The Book of Prof Shad.docx

The case also distinguished between beliefs and

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practice (like wearing purdah) is not protected by Article 11. The case also distinguished between beliefs and practices. Beliefs are personal but practices may be regulated in the interest of society. The court went on to hold that the conduct of a public servant can be regulated in order to safeguard and protect government secrets and government interests (which concepts the court broadly equated with public order). In Zakaria Abdul Rahman v Ketua Polis [2001] 3 MLJ 385 it was affirmed that freedom of religion extends to only those practices and rituals that are essential, mandatory and integral to the religion and does not cover practices that are non-essential and optional. A police regulation requiring a member of the force to obtain prior permission before contracting a polygamous marriage was held not to be in violation of Article 11(1) because a polygamous marriage is merely permissive and not obligatory in 44 Schedule 9 List I Paragraph 1 45 See e.g. PP v Krishnan a/l Muthu, Magistrate’s Court Case No MA-83-146-2002 46 For judicial definitions of public order see Halimatussadiah v PSC [1992] 1 MLJ 513 and Re Tan Boon Liat [1976] 2 MLJ 83, 86. 47 Ahmad Yani Ismail v Ketua Polis Negara [2004] 5 AMR 571 56
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Islam. In Meor Atiqulrahman Ishak v Fatimah bte Sihi 48 the High Court, in clear disagreement with Halimatussaadiah , held that the constitutional freedom extends to practices (like wearing a serban ) which, though not mandatory, are part of the religious tradition. On appeal to the Court of Appeal this view was overruled and the distinction between mandatory and optional practices was upheld: [2005] 2 MLJ 25. On further appeal 49 , Abdul Hamid Mohamad, FCJ clarified that: ‘The integral part of the religion’ test is important but cannot be relied on exclusively. In some circumstances what is merely commendable and not mandated may, nevertheless, be protected. In other circumstances what may be mandatory, may have to be restricted. Other factors that are equally important are whether the prohibition is total or partial, temporary or permanent; and what the circumstances are under which the prohibition was made. All factors should be considered. The power to make the ultimate decision rests with the court. The learned judge disapproved of the appellant’s view “that anybody has a right to do anything, any time, any where which he considers to be a practice of his religion, no matter how trivial. The only limit is clause (5)”. By rejecting a strict construction of Article 11(5), the learned judge left the scope of freedom under Article 11(1) and the reasonableness of the restriction to judicial discretion. In the end he ruled that the impugned School Regulation 1997 was not unconstitutional. State power over Muslims: In addition to the restrictions permitted by Article 11(5), all Muslims are subjected to additional restraints under Schedule 9 List II Paragraph 1. This paragraph permits State Assemblies to create and punish offences by persons professing the religion of Islam against the precepts of that religion. 50
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