Apostasy and Freedom of Religion in Malaysia

Abstract

This paper will argue that the constitutional space for the freedom of religion in Malaysia is best carved out by drawing on constitutional law, international law and the common law. The governing principles in the constitutional space should be drawn from the constitutional text, read in the light of international law norms and internal common law values. Art 11 of the Malaysian Constitution states, in direct and simple terms, that ‘every person has the right to profess and practise his religion’. There are many facets to the provision of art 11. This paper will focus only on the facet relating to the right of Muslims to convert out of Islam, or to use the more emotionally charged phrase, the right of Muslims to apostatize. Does the freedom to profess and practise one’s religion include the right to convert out of a religion? Following the case of Lina Joy v Islamic Religious Council [2007] 4 MLJ 585, the short answer is ‘no’, at least as far as Muslims are concerned. Art 11, as interpreted by the Federal Court, does not grant Muslims the right to convert out of Islam. While this is the binding ratio, the correctness of it is a different enquiry. To evaluate this decision, this paper will first look outward to the international law of human rights before looking inward to the common law tradition which is part of the Malaysian legal heritage. It will conclude by looking forward to the future. A more principled constitutional space will result in a more robust constitutional law for the protection of the freedom of religion.

Keywords: Constitutional Law, Common Law, International Law, Human Rights, Malaysia, Apostasy, Lina Joy, Islam, Art 3, Art 11, Freedom of Religion