Minister Claims “Malaysia Not Founded or Endorsed as Secular State.” Really?

Datuk Nazri Aziz has effectively denied the fact that the Federal Constitution views Malaysia as a secular state. He trades on the ambiguity of the phrase in article 3 of the Constitution, “Islam is the religion of the Federation”. He argues against the secular nature of the Constitution since, “A secular country does not expressly identify one religion as its official religion.” The Malaysian Insider quotes Nazri, “Malaysia was founded on the basis of an Islamic government, under the Malay rulers as head of the religion… The word secular does not exist at all anywhere in our federal constitution.”

Nazri conveniently ignores the fact that the term “official religion” is not used at all in article 3. He ignores the caveats in article 3(2) which circumscribes the position of Islam in this article that refers to “acts, observances or ceremonies”, and article 3(4), “Nothing in this Article derogates from any other provision of this Constitution” which elsewhere has been clearly defined as secular.

On what basis does the minister conclude that “Malaysia was founded on the basis of an Islamic government”? And, by the way, what is this “Islamic government”?

We have gone through many rounds of this debate. I shall refer to just one academic paper provided by the Bar Council of Malaysia, written by Tommy Thomas, “Is Malaysia an Islamic State” LINK

See also Philip Koh, “Does the Federal Constitution Support an Islamic or Secular State?LINK

You can download excerpts from the official historical documents that provided the basis for the framing of the Federal Constitution- The Reid Commission (1957), The Federation of Malaya Constitutional Proposals (1957) and The Cobbold Commission (1962) at my website Krisis & Praxis Part 1 LINK Part 2 LINK

We can forgive an ignorant man when he makes a mistake. But Nazri is not an ignorant man. He is well-educated and is indeed the de facto the law minister of the country. We can only conclude he is lying through his teeth. How he can lie in the name of defending his God and religion is beyond my comprehension.

———————

From Malaysian Insider LINK

Malaysia never declared a secular state, says minister
By Clara Chooi October 22, 2012
KUALA LUMPUR, Oct 22 — Malaysia has never been declared or endorsed as a secular state, de facto law minister Datuk Seri Mohamed Nazri Aziz told Parliament today, but stopped short of calling the country an Islamic state.

His remarks today come amid debate over the status of the Constitution, and made despite a previous Supreme Court ruling which said Malaysia is a secular state, and previous statements made by earlier leaders such as Tunku Abdul Rahman, the country’s first prime minister.

The Tunku had on a number of occasions said that Malaysia is a secular state, while the Supreme Court in 1988 said Malaysia practised secular law.

Replying to John Fernandez (DAP-Seremban) during Question Time, Nazri (picture) said he could not confirm if Malaysia’s founding fathers had in the past labelled Malaysia a secular state but reminded the House that Article 3 of the Federal Constitution outlines Islam as the religion of the federation.

Nazri told the House that Malaysia was formed of the Malay sultanate, an Islamic government, and unlike countries like the United States, India or Turkey, Malaysia was never formally declared as secular.
“A secular country does not expressly identify one religion as its official religion… but its citizens are allowed to profess their respective faiths.

“Their religion is deemed as separate and is up to an individual’s own practice.

“In the Federal Constitution, the word ‘secular’ does not at all appear,” the minister said….

—————–

Additional Report from Malaysian Insider LINK

Malaysia a secular state contrary to Nazri’s remarks, say law experts
By Debra Chong and Ida Lim  October 23, 2012

KUALA LUMPUR, Oct 23 — Malaysia is and has always been a secular state even though not expressly stated in the Federal Constitution because the country’s supreme law and founding document is secular, several law experts say as debate continues to storm over the mainly Muslim nation’s status.

The legal pundits refuted minister Datuk Seri Nazri Aziz’s remarks in Parliament yesterday that Malaysia is not a secular state because it had never been declared or endorsed as such and is wholly absent in the Constitution though he stopped short of labelling the country an Islamic state.

“It’s absolutely untrue,” said Tommy Thomas, regarded as one of the country’s foremost authorities on constitutional law.
“To me, to say that Malaysia is not a secular state because the Federal Constitution does not say so is a real, oversimplistic argument. Just like the Federal Constitution does not say Malaysia is an Islamic state,” he told The Malaysian Insider last night.

The veteran lawyer, who had studied the subject and presented an essay debunking Malaysia as an Islamic state at the Malaysian Law Conference seven years ago, said his research had shown that the country’s forefathers and the legal experts who helped draft the Constitution had intended the country remain secular even as it acknowledged the individual Malay state Rulers’ rights and power over religious matters which, he pointed out, was for the most part ceremonial.

