Our Secular Federal Constitution, With its Islamic Aspects

Our Secular Federal Constitution, With its Islamic Aspects 
Center for Policy Studies LINK

Written by Pak Sako Friday, 13 May 2011

I respond to Professor Abdul Aziz Bari’s view regarding Islam and the Federal Constitution.

He gives his opinions on why the Federal Constitution and the Federation of Malaysia are not secular. I comment on his opinions.

I show why our Constitution and the Federation is secular, even whilst it acknowledges and appreciates the social and historic context of Islam in modern Malaysia.

1. Does the Constitution fit the definition of secular?

Professor Aziz does not define ‘Islamic’ or ‘secular’. Yet in his calculation the Constitution “may not be Islamic” but is “certainly not secular”.

It is difficult to envisage a carefully drafted constitution containing indeterminate definitions on a basic character such as a state being secular or theocratic. Professor Aziz should know that deliberate account was taken of Islam in the drafting of the Constitution by the Reid Commission.

It therefore cannot be a willy-nilly ‘neither this nor that’, of the Federation of Malaysia being left constitutionally ‘neither Islamic nor secular’. It must be one or the other, whether rigorously defined or imbued in spirit. The Federation cannot be schizophrenic.

The ‘neither-this-nor-that’ condition is also improbable from the conceptual standpoint.

Consider a working definition of a secular constitution, or a constitution that defines a secular state. Such a constitution would be judged against these requirements: it (i) guarantees individual and corporate freedom of religion, (ii) deals with the individual as a citizen irrespective of his religion, and (iii) is not connected or defined by a religion nor does it sanction the state to promote or interfere with religion (based on D.E. Smith, 1963, ‘What is a secular state?’, pp. 3-22 in India as a Secular State, Princeton, Princeton University Press).

The Federal Constitution of Malaysia easily passes the first two tests. For the third, the answer is less clear. Islam features in 9 out of the 181 Articles in the Constitution (namely, Article 3, 11, 12, 34, 42, 76, 97, 150 and 160) but religious principles do not define and are not assigned for administrating the state. Where there are rules pertaining to the religious affairs of Muslims, a separation principle is apparent (in Article 97, zakat and other religious payments made by Muslims are to go into a fund separate from the Federal Consolidated Fund). The Constitution also clearly does not speak of promoting or interfering with any religion.

A score of 2½ out of 3 could therefore be given on this measure of secularity.

Even if we concentrate on the separation aspect of secularity alone, i.e., detachment from theocracy in terms of administration, democratic model and national laws (as opposed to personal laws), Malaysia is a secular country.

Professor Aziz’s assertion that the Constitution is definitely not secular does not hold water.

2. Article 3(1): Is it Islamic or secular?

The lawyer Syahredzan Johan showed that nowhere in Article 3(1) or elsewhere in the Constitution does it say that Islam is the “official religion” of the Federation.

Professor Aziz responds that the absence of the literal specification “official religion” or “state religion” in the Constitution is no sufficient condition for concluding that Malaysia is a secular state. This is fair.

Nevertheless, it can be argued that the absence of such an explicit indication tilts in favour of the secular argument, in that it negates the necessary theocratic condition for a state to be decidedly ‘not secular’.

To be considered a theocratic Islamic State the Federation should be properly and explicitly defined as such.

Syahredzan Johan argued that Malaysia is secular on grounds of it not being bound by the Quran or Islamic legal provisions. For an Islamic State, the supreme and guiding law of the land would be the Quran and the Sunnah.

Professor Aziz’s tentative “may not be Islamic” is here resolved. If by ‘Islamic’ he meant ‘Islamic State’, then this is not what the Federation is.

3. The spirit of the Constitution: Is it Islamic or secular?

Art Harun provides in his article some of the historical background necessary for ascertaining this. His piece should be read fully to appreciate the force of the argument. Here I paraphrase some key sentences and sources because they clarify so much:

  • The Alliance (the precursor to Barisan National) submitted a memorandum to the Reid Commission responsible for drafting the Federal Constitution. On Islam, the memo says:
The religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion, and shall not imply that the State is not a secular State.”
  • Subsequently, the Reid Commission’s report which was published in February 1957 states the following on the position of Islam:
We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision were inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims — ‘the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion and shall not imply that the State is not a secular State’.”The majority of us think that it is best to leave the matter on this basis, looking to the fact that the Counsel for the Rulers said to us — ‘It is Their Highnesses’ considered view that it would not be desirable to insert some declaration such as has been suggested that the Muslim Faith or Islamic Faith be the established religion of the Federation.

