The politics of avoidance: The Malaysian Human Rights Commission and the right to freedom of religion

Global Change, Peace and Security

Volumn 25, Issue 2, 2013, Pages 213-226

  Setiawan, Ken ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

Author keywords

freedom of religion; human rights; Malaysia; SUHAKAM

Indexed keywords

EID: 84879711552     PISSN: 14781158     EISSN: 14781166     Source Type: Journal    
DOI: 10.1080/14781158.2013.787059     Document Type: Article

References (98)

1. Other cases include the Shamala case (2010), in which a father converted his two underage children after his own conversion to Islam without informing the mother of the children. The Islamic (Syariah) Court then gave the father sole custody over the children. The mother sought to challenge this decision in the Federal Court, but her application was rejected. In the Rayappan case (2006) a disagreement emerged regarding a deceased person's religion. Although the Rayappan family claimed that during his life he was a Catholic, Islamic authorities had obtained permission of the Islamic High Court to bury him according to Muslim rites. Eventually the Islamic authorities dropped their claim, stating they did not have enough evidence. A similar case was that of Mount Everest climber M. Moorthy (2005), which will be discussed in this article.
2. Of concern here is the interpretation of Article 121(1A) of the Constitution, which states that the civil courts have no jurisdiction 'in respect of any matter within the jurisdiction of the Syariah Courts'.
3. Article 11 of the Federal Constitution stipulates that 'every person had the right to profess and practice his religion'. In addition, there are provisions in the Constitution which prohibit discrimination on religious grounds in public education, as well as the right of every religious group to establish educational institutions for children. Article 12(3) stipulates that no person is required to receive instruction in religion or take part in any religious ceremony than his own. Finally, legislation against subversion and during an emergency may not interfere with the freedom of religion.
4. 'Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance'.
5. A similar provision can be found in Article 18 (1) of the International Covenant on Civil and Political Rights (ICCPR): 'Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching'.
6. Natan Lerner, 'Religious Human Rights and the United Nations', in Religious Human Rights in Global Perspective: Legal Perspectives, ed. J.D. van der Vyver and J. Witte, Jr. (Boston: Martinus Nijhoff Publishers, 1996).
7. Rhona K.M. Smith, Textbook on International Human Rights (Oxford and New York: Oxford University Press, 2003), 154.
8. Richard A. Wilson, Human Rights, Culture and Context. Anthropological Perspectives (London: Pluto Press, 1997),12
9. Mark Goodale, Surrendering to Utopia. An Anthropology of Human Rights (Stanford, CA: Stanford University Press, 2009), 126.
10. Julio Faundez, Good Government and Law. Legal and Institutional Reform in Developing Countries (Houndmills: MacMillan Press, 1997), 6, 24.
11. Ann Seidman and Robert B. Seidman, State and Law in the Development Process. Problem Solving and Institutional Change in the Third World (New York: St. Martins Press, 1994), 11.
12. Faundez J, Good Government and Law, 9
13. Seidman and Seidman, State and Law in the Development Process, 17, 38, 128.
14. Thomas Risse and Kathryn Sikkink, 'The Socialization of International Human Rights Norms into Domestic Practice: Introduction', in The Power of Human Rights. International Norms and Domestic Change, ed. T. Risse, S.C. Ropp and K. Sikkink (Cambridge: Cambridge University Press, 1999).
15. Wilson RA, Human Rights, Culture and Context; Sally Engle Merry, Human Rights and Gender Violence. Translating International Law into Local Justice (Chicago: The University of Chicago Press, 2006).
16. Merry E, Human Rights and Gender Violence, 1. Vernacularization is the process where human rights are 'translated into local terms and situated within local contexts of power and meaning'.
17. Merry E, Human Rights and Gender Violence, 135-8.
