The Book of Prof Shad.docx

Worded that it covers all proselytising activities

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worded that it covers all proselytising activities that are directed at Muslims whether by non-Muslims or unauthorised Muslims. 42 However, the primary purpose of this law is to protect Muslims against well- organised and well-funded international missionary activities. Harding believes that the restriction on proselytism has more to do with the preservation of public order and social harmony than with religious priority. 43 To this one may add that in the Malay mind the words `Islam’ and `Malay’ are often used interchangeably. In Malay society there is a fascinating and unique connection between race and 41 Mohamed Azam Mohamed Adil, “Law of Apostasy and Freedom of Religion in Malaysia” , Asian Journal of Comparative Law , Vol 2 Issue 1, 2007, p 20 42 Malays belong to the Shafie school of Sunni thought. If the Shias seek to proselytize the Shafies or Muslim groups like the Al-Arqam or Sky Kingdom seek to propagate their beliefs to the Malays, this could be subject to regulation under Article 11(4). All mosques are controlled by the State. Only officially appointed Imams are authorized to deliver sermons. 43 Andrew Harding, Law, Government and the Constitution in Malaysia , MLJ, 1996, p. 202 55
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religion. The defining characteristic of a Malay is that he is a Muslim. Any attempt to weaken a Malay’s religious faith is, therefore, perceived as an indirect attempt to erode Malay power. Conversion out of Islam would automatically mean deserting the Malay community due to the legal fact that the definition of a `Malay’ in Article 160(2) contains four elements. Professing the religion of Islam is the first, and perhaps the most important, element. In the years after the decision in Jamlauddin Othman, State after State enacted laws under Article 11(4) to ban or regulate propagation to Muslims. However, enforcement of these laws poses one constitutional difficulty. The law is a State law but cannot be enforced by the State syariah courts because syariah courts do not have any jurisdiction over non-Muslims. 44 The matter has to be tried by a Magistrate’s Court should a non-Muslim’s proselytising zeal violate a State law. 45 Article 11(5): Under Article 11(5) all religious freedom is subject to public order 46 , public health, and morality. 47 The exact scope of these permitted limitations has not been adequately examined What needs to be emphasised is that any legislative or administrative regulation of this freedom is justiciable. A law enacted under Article 11(5) must have a real and not fanciful or remote nexus with the permissible grounds. Non-mandatory practices: Does freedom of religion extend only to those practices and rituals that are essential and mandatory or does it also cover practices that are optional? In Halimatussaadiah v PSC [1992] 1 MLJ 513 a Muslim lady in government employment insisted on wearing purdah to office. The court distinguished between mandatory and optional religious practices. It held that a non-mandatory practice (like wearing purdah) is not protected by Article 11. The case also distinguished between beliefs
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