IS MALAYSIA AN ISLAMIC STATE?
by ©Tommy Thomas
On 29th September 2001, during his Opening Address to the Gerakan Party’s 30th national delegates conference, Prime Minister Datuk Seri Dr Mahathir Mohamed announced:
“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.
If UMNO says that Malaysia is an Islamic country, it is because in an Islamic country non-Muslims have specific rights. This is in line with the teachings of Islam. There is no compulsion in Islam. And Islam does not like chaos that may come about if Islamic laws are enforced on non-Muslims.1
The response was immediate and furious. The spiritual leader of PAS and the Menteri Besar of Kelantan, Dato Nik Aziz replied:
“You can talk all you want. You can declare a piece of wood to be gold, or a wheelbarrow as a Mercedez, but in reality, nothing has changed.
For us, an Islamic country is one which is governed according to the tenets of the Quran and Hadith (sayings of Prophet Muhammed). Malaysia is a secular State. If the present Malaysia is already an Islamic state, then what do you call the state ruled by Prophet Muhammed and his friends?2 ”
The other major opposition party, DAP, also criticized the announcement in trenchant terms and sought an urgent debate in Parliament on the whole subject.3 Paradoxically, Dr Mahathir’s unilateral announcement was attacked with equal vigour from both sides of the political divide in Malaysia: PAS, as protector of the Islamic cause, and DAP, as articulating the non-Muslim voice.
I propose in this paper to consider the issue from a constitutional perspective. How does the supreme law of the land deal with the question: is Malaysia an Islamic State? It is critical when considering the constitutional position to examine the manner in which Malaya secured Merdeka on 31st August 1957, and how the Federal Constitution came to be adopted. The evolution of a national constitution usually reflects the birth of a new nation. As Malaya shook off the shackles of colonialism in 1957, its emergence into national sovereignty and statehood among the community of nations was proclaimed with the simultaneous promulgation of the Merdeka Constitution. The road to independence and the making of our Constitution are the places to start.
B. THE ROAD TO MERDEKA
The Japanese landing in Kota Bahru on 7th December 1941, the abject surrender by the British in February 1942, the brutality of Japanese rule, the chaotic post-war conditions and the arrogant resumption of colonial power by Britain in September 1945 laid the seeds of political awakening of the indigenous Malays. The high-handed treatment in surreptitious circumstances of the Malay Rulers by Sir Harold MacMichael which led to the establishment of the Malayan Union in 1946 saw the birth of the first pan-Malay national movement through the establishment of UMNO in 1946. As a result of the intense opposition by the Malays and very lukewarm interest of the non-Malays, the concept of the Malayan Union was never implemented, and in 1948 was replaced by the Federation of Malaya Agreement.
The 1948 Agreement was the product of a Working Committee under the chairmanship of Sir Malcolm MacDonald, the first Governor-General of the Malayan Union, with representatives from the Malay Rulers, UMNO and the other communities. The Federation of Malaya Agreement of 1948 set up a Federal Government in Kuala Lumpur under the British High Commissioner and a Federal Legislative Council in which the major races were represented. At the beginning of 1952, a temporary alliance between the SelangorState branch of the MCA and the Kuala Lumpur branch of UMNO was brokered by Tun H S Lee and Yahya bin Dato Abdul Razak with the sole aim of jointly contesting the Kuala Lumpur Municipal elections in February 1952. It was done without the prior knowledge4 of the national leadership of both parties. The common objective was to defeat the Independence of Malaya Party (“IMP”) set up by Dato Onn Jaafar in 1951. The partnership proved a great success, winning 9 out of the 12 seats (MCA captured 6 with UMNO taking 3). The IMP only secured 2 seats and this defeat proved to be the beginning of its end.
Their unexpected success spurred the national leadership of the 2 parties to form the Alliance coalition in 1953, and MIC joined in 1955. In July 1955, out of the 52 seats on the new Federal Legislative Council, Alliance captured 51 seats and Tunku Abdul Rahman, the leader of Alliance and UMNO, assumed the office of Chief Minister in 1955. Despite the declaration of Emergency in 1948 and the threat of armed conflict with the Malayan Communist Party led by Chin Peng, Tunku Abdul Rahman headed a Merdeka Mission in January 1956 to London to negotiate for independence. The negotiations were conducted by 4 representatives of the Malay Rulers, 4 representatives of the Alliance Government and representatives of the British Government. An important result was the appointment of an Independent Constitutional Commission to draft a constitution for an independent Malaya.
C. THE MAKING OF THE MERDEKA CONSTITUTION
Interestingly, there was a division of opinion between the Malay Rulers and the Alliance on the composition of the Constitutional Commission. The Rulers favoured a commission drawn from within the Federal of Malaya, whereas the Alliance pressed for members outside Malaya: they preferred a commission of 4 members from the United Kingdom, Canada, Australia and India. 5 The British Government appointed Lord Reid, one of the greatest judges of the 20th century, as Chairman. The other members were Sir Ivor Jennings6 , Sir William McKell 7 , Mr B. Malik8 and Mr Justice Abdul Hamid9 . The Canadian Government was unable to nominate someone in time.