18. At present (2013) there are 120 NHRIs worldwide. See http://www.nhri.net/nationaldatalist.asp.
19. Centre for Human Rights, National Human Rights Institutions, A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights (New York and Geneva: United Nations, 1995), 1.
20. Birgit Lindsnaes and Lone Lindholt, 'National Human Rights Institutions: Standard-setting and Achievements', in National Human Rights Institutions. Articles and Working Papers, ed. B. Lindsnaes, L. Lindholt and K. Yigen (Copenhagen: The Danish Centre for Human Rights, 2001)
21. Julie A. Mertus, Human Rights Matters. Local Politics and National Human
22. ICHRP, Performance and Legitimacy: National Human Rights Institutions, 2nd ed. (Versoix: ICHRP, 2004), 1.
23. Ibid., 63, 97
24. Anne Smith, 'The Unique Position of National Human Rights Institutions: A Mixed Blessing?', Human Rights Quarterly 28 (2006): 904-46
25. Mertus K, Human Rights Matters, 3.
26. Morten Kjaerum, 'Preface', in National Human Rights Institutions. Articles and Working Papers, ed. B. Lindsnaes, L. Lindholt and K. Yigen (Copenhagen: The Danish Centre for Human Rights, 2001).
27. Syed Farid Alatas, Democracy and Authoritarianism in Indonesia and Malaysia. The Rise of the Post Colonial State (London and New York: MacMillan Press, 1997), 1.
28. William Case, Politics in Southeast Asia. Democracy or Less (Richmond: Curzon, 2002), 99.
29. Harold Crouch, Government and Society in Malaysia (Ithaca, NY and London: Cornell University Press, 1996), 240.
30. These different definitions can be attributed to the definitions of 'democracy' used by the authors. Alatas defines a democratic state as one in which citizens can change the government through the electoral system, which contrasts with the approach taken by Crouch, who considers democracy (and authoritarianism) in a wider context, for instance by taking the role of opposition politics and political controls into account.
31. Alatas SF, Democracy and Authoritarianism, 3-4.
32. Ariel Heryanto and K. Sumit Mandal, 'Challenges to Authoritarianism in Indonesia and Malaysia', in Challenging Authoritarianism in Southeast Asia: Comparing Indonesia and Malaysia, ed. A. Heryanto and K.S. Mandal (London: Routledge Curzon, 2003).
33. A number of these laws, most notably the Internal Security Act, which allowed for preventive detention for a (renewable) period of two years, were repealed as part of law reforms in 2011-2012.
34. Andrew Harding, Law, Government and the Constitution in Malaysia (The Hague: Kluwer Law International, 1996), 142-8.
35. The suspension and dismissal of Salleh Abas came after the Supreme Court had ruled unfavourably towards the government on several occasions. The dismissal is referred to as the 'Crisis of the Judiciary', and has been regarded as a turning point for judicial independence in Malaysia.
36. Operasi Lalang (literal translation 'weeding operation') was aimed at opposition politicians, primarily from the Democratic Action Party (DAP), who were accused of igniting racial tensions. The politicians had criticized the Ministry of Education's appointment of senior personnel to vernacular Chinese schools, who were not Chinese-educated. This raised concerns that the use of the Chinese language in schools would be limited.
37. In Che Omar bin Che Soh v. Public Prosecutor (1988).
38. In Meor Atiqurahman bin Ishak & Anor v. Fatimah Bte Sihi & Anor.
39. Mohamed A.M. Adil, 'Law of Apostasy and Freedom of Religion in Malaysia', Asian Journal of Comparative Law 2, no. 1 (2007): 1-36.
40. Harding A, Law, Government and the Constitution, 201. Harding has argued that the designation of Islam as the religion of the Federation is not contrary to the principle of the freedom of religion.
41. Adil MAM, 'Law of Apostasy and Freedom of Religion', 27-8. Adil notes that the conversion out of Islam by non-Malays is more
42. William Case, 'Testing Malaysia's Pseudo-democracy', in The State of Malaysia: Ethnicity, Equity, and Reform, ed. E.T. Gomez (London: RoutledgeCurzon, 2004).
43. Crouch H, Government and Society in Malaysia, 241.
44. SUHAKAM was established by way of Act no. 597/1999 and started operating the following year. In 2009, the Act and in particular its provisions regarding the appointment of commissioners was amended following criticism from Malaysian human rights NGOs and the International Coordinating Committee on NHRIs.
