Our beloved nation Malaya and subsequently Malaysia is founded with the coming into force of our Federal constitution.
The very existence of the various institutions in our country is because they are provided for by the provisions in our Federal Constitution. We have the institutions of the Yang DiPertuan Agong, Conference of Rulers, the Executive, the Federal Legislature, the recognition of the various states, the Election Commission, the Judiciary and the Public Services because they are provided for in our Federal Constitution . Therefore, all institutions in this country must acknowledge, respect and uphold our Federal Constitution. The Supremacy of our Federal Constitution is clearly spelt out in Article 4 of our Federal Constitution which declares that ‘This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.'
The provisions in our Federal Constitution define clearly the relationship between Muslims and Non-Muslims and if observed by all will not cause the numerous incidences of unpleasant conflict between muslims and non-muslims in our country.
Three (3) issues often cause tension and conflict and they are as follows:
(i) The freedom of an individual to convert to or out of Islam.
(ii) The religion of a minor when one parent converts to or out of Islam; and
(iii) The personal laws applicable when one party to a marriage converts to or out of Islam.
The reason for the such a conflict is because in Malaysia Muslims follow one set of personal laws while non-muslims follow another set of personal laws.
(i) Religious Freedom of An Individual to convert to or out of Islam
Article 11(1) provides that EVERY PERSON has the right to profess and practice his religion and subject to Article 11(4) to propage it. Artlcle 11(4) provides that State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
Non-Muslims must accept the fact that laws may be passed to prohibit them from propagating their religion to people of the muslim faith.
Muslims must accept the fact that if a muslim on his/her own free will wants to leave the religion of Islam he/she must be allowed to do so. This God given freedom of choice and guaranteed by our Federal Constitution must be respected.
(ii) The religion of a minor when one parent converts to or out of Islam
Article 12(3) of the Federal Constitution provides that no person shall be required to received instruction in or to take part in any ceremony or act of worship of a religion other than his own.
Article 12(4) provides that for the purpose of Article 12(3), the religion of a person under the age of 18 years shall be decided by his parent or guardian.
Therefore, when one parent converts to Islam, a child’s instruction in or to take part in any ceremony or an act of worship of a religion shall be determined by the parent who is given guardianship of the child until the age of 18, if there is dispute over how the child should be brought up. After the age of 18, the child who is now an adult shall be at liberty to choose the religion of his choice as guaranteed by Article 11(1) of the Federal Constitution.
(iii) The Personal laws applicable when one party to a marriage converts to and out of Islam
This problem can be easily resolved fairly by applying the law under which the couple’s marriage was celebrated. If they were married as non-muslims, the Law Reform (Divorce and Marriage) Act 1976 will apply and if the couple married as muslims, the Islamic laws will apply. Marriage is a form of contract between the couple and therefore, it is fair that the law to be applied shall be the law under which the marriage was celebrated or contracted.
Problem arises when the National Registration Department refuses to change the particulars in a person’s identity card when one changes his/her religion as happened in the case of Zarena Abdullah Majid, a Hindu with a Muslim name, whose marriage to a Hindu man was disrupted by JAIS (Jabatan Agama Islam Selangor). Her case is but a tip of the ice berg. Many such couples cohabit together unmarried not because they do not want to get married but because our society do not allow them to do so.
Many children have been born out of wedlock through such unions. We scorn on unmarried couples and children born out of wedlock but in these cases our society must be scorned upon and even stand condemned for causing miseries to such couples who want to be married but prevented from doing so. Children born from such unions out of wedlock face untold miseries. These miseries and predicaments must be put to an end if we consider ourselves a civilized society.
About 30 year ago the National Registration Department would accept the application to change the name, religion or other particulars of a person when a deed poll is done (A deed poll is a sworn statement made by an applicant stating his intention to change his name, religion or other particulars and have it advertised in a newspaper). Subsequently, it was said that in order to take into account the sensitivity of the muslims, it was not advisable to have it advertised. It was then agreed that the Majlis Agama Islam or the Islamic Department of the State would issue letters confirming that a person has left the Islamic faith and that was sufficient for the National Registration Department to make the necessary amendments to the identity card. I understand that the Majlis Agama Islam and the Religious Department of the States have stopped issuing such letters.
The National Registration Department now requires an applicant to obtain an order from the Syariah Court declaring that he/she has left Islam. Such a requirement contravenes Article 11(1) of the Federal Constitution as the decision to decide one’s faith now rests with a third party. Article 11(1) guarantees absolute right to choose one’s religion and any decision otherwise to prevent him from this freedom will be unconstitutional and unacceptable.
I call on the National Registration Department to accept a statutory declaration as sufficient proof of the choice of the religion or personal faith that a person has made. Once the religious status of a person has been resolved through the change of the particulars in his/her identity card, the issues and conflicts in the many cases that we have seen will resolve on its own.
Dated this 7h day of June 2014.
Ngeh Koo Ham
MP for Beruas
Deputy Secretary General of DAP Malaysia