The Malaysian Bar's International Malaysia Law Conference ("IMLC") 2018 is taking place from 14 to 17 Aug 2018 at The Royale Chulan Kuala Lumpur.
by Andrew Khoo, Bar Council member and Co–Chairperson, Bar Council Constitutional Law Committee
The United Nations Special Rapporteur on Freedom of Religion or Belief, Dr Ahmed Shaheed, kicked off the Freedom of Religion and the Freedom to Manifest One’s Religion: Balancing the Scales of Secularism plenary session by asking whether it is possible to balance the right to manifest one’s religion on the one hand, and secularism on the other. Does a commitment to secularism mean a privatisation of one’s faith? Put in a slightly different way, he takes the view that freedom from religion is not the same as secularism. Choice is the essence of freedom of religion, so that choice must encompass freedom from religion.
Article 18 of the Universal Declaration of Human Rights, which provides for freedom of religion, is undergirded by the absence of coercion. Thus there should be no pressure to manifest one’s religion. Any pressure to manifest religion has to be considered from the perspective of impairment of the right to freedom of religion or belief — whether the threshold of coercion negatively affects the right to freedom of religion or belief. If it does, then that is contrary to international law.
Dr Shaheed also spoke about the existence of anti–conversion and anti–blasphemy laws. If these prevent choice, or prevent variations of belief, then they too are contrary to international law. In terms of restrictions, laws that require non–manifestation, or manifestation only in certain ways, have to be measured against the provisions of Article 18 of the International Covenant on Civil and Political Rights (“ICCPR”), which allow for restrictions to be imposed for the five specific reasons enunciated in Article 18(3) of the ICCPR: public safety, public order, public health, public morals, or fundamental rights and freedoms of others.
In addition, limitations have to survive three tests: (1) legality — having been prescribed in law or having a legal basis; (2) necessity; and (3) proportionality — being the least restrictive measure possible. In addition, such limitations must not discriminate and must not destroy the very rights that are to be upheld.
Dr Shaheed shared that there is a corollary ongoing debate between the right to believe and whether that is an internal or private matter (forum interna), and the right to manifest and whether that is an external or public matter (forum externa). He admitted that it may be difficult to distinguish between the two. For example, a conscientious objection to war; the refusal to swear an oath; the wearing of a turban, headscarf or other headdress; the refusal to eat non–halal food — are these types of issues born of a private belief, or public act of manifestation? He pointed out that the jurisprudence on this is divided, with decisions by the European Court of Human Rights (“ECHR”) differing from that of the Human Rights Committee (“HRC”) established under the ICCPR. The ECHR tends towards allowing rights to be restricted, whereas the HRC does not. There were also attempts by the ECHR to decide these questions, not on the basis of freedom of religion or belief, but as issues of freedom of expression or the right to privacy, which offer greater room for restriction. This too is disagreed with by the HRC.
In cases where there is pressure to adopt a certain style of dressing, such pressure seems to justify banning it. This also includes the public wearing of religious symbols, as it raises questions about the creation of pressure on others. This goes to the existence of underlying secular ideals, in which case religious symbols challenge the public order. But this begs the question whether secularism should be allowed to do this, and whether such acts of manifestation threaten the rights or freedoms of others. Such cases, Dr Shaheed feels, should be addressed by reference to actual evidence.
In the ECHR, the principle of margin of appreciation has been used to allow for each country to have a degree of variance and flexibility. However, Dr Shaheed is of the opinion that the best situation is when the State is not involved in religion at all, and adopts a policy of cooperation and accommodation for all religions. He also noted that Article 20 of the ICCPR has been invoked, in some situations, to prevent incitement to hatred.
In the first response, Member of the Malaysian Bar Dato’ Sri Jahaberdeen YM Mohamed Yunoos spoke from his personal Quranic perspective. For him, freedom of religion or belief is an important issue and central to his faith as a Muslim. He outlined two positions in Malaysia: the first being where religion is a personal matter and where there is absolute freedom of religion; and the second, where matters of faith are delegated to religious individuals or institutions to interpret. In his view, faith is not a delegable matter. There is no concept of “clergy” in Islam to which interpretation of religious texts can be delegated, and any religious disputes would be resolved by God in the afterlife. He also pointed out that compulsion in religion is always demanded by the ignorant, the jahiliyyah.
He referred to the precepts of Islam as a big “time bomb”, in that whilst Islam has no clergy, yet there is a group of “clergy–like” persons who interpret what these precepts involve, and impose their interpretation on others.
Suri Kempe, Programme Manager of Musawah, said that we are stuck in a state of paralysis when discrimination is justified on religious grounds. Islam is a source of law in Malaysia, and there is no separation of State and religion, or religion and politics.
Amongst the areas of discrimination that she highlighted were what the lesbian, gay, bisexual, transgender, intersex, and questioning (“LGBTIQ”) community face; female genital mutilation; rights upon divorce; and regulations on crossdressing. Some of this discrimination is applied through local authority by–laws, and affect everyone, not just the Muslim community. Women have no authority to speak about Islam, and the laws as interpreted by men are treated as immutable. Organisations such as Sisters in Islam, which holds contrarian views, are declared deviant, and their opinions censored. She called for the legitimisation of voices based on lived experiences. After all, the concept of fiqh — Islamic jurisprudence — is a human, not divine, endeavour.
The last respondent was Lim Heng Seng, also a Member of the Malaysian Bar, who provided the audience with detailed information on issues of religious tensions and conflicts current in Malaysia. He drew attention to court decisions and government policies that favour Islam at the expense of other faith communities. He also spoke about the lack of plurality in the way in which Islam is practised in Malaysia at the instance of the Government and religious authorities. He said this does not bode well for freedom of religion or belief in Malaysia.
Datuk Hj Kuthubul Zaman Bukhari, past President of the Malaysian Bar (2003–2005) and Chairperson of the Bar Council Syariah Law Committee, moderated the session.
here for more news about IMLC 2018.