The Book of Prof Shad.docx

In the religious milieu prevailing in malaysia today

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In the religious milieu prevailing in Malaysia today and with the claim that Malaysia is an Islamic state, State Assemblies have become emboldened to enact more and more laws to criminalise words, actions and beliefs that the Assemblies regard as sinful or criminal in Islam. Apostasy, deviationist conduct and any words or actions that insult Islam have become the subject of legislation. Doubts have grown about whether freedom of religious belief in Article 11(1) is available to Muslims. To many people, Article 11(1), in the case of Muslims, is subject to Article 3(1) and to the power of the States to punish 48 [2000] 5 MLJ 375 49 [2006] 4 MLJ 605 50 For an analysis of the reach and extent of this power see chapter 10. See also Shad Saleem Faruqi, “Jurisdiction of Federal and State Authorities to Punish Offences Against the Precepts of Islam: A Constitutional Perspective” INSAF , (2005) XXXIV No. 1, pp. 67-104 57
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Islamic crimes. In Kamariah bt Ali v Kerajaan Negeri Kelantan [2002] 3 MLJ 657 the judge ruled that Article 11 should not be interpreted so broadly as to vitiate legislation that imposes duties and prohibitions on Muslims. In other words the judge implies that the fundamental right in Article 11 is subordinate to the legislative power of the States in Schedule 9, List II Paragraph 1. This is an exceptional view. Around the world legislative lists are subject to fundamental rights. It is not fundamental rights that are subject to the legislative lists. 51 Planning permissions: There is a right in Article 11(3)(c) to acquire and own property and to hold and administer it. However, this is subject to local authority laws on planning permission. Delay in the grant of planning permissions has often given rise to complaints. There is also the world-wide phenomenon of places of worship constructed without the requisite planning permission or in trespass of state rights over its land. This often leads to orders for relocation and, on some occasions, to controversial moves to demolish the illegally built shrines. Establishing a place of worship is not only of spiritual but also of tremendous economic significance to the owners. Hence the temptation to side-step the law on trespass and planning permission. To tackle the incidence of illegal places of worship and the uproar that their demolition invariably causes, legal and political moves are needed to require that all places of non-Muslim worship should register with a National Registry. Muslim places should continue to register with their State authorities. An impartial and multi-religious adjudicatory mechanism should be established to resolve disputes over registration. Illegally constructed religious sites should be given the option to move to alternative sites. 52 Land reservations should be made in all townships for places of worship of all major religions in addition to the constitutional guarantees of Articles 11(3) and 12(2). No demolition should take place without a proper public enquiry and consultation with the affected community. Before any registered places of
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