurrently in the possession at its Port Klang branch until

65The Sun, 12 and 13 July 2010; The Star, 14 July 2010; The Malaysian Insider, 24 July 2010;

Star Online, 24 July 2010; also ref: http://www.compassdirect.org/english/country/malaysia/23949/66


Malaysiakini, 29 October 2009; The Star, 4 November 2009; Malaysia Human Rights Report 2009 (Civil &

Political Rights), Suara Rakyat Malaysia (SUARAM), p 12268

Background and facts of case, ref: Religious Liberty Report 2007 para 2.3.2.3 and Religious Liberty Report

2008 paras 2.3.1.5 and 2.3.1.6.; Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara RakyatMalaysia (SUARAM), pp 122 - 12369



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the court judgment on the Allah issue was handed down.70

The ministry, he added,

was still studying theAl-Kitab case, which involves the Malay-language Bible printed

in Indonesia. He went on further to explain that the release ofAl-Kitab in Sarawak

was allowed due to a different set of circumstances because it involved an

Indonesian version which had been in use for years in the state. The Bible Society of

Malaysia had written an appeal to the ministry over the confiscation but not

received any reply.

2.2.3.5 On 4 May 2009, Justice Alizatul Khair Osman granted leave to Jill Ireland LawrenceBill, 27, to initiate judicial review proceedings to seek three reliefs from the court. Jill

Ireland challenge the Home Ministry's decision to confiscate eight compact discs

(CDs) of Christian religious teachings containing the word "Allah" from her when

she disembarked at the Low Cost Carrier Terminal (LCCT) in Sepang on

11 May 2008. The CDs containing titles including "Cara Menggunakan Kunci Kerajaan

Allah, Cara Hidup Dalam Kerajaan Allah and Ibadah Yang Benar Dalam Kerajaan

Allah" ("The way to use the keys to the kingdom of Allah (SWT) ", and, "True worship

in the kingdom of Allah (SWT)") were brought in from Indonesia.

These CDs were seized by the Home Ministry under section 9 (1) of the Printing

Presses and Publications Act 1984. Jill, a Sarawakian native of the Christian faith,

claimed that she used the word "Allah" in her prayers, worship and religious

education. She claimed that she used both Bahasa Malaysia and the Bahasa

IndonesiaAl-Kitab which uses the word "Allah". She wants an order of certiorari to

quash the ministry's decision to confiscate the CDs, an order of mandamus to direct

the ministry to return the CDs to her and a declaration that she has the legitimate

expectation to exercise her right to possess, use and import publications containing

the word "Allah".71

70

The Star, 15 May 2010,http://thestar.com.my/news/story.asp?file=/2010/5/15/nation/6269635&sec=nation71

New Straits Times, 5 May 2009; The Star, 5 May 2009


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As of 12 October 2010, the The Starreported that (now former) Home Minister Syed

Hamid Albar had been ordered to file an affidavit-in-reply to Jills application which

questioned him over the seizure of the eight compact discs.72

The case is ongoing.73

2.2.3.6 On 8 January 2009, the publisher of the Catholic weekly The Heraldreceived a letterdated 7 January 2009 from the Home Ministry retracting its earlier letter dated

30 December 200874

and approved the publication permit for the period from

1 January 2009 until 31 December 2009 on the conditions that the word "Allah" was

not used until the matter was settled in court and the word "Limited" (Terhad) be

endorsed on its front page to mean that it must be circulated only to Christians. 75

The publisher of The Herald sought leave, inter alia, for an order of certiorari to

quash the decision of the Home Ministry on 7 January 2009 and for several

declarations.

On 31 December 2009, the High Court quashed the Home Ministers prohibition

against the use of the word Allah in its publication, stating that the prohibition was

illegal, null, and void. Justice Lau Bee Lan held that the right to use the word

Allah in The Herald was a constitutional right, and that the Constitution did not

empower the minister to make such a prohibition. Justice Lau further ruled that the

Respondents (the Home Minister and the Government of Malaysia) had throughout

72The Star, 12 October 2010,

http://thestar.com.my/news/story.asp?file=/2010/10/12/courts/7203279&sec=courts73The Malaysian Insider, 10 May 2012, http://www.themalaysianinsider.com/litee/malaysia/article/christian-

fails-in-bid-to-quiz-syed-hamid-over-allah-cd-ban/

In July 2011, the High Court dismissed Jills application to cross-examine former Home Minister Syed Hamid

Albar for issuing orders to confiscate her religious CDs. On 10 May 2012, the Court of Appeal upheld the High

