JUNE 12 — One need not be a political scientist to note that more often than not the polemic on the alleged secular nature of the Federal Constitution, and by virtue of which, the supposed secular status of Malaysia as a nation, are tainted by political prejudices. So much so that even a cursory glance on the issue would reveal that while branding themselves as championing the cause of Islam, PAS and those aligned to their political agenda assert Malaysia a secular state simply to smear the government of being un-Islamic; or when DAP and those aligned agree with PAS’ allegation it is only because they denounce any call of making things Islamic out of Malaysia, for who could ever forget their former chairman’s notorious remark, “over my dead body before Islamic state”?; or the contention that when Umno and those aligned maintained that Malaysia is indeed an exemplar of a modern Islamic state, it is only to present themselves as all the more Islamic in the eyes of the Malay-Muslim majority.

All this would seem to indicate that being objective on the issue is a near impossibility. Perhaps the closest one could get is to fall back on the provisions of the Federal Constitution being the grundnorm dictating as to how the nation should work. But this too would not guarantee impartiality, for personal agendas could still creeps in in the course of interpretation. One example is when one keeps on insisting that Malaysia could not be said to be Islamic because its constitution was framed in such a manner that laid down the guidelines for a secular state, despite clear and uncontroverted facts to the contrary, namely: (i) that the word ‘secular’ could not be found anywhere in the document; and (ii) that Article 3 clearly declares in no uncertain terms that Islam is the religion of the Federation.

Yes – the religion of the Federation – as opposed to the myth that Islam being merely the ‘official’ religion of the Federation. It makes a world of a difference here, between the former and the latter.

A comparison with the constitution of another country with similar constitutional history to ours would throw more light to this. For which purpose, I propose a comparison be made with the constitution of India, particularly because our own Federal Court had acknowledged in the landmark decision in Merdeka University v Government of Malaysia, that since “our constitution is modelled on the Indian constitution,” whenever there is a parting of way in the wordings of our Constitution from that of the Indian, it is reasonable to suppose there are good reasons for it.

For starters, there is no provision with regards to the state’s religion in the Indian constitution, while there is in ours. The preamble to the Indian constitution also, following amendment, provides for a clear and unequivocal declaration that India is a “sovereign socialist secular democratic republic,” while there is none such declaration in ours. It is only reasonable therefore for us to suppose that the framers of our constitution did not merely accidentally part from the wordings of the constitution of India, but rather that they had actually deliberately chosen to do so because they so intended it to be.

One often cited authority – or rather wrongly-cited – to support the allegation that the Federal Constitution had intended for Malaysia to be a secular state, is the landmark judgment of our Supreme Court in Che Omar bin Che Soh v Public Prosecutor. But a proper reading and a closer scrutiny of the case reveals that the court in that case did not actually address the question of whether Malaysia is an Islamic or a secular state. In this regard, the former Chief Justice Tun Abdul Hamid Mohamad had made a very enlightening commentary to the said Supreme Court’s judgment in a paper entitled ‘Islam dan Tafsiran Keperlembagaan oleh Mahkamah di Malaysia’ (Islam and Constitutional Interpretation by the Malaysian Court), wherein he stated as follows:

“The issue in that case was whether capital punishment for drug trafficking and for offences under the Fire Arms (Increased Penalties) Act 1971 is contrary to Islamic injunction and therefore unconstitutional … Did the court say that Malaysia is an ‘Islamic state’ or a ‘secular state’? The answer is neither, because such were not the issues that needed to be decided by the court.” [my translation from the original text in Malay]

Admittedly, though, the Supreme Court in the case did refer to our laws as secular. In fact the word ‘secular’ appeared five times in the written judgement. But these must be read in their proper context, so as not to be misconstrued to mean something otherwise than that originally intended by the court. On this, Tun Abdul Hamid Mohamad in the same commentary had this to say:

“Unfortunately, the word secular was used in the judgement, but even so, it was not to refer to the country, but rather to the institutions and its laws. In any event, the usage was rather inaccurate, and it was not supposed to be used as such. Due to certain group and political agendas, it was often quoted out of context so as to allege Malaysia is a secular state, despite the fact that not once does the word ‘secular’ appears in the Federal Constitution. Instead, attention was omitted from the declaration that ‘Islam shall be the religion of the Federation,’ while there is no such declaration for other religions. Attention was also not addressed to the various provisions with regards to the head of the religion of Islam, when there is no such provision for other religions as well. Neither was attention directed to the fact that there is provision to restrict the propagation of other religions to the Muslims; that there are provisions with regards to the jurisdiction of the state legislative bodies to enact Islamic laws including for the establishment of Shariah courts, for the enactment of offences against the precepts of Islam, for the establishment and management of Islamic institutions like Baitul Mal and wakaf, all of which are not provided for other religions. So are all these secular provisions?” [my translation from the original text in Malay]