Thomas pointed to a Pakistani Federal Court judge, Abdul Hamid, who was part of the five-man Reid Commission formed in 1956 to help draw up Malaysia’s Constitution and held the minority dissent on religion, did not go so far as to say Malaysia must have an Islamic state in its Constitution.

He said Abdul Hamid’s remarks from then was the clearest indicator that the country should remain secular.

Abdul Hamid was the main proponent for including a provision that read: “Islam shall be the religion of the State of Malaya, but nothing in this Article shall prevent any citizen professing any religion other than Islam to profess, practice and propagate that religion, nor shall any citizen be under any disability by reason of his being not a Muslim.”

Thomas said Abdul Hamid, who was from Pakistan, which had gained its independence from Britain in 1947 — a good 10 years before Malaya — and had an Islamic Constitution that put it squarely as an Islamic state, had noted that such a proviso was “innocuous” and would not cause any “hardship” to anyone, but that the judge’s suggestion was rejected by the Conference of Rulers which was against the idea.

The lawyer of more than 30 years’ experience told The Malaysian Insider he still stands by his 2005 essay titled “Is Malaysia an Islamic State?” which concluded that the country was and remains secular, and that no one has disputed his argument to date.

“No one has ever written in to say it’s nonsense,” Thomas said, who blamed Malaysia’s fourth and longest-serving prime minister, Tun Dr Mahathir Mohamad, for sparking the present confusion over Malaysia’s Islamic or secular state status.

The former Bar Council secretary-general noted in his 2005 essay that it was Dr Mahathir who unilaterally declared Malaysia to be an Islamic country in a political speech at the Gerakan party’s national delegates conference on September 29, 2001.

Dr Mahathir had single-handedly negated the secular pronouncements made by his predecessors including first prime minister and the country’s founding father Tunku Abdul Rahman Putra Al-Haj and third PM, Tun Hussein Onn, by saying: “Umno wishes to state loudly that Malaysia is an Islamic country. This is based on the opinion of ulamaks who had clarified what constituted as Islamic country. If Malaysia is not an Islamic country because it does not implement the hudud, then there are no Islamic countries in the world.”

Thomas’ views on Malaysia’s secularism found strong support with three other legal experts.

Former de facto law minister Datuk Zaid Ibrahim, who is among the most vocal opponents to the introduction of hudud law, the strict Islamic penal code, took to Twitter yesterday in an immediate response to Nazri’s remark.

“Constitution don’t define lots of things. It doesn’t define democracy, so does it mean we are not democratic?” the former lawyer who started Malaysia’s biggest private practice posed on his microblogging account @zaidibrahim.

“If Malaysia is neither secular or theocratic, then its whatever BN says it is,” said Zaid, referring to the ruling Barisan Nasional coalition.

Civil liberties lawyer Syahredzan Johan echoed the two law veterans.

“Just because the Federal Constitution does not have the word ‘secular’ does not mean that Malaysia is not a secular state.

“Just like how the word ‘democracy’ does not appear in our Constitution, yet we are a country that practises parliamentary democracy,” he said in weighing in on the debate that raged in Parliament yesterday following Nazri’s remark.

Syahredzan stressed that Malaysia is secular because the Constitution is secular.

“An Islamic state would place the Quran as the highest authority, but our Constitution provides in Article 4 that the Constitution is the highest law of the land.

“The validity of laws therefore must be measure upon the yardstick of the Constitution, and not Islamic principles, thus making the Constitution a secular one,” he said in an emailed response to The Malaysian Insider.

He pointed out that the Supreme Court had set a precedent in 1988 when it rejected an argument in the landmark case of Che Omar Che Soh, a Muslim drug trafficker facing the mandatory death sentence, that because Islam is the religion of the Federation, laws passed by Parliament must be imbued with Islamic principles and that the death penalty was void because it was not according to hudud, or Islamic law.

Tun Salleh Abas, who was then Lord President and head of the judiciary, had said in the landmark ruling that “however, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of the law.”
Universiti Malaya law lecturer Azmi Sharom also agreed with Syahredzan’s view and went a step further to explain the confusing dual-track judicial system that allows for an Islamic or syariah court to be practised alongside the civil courts.

“Malaysia is a secular state in my point of view because ALL laws must be in line with the constitution and the Constitution is a secular document.

“We have a syariah system because a secular constitution allows it. We have Islamic government agencies but their behaviour is governed by the principles of a secular constitution,” he told The Malaysian Insider.

Azmi seemed confident that Malaysia’s secular status will remain unchallenged despite Nazri’s remark yesterday and Dr Mahathir’s 2001 declaration.

“The only way that Malaysia can lose its secular status is through a serious amendment of the Constitution and that will require two-thirds majority agreement in both Houses of Parliament and the agreement of the Conference of Rulers and the states of Sabah and Sarawak,” he said, and added: “Unlikely.”

