2 Malayan Law Journal 78 (H.C.).
388
Yvonne Tew
the intermediate appellate court held that there was no infringement of any
constitutional rights because the use of the word ‘Allah’ is not an integral part
of the faith and practice of Christianity.
60
In a striking endorsement of the view that Article 3(1) established Islam’s
supremacy,
61
the Court of Appeal ruled that the reference to ‘other religions
may be practised in peace and harmony’ in Article 3(1) meant that the free-
dom of religion guaranteed by Article 11(1) of the Federal Constitution must be
read in line with ‘the doctrine that the welfare of an individual or group must
yield to that of the community’.
62
The Federal Court dismissed the Catholic
Church’s application for leave to appeal, holding that the Court of Appeal had
applied the correct test.
63
13.4. Religion and the Invisible Constitution
Malaysia’s religion clauses provide a case study for exploring the unwritten
constitution in two main ways. The first is through the unwritten expansion of
the place of Islam in the Malaysian Constitution. Although the text of Article
3(1) has remained the same, Islam’s position in the constitutional order has
been vastly expanded through the use of informal, extra-textual means in
judicial discourse. In contrast, others defend the nature of the Constitution
through the use of constitutional history and originalist arguments to protect
the Constitution’s unwritten secular basis.
13.4.1. (Invisible) Elevation of Islam’s Constitutional Position
Judicial discourse over Malaysia’s religion clauses has gradually expanded
Islam’s supremacy in the constitutional order. The Islamic prioritisation by
the courts has far-reaching effects on the nature of Malaysia’s Constitution
and on the protection of constitutional rights like religious liberty and equality.
60
Menteri Dalam Negeri & Ors v.
Titular Roman Catholic Archbishop of Kuala Lumpur [2013]
Malayan Law Journal 468 (Court of Appeal) [hereinafter ‘Allah Case’ (C.A.)].
61
Fed. Const. (Malay.), Article 3(1) (‘Islam is the religion of the Federation; but other religions
may be practised in peace and harmony in any part of the Federation’).
62
Allah Case (C.A.), note 60, 495 [48].
63
Titular Roman Catholic Archbishop of Kuala Lumpur v.
Menteri Dalam Negeri & Ors 4
(2014) Malayan Law Journal 765. See ‘Top Malaysian Court Dismisses “Allah” Case’, AlJa-
zeera (23 June 2014)
www.aljazeera.com/news/asia-pacific/2014/06/top-malaysian-court-dis-
misses-allah-case-20146232448487953.html
; Ida Lim and Shaun Tan, ‘Last Nail in Catholic
Church’s “Allah” Case as Federal Court again Says No’, Malay Mail Online (21 January 2015)
www.themalaymailonline.com/malaysia/article/last-nail-in-catholic-churchs-allah-case-as-
federal-court-again-says-no
.
Malaysia’s Invisible Constitution
389
Yet this constitutional change has not taken place though formal amendment
but through informal constitutional change.
This invisible elevation of Islam’s position in the constitutional system,
I argue, has largely taken place through less visible means in the judicial dis-
course. The primary means has been through expansive interpretation of the
Article 3(1) Islamic declaration clause which has led to judicial prioritisation
of Islam’s position vis-à-vis other constitutional norms. Proponents of this view
are, in essence, claiming that Article 3(1) gives rise to a constitutional implica-
tion of Islam’s primacy in the Malaysian constitutional order. Another means
has been through the civil courts’ use of non-constitutional sources – such as
Islamic texts and principles – in judicial reasoning.
Perhaps the most marked approach toward Islam’s expansion in the
Malaysian courts’ jurisprudence has been to endorse Islam’s position under
Article 3(1) as a lens through which the rest of the Constitution must be
interpreted. This prioritisation of Islam’s status is often used in turn to jus-
tify a restrictive interpretation of constitutional rights like religious freedom.
In Lina Joy v. Majlis Agama Islam,
64
for example, the High Court declared
that, ‘[f]reedom of religion under art 11(1) must be read with art 3(1) which
places Islam in a special position as the main and dominant religion’ of the
Federation.
65
The trial judge rejected the precedent in Che Omar that Islam
had a merely ceremonial role, asserting that Article 3(1) had ‘a far wider and
meaningful purpose than a mere fixation of the official religion’.
66
Lina Joy
had interpreted the religious freedom right under Article 11 in a ‘limited and
isolated manner’ without due regard to other constitutional provisions relating
to Islam.
67
According to the judge, there was a ‘clear nexus’ between Article
3(1) and 11(1), which necessarily restricts the scope of religious freedom. In
sum, on the court’s account, Article 3(1) provides an interpretive lens through
which to read the right to religious liberty.
68
The Federal Court’s majority reasoning in Lina Joy that ‘one cannot
renounce or embrace a religion at one’s own whims and fancies’ likewise
reveals a conception of apostasy from an Islamic perspective, rather than gen-
erally accepted common law principles.
69
The Chief Justice, writing for the
majority, reasoned: ‘If a person professes and practices Islam, it would defi-
nitely mean that he must comply with the Islamic law which has prescribed
64
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