Che Omar bin Che Soh was a case decided in 1988, almost three decades ago. There are many other recent cases addressing the position of Islam as the religion of the Federation, but all too often they are conveniently forgotten by those advocating for the position of Malaysia as a secular nation. One of which is the landmark decision of the High Court in Meor Atiqulrahman v Fatimah Sihi and others, wherein in addressing the meaning and application of Article 3(1) of the Federal Constitution, the Court made a powerful remark, the passage of which, due to its delicate nature for being so beautifully written in a poetic-quality prose, shall be reproduced in its original Malay for fear that any attempt to translate thereof would not do justice to the learned judge’s dazzling and astonishing use of language:

“Islam ialah ugama bagi persekutuan tapi ugama-utama lain boleh diamalkan dalam aman dan damai. Islam adalah ugama utama di antara ugama-ugama lain yang dianuti di negara seperti Kristitan, Buddha, Hindu. Islam bukan setaraf dengan ugama lain. Bukan duduk berganding bahu dengan agama lain atau berdiri sama sama tegak. Ia duduk di atas, berjalan dahulu, terletak di tempat medan, dan suaranya lantang kedengaran. Islam ibarat pokok jati. Tinggi, teguh, dan terang. Jika bukan sedemikian, Islam bukanlah ugama bagi persekutuan, tetapi adalah salah satu di antara beberapa ugama yang dianuti di wilayah ini, dan setiap orang sama-sama bebas mengamalkan mana-mana ugama yang dianuti. Tiada lebih di antara satu sama lain.”

On appeal, admittedly and undeniably the decision of the High Court was overruled by the Court of Appeal and also by the Federal Court. But make no mistake – the above quoted passage of the judgement was never really reversed or expunged. The determining issue considered in the appeals was rather restricted to the question of whether the wearing of the Muslim’s turban a prescribed sunnah. In no way did the Court of Appeal or the Federal Court hold that the High Court’s judgement regarding the position of Islam as being incorrect, and thus it is submitted that the above quoted passage remains intact and binding.

Moving on, it is trite that it would not be complete to discuss the religion of the Federation without referring to the report prepared by the Reid Commission being the then independent constitutional commission appointed to draft the constitution for the nascent independent state of Malaya. In this regard, Tommy Thomas in a lengthy academic paper entitled ‘Is Malaysia an Islamic State’, had made heavy reference to the Reid Commission Report and relied on various passages quoted therein to argue for the allegedly secular nature of the Federal Constitution – being the one word that is simply absent from our constitution.

The academic paper was delivered at the 13th Malaysian Law Conference in 2005, and since then on, it has been a major source of reference to those advocating the notion Malaysia a secular nation, either acknowledged or otherwise by those referring. The learned author himself boasted in a report dated 2012 that to date, no one has been able to dispute his argument. In fact it had been parroted too many a time, and perhaps the recent essay by the Islamic Renaissance Front (IRF) entitled ‘The Constitution Laid Down the Guidelines For a Secular State’ published in the Malaysian Insider is just one of too many others previously.

However, there is one very glaring problem with Thomas’ quote of the Reid Commission Report in his academic essay. This was pointed out by Helen Ang in her article entitled ‘Secular or Non-Secular: How Art Harun Got it Wrong on the Reid Commission’, after having perused the original report rather than the one quoted (or rather misquoted) by Thomas. The article by Helen was actually a response to the writing of Art Harun, who I suspect might also be one of those falling prey to Thomas’ misquoting the Reid Commission.

In his attempt to portray that the Reid Commission, among others, as being “at pains to expressly declare that Malaya is a secular state,” Thomas quoted paragraph 169 of the report as follows:

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

But this is simply not true. The Reid Commission said no such thing; it did not say it in such a way. Before going on further, it is important to first of all understand the nature of the Reid Commission Report so as to appreciate the grave mistake that came about out of the quoted (or rather misquoted) paragraph.

The Commission, comprising of Lord Reid as the chairman, Sir Ivor Jennings, Sir William McKell, Mr. B. Malik and Mr. Justice Abdul Hamid, was appointed to draft the constitution for the soon to become independent Malaya. In so doing, it took into account the various conflicting interests inherent within the pluralities of the Malayan societies resident therein before delivering the final product based on the principle of give and take, which would later be known as the social contract between the races. So in the course of all these, the Commission received from various stakeholders memorandums, concerns, suggestions and recommendations, all of which were taken into account and later recorded and reflected in the Commission’s report.

It is important to note that while the Commission does indeed make suggestions whenever necessary, there are also various parts in which the Commission simply makes a neutral report based on what was communicated to them and quoted verbatim the words of the various stakeholders. And the paragraph quoted (or rather misquoted) above purportedly to be that of the Commission’s recommendation actually happen to be a mere verbatim report based on the recommendation made by the Alliance. They were not the words of the Reid Commission.

