Malaysia’s largest interfaith group has challenged the assertion by a Malaysian government official that atheism is unconstitutional.
An official of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST), says that Malaysia has no laws that force people to have a religious affiliation, debunking a statement by a deputy minister to the Malaysian Parliament that atheism was illegal.
Jagir Singh, chairman of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST), said that atheists are therefore free to profess their beliefs.
“Article 11(1) [of the Federal Constitution] gives the right to every person to profess and practise his religion. It is noted that a deputy minister has stated that it is not equal to freedom of religion, that is, every person must have a religion. There is nothing in the Federal Constitution, or any law in Malaysia that says every person must have a religion,” Jagir was quoted in a report at The Malay Mail Online.
Jagir, a lawyer by profession, is also the president of the Malaysian Gurdwaras Council (MGC), a member of the interfaith group.
On the Rukun Negara which lists “belief in God” as one of its principles, Jagir told the online portal that it was included as most Malaysians were already professing their belief in religion. He said the principle also meant that there was already due recognition that there were also some without any religious beliefs.
“Of course most Malaysians have [a] religion. This fact was recognised in the Rukun Negara. The first point being ‘belief in God’. It ascertains that most Malaysians have a religion,” said Jagir.
“This was the reason they included it as ‘kepercayaan kepada Tuhan’, and thus recognising that there may be some without religion. It must be remembered also, that Article 5(1) of the Federal Constitution provides that no person shall be deprived of his life or personal liberty. To be atheist is not against any law,” he added.
In response to a question raised in the Parliament on Thursday (29 Nov 2017), Deputy Minister in the Prime Minister’s Department Dr Asyraf Wajdi Dusuki had said that atheism should not be allowed in Malaysia for any citizen as it contradicts both the Federal Constitution and the Rukunegara.
He said atheist ideologies were dangerous as they were being propagated to not only Muslims but to the non-Muslims in Malaysia.
“Atheism contradicts the first principle of the Rukunegara, which is a belief in God….We need to understand, that in the Malaysian context, our Federal Constitution states that freedom of religion is not freedom from religion,” he said, as quoted in a report in The Star, Malaysia’s largest selling English newspaper.
In a letter entitled ‘Atheism is not ‘unconstitutional’ in Malaysia’ published by MalaysiaKini, the writer states:
Recently, the Deputy Minister Dr Asyraf Wajdi Dusuki came forth with a controversial proposition in Parliament – that atheism is unconstitutional in Malaysia.
He stated, “We need to understand in the context of Malaysia, freedom of religion stated in our Federal Constitution does not mean freedom not to have a religion.
“Because it is unconstitutional to spread the ideology of no religion in the context of this country. Freedom of religion is not freedom from religion.”
With respect, the deputy minister’s comments do not conform to principles of constitutional interpretation and are incongruent with the Federal Constitution itself.
First and most obviously, nowhere does our Constitution state that atheism, or the freedom to not believe in a religion, is prohibited in any manner whatsoever. Article 11(1) simply states: “Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it”.
Thus, it is merely a prescriptive provision – it does not state that there is no freedom from religion; or worse, that a disbeliever of religion can be punished. Contrast this with a prohibitive provision – that no person shall be held in slavery under Article 6.
Further, to insist on Asyraf Wajdi’s interpretation would be a violation of the legal maxim “nulla poena sine lege”, which is a principle that one cannot be punished for doing something that is not explicitly prohibited by law. This principle is a crucial bulwark to protect citizens from temperamental & arbitrary pronouncements by the state as to what is a punishable or not punishable.
But one does not need to go far to see the flaw in the deputy minister’s reasoning. Drawn to its logical conclusion, one can also state that an introverted and isolationist lifestyle is “unconstitutional” because the freedom of association in Article 10(1)(c) does not state freedom from association.
Essentially, his remarks are rooted in an erroneous conception that the constitution bestows or is the source of rights for its citizens. The Indian case of Nehru Ghandi v Raj Narain AIR 1975 SC 2299 (adopted by our Federal Court in Sivarasa Rasiah v Badan Peguam Negara  2 MLJ 333) puts it best: “…the Constitution is not the source but the consequence of the rights of individuals, as defined and enforced by the courts”.
To complement, Thomson CJ in Government Of The Federation Of Malaya v Surinder Singh Kanda  1 MLJ 121 held: “The first is that the Constitution is a Constitution; that is to say, it does not purport to be a complete and exhaustive code of law dealing with every activity of the State and with every right and duty of the citizen”.
In other words, just because one does not find mention of atheism in the provision for religion in Article 11, does not mean the right to be one is non-existent. The freedom of conscience and belief are inalienable rights by virtue of us being born humans.
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