One of the striking features of the Reid Commission’s Report and the Federal Constitution, substantially modeled on the draft prepared by the Reid Commission, is its inter-communal compromises. The compromises, which sought to safeguard the rights and interests of all the communities can be traced to the joint memorandum submitted to the Reid Commission by the Alliance, which was itself the product of protracted negotiations over a 5-month period between UMNO, MCA and MIC in 1956. The significance of the memorandum lies in the fact that it not only outlined the general principles of agreement between the communal leaders (and thus was given substantial weight by the Reid Commission as representing the overwhelming majority opinion in Malaya) but also represented the visions, hopes and aspirations of the Alliance leaders for the new nation.10
The proposals set out in the 20-page Alliance memorandum were debated vigorously in private between April and September 1956 by a core group from UMNO, MCA and MIC under Tunku’s chairmanship. The product was a “give and take compromise” which became the “social contract” between the races. The memorandum reflected a microcosm of the conflicting interests inherent in Malaya’s plural society; indeed, almost half of the memorandum dealt with ethnic related issues. It also mirrored the social and political conditions of the time and the desire of the Alliance leaders for national unity and political stability as nationhood loomed. The Alliance leaders were also not working in a political vacuum; the prevailing political and ethnic tensions and pressures influenced their decisions, particularly the communal clashes in the post-war Malaya of 1945 and the Emergency
The Alliance Memorandum submitted to the Reid Commission referred to Religion in these terms:
“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.”11 [my emphasis]
The Reid Commission held 118 meetings in Malaya. It met a wide cross-section of persons and organizations and received 131 memoranda. In order not to be influenced by any quarter and to maintain its independence, the Commission wrote its report in Rome, and published it in February 1957. On the issue of State Religion, the Report stated at Paragraph 169.
“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 recognition of Islam or to prevent 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 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.’ Mr Justice Abdul Hamid is of opinion that a declaration should be inserted in the Constitution as suggested by the Alliance and his views are set out in his note appended to this Report.”
Abdul Hamid, the nominee from Pakistan, dissented on a few matters, including on the subject of Islam. Paragraph 11 of his minority report reads:
“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.
‘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’.
A provision like one suggested above is innocuous. Not less than fifteen countries of the world 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 Paraquay (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 to be 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 have caused hardships 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 is required to be done is to transplant it from the State Constitutions and to embed it in the Federal.” [my emphasis]
The Reid Report received a mixed response; the main focus of attention was communal issues, and the local reactions were split on a Malay and non-Malay divide. Shortly after the publication of the Report, a Working Party comprising representatives of the British Government, the Malay Rulers and Alliance was appointed to review it to ensure that the recommendations were generally acceptable to the people. The Working Party, which was chaired by Sir Donald MacGillivary, the High Commissioner, and included 4 representatives each from the Malay Rulers and Alliance met 23 times between 22nd February and 27th April 1957. The Tunku led the Alliance delegation. The Alliance also set up its own sub-committee to work out a consensus on the communal issues raised in the Reid Report. The sub-committee was chaired by Datuk Abdul Razak, UMNO’s Deputy President, and included senior leaders from UMNO, MCA and MIC. The intra-party bargaining in the sub-committee was characterized by a willingness of each of the political parties to accommodate the views of their partners. Their accommodating attitude was commended when the sub-committee’s report was presented to the Alliance National Council for approval on 5th May 1957, with the Chief Minister, Tunku Abdul Rahman stating that the consensus was achieved because of the “spirit of give-and-take” within the Alliance. Calling the event “the most important event in our history”,12 Tunku stressed that the future well-being of Malaya depended on the continued co-operation and goodwill among the races.
On State Religion, the Alliance maintained their position in the Alliance Memorandum that had been submitted to the Reid Commission and which had found favour with Hamid in his minority report. According to Joseph Fernando:-
“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 organizations, 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. MacGillivray personally felt that such a provision would be advantageous because the Yang di-Pertuan Agong could at the same time become the head of the faith in the Settlements of Penang and Malacca. The Colonial Office, while apprehensive at first, did not object after being assured by the Alliance leaders during the London Conference in May 1957 that they ‘had no intention of creating a Muslim theocracy and that Malaya would be a secular State’.”13 [my emphasis]
The London Conference of 13th to 21st May 1957 served as the next stage of the evolution of the Constitution. Again the Malay Rulers and Alliance sent 4 representatives each, with the Tunku leading the Alliance delegation. Shortly after the London Conference the British Government issued a White Paper14 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 practice 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.” [my emphasis]
Thereafter, the Constitutional Bill was debated in the British Parliament and in the Federal Legislative Council in Kuala Lumpur. Despite efforts in both Houses to make amendments, the Constitution Bill was passed without amendment. In the speech delivered to the Federal Legislative Council on 10th July 1957 in moving the Constitution Bills, Chief Minister Tunku Abdul Rahman stated:
“It will thus be seen that the Constitutions now before this council are the result of prolonged and detailed discussions and product of many minds. Each clause has been most thoroughly examined, and when it is remembered that the recommendations of the Reid Commission on which the new Constitutions are based were in their turn based on representations received from hundreds of organizations and individuals on the personal views and experience of the members of the Commission, there can, I consider, be no doubt whatsoever that these Constitutions will provide the independent Federation of Malaya with a firm foundation on which the people of this country can build a great and prosperous nation”.
“As I explained at the beginning of my speech, the proposals now before this Council have been most carefully worked out. We have had to take account of the various conflicting interests, and I do not believe that a better Constitution could have been devised in the circumstances of our country today. The economic future is bright; the country must not be held back by the selfish and unyielding attitude of any individual or groups of individuals. The Constitutions provide the framework for a happy and contended Federation. Let us all firmly resolve to make it work”.15
As a result of the recent publication of British state documents under their 30-year rule relating to Malayan Independence, it has now become apparent that Lord Reid and Sir Ivor Jennings, the two members nominated by the United Kingdom to serve on the Constitutional Commission, exchanged acrimonious letters with the Colonial Office in London on the changes to the Reid Draft, particularly with regard to the language used by Parliamentary Counsel in London16 . In an effort to mollify them, the Colonial Secretary, Lennox Boyd, wrote to Lord Reid on 31st May 1957 offering tribute and gratitude to 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 state17 ”[my emphasis]
On the stroke of midnight 31st August 1957, Persekutuan Tanah Melayu (or the Federation of Malaya) proudly took its rightful place among the independent nations of the world. The Proclamation of Independence read by Prime Minister Tunku Abdul Rahman on 31st August 1957, after he received, on behalf of the people of independent Malaya, from the Duke of Gloucester, representing the retreating British imperial power, the constitutional documents signifying Merdeka, included the following stirring words:
“AND WHEREAS by the Federal Constitution provision is made to safeguard the rights and privileges of their Highness the Rulers and the fundamental rights and liberties of the people and to provide for the peaceful and orderly advancement of the Persekutuan Tanah Melayu as a Constitutional monarchy based on Parliamentary democracy”. [my emphasis]
The supremacy of the Constitution is expressly stated in Article 4 (1) which reads:
“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”.