Courts decision to dismiss the application to cross-examine the minister but allowed the appeal to extend to

guidelines on how the religious body decided to ban the word "Allah".74

In the January 2009 issue, The Heraldinformed readers that on 30 December 2008 (the eve of the expiry of

its publishing permit for that year) the Home Ministry prohibited the printing of the Bahasa Malaysia section

until the case is resolved by the High Court. Ref: Catholics Pray In Wake Of Battle Between Church Weekly

And Government Over Use Of Allah at http://www.ucanews.com/2009/01/19/catholics-pray-in-wake-of-

battle-between-church-weekly-and-government-over-use-of-allah/75

Background and facts of case, ref: Religious Liberty Report 2007 para 2.3.2.3 and Religious Liberty Report2008 paras 2.3.1.5 and 2.3.1.6.; Malaysia Human Rights Report 2009 (Civil & Political Rights), Suara Rakyat

Malaysia (SUARAM), p 123


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the trial failed to prove how the use of the word Allah posed a threat to national

security. The learned judge also found that the historical facts relating to the use of

the word Allah by Christians had not been disputed or challenged by the Home

Minister and the Government of Malaysia as factually incorrect. The Home Minister,

in exercising his discretion to impose further conditions in the publication permit,

had failure to take into account these relevant matters and hence committed an

error of law that warranted the courts intervention by quashing the Home

Ministers decision on 7 January 2009. In regard to Section 9 of the various State

Enactments which provide for an offence relating to the use of certain words and

expressions, including the word Allah,76

the learned judge held that the correct

way of approaching Section 9 of these State Enactments was to read it together with

Article 11 (4) of the Federal Constitution. The result will be that a non-Muslim could

be committing an offence if he uses the word Allah to a Muslim but there would be

no offence if it was used to a non-Muslim. Article 11 (4) of the Federal Constitution

and the preamble to the State Enactments reinforce this position.77

The Home Minister, Hishammuddin Hussein, said that they would appeal against the

decision.

On 3 January 2010, 13 non-governmental organisations (NGOs) protested in Kuala

Lumpur against the use of the word "Allah" in The Herald. Among the NGOs that

participated in the protest were Majlis Permuafakatan Ummah, Pertubuhan Pribumi

Perkasa and Malaysian Indian Muslim Congress. In George Town, a crowd of about

76Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1980 (State of Terengganu),

Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1981 (State of Kelantan),

Control and Restriction of the Propagation of Non-Islamic Religions To Muslim Enactment 1988 (State of

Malacca), Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1988 (State of

Kedah), Control and Restriction of the Propagation of Non-Islamic Religions Enactment 1988 (State of Perak),

Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 (State of Selangor), Control

and Restriction of the Propagation of Non-Islamic Religions Enactment 1989 (State of Pahang), Control and

Restriction of the Propagation of Non-Islamic Religions Enactment 1991 (State of Johor), Control and

Restriction (The Propagation of Non-Islamic Religions Amongst Muslims)(Negeri Sembilan) Enactment 1991

and Control and Restriction of the Propagation of Religions Doctrine and Belief which is contrary to the

Religion of Islam Enactment 2002 (State of Perlis).77 For Justice Lau Bee Lans full judgment, ref: Titular Roman Catholic Archbisho of Kuala Lumpur v MenteriDalam Negeri & Anor[2010] 2 MLJ 78; [2010] 2 CLJ 208.


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250 people gathered in front of the Penang High Court at Lebuh Light on the same

day to show their unhappiness against the courts decision in The Heraldcase.

On 4 January 2010, the Home Ministry filed an appeal with the Court of Appeal

against the Kuala Lumpur High Courts ruling that the word "Allah" can be used by

The Herald. On 5 January 2010, they filed for a stay of execution against the said

order pending the appeal.

The Heraldwebsitewas hacked three times after the landmark High Court decision.

On 7 January 2010, the Malaysian Judiciarys website, too, was hacked and defaced

with its homepage substituted with a threat to not pursue The Heralds use of the

word Allah.

2.2.3.7 On 8 January 2010, after Friday prayers, protests took place in Kuala Lumpur (threecases), Selangor (four), Pahang (two), and Terengganu (one).

On 8 January 2010, there were arson attacks on three churches in the Klang Valley.

In the first incident, the ground floor of the three-storey Metro Tabernacle Church in

Desa Melawati, Kuala Lumpur was badly damaged.78

Two similar attacks (on the

Assumption Church in Jalan Templer and the Life Chapel Church in Section 17,

Petaling Jaya) a few hours later were unsuccessful. Meanwhile, false SMS messages

were spread stating Please remove all rosaries and all religious articles from your

cars now. They are smashing cars. Started all over Bangsar. Protests going (on) now

and going to Shah Alam.