45. Edmund T. Gomez, The State of Malaysia: Ethnicity, Equity and Reform (London: RoutledgeCurzon, 2004), 2.
46. Interview, January 13, 2009.
47. Gomez ET, The State of Malaysia, 1.
48. Interview with Musa Hitam, January 13, 2009.
49. Ramdas Tikamdas and S. Sothi Rachagan, 'Introduction', in Human Rights and the National Commission, ed. S. Sothi Rachagan and Ramdas Tikamdas (Kuala Lumpur: HAKAM, 1999)
50. Shad Saleem Faruqi, 'Constitutional Perspective', in Proceedings of Forum on Understanding the Human Rights Commission Act 1999, ed. ERA Consumer (Kuala Lumpur: ERA Consumer, 2000).
51. Interview with Yap Swee Seng, co-ordinator of human rights NGO SUARAM, November 14, 2006.
52. Lim Kit Siang, 'Will the Human Rights Commission be Irrelevant?', in Human Rights and the National Commission, ed. S. Sothi Rachagan and Ramdas Tikamdas (Kuala Lumpur: HAKAM, 1999).
53. This number includes two commissioners with an indigenous background (one from Sabah and one from Sarawak).
54. K. Pathmanaban, for instance, was a former deputy chairman of the Malaysian Indian Congress (MIC).
55. Rais Yatim, Freedom under Executive Power in Malaysia: A Study of Executive Supremacy (Kuala Lumpur: Endowment, 1995), 175. As a High Court Judge, Harun Hashim had amongst others ruled that the Printing Presses and Publications Act could be subjected to judicial review. Harun's decision was overturned on appeal at the Supreme Court.
56. Crouch, Government and Society in Malaysia, 115-17. In 1986, Musa fell out with Mahathir, a rift that Crouch has attributed to Musa's 1981 election as Deputy Prime Minister. Musa narrowly defeated his rival, Tengku Razaleigh. Razaleigh, however, remained a member of cabinet, much to Musa's discontent. As early as 1983 tension rose between Musa and Mahathir, until Musa resigned as Deputy Prime Minister and deputy president of UMNO in 1986. In an interview, Musa stated that ideological differences, particularly regarding human rights and good governance, contributed to the rift (interview, January 13, 2009).
57. SUHAKAM, Inquiry on its Own Motion into the November 5th Incident at the Kesas Highway (Kuala Lumpur: SUHAKAM, 2002), 34-9. On 5 November 2000, the police intervened when a demonstration was held at the headquarters of the PKN (Partai Keadilan Nasional, National Justice Party), the party led by Anwar Ibrahim's wife Wan Azizah. The police used water cannons and tear gas to disperse the crowd and over 100 protesters were arrested. SUHAKAM concluded that 'excessive force had been used on people who had already been arrested'. The Commission held the Police responsible, stating that 'treatment of persons detained was cruel and inhuman The Police should not assault persons who have been arrested or are otherwise in detention'.
58. SUHAKAM, Review of the Internal Security Act 1960 (Kuala Lumpur: SUHAKAM, 2003), 83-5. In the review, SUHAKAM concluded that the principle of detention without trial goes against the right to personal liberty, the right to a fair trial and the right to be presumed innocent until proven guilty. Furthermore the Commission found that the application of the ISA has led to the infringement of human rights, by subjecting people to arbitrary arrest, as well as inhuman or degrading treatment or punishment whilst in detention. The Commission directly linked these findings with provisions in the UDHR and, interestingly, ample references were also made to other human rights treaties, most of which do not apply to Malaysia.
59. Interviews with Malik Imtiaz Sarwar (lawyer and human rights advocate), March 20, 2006; Yap Swee Seng (co-ordi nator of the NGO SUARAM), November 14, 2006; Josef Roy Benedict (co-ordinator of Amnesty International Malaysia), November 16, 2006.
60. 'Malaysia's Security Law Critiqued', Malaysiakini, May 22, 2003.
61. Interviews with Josef Roy Benedict, November 16, 2006; S. Arutchelvan (co-ordinator of the Community Development Centre, CDC), November 23, 2006.
62. Interview, December 18, 2006.
63. SUARAM, Malaysia Human Rights Report 2006. Civil and Political Rights (Petaling Jaya: SUARAM, 2007), 114.
