Our secular Federal Constitution, with its Islamic aspects

By Pak Sako | May 13, 2011
The Malaysian Insider

MAY 13 — 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. — CPI (Centre For Policy Initiatives)