On 9 January 2010, there was a fourth arson attack on a church. This attack scarred

the outside wall of the Good Shepherd Lutheran Church in Jalan Othman, Petaling

78The Star, 8 January 2010,

http://thestar.com.my/news/story.asp?file=/2010/1/8/nation/5435794&sec=nation


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Jaya.79

On the same day, the Federal Government gave a grant of RM500,000 to the

Metro Tabernacle Church to help it to relocate.80

On 10 January 2010, two cases of attempted arson were reported involving a church

and a school in Taiping, namely the All Saints' Church at Jalan Taming Sari and SMK

Convent along Jalan Convent. The staircase leading to the Taiping church was slightly

burned while the Molotov cocktail thrown into the school failed to explode.

In Malacca, black paint was splashed on the outer wall of the Malacca Baptist Church

in Durian Daun. On the same day, the windows of Good Shepherd Church at Lutong,

Miri were smashed with stones.81

On 11 January 2010, the Sidang Injil Borneo (SIB) church at Lake View Square,

Seremban 2, Negri Sembilan, became the eighth church attacked when scorch marks

were found on its main entrance door.82

On 12 January 2010, a Sikh temple at Sentul, Kuala Lumpur namely Sentul Gurdwara

became the target. The corner of a mirror was smashed by stones.

On 14 January 2010, St Elizabeth Catholic Church at Kota Kecil, Kota Tinggi, Johor was

splashed with red and brown paint.83

On 19 and 20 January 2010, eight men, aged between 21 and 26 years, were

arrested in connection with the arson attack at the Metro Tabernacle Church in Desa

Melawati. The suspects include two brothers, their uncle and a group of their



The Star, 10 January 2010,





http://thestar.com.my/news/story.asp?file=/2010/1/12/nation/5450289&sec=nation83The Star, 14 January 2010,

http://thestar.com.my/news/story.asp?file=/2010/1/14/nation/20100114124758&sec=nation


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friends, comprising mainly despatch riders, office boys and clerks.84

Subsequently,

three of them were charged with causing mischief by fire by torching the Metro

Tabernacle Church. The charge read "mischief by fire or explosive substance with

intent to destroy a house" under section 436 of the Penal Code and when read

together with section 34 of the same Code, carries a maximum imprisonment of 20

years and a fine upon conviction.

On 30 July 2010, Azuwan Shah Ahmad, 23, who was jointly charged with committing

the offence, was acquitted and discharged without his defence being called.85

On 13 August 2010, the Kuala Lumpur Sessions Court sentenced despatch rider Raja

Mohamad Faizal Raja Ibrahim, 24, and his brother Raja Mohamad Izham, 22, a bank

employee, to five years' jail each after finding them guilty of torching a church in

Desa Melawati. Judge SM Komathy Suppiah did not accept the claim that the

brothers had sustained burns at a barbecue on the night of the arson. However, the

judge granted a stay of execution of the sentence pending an appeal and allowed

them a bail of RM20,000 each.86

2.2.4 Ridiculing other Religion(s)2.2.4.1 On 8 July 2009, two parishes of the Cathedral of the Holy Spirit Church in Penang

lodged a police report at the Patani Road police station in Penang over an article

Tinjauan Al Islam Dalam Gereja: Mencari Kesahihan Remaja Murtad which was

published in the May 2009 issue ofAl Islam. The magazine is published by UtusanKarya Sdn Bhd.



The Star, 30 July 2010,


The Star, 13 August 2010,

http://thestar.com.my/news/story.asp?file=/2010/8/13/nation/20100813111652&sec=nation;The Star, 14 August 2010,

http://thestar.com.my/news/story.asp?file=/2010/8/14/courts/6858618&sec=courts


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In the article, the Muslim journalist reported that he, being accompanied by another

person, went "undercover" for mass at the St Anthonys Church at Jalan Pudu, Kuala

Lumpur on an investigative mission to find out if allegations that young Muslims

were being converted to Christianity were true. Disguised as Catholics, they took

part in receiving the Holy Communion and actually spat the wafer out, an act

Catholics consider as desecration. They then photographed the expelled communion

wafer and had the images published inAl Islam.

Police reports were lodged against the journalists and the magazine and they were

investig

Report on the State of Religious Liberty in Malaysia for 2009 & 2010

Documents