  • Justice Hamid, a member of the Reid Commission from Pakistan, commented:
It has been recommended by the Alliance that the Constitution should contain a provision declaring Islam to be the religion of the State. It was also recommended that it should be made clear in that provision that a declaration to the above effect will not impose any disability on non-Muslim citizens in professing, propagating and practising their religions, and will not prevent the State from being a secular State.
  • The British Government White Paper of June 1957, containing the Constitutional Proposals for independent Malaya, states:
There has been included in the Federal Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practise his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.”
  • In the case of Che Omar bin Che Soh v. Public Prosecutor in 1988, the Malaysian Supreme Court, which comprised of (among others) the Lord President Tun Salleh Abbas maintained that Malaysia is a secular country:
It is the contention of Ramdas Tikamdass that because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles… Needless to say that this submission, in our view, will be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act which provides for the reception of English common law in this country.

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.”

4. What does Article 3(1) mean?

Professor Aziz opines that “the position of Islam as “the religion of the Federation” in Article 3(1) could be taken to mean that Islam is a national or constitutional ideology”. But this would be reading too much into it. Ideology is a strong word and a reading of the constitution does not justify such a proposition.

An alternative take on Article 3(1), one that is harmonious with the Reid Commission conclusions, is as follows. “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation” could be taken to mean that even though Islam is the socially dominant religious identity prevailing across the Federation, e.g., in terms of the number of its adherents and history (the first part of the Article), this should in no way impede the freedom to practice other religions in Malaysia (its second part).

This interpretation is operationally compatible with Professor L.A. Sheridan’s view of what he believes is the meaning of the first part of Article 3(1), that is, “insofar as federal business (such as ceremonial business) involves religious matters, that business is to be regulated in accordance with the religion of Islam”. This is common sense. It would be out of place, even to a non-Muslim Malaysian, if state ceremonial affairs where cultural symbolism is unavoidable (such as when a Malay Muslim ruler is present) were conducted according to another religion.

This matter of ceremony helps explain away what Professor Aziz supposes is a constitutional anomaly, namely, that a secular constitution would surely forbid the constitutional requirement that the Yang di-Pertuan Agong take the Islamic oath of “wallahi, wabillahi and watallahi”. A secular constitution that gives due respect to cultural significances in this way is not any less secular. Note how Thailand’s constitution is a secular one in spite of Section 8 of the constitution which states that the Thai “King is a Buddhist” (and the “defender of all faiths”). Note also that Scotland is a part of the United Kingdom, but the Scottish Parliament had declared Scotland a secular state even as it maintains a religious monarch.

5. Does Article 12(2) discredit the secular argument?

Professor Aziz goes on to suggest that the constitution cannot be secular since Article 12(2) “has allowed the authorities to use public funds for Islam”. He says so without explaining why this is not secular.

What Article 12(2) as a whole says is that while every religious group is free to create and operate “institutions for the education of children in its own religion”, it will be deemed legal (i.e., it shouldn’t be taken as illegal) if the Federation or a State chooses to create and operate Islamic institutions or incurs expenditure to provide assistance in Islamic instruction.

The first part of the Article is a statement of religious freedom that is not in conflict with secularity. The second part implies that it is of no harm (and it might in fact be socially fair) for the Federation or State to specially assist in the provision of such institutions for its Muslim citizens where necessary.

This could be understood in the context of historic economic conditions. A secular state aiding an economically disadvantaged religious group does not make it non-secular.

Professor Aziz has suggested that Article 12(2) “does not mean that the state is prevented from assisting other religions”. This case only underlines the kind of treatment that a secular state, by conceptual implication, would accord to religions.

6. Can a secular state have syariah courts?

Professor Aziz argues that “a secular state would not allow religious courts, such as the syariah courts”.

This is incorrect.

Nothing prevents a constitutional framework that is secular from accommodating religious courts to meet the needs of its citizens.

Hence syariah courts operate in constitutionally secular India. The United Kingdom, with its “mainly secular culture”, has Jewish courts that are in daily use. Secular Singapore has its own government-run syariah court.

7. Does a theocracy protect religious rights and freedoms better than a secularist system?

One of Professor Aziz’s points sidetracks from the debate at hand. He claims that “secularism is not necessarily the means to protect non-Muslims”, and “that countries professing secularism are somehow unable to guarantee the equality and protection of minorities”.

A brief response is in order.

In spite of the difficulties, many secular countries do earnestly strive to ensure equality and protection for different religious groups.

Their sincerity and effort might be better appreciated when the situation in some theocratic countries is considered.

There is institutionalised intolerance where minority religions are concerned in some places (the public practice of non-Muslim religions is outlawed in Saudi Arabia) and uneasy tolerance susceptible to violent conflict in others (murder and the burning of places of worship in Egypt).

On balance, religious freedoms and diversity fare better in secular countries than in theocratic ones.

8. Conclusion

Malaysia can be described as a constitutionally secular country with a state religion.

The Islamic aspects of the Constitution appreciate the cultural and historical context of the nation and its people. A healthy nation state cannot be begun on a blank slate. Its flavour should be acknowledged.

The implied secularity of the Federal Constitution does not at all mean that the state is valueless or unIslamic. The values that a secular, progressive state would commit to, such as justice, incorruptibility, compassion, reason, fairness and respect for diversity are all underlying values found in Islam and other belief systems.

Professor Abdul Aziz Bari’s narrow conception of ‘secular’ — a conception held also by some of the religious — refers to the Communist tradition motivated by hostility towards religion or God (anti-religion or anti-God). It might be inaccurate to label this ‘secular’. But this definition is favoured by some because it serves the interest of a certain religious ideology.

The kind of secular political system that we actually see in practice in the progressive world is different. Being secular is about striving to treat citizens equally regardless of religion and avoiding preferential treatment for a citizen from a particular religion or belief system over other religions or belief systems. The diversity of religions is accepted and may sometimes be celebrated.

The secular-versus-Islamic conflict surrounding our Federal Constitution is a mirage rather than there being any actual constitutional problem.

The reluctance and resistance towards accepting the secular nature of the Constitution is really due to the rise and influence of political Islam in the last 30 years.

This has become embodied in competitive party politics, a growing religious bureaucracy flexing its authority, and heightened feelings of religious exclusivity and religious supremacy in society.

In the interplay of the above-mentioned factors, certain Articles (e.g., Article 12(2)), state laws or by-laws could have been interpreted and practiced in a way that possibly exceed the content and spirit of the Constitution (e.g., the overreaching powers of the religious bureaucracy on at about 60% of the population and their influence on the instruments of governance). Points are scored in bucking against the secular spirit of the Federal Constitution. Fearful of losing support, politicians do not dare to publicly acknowledge the secular quality of the Constitution, much less speak in support of it.

Consider the length to which PAS goes. In declaring its position on Article 3(1), PAS has implied that all the federated states of Malaysia have Islam as their official religion because they belong to the Federation whose religion is Islam (rather than the other way around). PAS clutches at straws to justify an official religion status. PAS does not even bother that this goes against Sarawak and Sabah’s 20/18-point agreement that there shall be no state religion for these states!

Such precedents are dangerous. A multicultural country like Malaysia could do well to revert and properly adhere to the Federal Constitution as originally envisioned.

This is an inescapable responsibility for any government in power.

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You may be interested to read  my small contribution to the debate as well as excerpts taken from the primary sources related to the formulation of the Federal Constitution in its historical context available from the following links:

1) The Reid Commission LINK

2) Social Contract and the Special Position of the Malays LINK
Some observations on the Historical Context

3) Social Contract (Part 1): Religion and Equal Citizenship LINK

4) Malaysia Social Contract (Part 2): Excerpts from Historical Documents LINK

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The Position of Islam in Our Constitution – Abdul Aziz Bari LINK

May 10, 2011

MAY 10 — I am a member of the Bar Council constitutional law committee but have a different point of view on the position of Islam under the Constitution.

Firstly, the correct way of interpreting and understanding the Constitution is by looking at the provision concerned as well as the entire structure. One should not apply literal and pedantic means alone.

Secondly, it is not quite right to say the Constitution is secular. For one thing, there is no provision to that effect in the constitutional document. It may not be Islamic but the Constitution is certainly not secular.

The reasons for this are:

(a) The position of Islam as “the religion of the Federation” as stated in Article 3(1) could be taken to mean that Islam is a national or constitutional ideology. It is just saying I am a Muslim or my religion is Islam.

There is no case law on this but Professor L.A. Sheridan, former law dean at Singapore University, once opined that one of the possible implications of Article 3(1) is that state functions such as the opening of Parliament must be conducted in an Islamic way. The law professor was making a comment in response to the Supreme Court decision in Che Omar bin Che Soh (1988) that was rather confusing.

(b) Even though the Yang di-Pertuan Agong is not the head of Islam for the entire federation, he is required by the Constitution to take the Islamic oath of “wallahi, wabillahi and watallahi” that is contained in the Federal Constitution. A secular constitution, like that of Turkey, would forbid this.

(c) The Constitution, through Article 12(2), has allowed the authorities to use public funds for Islam.

(d) A secular state would not allow religious courts, such as the syariah courts.

These are just some of the reasons why the Constitution and the state are not secular. There are too many other reasons to rebutt the argument put forward by En. Syahrezan this morning. Just look at the state constitutions and other laws, passed by Parliament and the state assemblies.

Thirdly, the mere fact that the Constitution does not say or specify “official religion” or “state religion” is not a good enough argument to bring about the conclusion that Malaysia is therefore a secular state.

Fourthly, having said that, it does not follow that the position of non-Muslims is thus in danger.

Their position has been protected by Article 3(1) which allows other religions to be practised in peace and harmony in the country. They are also protected by Article 11 which provides the right to religious freedom. In fact, one could say that Article 12(2) does not mean that the state is prevented from assisting other religions.

Fifthly, secularism is not necessarily the means to protect non-Muslims. There are countries that profess as such but they are somehow unable to guarantee the equality and the protection of minorities.

Just because I have a different point of view from Syahrezan on Article 3(1) does not mean that I am changing my mind on a non-Muslim and non-Malay becoming prime minister.

My view remains that a non-Muslim and non-Malay can be PM so long as he or she has what it takes under Article 43 of the Federal Constitution to become PM.

And I think having a non-Muslim and non-Malay PM who upholds the Constitution is better than a Malay Muslim PM who puts himself above the law. Or someone who amends it as he pleases, as seen during the Mahathir administration.

* Abdul Aziz Bari reads The Malaysian Insider.

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Malaysia Has No Official Religion, Says Constitutional Expert LINK
Malaysia Insider May 10, 2011
By Debra Chong
KUALA LUMPUR, May 10 — The Federal Constitution has never stated Islam is the country’s “official religion”, says lawyer Syahredzan Johan as controversy raged over a Utusan Malaysia report that Christians want to usurp the religion’s place in the charter.The Umno-owned paper and some Malay-Muslim groups, including Umno leaders, have been pushing the view that the country’s highest law proclaims Islam to be its “official” religion and that only a Muslim can be its prime minister.

Syahredzan, who is the Bar Council’s constitutional law committee chief, said Utusan’s reading of the law was wrong and warned the Malay-language daily was pushing what he described as a “dangerous misconception” that could plunge the country into religious and social unrest.

“In terms of the Federal Constitution, there’s only one religion for the federation, no official or unofficial. The Constitution is clear on this. Islam is not the official religion,” he said to The Malaysian Insider when contacted yesterday.

He cited Article 3 as stating “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation” and pointed out the word “official” was nowhere in the provision.

Syahredzan said that section of the constitution must be interpreted together with Article 11, which states “Everyone has the right to profess and practise his religion and, subject to Clause (4)’ — which is on Islam — ‘to propagate it’”.

