The Book of Prof Shad.docx

First the provision forbids compulsion but a person

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First, the provision forbids compulsion but a person is not prevented from voluntarily participating in other people’s religious activities. Second, the term “religion” in Article 12(3) and elsewhere in the Constitution seems, at least in the case of Muslims, to refer to “the formal religion one is born into”. 38 With Islamisation in full swing since the 80s (and the claim since 2001 that Malaysia is an Islamic state) doubts have arisen about whether freedom of belief is available to Muslims. A number of laws have been enacted that criminalize apostasy and other beliefs or conducts that are regarded as sinful under the syariah. In Kamariah bt Ali v Kerajaan Negeri Kelantan [2002] 3 MLJ 657 the judge implied that Article 11 should not be interpreted so broadly as to vitiate legislation in the name of Islam that imposes duties and prohibitions on Muslims. 53
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Individuals born into a religion seem to have no choice to choose cults or systems of belief other than those approved by the official religious authorities. That is why there is punishment for “deviants”. 39 Third, the protection of the Constitution applies against instruction in a religion other than one’s own. There is no right to refuse instruction in one’s own religion. In Noorliyana Yasira Mohd Noor lwn Menteri Pendidikan Malaysia [2007] 5 MLJ 65 the applicant’s father had, on conscientious grounds, requested that the applicant be exempted from attending the Islamic religious class in school. The teachings in the Islamic religious class clashed with the beliefs and understanding of the applicant’s father and family. The applicant failed to attend the Islamic religion class; failed to take the Perkara Asas Fardhu Ain for her UPSR examination; and was awarded a failing grade. She applied for certiorari to delete the failing grade from her statement of result and for a mandamus to obtain a new statement of result. In refusing her application, the court largely avoided the constitutional issue of what constitutes “religion” and what constitutes “freedom of religion”. The court based its decision on the premises that (i) any one professing the religion of Islam had to study the Islamic studies subject, and (ii) a student in a state-run school, like the applicant, could not dictate what subjects or core subjects she wished to learn. This decision has far reaching implications for those who are born into a faith but who wish to renounce it or who have developed allegiance towards a non-official (often called “deviant”) version of the faith. Fourth, this Article forbids compulsory religious instruction in a religion other than one’s own for worship or ceremonial purposes. But if a religious doctrine is taught as a historical or civilisational study, that may be permissible under the Constitution. For example a course on `Humanities’ or on `Great Books of the Middle East’ may prescribe the holy books of various religions as compulsory reading in the syllabus.
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