The actual paragraph 169 of the Reid Commission Report reads as follows (the part that was missed out by Thomas in his essay is emphasised in capital letters):

“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. IN THE MEMORANDUM SUBMITTED BY THE ALLIANCE IT WAS STATED – ‘the religion of Malaya shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practicing their own religion and shall not imply that the State is not a secular State’.”

True, it is only half a sentence there, but as Helen Ang pointed out, it makes a world of a difference “because when you read the paragraph without that crucial half a sentence you will get the (wrong!) impression that the Reid Commission indeed held the position that having Islam as a state religion doesn’t imply that Malaysia is not a secular state,” when actually it was merely “the position taken by the Alliance Memoranda submitted to the Reid Commission, and not that taken by the Reid Commission itself.”

Thus it is simply wrong to say that the drafters of our Constitution had intended for the document to be secular and the nation to be the same. The issue was brought to its attention and duly considered, yes; but whether or not the Reid Commission intended it to be so is doubtful, to say the least, for if the Commission had so intended, there would have been a clear provision articulating the secular nature of the nation.

Over and above the fact that the Reid Commission as the one drafting our constitution never really expressed its intention to make our nation secular, it is also important to note that if at all the word ‘secular’ ever appears in the various documents issued by various other parties pertaining to the allegedly secular nature of our constitution – like the White Paper issued by the British Government for instance, or the memoranda submitted by the Alliance – it would always be paired with and in conjunction to the declaration of the right to freedom of religion of the non-Muslims. As such it is submitted that the word ‘secular’ therein ought to be strictly construed in its contextual definition rather than literal so as to merely mean that despite the declaration of Islam being the religion of the Federation, those of the other religions may freely practise their own respective religions.

An example of the use of the word ‘secular’ in its contextual definition could be seen in the 1957 White Paper issued by the British Government, where at paragraph 57 it is stated as follows:

“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 practice his own religion….”

Read in such a context, it cannot be said that the term ‘secular’ was meant to be understood as a wall separating religion from the state; neither could it be read as disallowing religion to have a place in public life; nor could it be understood as neutrality of the state towards any given religions as the term ‘secular’ would literally denote – how could it, when Islam is clearly put on the pedestal as the religion of the Federation and no other religion is even mentioned in the constitution. Instead, the contextual definition of the term ‘secular’ as per used therein having been paired in conjunction with the provision of freedom of religion ought to be strictly construed narrowly so as to indicate merely that the position of Islam will not affect the right to freedom of religion of the non-Muslims. That is all that there is to it. It could not and should not be construed as ‘secular’ in any other sense.

At this juncture it is timely to cite and quote Professor Abdul Aziz Bari in his work entitled ‘Malaysian Constitution: A Critical Introduction’:

“Although some quarters feel that the constitution is secular, this is more of an interpretation or perhaps, rather than a matter of fact. Indeed there are arguments to say the reverse; i.e that Malaysian constitution is not secular. The latter view appears to be viable as, strictly speaking, a country that allows religion to have a place in public life could no longer be said as out and out secular although the recognition given to Islam also does not make the state concerned religious or Islamic one either. In any case, the constitution, or its accompanying documents has never stated, in categorical manner, about the alleged secular nature of the constitution.”

Based from all that have been said thus far, while one could safely conclude that it is clear beyond any doubt whatsoever that Malaysia is not a secular state and that our constitution is not a secular document, one could not, however, as a matter of intellectual integrity, go as far as to say that ours is an Islamic state. For the concept of ‘Islamic State’ is in itself elusive, the term of which could not be found anywhere in the Quran or the traditions of the prophet, upon whom may the blessings of Allah be with. On this note, it would be most apt to conclude with a very enlightening passage from the work of Professor Syed Muhammad Naquib al-Attas, one of the foremost thinkers and scholars of our time that Malaysia is blessed to have.

“There is confusion in the Muslim mind,” wrote the good professor in the introduction to his ‘Prolegomena to the Metaphysics of Islam’, “in misunderstanding the Muslim ‘secular’ state by setting it in contrast with the ‘theocratic’ state. But since Islam does not involve itself in the dichotomy between the sacred and the profane, how then can it set in contrast the theocratic state with the secular state? An Islamic state is neither wholly theocratic nor wholly secular. A Muslim state calling itself or is called by others ‘secular’, does not necessarily have to divest nature of spiritual meaning; does not necessarily have to deny religious values and virtues in politics and human affairs; does not necessarily have to oppose religious truth and religious education in the way that the philosophical and scientific process which I call ‘secularization’ necessarily does involve the divesting of spiritual meaning from the world of creation; the denial of religious values and virtues from politics and human affairs; and the relativization of all values and of truth in the human mind and conduct. It is this confusion in the Muslim mind that is causing the emergence in our midst of social and political upheavals and disunity.”

*Aidil Khalid is a lawyer practising in Kota Damansara, Selangor.





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