“We need to understand the correct terminology to be used when we say anything about the Federal Constitution,” he said, and added “everyone, from ministers to NGOs to bloggers have been claiming all sorts, which goes to show they do not know what is in the Federal Constitution”.

He observed that by inserting the extra word into the Constitution, the bloggers, ministers and newspaper were reading things that are not there and changing the law.

“And that’s unconstitutional,” the lawyer insisted.

Syahredzan also said while the man-on-the-street could be excused for not being well-versed with the law, ministers and lawyers could not be forgiven because it was not only their job but their duty.

“If it’s normal people, they can be excused for not knowing the Constitution, but we’re talking about ministers, lawyers, the media … people with influence in society.

“If they themselves don’t understand how the Constitution works, then we have a serious problem because people might be agitated,” he said.

Syahredzan said he was highlighting this issue because no one else seemed to be doing so.

“It’s a very dangerous thing and it gets played up and because of that, it becomes more than just a constitutional issue, it becomes a bogeyman … it becomes a religious issue and a social issue and a political issue and a problem. Someone needs to stand up and say this,” he told The Malaysian Insider.

While the young lawyer noted that right-wing Malay rights lobbyists had been making noise about this issue, he said he was unsure if their campaign was deliberate or carried out due to ignorance.

But, Syahredzan stressed, it is time Putrajaya take the lead to correct the misconception to avoid disaster.

“But something needs to be done; the government must state clearly what is and what is not in the Federal Constitution.

“The government should play the leading role in trying to correct the misconception and not push further misconception,” he said, and volunteered the Bar Council’s MyConstitution campaign to help the ruling Barisan Nasional (BN) government help understand the Constitution.

Syahredzan also stressed that Malaysia is a secular country as it is a country that is bound by its constitution, and not the Quran or Islamic legal provisions.

“There are people who argue that our country is Islamic,” he conceded.

“But an Islamic state is guided and bound by the Quran and the Sunnah, which then becomes the supreme law of that state,” he said.

He also explained that the whole controversy of changing the official religion from Islam to Christianity, which he noted pro-Malay rights lobbyists had pinned on Article 3, could be carried out with a two-thirds majority of Parliament and did not need the permission of the Yang Di-Pertuan Agong.

“There’s no need for confirmation from the Conference of Rulers either, unlike Article 152 which is on the national language,” Syahredzan said, and cited Article 152 (1) which states “The national language shall be the Malay language”.

Similarly, Article 43(2) — on a Christian becoming prime minister — Syahredzan said it could happen because “the Constitution does not state the prime minister must be a Muslim. All it states is that someone who has the confidence of the majority of Parliament”.

Syahredzan said Islam’s position had become a basic structure of the Federal Constitution and was accepted by all regardless of their creed; adding he did not foresee any change to its position any time in the future.

The lawyer said there were enough safeguards in the Constitution and in the make-up of Parliament, where he observed Muslims outnumbering the non-Muslims, for any change to Islam to be put to the table.

“Why are we under this siege mentality that everyone is out to get us, as if they are afraid Islam is going to be changed?” he asked.

“We have got safeguards to protect Islam,” he said.

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Islam as the Religion of the Federation: A Historical Context LINK
Malaysia Insider May 10, 2011
Art Harun

Much has been said lately about Islam being under siege and an alleged plot to turn Malaysia into a “Christian state.”

This of course led to the inevitable lodging of multiple police reports in various states by the usual suspects and various other parties. Soon I suppose we will have a demonstration by some people with suitable props, like a severed cow head or most likely a burning large crucifix, this time around.

Welcome to Malaysia, ladies and gentlemen. It is nice and hot, and not to mention hazy nowadays. And when it is hazy, we, Malaysians go a bit bonkers.

There are some on Twitter who actually defend Utusan Malaysia and its ilk. There are also many who condemn them, including Malays and Muslims. I have nothing to say to them.

All I want to add is this. If we think of ourselves as leaders, we’d better lead. Not follow. As leaders, we have to come down hard on wrongdoings — on both sides of the fence — and we also have to show the way. It is not enough going around town meeting flag-waving school children amidst huge posters and banners bearing nice catchy slogans while closing our eyes to bigotry: the irresponsible acts of goons and political thugs as well as disgruntled Mafiosi chiefs spewing messages of hate.