But Syahrezan was less sure, noting that while legal eagles were splitting hairs over Malaysia’s Islamic versus secular state, a more worrisome trend had emerged in the courts whereby the civil courts appeared to be ceding their authority to the Islamic courts in disputes involving Muslims.

“We are seeing a trend lately to place what the authorities deem as ‘Islam’ on a higher pedestal, even higher than the Constitution itself.

“If the nation is as how the minister described it, ‘founded on the basis of an Islamic government’, then it makes it easier to justify unconstitutional laws and acts because they are ‘Islamic’,” he told The Malaysian Insider.

The up-and-coming lawyer said that the whole debate over the country’s secular or non-secular status was linked to hudud, which is being hotly debated in public in the run-up to the 13th general election that must be called by next April.

“Unfortunately, we seem to be dancing to the tune of those with political motives, who for whatever reasons want Malaysia to be transformed into a theocratic state, or at the very least be seen to champion such a cause.

“The fear is that these will be justified by ascribing extra-constitutional meanings to the words in Article 3, ‘religion of the Federation’, so much so that laws and acts that are unconstitutional would become permissible merely by attaching an Islamic label on them.

“We may see more and more encroachments into the realm of fundamental liberties, and actions taken by authorities inconsistent with the Constitution or ultra vires their powers all in the name of religion,” said Syahredzan.

—————————————
From Malaysiakini LINK

Nazri: M’sia not founded nor endorsed as secular state
Hazlan Zakaria & Nigel Aw Oct 22, 2012

While stopping short of declaring Malaysia to be an Islamic state, a federal minister stressed today that the country was not founded as a secular state.
Nor has it ever been declared or decided to be one, Minister in the Prime Minister’s Department Mohd Nazri Abdul Aziz (right) told the Dewan Rakyat during Question Time today.

“Malaysia was founded on the basis of an Islamic government, under the Malay rulers as head of the religion… The word secular does not exist at all anywhere in our federal constitution,” Nazri said

What was clearly stated in the constitution, Nazri added, was that Islam is the religion of the federation.

He then went on to quote constitutional and legal provisions that preserve and protect the status and function of Islam in the country.

These include provisions naming Islam as the religion of the state, precluding missionary activities on Muslims and for the state to undertake the funding and formation of bodies that administer Islamic affairs.

Nazri was replying a question from Seremban MP John Fernandez on whether Malaysia is still a secular state, quoting the judgment rendered by former Lord President Salleh Abbas in Che Omar Che Soh versus Public Prosecutor.

To this, the de facto law minister specifically said that what was mentioned in the case were secular laws, meaning laws passed before Malaysia came into being, legislated under the secular British system.

As such he argued that it does not denote that we are a secular state.

Kit Siang: Secular state said Tunku

Meanwhile, Lim Kit Siang (DAP-Ipoh Timur) who weigh in on the matter during the committee stage of Budget 2013, said the statements of our founding fathers and pre-constitutional documents proved that Malaysia was a secular state.

Pointing to a Feb 8, 1983 gathering attended by all BN leaders when first prime minister Tunku Abdul Rahman (left) celebrated his 80 birthday, Lim said the father of independence had declared to them that Malaysia was a secular state.

“On the front page of The Star on Feb 9, 1983, the headline was: ‘Tunku turns 80: Don’t make Malaysia an Islamic state’.

“Then the third prime minister Hussein Onn supported Tunku’s statement. On Feb 13, 1983, the (newspaper’s) headline was ‘Hussein says no to Islamic state, too’. These are the evidences,” he said.

Further to this, Lim said the pre-constitutional documents such as the Reid Commission report had clearly stated on paragraph 169 that Malaysia is a secular state, he said.

Lim also quoted Tunku Abdul Rahman again that “Malaysia is a secular state with Islam as the official religion”.

Also, he said that during the Cobbold Commission’s tenure for the formation of the Malaysian constitution, two of its Malaysian representatives namely Ghazali Shafie and Wong Pow Nee had reassured that Malaysia would not be an Islamic state in a bid to convince Sabah and Sarawak to join the federation.

“This is something (our founding fathers said) we should not move away from… But the present government has moved away from the position, saying that Malaysia is not a secular state,” he said when approached by journalist after the House broke for lunch.

However, Lim acknowledged that Malaysia was unique, because according to him, Malaysia was a secular state but has Islam as the official religion.

The secular state versus Islamic state debate has been ongoing for decades, the matter made worse by the ambiguity of our legislation and constitution, though in the main Malaysia is known worldwide as an Islamic country.

About these ads

Follow

Get every new post delivered to your Inbox.

Join 127 other followers

%d bloggers like this: