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.