As leaders, we should at, all times, lead. And lead not only by words and catchy and sexy slogans, but also by deeds. Otherwise, we would have failed as leaders. Otherwise, we would have breached our oath of office. Otherwise, we would have breached our fiduciary duties. Otherwise, we would have breached the trust given to us by the people.

Meanwhile, a learned friend of mine, Syahredzan Johan, today issued a statement that Malaysia has no official religion. That is his reading of the Federal Constitution. He might be correct. He might be wrong. One thing is clear though, not many Malaysians read the Federal Constitution. And I am sure some people in Utusan Malaysia have never ever even seen a copy.

In my opinion, the true meaning of Article 3 of the Federal Constitution can only be known if, apart from reading the provision, we also study the historical background of the said article. The purpose of this post is to do just that.

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.

(2) In every State other than States not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State in the manner and to the extent acknowledged and declared by the Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observance or ceremonies with respect to which the Conference of Rulers has agreed that they should extend to the Federation as a whole each of the other Rulers shall in his capacity of Head of the religion of Islam authorise the Yang di-Pertuan Agong to represent him.

(3). The Constitution of the States of Malacca, Penang, Sabah and Sarawak shall each make provision for conferring on the Yang di-Pertuan Agong shall be Head of the religion of Islam in that State.

(4) Nothing in this Article derogates from any other provision of this Constitution.

HISTORICAL CONTEXT

During the fact-finding mission by the Reid Commission (the Commission which was entrusted by the British to draft our Constitution), the Alliance (the precursor to Barisan Nasional) presented a 20-page memorandum to the Reid Commission. On Islam, the memo said:

“The religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion, and shall not imply that the State is not a secular State.”

After 118 meetings, the Reid Commission wrote its report in Rome and published it in February 1957. On the position of Islam, it says:

“We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision were inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims — ‘the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion and shall not imply that the State is not a secular State’.

There is nothing in the draft Constitution to affect the continuance of the present position in the States with regard to the recognition of Islam or the prevention of the recognition of Islam in the Federation by legislation or otherwise in any respect which does not prejudice the civil rights of individual non-Muslims. The majority of us think that it is best to leave the matter on this basis, looking to the fact that the Counsel for the Rulers said to us — ‘It is Their Highnesses’ considered view that it would not be desirable to insert some declaration such as has been suggested that the Muslim Faith or Islamic Faith be the established religion of the Federation. Their Highnesses are not in favour of such declaration being inserted and that is a matter of specific instruction in which I myself have played very little part.

At this juncture, it has to be pointed out that initially, as can be seen from above, the Counsel of Rulers (meaning, the Majlis Raja-raja) themselves were against the inclusion of a provision to the effect that Islam shall be the religion of the State. This has to be made clear in order to frame the issue in the right perspective.”

Justice Abdul Hamid, a member of the Reid Commission from Pakistan, however, disagreed. He proposed to include the following article:

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, practise and propagate that religion, nor shall any citizen be under any disability by reason of his being not a Muslim’.

Justice Hamid said, “A provision like the one suggested above is innocuous. No fewer than 15 countries have a provision of this type entrenched in their Constitutions. Among the Christian countries, which have such a provision in their Constitutions, are Ireland (Article 6), Norway (Article 1), Denmark (Article 3), Spain (Article 6), Argentina (Article 2), Bolivia (Article 3), Panama (Article 36) and Paraguay (Article 3). Among the Muslim countries are Afghanistan (Article 1), Iran (Article 1), Iraq (Article 13), Jordan (Article 2), Saudi Arabia (Article 7) and Syria (Article 3). Thailand is an instance in which Buddhism has been enjoined as the religion of the King who is required by the Constitution to uphold that religion (Constitution of Thailand, Article 7). If in these countries a religion has been declared to be the religion of the State and that declaration has not been found to cause hardship to anybody, no harm will ensue if such a declaration is included in the Constitution of Malaya. In fact, in all the Constitutions of Malayan States a provision of this type already exists. All that needs to be done is to transplant it from the State Constitutions and to embed it in the Federal.”

