In my previous post, I described what 72 ‘counselling’ sessions looked like in practice. In this post, I want to hold that experience up against the Federal Constitution and ask some straightforward questions. As a student of law and as someone who has lived through the process and has since studied the law carefully enough to know that the questions are serious.

What Does the Constitution Say?

Article 12(3) of the Federal Constitution says:

“No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.”

The words are simple. “No person” – meaning everyone, without exception. “Shall be required” – meaning compelled, whether by law, court order, or any state authority. And “to receive instruction in a religion other than his own” – meaning religious teaching, persuasion, or any religious process directed at a person who already professes a different faith.

But Article 12(3) is not the only constitutional provision that speaks to what I experienced. Several others are directly engaged.

Article 11(1) guarantees that every person has the right to profess and practise his religion. In Minister for Home Affairs v Jamaluddin bin Othman [1989] 1 MLJ 418, the Supreme Court held that the state has no power to deprive a person of this right, and that any act restricting a person’s freedom to profess and practise their religion would be inconsistent with the Constitution. What makes Article 11 especially significant is that it applies to every “person” – not just every “citizen” – and unlike some other rights in the Constitution, it does not contain a clause that allows restriction “save in accordance with law.”

The Court of Appeal in Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad [2021] 1 MLJ 155 took this even further. The court noted that under international human rights law, freedom of religion is treated as non-derogable – meaning it cannot be suspended or overridden under any circumstances. And under Article 150(6A) of the Federal Constitution, even Parliament is prohibited from curtailing freedom of religion during a state of emergency.

Think about what that means. If Parliament – the highest legislative body in the country – cannot curtail freedom of religion even during an emergency, can a Syariah Court order do so through a counselling process?

Now, some might argue that Article 11(5) justifies the process. Others may also rely on Article 11(3), which protects the rights of religious groups to manage their own affairs, and suggest that allowing individuals to leave freely could have wider social consequences – that one case may lead to others, raising concerns about public order.

But even taking these arguments at their highest, the constitutional question remains one of proportionality. Article 11(5) limits religious acts that threaten public order, public health, or morality; it does not authorise the state to pressure a person’s private conscience. Article 11(3) protects institutional autonomy, not the power to override the individual right under Article 11(1).

Ordering someone who has already declared a different faith to attend 72 sessions of religious persuasion is not a public order measure. It is an intervention into the most private dimension of a person’s belief.

One more provision deserves a brief mention. Article 11(4) allows state law to control or restrict the propagation of religious doctrine to persons professing Islam. I have heard this cited – including by a university lecturer – as though it means Muslims are prohibited from leaving Islam altogether.

That interpretation conflates two very different things. Article 11(4) regulates what others may preach to professing Muslims. It is about external propagation, not internal conscience. To read Article 11(4) as overriding Article 11(1) for Muslims would mean the Constitution grants a fundamental right to every person – and then silently takes it back from the majority. That is not what the text says, and it is not what the courts have held. Article 11(1) applies to every person. Muslims are not excluded.

Does the Law Actually Authorise These Sessions?

This is a question I did not think to ask at first. I assumed that if the court ordered it, there must be a law behind it. But when I looked more carefully at the Selangor legal framework, what I found surprised me.

Section 61(3)(b)(x) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (“ARIE 2003”) gives the Syariah High Court the power to hear applications for a declaration that a person is no longer a Muslim. That provision is the basis on which my case was filed – and that much is not in dispute.

But there is a difference between having the power to hear an application and having the power to impose a prolonged counselling process before deciding it. On that second question, the Selangor legal framework is silent.

The ARIE 2003 does not prescribe any istitabah or counselling process for such applications. It does not give the Mufti or Religious Council (“MAIS”) the power to conduct such sessions. It does not say how many sessions there should be, how long they should last, or what safeguards the person going through them is entitled to.

This is not just my observation. A 2018 academic study on the practice of istitabah in Selangor – based on interviews with the Assistant Mufti of Selangor – confirmed that Selangor has no statutory provision for counselling in cases involving applications to leave Islam.¹ The Assistant Mufti himself said: “Kita tak ada prosedur” (We don’t have a procedure).² He also acknowledged that the process lacks the basics: “Kita bukan ada panel yang proper, kita bukan ada kaedah proses yang proper” (We don’t have a proper panel, we don’t have a proper process).³

The same study noted that the process, at the very least, slows down the applicant’s case – and that some people withdraw their applications not because they changed their minds, but possibly because they simply gave up. In the Assistant Mufti’s own words: “Ada yang menarik balik. Mungkin yang menarik balik sebab give up pun mungkin.”⁴

MAIS has published a “Modul Istitabah” – launched in July 2017 – but that module was expressly designed for persons convicted of akidah offences under the Syariah Criminal Offences (Selangor) Enactment 1995, to be applied to those placed at Baitul Iman or prison.⁵ For applicants under Section 61(3)(b)(x) ARIE 2003, the relevant process is a separate penasihatan akidah conducted by the Mufti’s Department⁶ – which, as we have already seen, has no statutory basis, no proper panel, and no proper procedure. Applying institutional frameworks associated with convicted offenders to a person voluntarily exercising a constitutional right raises obvious questions about proportionality and fairness.

