The Book of Prof Shad.docx

Worship are re located suitable alternative sites

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worship are re-located suitable alternative sites should be allocated and the community affected should be heard. Decisions in which people participate are decisions they are likely to accept. Deviationists: From time to time there are criminal prosecutions of “deviationists”. These cases stoke the embers of controversy about the nature and scope of religious freedom in this country. It appears that in Malaysia the concept of ‘religion’ refers to established and ancient religions and excludes cults and sects with distinct philosophies and rituals of their own. Religious groups, whether Muslim or non-Muslim, that are not mainstream face severe scrutiny for “deviationist” activities. The law is particularly severe on Muslims who violate the basic precepts of their faith. As Islam is the religion of the federation and Malays are, by constitutional definition, required to be of the Muslim faith, they are liable to prosecution if their conduct is violative of Islamic precepts. No Muslim can lay a claim to opt out of syariah laws – the constitutional guarantee of freedom of religion notwithstanding. The notion that freedom to believe 51 Support for this view can be found in Dewan Undangan Negeri Kelantan v Nordin Salleh [1992] 1 MLJ 343 where an amendment to the State Constitution was invalidated because it violated Article 10(1)(c). 52 Those who flouted the law on town and country planning should, however, be brought to book. 58
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includes the freedom not to believe is not accepted in Malay society and in national courts. Despite international norms to the contrary, the impact of local culture and beliefs is very considerable. A few observations are in order. First, history is replete with instances of innocent people being condemned as heretics and hounded to death. For this reason it is submitted that criminalisation of religious beliefs should be a matter of last resort. But it is understandable if a religious establishment, in order to safeguard the purity of its doctrine, resorts to ex-communication of people it regards as violators of the fundamental precepts of the faith. Such ex-communication should, however, be resorted to after giving to the accused a full and fair opportunity to explain his beliefs and behaviour. Second, it is conceivable that any law that criminalises “deviationist activities” may be challenged as violative of Article 11 of the Constitution which gives to every person, including a Muslim, the right to profess and practise his religion save to the extent that he/she does not endanger public order, public health or morality. Third, in the case of Muslims, however, the difficulty is that the freedom in Article 11 seems to be qualified by Paragraph 1 of the State List in the Ninth Schedule. State Enactments are permitted to create and punish offences by persons professing the religion of Islam against precepts of that religion.
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