In Malaysia the Constitution is therefore supreme, and not Parliament. Malaysia accordingly follows the American and Indian models of government where constitutional supremacy operates, as opposed to the Westminster system of government in England where Parliament is supreme. Thus, by virtue of the clear and express words of Article 4 (1) if there is conflict or inconsistency between the Constitution and an Act of Parliament, the former prevails. Constitutionalism manifests itself even in cases where no express application is made to Court to declare legislation passed by Parliament as being unconstitutional; in such circumstances the Court takes into account the letter, spirit and intent of the Constitution when interpreting an Act of Parliament without going so far as to declare the latter unconstitutional.
Constitutional government in the classical sense requires a type of constitution, invariably written, that limits the powers of the executive and is not susceptible to easy modification or abrogation by temporary holders of political office. In philosophical literature, constitutionalism represents the idea of a government subject to limitations that have the capacity to withstand momentary or transient currents of opinion or political will through a combination of legal structure, internal mechanisms, supporting institutions and culture. Hence, the key feature of constitutionalism in the philosophical sense is a constitution that sets limits to the power of rulers by subordinating them to enduring law which the rulers themselves cannot abrogate. In short, a system where the constitution is supreme, and the executive and the legislature subject to it. The supremacy of a constitution is also usually associated with two other doctrines: the separation of power and the rule of law.
Constitutionalism in this sense arises as a consequence of the rise of the state, which by the middle of the 20th century had come to possess vast powers over its citizens. The concentration of political and economic power in the hands of the executive has resulted in the coercive state. The problem is not new: once coercive authority is established, it is difficult to control. Like all possessors of valuable assets, the wielders of coercive authority tend to employ their power in the service of their private ends. Hence the principle of human nature that Lord Acton famously stated:
“Power corrupts, and absolute power corrupts absolutely.”
This is the perennial problem of the state: how does one simultaneously create authority, and yet prevent its abuse. Throughout the history of ideas, philosophers and statesmen have been attracted to the idea of the “constitutionalism” as the solution to this problem. The essence of constitutional government then is the limitation of power and the prevention of its arbitrary exercise by the rule of law. The father of Malaysia’s independence, Prime Minister Tunku Abdul Rahman, characterized the new nation in his Proclamation of Independence “as a constitutional monarchy based on Parliament democracy… and the constitution has been established as the supreme law thereof..”
Constitutions are not to be interpreted in a strict, technical or narrow manner, as a probate Court would interpret a will. Constitutions are also not be interpreted as ordinary Acts of Parliament. Instead, they should be treated sui generis construed in broad and ample terms calling for “a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’ suitable to give individuals the full measure of the fundamental rights and freedoms referred to”18.
Common sense dictates that in interpreting any constitutional provision it is critical to examine the historical context under which the entire constitutional document was enacted, and also the particular provision that calls for construction. Thus, the matters that I have discussed in Parts B and C of this Paper above are relevant to the interpretation of the material provisions of the Federal Constitution. However, if authority is needed, one only need to refer to the speech of Lord President Tun Hamid Omar in Susie Teoh Eng Huat v. Kadhi, Pasir Mas19
“Although normally, in accordance with usual judicial practice, we base our interpretative function on the printed letters of the legislation alone, in the instant case, we took liberty, as Lord Denning is reported to have done, to ascertain for ourselves what purpose the founding fathers of our Constitution had in mind when our constitutional laws were drafted. The Malaysian Constitution was not the produce of overnight thought but the brainchild of constitutional and administrative experts from UK, Australia, India and West Pakistan, known commonly as the Reid Commission following the name of the Rt Hon Lord Reid, LLD, FRSE, a Lord of Appeal in the Ordinary. Prior to the finding of the Commission, there were negotiations, discussions and consensus between the British government, the Malay Rulers and the Alliance party representing various racial and religious groups. [my emphasis]
In an article published in 1982, Raja Tun Azlan Shah (as His Majesty then was) stated:
“The Merdeka Constitution became a masterpiece of compromise. Every group gives something and gets something in return. The same applies to the Rulers. They agreed to independence and to hand over their powers to the people, but they had their positions and privileges secure”.20
When opening the Aliran Conference to celebrate the 30th Anniversary of Merdeka, on 15th August 1987, Tunku Abdul Rahman, Bapa Kemerdekaan, declared:
“It cannot be denied that our Constitution is a document of intrinsic value, a product of goodwill and understanding and wisdom. It safeguards the interests of the various communities in Malaysia.
Everybody was satisfied that the Constitution represented a balance of interests as well as a sense of justice and fair play.”
“The fear now is that some religious organizations and fundamentalists are talking of making Islam the State religion, but this does not appear possible or carry much weight as it is very unlikely that the government will agree to it because of our declared policy to make Malaysia a democratic parliamentary state with everybody free to follow his own religion while Islam is the official religion. They will not get a two-thirds majority required to make the amendment. The fear should not present any problem or be a source of worry to the non-Muslims in this country, and it should not unduly worry those present at this conference.” 21 [Tunku’s emphasis]
When opening the 12th Malaysian Law Conference on 10th December 2003, Sultan Azlan Shah declared:
“The theme of the Conference “Evolving a Malaysian Nation” provides an opportunity for all present today to reflect on the essential features of our system of government, and what we had decided upon as our constitutional system, forty-six years ago in August 1957.
