Malaysia point out constitutional or respective state law circumstances


Malaysia is a federal constitutional
monarchy. The Federation of Malaya became independent in 1957 and gained its
today’s name Malaysia in 1963 when Singapore, Sabah and Sarawak joined the
Nowadays it consists of 13 states and 1 federal territory. It is a
multi-religious state with almost 26 million inhabitants. As a federation with
its multi-religiousness with the main cleavage between Muslims and Non-Muslims
the issue of freedom of religion in Malaysia is especially complex and
particularly urgent to address. To this inextricable net are added the various
constitutional and respective state law perspectives. The aim of this essay is
to deal with several abuses of freedom of religion in Malaysia and to point out
constitutional or respective state law circumstances along with the cases
related to such abuse. The emphasis is given on the most discussed right to
renounce one’s religion. In the final stage I roughly suggest possible
explanations for the formation and persistence of such abuses. The article does
not deal with international context and documents related to freedom of
religion which Malaysia ratified2.

By the term violation/abuse of freedom of
religion I mean such actions that are in conflict with the normative core of
the human right to freedom of thought, conscience and religion. These
deviations are defined in the next part. In order to understand the nature of
the violations, we need to briefly describe the Malaysian court system. It
consists of three parts: Civil, native and Syariah courts. Native courts,
existing only in states Sabah and Sarawak, deal with multiple legal issues
affecting areas with vast number of indigenous groups or traditions3.
Civil courts embody superior and inferior courts for issues not relating to
Islam. Superior court system includes the Supreme Court, Court of Appeal and
High Court. Finally, the Syariah Courts have their own and final jurisdiction
with no chance of appeal to civil courts.

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Moreover, each state can define the
jurisdiction of the Shariah court differently along with the administration of
Islamic family law and propagation of Islamic doctrine.

There are certain incentives indicating that
two processes contributed to Islamization of Malaysian law, the first is strengthening
the position of Shariah courts towards common law courts through Article
121(1A) by restricting the chance of appeal to civil courts in any matter
within the jurisdiction of Shariah courts4.
The second can be taken by subtle co-option of Shariah law into common law.