| HRC Responds: Glad for Tan, cautious optimism for the future |
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| Friday, 23 May 2008 11:22am | |
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Contributed by the Human Rights Committee
The law on freedom of religion Under our Federal Constitution and international human rights law, freedom of thought, conscience and religion cannot be restricted in the sense that the State cannot interfere with what is inside one’s mind or heart. Article 11(1) of the Federal Constitution guarantees that “every person has the right to profess and practise his religion”. This right is given to “every person” both Muslim and non-Muslim. Our Constitution envisages only two situations where freedom of religion may be curtailed: • Under Article 11(4), the right to propagate a religion amongst “persons professing the religion of Islam” may be controlled by State law or by Parliament (in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya). • Under Article 11(5), the guarantee of freedom of religion “does not authorise any act contrary to any general law relating to public order, public health or morality”. International human rights law is in a sense even stricter. It too does not permit restrictions on the freedom of thought, conscience or belief per se. There is only one permissible restriction, contained in Article 18(3) of the International Covenant of Civil and Political Rights 1966 which provides that the manifestation of religious belief “may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. Requirement to obtain the Syariah Court’s permission/consent contrary to law and human rights? The requirement for Tan Ean Huang to obtain permission or consent from the Syariah Court as an adjudicating body - which appears to stand as an external “third-party” to control or manage her personal or private beliefs - in order that she may profess and practise her religion of choice, appears to be an unreasonable fetter on her rights as guaranteed by the Federal Constitution and international human rights law. As reported, Tan stated that she did not profess and practise the religion of Islam but remained a Buddhist subsequent to her conversion. Given this, there is the unresolved primary issue of whether the Syariah High Court had jurisdiction over Tan. The Federal Court in Latifah bte Md Zin’s case makes it clear that Syariah courts are only vested with jurisdiction over matters expressly granted to them by State legislative assemblies. In Subashini’s case, the Federal Court was unanimous in holding that Syariah courts have no jurisdiction over persons who do not profess Islam as their religion. It is reiterated that the Federal Constitution grants the appropriate State legislative assembly the power to create Syariah courts, but such courts are only permitted to have jurisdiction over “persons professing the religion of Islam”. If Tan Ean Huang did not profess Islam as her religion when she made the application to the Syariah Court (as she says she professed Buddhism), it is doubtful if the Syariah Court could validly exercise jurisdiction over her. The Committee also cautions against the use of any form of coercion, duress, compulsion or threat to compel/discourage a person against/from renouncing a religion even if the same take the form or guise of rehabilitative measures or guidance/support techniques. Such actions violate the human rights principles of religious freedom. Urgent reforms necessary for lasting solutions Tan Ean Huang should now be allowed to live in peace in her chosen religion. However, for the benefit of others in her situation, it is imperative that State governments and the Federal Government urgently review and revise our Syariah administrative laws, which are laws enacted by State legislative assemblies and the Federal Parliament, in order to ensure that the same comply with constitutional guarantees and international human rights norms on freedom of religion. The Committee believes that urgent action is necessary to
clarify our laws so that there is some certainty for people caught in these
situations. As always, we are able and willing to assist in this regard. Comments (1)
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The Committee refers to The Sun’s 
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Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
Where can we get a copy of the judgment? And also Nyonya Tahir's judgment.
Thanks.
Catherine Choong Hor Kiow