It is obvious that in Justice Hamid’s mind, such a provision, if included in the Federal Constitution, would be, in his own words, “innocuous.” Why would he use the word “innocuous”? That is due to the fact that it wasn’t suppose to bring with it any issue relating to the right of other faiths being practised in Malaysia as well as the rights of people of other faiths in Malaysia.

He, obviously, couldn’t be more wrong in his assessment! I wonder whether he would have suggested that such a provision be included in our Federal Constitution had he been able to foresee how we, Malaysians, react to that provision nowadays.

In proposing as such, Justice Hamid was actually mirroring the memo by the Alliance. He said,

It has been recommended by the Alliance that the Constitution should contain a provision declaring Islam to be the religion of the State. It was also recommended that it should be made clear in that provision that a declaration to the above effect will not impose any disability on non-Muslim citizens in professing, propagating and practising their religions, and will not prevent the State from being a secular State. As on this matter, the recommendation of the Alliance was unanimous their recommendation should be accepted and a provision to the following effect should be inserted in the Constitution either after Article 2 in Part I or at the beginning of Part XIII.”

In “The Making of the Malayan Constitution” by Joseph Fernando, the author wrote:

The Umno leaders contended that provision for an official religion would have an important psychological impact on the Malays. But in deference to the objections of the Rulers and the concerns of non-Muslims, the Alliance agreed that the new article should include two provisos: first, that it would not affect the position of the Rulers as head of religion in their respective States; and second, that the practice and propagation of other religions in the Federation would be assured under the Constitution. The MCA and MIC representatives did not raise any objections to the new article, despite protests by many non-Muslim organisations, as they were given to understand by their Umno colleagues that it was intended to have symbolic significance rather than practical effect, and that the civil rights of the non-Muslims would not be affected.”

Shortly after the London Conference the British Government issued a White Paper in June 1957 containing the Constitutional Proposals for independent Malaya.  Paragraph 57 deals with the Religion of the Federation and reads:

There has been included in the Federal Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practise his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.”

The Constitutional Bill was then passed without amendment. This of course, went against what was recommended by the Reid Commission (as the Commission, except for Justice Hamid, was against the inclusion of the provision in the Federal Constitution).

In an effort to mollify them, the Colonial Secretary, Lennox Boyd, wrote to Lord Reid on 31 May 1957 paying tribute to and expressing gratitude for the “remarkable” work done by the Reid Commission and stated:

The Rulers, as you know, changed their tune about Islam and they and the Government presented a united front in favour of making Islam a state religion even though Malaya is to be a secular state.”

So, it would appear that Article 3 was inserted in the Federal Constitution after the Council of Rulers had changed their mind about it.

In Che Omar bin Che Soh v. P.P., the Supreme Court comprising of, among others LP Tun Salleh held that Malaysia is a secular country:

It is the contention of Mr Ramdas Tikamdass that because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles …

Needless to say that this submission, in our view, will be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act which provides for the reception of English common law in this country.

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.”

Professor Sheridan, a well-known expert on Malaysian Constitution says that position is “doubtless correct”.

A Federation, as opposed to the people within its territory, having a religion is a difficult notion to grasp … It has been suggested that the probable meaning of the first part of Article 3(1) is that, insofar as federal business (such as ceremonial business) involves religious matters, that business is to be regulated in accordance with the religion of Islam.” — The Religion of the Federation”, [1988] 2 MLJ xiii

Viewed from a historical perspective, it is obvious that Article 3 was intended to be no more than an “innocuous” provision giving Islam and Muslims alike, no more rights than the rights of citizens of other faiths in the country.

Perhaps it is worth repeating what Justice Hamid said in the Reid Commission report:

If in these countries, a religion has been declared to be the religion of the State and that declaration has not been found to have caused hardship to anybody, no harm will ensue if such a declaration is included in the Constitution of Malaya.”

No less than our great leader himself, Tun Dr Mahathir, has advised people to learn from history. I would, therefore, urge all Malaysians to embrace Tun Dr M’s call.

Let’s learn from history.


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