The term the court used when ordering my 60 sessions was “sesi istitabah” – the same term used in the context of the Modul Istitabah, which was designed for persons convicted of akidah offences. As discussed in an earlier post, the Federal Court in cases such as Lina Joy has directed that matters of religious status for Muslims – like mine – are to be determined by the Syariah courts. Yet if the Syariah courts are processing applicants through a framework designed for criminal offenders, the question we need to ask is whether a state enactment can criminalise what the Constitution guarantees as a fundamental right. According to Article 75, it cannot – because the Constitution does not allow inconsistencies between state law and federal law. If that is so, then processing a civil applicant through a criminal rehabilitation framework raises a question that goes beyond procedure. It goes to the heart of whether these cases should be in the Syariah courts at all – a question I will address in my next post.

The rule of law demands that when the state exercises power over a fundamental liberty, that power must be grounded in clear, express law – not inferred from procedural rules, borrowed from criminal rehabilitation modules, or sustained by administrative practice alone. In Adam Lee Shiong Lim v Mahkamah Rayuan Syariah Wilayah Persekutuan & Ors [2024] 7 MLJ 588, the counsel for the applicant argued – and the judge noted – that where there is no express provision in the statute giving the Syariah Court a particular power, it is not for the courts to supply that gap. In the Federal Court’s own words in Latifah bte Mat Zin v Rosmawati bte Sharibun [2007] 5 MLJ 101, both civil and Syariah courts are “creatures of statute” – they get their powers from the law as written, not from what might be implied or assumed. The function of the court is to apply the law, not to create powers that the legislature chose not to give.

Put simply: if the legislature did not create a law authorising istitabah in Selangor, then the courts and MAIS should not be imposing it as though one exists.

Fairness in the Process

Even if one accepts that the Syariah Court has jurisdiction over applications to be declared no longer a Muslim – and that jurisdiction is established – there is a distinction between a court hearing a case and a court ordering a person to undergo religious persuasion. A judicial body determines legal rights. A religious counsellor ministers to conscience. The istitabah process collapses the two. The same institutional framework is tasked with evaluating whether my rejection of Islam is genuine and persuading me to reconsider it. The persuasion function contaminates the assessment function. A body that is trying to change my mind is simultaneously reporting to the court on whether my mind has truly changed. That is not how impartial assessment works.

This raises a further constitutional concern under Article 8(1) – equality before the law. A person seeking any other civil declaration in the ordinary courts faces no equivalent mandatory counselling. Only a Muslim seeking to be declared no longer a Muslim is subjected to prolonged persuasion by a state religious institution. No one else exercising a constitutional right is required to first submit to sessions designed to talk them out of it.

And under Article 5(1), which protects personal liberty and has been interpreted by the Federal Court in Indira Gandhi a/p Mutho v Pengarah JAIP [2018] 1 MLJ 545 and the Court of Appeal in Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 1 MLJ 750 to include the right to a process that is fair, proportionate, and not arbitrary – a process with no statutory time limit, no defined number of sessions, no clear standards for completion, and cumulative financial and emotional cost does not sit comfortably with what procedural fairness requires. When a person is effectively penalised – in time, money, and years of their life – for asserting a fundamental right, the process itself becomes the punishment.

The Questions I Believe Deserve Answers

I am not asking these questions with hostility. I am asking them because the Constitution invites them.

If a person has declared their faith, produced evidence of it, and testified to it in court – and is then compelled by state authority to attend 72 sessions run by religious authorities whose stated purpose includes persuading that person to change their mind – does that amount to being “required to receive instruction in a religion other than his own” under Article 12(3)?

If the entire istitabah process in Selangor operates without express statutory authority – resting on administrative practice that even the Mufti’s own department acknowledges has no clear procedure – does that meet the standard the rule of law requires when a fundamental liberty is at stake?

If freedom of religion under Article 11 is so fundamental that even Parliament cannot curtail it during an emergency – can it be curtailed by a court-ordered counselling process that has no statutory basis, no time limit, and no safeguards?

These are not rhetorical questions. They are constitutional ones. And I believe they deserve to be examined – openly, carefully, and by those whose duty it is to uphold the supreme law of this land.

The Constitution does not say “no person shall be required, unless a court orders it.” It does not say “no person, except those whose religious status is administratively recorded as Muslim.”

It says “no person shall be required.”

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References:

¹ Zanariah Dimon and others, ‘Pendekatan Istitabah Melalui Runding Cara Akidah di Jabatan Mufti Selangor dan Permasalahan Berkaitan’ (4th International Conference on Islamiyyat Studies 2018, Tenera Hotel, Bandar Baru Bangi, 18–19 September 2018) 278. Link here.

² ibid 285. Interview with Tn Hj Mohd Darudin Taib, Penolong Mufti, Unit Khidmat Nasihat, Jabatan Mufti Selangor (19 December 2017).

³ ibid 283.

⁴ ibid 284.

⁵ Nazneen binti Ismail and others, ‘Penggunaan Modul Istitabah dalam Mengendalikan Kesalahan Akidah di Selangor’ (4th International Conference on Islamiyyat Studies 2018, Tenera Hotel, Bandar Baru Bangi, 18–19 September 2018) 207–208. Link here.

⁶ ibid.