Report: Weak laws behind religious discrimination in Malaysia

Kenneth Tee
Malaysia’s treatment of the Shiah and Ahmadiyah minorities is directly contrary to its obligations to guarantee the rights to freedom of religion or belief and to equality under the law and non-discrimination of religious minorities, said the ICJ. — Picture by Choo Choy May

KUALA LUMPUR, March 20 — Religious minorities like the Shiah and Ahmadiyyah Muslim communities risk persecution and discrimination because of weak legislation, a report by international judges and lawyers revealed.

The report by the Geneva-based International Commission of Jurists (ICJ) pointed out that even though the right to equality and freedom from discrimination was recognised under Article 8 of the Federal Constitution, there were no laws that specifically protected religious minorities from unequal treatment.

“Under international law, the principle of non-discrimination applies and is integral to the enjoyment of all human rights. Thus it applies to the right to freedom of thought, conscience, religion or belief.

“The Constitution however provides no specific protections for the freedom of ‘thought and conscience’, which includes the freedom to have a theistic, non-theistic or atheistic beliefs and the freedom from coercion to adopt a religion or belief of one’s own choice,” said ICJ in its report titled “Challenges to Freedom of Religion or Belief in Malaysia” released last night.

The report produced with support from the International Panel of Parliamentarians for Freedom of Religion and Belief said the State was obligated to take necessary measures to prevent discrimination as such principles were part of customary international laws.

“‘Fatwa’ effectively criminalised both communities while discriminatory rhetoric exacerbates religious hatred,” said ICJ, referring to edicts issued by Muslim clerics.

“Malaysia’s treatment of the Shiah and Ahmadiyah minorities is directly contrary to its obligations to guarantee the rights to freedom of religion or belief and to equality under the law and non-discrimination of religious minorities,” it added.

The report noted that while both communities were not the only minorities facing persecution, their situation were seen as emblematic of the situation faced by those in minority sects in Malaysia.

As part of its recommendation, the ICJ said harassment, detention and forced rehabilitation of religious minorities must be stopped to allow these individuals to exercise their right to freedom of belief without the state intervention.

The Shiahs and Ahmadis are barred from practising their faiths here and are also pursued for Shariah offences, even though the latter are not recognised as Muslims.

States such as Selangor and Sabah have lumped Shiahs and Ahmadis together with “liberalism” and “pluralism” as deviant teachings and extremists.

Disputes under dual legal system

ICJ’s report also highlighted jurisdictional disputes concerning cases of religious freedom due to Malaysia’s dual legal system comprising common and Shariah law.

“Jurisdictional disputes affecting the adjudication of matters relating to religion and belief — between civil courts which apply federal and state laws and Shariah courts which apply Islamic laws — have become a main arena of contestation,” it said.

The report further suggested that the dual jurisdiction has also resulted in negative implications on the protection of the rights of children and exacerbated child marriages in Malaysia.

Citing the marriage between a 41-year-old man and an 11-year-old girl widely reported in the media last year, it said that the man was instead tried under Islamic jurisprudence for solemnising the polygamous marriage without the permission of the Shariah Court.

Under the Law Reform (Marriage and Divorce) Act 1976, a marriage is void if either party to the marriage is below 18 years of age.

Muslim marriages, however, are governed by state Shariah laws that often allow for girls under the age of 16 to be married with the approval of a Shariah court judge.

“Furthermore, no clear guidelines exist for Shariah judges who have full discretion to determine whether a child is ‘suitable’ for marriage,” the report said.

The Pakatan Harapan (PH) government has yet to ban child marriage, although Deputy Minister in the Prime Minister’s Department Fuziah Salleh reportedly said stricter standard operating procedures (SOPs) would be put in place.

ICJ also noted that jurisdictional disputes arose in religious conversion cases, as such cases are often ceded to the Shariah court when they are brought before a civil court.

“Shariah courts have the power to deny applications submitted by Muslims to convert out of Islam and have often ordered applicants into ‘rehabilitation’, counselling sessions and other interventions.

“The criminalisation of apostasy also violates the principles of non-discrimination and equality before the law in indiscriminately targeting those who wish to leave the religion of Islam,” it said.

Pointing out the widening of Shariah courts’ jurisdiction in matters of renouncing religion, ICJ said such circumstances have resulted in encouraging and prolonging discriminatory practices by authorities, social stigmatisation, and threats to the safety of individuals wishing to change their religion.

“The ICJ therefore recommends Malaysia to amend or repeal all laws that criminalise the propagation of religious beliefs among people of all faiths.

“The right to freedom of religion or belief is guaranteed in international human rights law, including in a number of core human rights instruments,” it said.

Headquartered in Switzerland, the ICJ, which comprises 60 eminent judges and lawyers from all over the world, promotes human rights.

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