We then embarked on a journey as a constitutional democracy with the full realisation that we were a multi-racial people with different languages, cultures and religion. Our inherent differences had to be accommodated into a constitutional framework that recognised the traditional features of Malay society with the Sultanate system at the apex as a distinct feature of the Malaysian Constitution.
Thus there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminster model and built into it the traditional features of Malay society.
This Constitution reflected a social compact between the multi-racial peoples of our country.”
“It is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm to which all other laws are subject. This essential feature of the Federal Constitution ensures that the social compact between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever ensures to the benefit of the Malaysian people as a whole.”22 [my emphasis]
In a keynote Address to the same Law Conference, Tengku Razaleigh Hamzah, a former Vice President of UMNO and Senior Cabinet Minister, stated:
“We owe a debt of gratitude to our founding fathers and our past leaders, for their vision, strength and singleness of purpose in defending the principles of the social contract enshrined in our Constitution.” 23 [my emphasis]
E. ARTICLE 3
Article 3 of the Federal Constitution reads:
Religion of the Federation
“3. (1) Islam is the religion of the Federation; but other religions may be practiced 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 acknowledge and declared by the Constitution of that State, and, subject to that Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observances 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 authorize 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 the position of Head of the religion of Islam in that State.
(4) Nothing in this Article derogates from any other provision of this Constitution.
(5) Nothwithstanding anything in this Constitution the Yang di-Pertuan Agong shall be the Head of the religion of Islam in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and for this purpose Parliament may by law make provisions for regulating Islamic religious affairs and for constituting a Council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam.
On a plain reading of the language used in the 5 sub-articles of Article 3 of the Federal Constitution, the following observations can be made. Article 3 (1) begins by stating that “Islam is the religion of the Federation…”. Article 1(1) provides that the Federation is Malaysia. Therefore, Islam is the religion of Malaysia. The closing words of Article 3 (1) read “…but other religions may be practiced in peace and harmony in any part of the Federation”. It follows that the framers of the Federal Constitution recognized that Malaya’s plural population practiced other religions apart from Islam which they could continue to do so after Merdeka. Article 3 (2) recognized the 9 Malay Rulers as being the Heads of the religion of Islam in their respective States, who continued to enjoy all rights, privileges, prerogatives and powers enjoyed by them at the time of Merdeka, save that each Ruler authorizes the Yang di-Pertuan Agong to represent the Ruler in matters which the Conference of Rulers has agreed should extend to Malaysia as a whole. Articles 3 (3) and (5) declare the Yang di-Pertuan Agong to be the head of the religion of Islam in Malacca, Penang, Sabah, Sarawak and the Federal Territories of Kuala Lumpur, Labuan and Putrajaya (that is, in those parts of Malaysia which do not have a hereditary Malay ruler). Finally, Articles 3 (4) states that nothing in Article 3 “derogates from any other provision of this Constitution”. Hence, the Part II fundamental liberty of freedom of religion enshrined in Article 11 is not in any way affected by Article 3. Incidentally, Article 3 is found in Part I, and (unlike Article 11) is not a Part II fundamental liberty.
A review of Article 3 in its entirety will indicate that the language employed therein accurately reflects the compromise reached between the Malay Rulers, the Alliance coalition parties representing the major races of Malaya and the British Government. Article 3(1) also is reflective of the Hamid dissent, as opposed to the majority recommendation in the Reid Report. Professor L A Sheridan, an acknowledged expert on the Merdeka Constitution observed:
“It can perhaps best be described as an Islamic secular Malay federal monarchy. I have called it ‘Islamic secular’ because Article 3(1) states that Islam is the religion of the Federation, but nowhere in the Constitution is any legal consequence to that propounded. In fact Article 3(1) itself says that other religions may be practiced in peace and harmony, while Article 11 (1) provides that every person has the right to profess and practice his religion and also (except among Muslims) to propagate it” 24 .
A 5-member panel of the Supreme Court comprising Salleh Abas L.P., Wan Sulaiman, George Seah, Hashim Yeop and Syed Agil Barakbah S.C.J.J., had to consider the meaning and effect of Article 3(1) in the landmark case of Che Omar bin Che Soh v. P.P.25 In that case, an accused facing a mandatory death sentence for drug trafficking, argued that since Islam is the religion of the Federation under Article 3(1) and since the Constitution is the supreme law of Malaysia under Article 4(1), the imposition of the death penalty for that offence, not being a “hudud” or “qisa” according to Islamic law, is contrary to Islamic injunction, and therefore unconstitutional and void.
The judgment of the Supreme Court was delivered by Lord President Salleh Abas, who was not only the head of the Judiciary but had been Malaysia’s Solicitor General, and an outstanding constitutional scholar and devout Muslim. According to the Court:
“The first point to consider here is the meaning which could be given to the expression ‘Islam’ or ‘Islamic religion’ in Article 3 of the Constitution. If the religion of Islam in the context means only such acts as relate to rituals and ceremonies, the argument has no basis whatsoever. On the other hand, if the religion of Islam or Islam itself is an all-embracing concept, as is normally understood, which consists not only the ritualistic aspect but also a comprehensive system of life, including its jurisprudence and moral standard, then the submission has a great implication in that every kind has to be tested according to this yardstick”.26
The Supreme Court stated:
“The question here is this: was this the meaning intended by the frames of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century”.27
Lord President Salleh Abas outlined how the British intervention in the Malay States since 1874 resulted in a separation of Islam into 2 aspects: the public aspect and the private aspect. The British by introducing the doctrine of sovereignty severed the divine source of a Malay Ruler’s Islamic “vicegerent” powers turning into a “secular institution”. His Lordship then concluded in these terms:
“Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only. (See M B Hooker, Islamic Law in South-East Asia, 1984).
