A review of the Ahmadiyah case by Pauline
Ting, forever intern of Pusat Rakyat LB.
For months, the lawyers prepared the necessary
papers; applicants were interviewed, most of them refugees from other
countries. These refugees came to Malaysia hoping that things will get
better in a new country. Malaysia, claiming to be a moderate Islamic
country, seemed to be the best option for them. Amongst them are
nationals from India, Pakistan and Indonesia. This is a story of the Ahmadiyah
community in Malaysia.
Let’s go back to the start. In this case of Maqsood
Ahmad and 38 Others v MAIS and Others, some of the applicants received
refugee status from the United Nations High Commissioner for Refugees (UNHCR)
to protect them from religious persecution in their home countries. The
other applicants are from somewhat similar backgrounds – mostly refugees in
Malaysia, fleeing religious persecution in their home countries and some
Malaysians.
In April 2009, the Selangor Islamic Religious
Council (MAIS) prohibited the Ahmadiyah community in Selangor from offering
Friday prayers in their mosque. Following this ban, they began to carry out
religious activities, including prayers, at their premise in Batu Caves. Their
persecution continued when the state religious authority stopped them from
using the premise as a house of prayer; section 97(1) of the Administration of
the Religion of Islam (State Of Selangor) Enactment 2003 states that no one may
use a building for purposes which may only be carried on in or by a mosque,
unless a written permission is obtained from MAIS.
We need to understand the real life consequence
of what is happening here – the applicants are being prosecuted in a country
where they sought safe haven. Whatmore, the restrictions placed on the practice
of their faith does not appear to be based on any legitimate grounds. The
Ahmadiyah community is not a newly formed group in Malaysia – they planted
their roots in Malaysia since 1930. All over the world, they have more than 200
million believers.
It is necessary to lay down the legal framework
here. Article 11 of the Federal Constitution guarantees that “every
person” in Malaysia has the right to profess and practice his or her religion.
At the international level, article 18 of the Universal Declaration of Human
Rights (UDHR) states that, “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”. The first limb is absolute, meaning the right to freedom of
conscience, thought and religion cannot be limited in any way; the second limb,
namely the freedom to manifest his or her religion comes with limitations.
Under article 11(5) of the Federal Constitution, religious conducts can only be
regulated on the grounds of public order, public health and morality.
What is happening with the Ahmadiyah community
in Malaysia seemed to make the right to freedom of thought, conscience and
religion illusory for this community. Their variance of thought and theology
appears to be highly frowned upon.
As such, pressed in all directions, the
applicants decided to seek judicial review. It is a process where the court
would review the lawfulness of the decision of MAIS and other public
authorities. Judicial review acts as a shield to protect citizens from
arbitrary actions of the state and in the words of Lord Devlin, the decision is
“so outrageous in its defiance of logic or accepted moral standards that no
sensible person who had applied his mind to the question to be decided could
have arrived at it”.
A sigh of relief was heaved as the leave for
judicial review was granted. And so the fight for religious liberty in
Malaysia continues.
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