64. Abu Talib Othman, a former Attorney General, was controversial among human rights advocates in Malaysia as he had played an important role in the dismissal of Salleh Abas. Abu Talib was moreover known for his support of the ISA, making him an unlikely candidate to lead an organization which was opposed to the law.
65. FORUM-ASIA, Performance of National Human Rights Institutions in Asia 2006: Cooperation with NGOs and Relationship with Government: India, Indonesia, Malaysia, the Maldives, Mongolia, Nepal, the Philippines, South Korea, Sri Lanka and Thailand (Bangkok: FORUM-ASIA, 2006), 40-41. The KLCC case concerned a public protest involving between 300 and 500 people against increases in fuel and electricity prices. The police ordered the crowd to disperse and some police officers hit the protestors with batons, leaving several injured.
66. SUARAM, Malaysia Human Rights Report, 119.
67. 'It's Still Grade A for Suhakam', Malaysiakini̧ November 26, 2009.
68. 'Apply Local not International Standards, Suhakam Told', Malaysiakini, August 23, 2001.
69. 'Govt: We Don't Intend to Give Suhakam Teeth', Malaysiakini, March 27, 2006.
70. SUHAKAM, Annual Report 2007 (Kuala Lumpur: SUHAKAM, 2008), 64. An exception was the 2007 annual report, which stated that SUHAKAM received three complaints regarding the right to freedom of religion.
71. Marzuki Mohamad, 'Religion, Human Rights and Constitutional-Contract Politics in Malaysia', Intellectual Discourse 16, no. 2 (2008), 169-70.
72. 'Ayah Pin Followers Seek Suhakam Intervention', Malaysiakini̧ July 27, 2005.
73. 'Suhakam Puts Off Visit to Sky Kingdom', Malaysiakini, July 29, 2005
74. 'Suhakam is "Prejudiced" against Sky Kingdom', Malaysiakini, August 9, 2005.
75. Art. 12(2)(1).
76. 'Moorthy Issue Turns "Racial" at Suhakam', Malaysiakini, January 4, 2006.
77. 'Move On, Everest Hero's Family Told', Malaysiakini, December 29, 2005.
78. SUHAKAM, Annual Report 2006 (Kuala Lumpur: SUHAKAM, 2007), 87.
79. 'Temple Caretakers Take Case to Suhakam', Malaysiakini, June 7, 2006.
80. SUHAKAM, Annual Report 2006, 87.
81. SUHAKAM, Annual Report 2002 (Kuala Lumpur: SUHAKAM, 2003), 79.
82. Section 295: 'Whoever destroys, damages, or defiles any place of worship, or any object held sacred by any class of persons, with the intention of thereby insulting the religion of any class of persons, or, with the knowledge that any class of persons is likely to consider such destruction, damage, or defilement as an insult to their religion, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both'.
83. SUHAKAM, Annual Report 2006, 87.
84. SUHAKAM, 'Demolition of Places of Worship', press statement, August 1, 2007.
85. SUHAKAM, 'Fundamental Rights to Freedom of Religion', press statement, January 12, 2010.
86. Personal communication, October 2006.
87. 'Move on, Everest Hero's Family Told', Malaysiakini, December 29, 2005.
88. Interview, November 21, 2006.
89. Interview, January 3, 2007.
90. Interview, December 20, 2006.
91. Interview with Commissioner Siva Subramaniam, November 21, 2006.
92. 'Religious Conversion: Suhakam Still Undecided', Malaysiakini, January 23, 2006.
93. 'Article 121 (1A) - No Change', Malaysiakini, January 20, 2006. Human rights NGOs and lawyers appear to be divided on the issue, with some rejecting a repeal or amendment of Article 121 (1A) and arguing for a judicial interpretation instead.
94. This appears to be a relatively new interpretation of Art. 121(1A). Harding (Law, Government and the Constitution in Malaysia, 137) notes that in the 1990s, civil courts reviewed decisions of syariah courts.
95. Interview with Chin Oy Sim of the NGO Women's Aid Organisation (WAO), November 27, 2006.
96. 'Suhakam: No Need to Amend Article 121(1A)', Malaysiakini, February 27, 2006.
97. Interview with senior staff member Nurul Hasanah Ahamed, January 8, 2009.
98. In 2012, Prime Minister Najib Abdul Razak announced that the Sedition Act would be repealed and replaced by the National Harmony Act (NHA). Human rights observers in Malaysia have been highly critical of the NHA, as it has been drafted without input from civil society. The new act is expected to be tabled in parliament in 2013.