In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word ‘Islam’ in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on the other hand, purposely preserved the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.
It would thus appear that not much reliance can be placed on the wording of Article 3 to sustain the submission that punishment of death for the offence of drug trafficking, or any other offence, will be void as being unconstitutional”.
Lord President Salleh Abas continued:-
“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”.28
After praising submissions of Counsel in view of the fact that they were not Muslims, the Court concluded with these words:
“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.” 29
Professor Sheridan after commenting that the Supreme Court decision in the Che Omar case was “doubtless correct” observed:
“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.” 30
On the 20th Anniversary of the Merdeka Constitution, a monograph entitled “The Constitution of Malaysia, Its Development 1957 – 1977” was published31 . Among the subjects covered by leading constitutional scholars was the paper “The Position of Islam in the Constitution of Malaysia”32 >by Professor Ahmad Ibrahim, one of the nation’s foremost Islamic law scholars. In his paper he discusses the differences of opinion between the majority of the Reid Commission and Hamid with regard to the State Religion, and observes:
“…it was explained by the Alliance Party to the Malay Rulers that having a state religion was not intended to interfere with the position of the Rulers as Head of Islam in their own states and that the intention in making Islam the official religion of the Federation was primarily for ceremonial purposes, for instance to enable prayers to be offered in the Islamic way on official occasions such as the installation of the Yang di-Pertuan Agong, Merdeka Day and similar occasions. This explanation was accepted by the Rulers and accordingly Article 3 enacts that Islam is the religion of the Federation”33 .[my emphasis]
Professor Ahmad Ibrahim also noted that although the Alliance Party had insisted that Islam should be declared in the Constitution as the official religion of the nation, it did not ask that the Constitution should also declare, as did the Constitution of Pakistan, that the State shall be an Islamic State34 . After referring to a debate in the Federal Legislative Council in 1958 regarding the serving of alcoholic drinks at official functions, he stated:
“On the other hand, the Prime Minister, Tunku Abdul Rahman, deplored the bringing in of religion and he went on to state, ‘I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provide that Islam shall be the official religion of the State35 .[my emphasis]
An interesting interpretation to Article 3 of the Constitution was given by Mohammed Imam in an article published in 199436 . The writer, like Sheridan, notes that “a juristic entity ‘Federation’ cannot profess any religion; it can only through its officials or in official dealings and functions, practice and propagate religion as it may be capable of doing publicly and collectively. The words about other religions may be practiced ‘suggest that it is the practice aspects of Islam and other religions that is the concern or purport of Article 3 (1). So far as the individual’s freedom to profess and practice religion concerned it is covered and taken care of by Article 11”.
At the end of a well-argued and exhaustive article, Mohammed Imamconcludes:
“1. Article 3(1) is not a mere declaration but imposes a positive obligation on the Federation to protect, defend and promote Islam: give effect by appropriate state action to the injunction of Islam; and enable, facilitate and encourage Muslims to order their lives and practice accordingly to Islamic injunction, spiritual and mundane alike; and
2. The declaration in Article 3(1) does not constitute the Federation (which includes states) a body to determine or prescribe what Islam is or which of its variant doctrines, tenets and principles shall be practiced by the Muslims or what their children should be educated in, and this provision does not derogate from a Muslim’s freedom of religion (exercised individually or in group, privately or in public) which they would otherwise have had, like non-Muslims, but for this provision”
In 1986 to commemorate the contributions of retired Lord President Tun Suffian a publication of essays about the Constitution of Malaysia was published37 . Among the contribution was a paper by his successor, Tun Salleh Abas, entitled “Traditional Elements of the Malaysian Constitution”38 . Tun Salleh focused on matters he termed “traditional”, that is, matters that had been in practice in the Malay States long before British intervention, having passed through several successive constitutional and political developments and finally retained in the Merdeka Constitution. Tun Salleh identified 4 such elements:-
1.The Sultanate or Rulership;
2. The Islamic religion;
3. The Malay language; and
4. Malay privilege.
After narrating a brief history of how the Malays in the peninsular adopted Islam as long ago as the 15th century, Tun Salleh stated that Article 3 of the Constitution:
“….represents a principle or a conviction held by the Malays for all time, even before the British entry into Malaysia. During the period of the British colonial administration, however, the British brought in Christianity whilst the immigrant races brought in other religions, such as Hindustani and Buddhism. Thus, the enacting of the Islamic religion as the religion of the Federation has to take into account the practice of other faiths also. Therefore Article 3 provides a balancing clause in that ‘…other religion may be practiced in peace and harmony in any part of the Federation39 .[my emphasis]
Tun Salleh also gave two practical examples of Article 3 in action. First, the provisions of funds by the Federal and State Governments to establish and maintain Islamic schools and institutions providing instruction in Islam: these Governments, according to him, have no similar obligation to give such aid for the purpose of teaching other religions. Secondly, the Federal and State Governments, through annual Supply Acts and Enactments, are authorized to spend money on the administration of Islamic religion and its law. In fact Article 12(2) of the Federal Constitution expressly states that public monies may be used to establish and maintain “Islamic institutions”. Article 12(1) is also relevant: it provides that no discrimination should occur because of religion in respect of educational matters.
Finally, another expert in Islamic law, Professor M B Hooker stated: “…the original Article 3….is without meaning, except in some vague ideological sense40”.
F. ARTICLE 11
“Freedom of Religion
11. (1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
(3) Every religious group has the right —
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable purposes; and
(c) to acquire and own property and hold and administer it in accordance with law.
(4) State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
(5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.”
Freedom of religion is a fundamental right under the Federal Constitution. Article 11(1) gives constitutional protection to an individual’s right to profess, practise and propagate his religion. Article 11(3) recognizes collective worship; thus “every religious group shall have the right:-
o manage its own religious affairs;
to establish and maintain institutions for religious or charitable purposes; and
to acquire and own property and hold and administer it in accordance with law.”
Every religion has some form of institutional worship, whether it is conducted in a mosque, temple, church or elsewhere. Organised religion is the most popular method by which persons of a religious faith express their religiosity.
The Supreme Court in Dewan Undangan Negeri Kelantan v. Nordin Salleh41 decided that in testing the validity of any state action with regard to fundamental liberty, what a court must consider is whether such state action “directly affects the fundamental rights or its inevitable effect or consequence on the fundamental right is such that it makes their exercise ineffective or illusory”. Thus the Supreme Court of Malaysia has adopted the Maneka Gandhi test laid down by the Supreme Court of India with respect to similar provisions in the Indian Constitution.
Accordingly, the starting point in any analysis is that all the fundamental rights relating to religion which appear in Part II of our Constitution must be construed in a broad, generous and liberal manner befitting their constitutional status, and as held in the Nordin Salleh case in testing whether any state action “directly affects” or its inevitable effect or consequence is to render religious freedom “ineffective” or “illusory”. If it does, such state action would be declared unconstitutional by the Court. A plain and ordinary reading of the language employed in Part II of the Malaysian Constitution will indicate that the Founding Fathers drew a distinction between the measure of protection that each of the named fundamental liberties would enjoy. Thus, our fundamental liberties are not treated equally in the Constitution which led Professor Harry Groves, who wrote a leading text on Malaysian Constitution law, to observe:-
“An examination of the text of each Article suggests that the makers of the Constitution regarded some liberties as more fundamental than others. The Fundamental Liberties can be placed in two distinct categories:
i. Those that are absolute in the terms of the constitutional provision, and
ii. hose that are limited by the terms of the constitutional grant itself.
The following Fundamental Liberties appear, in the language of the constitutional provision of which they are a part, to be absolute:
(a) Freedom from slavery,
(b) Protection against retrospective criminal laws and repeated trials,
(c) Prohibition against banishment of citizen,
(d) Freedom to profess and practice a religion,
(e) Freedom from special, but not general, taxation to support a religion other than one’s own,
(f) Freedom of a religious group to manage its own religious affairs and to establish and maintain institutions for religious and charitable purposes,
(g) Right not to receive instruction in or to take part in any ceremony or act or worship of a religion other than one’s own, and
(h) Freedom from the compulsory acquisition or use of one’s property without adequate compensation.
All of the other Fundamental Liberties are qualified, by language in the Article which recognizes the right, of some body, usually Parliament, to limit, in some fashion, the extent of the grant.”42
In consequence, all the fundamental liberties are not treated equally within the terms of the Constitution itself. Hence, there is an in-built hierarchy of rights. For the reasons that follow, freedom of religion under Article 11 is given core or central protection43 .
Article 11(1) confers a personal (as opposed to the Federation’s) freedom to be enjoyed by every person resident in Malaysia, regardless of his citizenship, nationality or domicile. So long as he is physically present in the country he can enjoy it. It is his right to choose whichever religion he wishes and he can profess, practice and propagate it. Neither government nor any other authority can dictate to any person his right to choose a religion, relinquish a religious belief (with limitations for Muslims), change religion, and not to be religious (whether as atheist, agnostic or otherwise). This right is absolute, entrenched and inalienable. Article 12(3) of the Constitution provides that no person shall be required to take part in any ceremony or act of worship of a religion other than his own, thereby barring compulsion by the state or any other authority. Further, Article 149 of the Federal Constitution provides that if an act of Parliament expressly recites that action has been taken or threatened by a substantial body of persons against the nation, then that Act of Parliament may enact laws which would be inconsistent with the fundamental liberties under Articles 5, 9, 10, or 13. However, such law cannot impinge upon freedom of religion under Article 11 : see Article 149 (1). Also, if a State of Emergency is declared by the Yang di-Pertuan Agong pursuant to Article 150, and emergency laws are enacted thereafter, such laws cannot relate to religion although it can curtail other fundamental liberties: see Article 150 (6A).
Finally, the Courts have also recognized the great importance of religion as a fundamental liberty. Since the enactment of the Internal Security Act, 1960 (“ISA”) nearly 10,000 persons have been detained by way of preventive detention under the ISA and other similar legislation. The very few successful legal challenges which resulted in the release of the detainees were for procedural reasons. One of the very rare successful challenges on substantive grounds (that is, on the merits of the detention) was the landmark case of Minister of Home Affairs v. Jamaluddin44 where the said Jamaluddin was detained during Operation Lallang in October 1987 for propagating Christianity to Muslims. The High Court ordered his release, which judgment was upheld on appeal by the Supreme Court. Both Courts held that a person cannot be detained under the ISA for his religious conviction and for propagating his religion (Christianity in that case) to Muslims, and he cannot be detained under the ISA for so doing. In the High Court, Justice Anuar declared :
“I am of the view that the Minister has no power to deprive a person of his right to profess and practice his religion which is guaranteed under Article 11 of the Constitution. If the Minister acts to restrict the freedom of a person from professing and practicing his religion, his act will be inconsistent with the provision of Article 11 and therefore any order of detention would not be valid”.
In the Supreme Court, Justice Hashim Yeop Sani observed:
“We do not think that mere participation in meetings and seminars can make a person threat to the security of the country. As regards the alleged conversion of six Malays, even if it was true, it cannot in our opinion by itself be regarded as a threat to the security of the country”.
The guarantee provided by Article 11 of the Constitution, that is, the freedom to profess and practice one’s religion, must be given effect unless the actions of a person go well beyond what can normally be regarded as professing and practising one’s religion”.
G. FORMATION OF MALAYSIA
On 27th May 1961, the Prime Minister of Malaya, Tunku Abdul Rahman, announced at a gathering in Singapore of “The Foreign Correspondents’ Association of South East Asia”, that a Federation of Malaysia should be established comprising Malaya, Singapore, Sarawak, North Borneo (Sabah) and Brunei. Tunku’s plan, which had been the blessing of Great Britain45 as the colonial power for Singapore and the Borneo States was immediately acted upon. In January 1962, the British and Malayan Governments announced the appointment of Lord Cobbold to chair a Commission of Enquiry to ascertain the wishes of the people of North Borneo and Sarawak, and to make recommendations. The Commission spent time in both states and published its report in August 1962. It unanimously recommended that the Federation of Malaysia is in the best interests of North Borneo and Sarawak. The report also stated:-
“It is a necessary condition that, from the outset, Malaysia should be regarded by all concerned as an association of partners, combining in the common interest to create a new nation but retaining their own individualities. If any idea were to take root that Malaysia would involve a ‘take-over’ of the Borneo Territories by the Federation of Malaya and the submission of the individualities of North Borneo and Sarawak, Malaysia would not…..be generally acceptable or successful.46
The “Twenty Points” submitted by the Sabah Alliance (a broad coalition of 5 political parties) representing the vast majority of the North Borneo populace to the Inter-Governmental Committee contain the safeguards demanded by the said political parties if North Borneo were to agree to join Malaysia. Among the Twenty Points was that there should be no State religion in Sabah. The constitutional arrangements that were put in place with the formation of Malaysia on 16th September 1963 resulted in the Merdeka Constitution being amended to account for the new Federation. Although Article 3 continued to operate and applies to Sabah and Sarawak, it was agreed that the two States could include in the Constitution of their states a provision that an enactment in their State Legislature controlling or restricting the propagation of any religious belief among Muslims shall not be passed unless a 2/3 majority in the State Legislature agrees to do so. Sabah and Sarawak’s sensitivities to Islam as the state religion prior to joining Malaysia, according to one commentator, resulted in an agreement “that while Islam would be the state religion, Islamic norms, systems and law were not intended to be the ground rules on which the Malaysian nation would be governed.47
H. WHAT IS AN ISLAMIC STATE
There is no consensus among Islamic scholars on the elements which make up an Islamic state or the qualities it should possess. Islam does not offer a specific, detailed or exclusive political blueprint for all societies, let alone for all time. The problem is compounded by the virtual absence of a model Islamic state in the modern nation system that is the mark of contemporary international politics. What example should those advocating Malaysia becoming an Islamic State follow or emulate? Candidates that have been mentioned include Iran, Pakistan, Saudi Arabia and Afghanistan48 . However, by any objective yardstick, none of these countries inspire Muslims, let alone non-Muslims, as leaders in political governance. This may explain why all those who have argued for a Malaysian Islamic State have been vague on content and detail.
In 1994, Judith Nagata, an expert on the Malaysian Islamic movements posed this question: can political Islam in Malaysia adopt laws that evolved in the unique historical and cultural context of 7th century Arabia to the needs of a modern developed South-East Asian country in late 20th century?49 Vidhu Varma, a political scientist argues that Islamist parties have to develop an appropriate form of democracy suited to the multi-cultural, multi-religious nature of Malaysian society.50 According to William Roff, the pioneering scholar of Malay nationalism, prior to British intervention in Perak in 1874, “Islam in Malaya had not, in any effective sense, been a ‘state religion’. There was a general awareness that all Malays were Muslims and that this distinguished them from, for example, Chinese, Siamese. To undergo conversion to Islam was in fact to ‘masuk Melayu’, ‘become a Malay’ but this identification of ethnic group with religion was of future rather than present significance51 ” John Gullick also makes the same point, observing that : “Islam was not to any significant extent a state religion although ‘Malay’ and ‘Muslim’ were synonymous terms”.52
PAS’s commitment to an Islamic State is given in a statement issued by its Information Department:-
“What needs to be understood is that the aim of the PAS struggle through political party is to establish an Islamic state in Malaysia…The PAS struggle for power to govern is not merely for power itself, but as a means to establish an Islamic state which is able to realize the laws of Allah completely. The purification of Islam and the sacredness of s[y]aria of Allah could not be maintained unless under the umbrella of an Islamic government adhering to al-Qur’an, al-Sunna and other s[y]aria of Allah.”53
The avowed policy of PAS and its conduct hitherto is to establish an Islamic State in Malaysia by peaceful means through the ballot box, by persuasion and not by compulsion. PAS’s declared objective is to obtain political power first before implementing the goal of an Islamic State.
Datuk Seri Anwar Ibrahim has always enjoyed the reputation of being a proponent of Malaysia’s islamisation drive. In an article published in the 23rd September 1996 issue of Time Magazine54 Anwar stated that the peaceful and gradual Islamisation of Malaysia and Indonesia by seafaring traders has moulded the South-East Asian Muslim psyche into one which is cosmopolitan, open-minded, tolerant and amenable to cultural diversity. The moderate element in the South-East Asian Muslim shapes his understanding and practice of Islam leading to a pragmatic approach in social, economic and political life. In Anwar Ibrahim’s words:
“But what differentiates them from their brethren in other parts of the world is their sense of priorities. The proponents of the imposition of Muslim laws or the establishment of an Islamic state are confined to the periphery. Southeast Asian Muslims prefer to concentrate on the task of ensuring economic growth and eradicating poverty, instead of amputating the limbs of thieves. They would rather strive to improve the welfare of the women and children in their midst, than spend their days elaborately defining the nature and institutions of the ideal Islamic State. They do not believe it would make one less of a Muslim to promote economic growth, to master the information revolution, and to demand justice for women. Nor do they believe it would strengthen one’s commitment to religion by instilling anxiety among people of other faiths.”55
In 1993, Hussin Mutalib from the National University of Singapore, in the course of his research for a book56 that he subsequently published, interviewed numerous well-known Malaysian personalities. Set out below are extracts from some of his interviews:
(i) Anwar Ibrahim
“I’d rather not make it a point to call upon the establishment of an Islamic State in Malaysia. The more we do that, what do we gain? The more people, because of their ignorance, will be frightened and fearful of their future. There should be more work than talk about this matter. The Islamic State will be a natural outcome of Islamic values and policies have gradually seeped into peoples’ lives. There should be more intellectual discussions, and research, about the Islamic State, and non-Muslims must not be made to feel threatened whenever we talk about the Islamic State for this country.
“Those who call upon the establishment of the Islamic Republic of Malaysia, like PAS, Islamic intellectuals and dakwah groups, must first face the non-Malay leaders as we have faced them, and see if they manage to be convinced by the arguments and the rationale. Islam must not be done or practised in a way which gives the impression it is only for the rural people or as a backward faith. See what PAS had done when it ruled Kelantan and Trengganu years ago? It was given all the chance to prove what it wants to do, that is, to run the state as an Islamic State, but what did they do? So, our approach is different.”57
(ii) Tunku Abdul Rahman
“Malaysia cannot practise Islam fully because about half of the population are not Muslim. They have a different culture and different ways of life, and they don’t want Islam. Malaysians are generally a peace-loving people. We don’t want big changes to the values and traditions which we all practise. In the past, and I know this since I have been through all this since Independence, Malays, Chinese and Indians had no problems because we stuck to our constitutional bargain and we don’t want to impose our values on other people.58
So, there is no way we should have an Islamic State here. I’ve stated this before and I can say this again, since many of my Chinese friends want me to say this. The nature of our political parties, our coalition government, our democracy, and our multiracial life are sufficient foundations which can be used to build a prosperous and peaceful Malaysia. Why must we look to Iran and other Islamic States?”59
(iii) Yusuf Rawa
(Former President of PAS)
“The solution to the many problems in this country today lie on the creation of an Islamic State.
What will exist in an Islamic State is clear. There is going to be an elected parliament but all legislations will have to be scrutinized by the Ulama Council. If UMNO’s Islam is true, why are they afraid of being scrutinized by the Ulama? The goals of the Islamic State, and our party’s goals, are clearly spelt out in our Constitution, Article 5(1) which stipulated that our final objective is to realize Islamic values and teachings in our daily lives. Not merely in rituals, but all the country’s social, economic and political systems must tailor to Islamic values.60
The Islamic state has yet to be fully understood. That’s why so many non-Muslims get increasingly fearful of such a State whenever we raise this issue. This happens because of their ignorance, but the more they know about Islamic State, believe me, the more they are surprised at the many good things they will get or are entitled to.”61
(iv) Lim Kim Sai
(Former Deputy President of MCA)
“As for the Islamic State, we hope it will never happen. Our Constitution, as our legal people tell us, will not allow it to happen. Ours is a democratic country and every religion has a place in it. This will change if we have an Islamic State. What happens to our democracy?”62
The importance of maintaining the status quo evidenced in the balancing exercise in Articles 3 and 11 of the Federal Constitution was emphasized by Professor Tan Chee Beng at the Aliran Constitutional Conference in 1987:
“The article with regard to Islam and other religions reflects accommodation in the multi-ethnic and multi-religious society. It is a reasonable solution and should be upheld. One should note that the Constitution does not accept the idea of an Islamic State. Nevertheless it gives consideration to the fact that Islam has a close relationship to this land and a bigger proportion of the population follows the Islamic faith. At the same time, the other religions may be practiced in peace and harmony, that is without any discrimination and persecution. The freedom of religion is also guaranteed in the section on fundamental liberties in the Constitution, more specifically Article II.
There may be people who feel that there is no need to have an official religion in this multi-religious country. However, article 3(1) is actually a reasonable compromise between those who want an Islamic State and those who think that it is neither necessary nor proper to give Islam a special status in Malaysia. In terms of political reality, it is also the aspiration of the Malays to see the stamp of Malay identity in the independent nation, and in this respect, Islam and the Malay language are most important. Yet unlike language, Islam cannot be made the common religion of all Malaysians.”
“…it is obvious that Malaysians have to continue to uphold Article 3(1) and Article 11. Given the multi-ethnic and multi-religious character of our society, it is not possible, in the interest of ethnic harmony and political stability, to make Malaysia an Islamic State. At the same time it is important that the non-Muslims do not question the status of Islam as embodied in the Constitution. As far as religion is concerned, let us abide by the 1957 Constitution and the universal spirit of all religions.” 63 [my emphasis]
Finally, Haji Sulaiman Abdullah, a former Chairman of the Bar Council, commented:-
“An Islamic State is an ideological State. For an ideological State you have to have people who believe in the ideology running the State. Now, that is all very well for the Muslims to say that. But the non- Muslim turns around and says ‘Then what are the guarantees for me’. I think this is where the whole question of human rights comes in.
This eternal quest for guarantees that power will not be misused, the guarantees that our rights, our little space is protected, and that there is basic justice. I think basically, that is what human rights boils down to, and the non-Muslim is entitled to ask of the Muslim ‘What guarantee is there for me, then in that situation where you do not concede this one basic point where you say that since the Islamic State is an ideological State, the reigns of power must be held by a Muslim?’ The answer then is to look into what the Muslims believe about power and about Government.” 64
That PAS recognizes that major obstacles have to be overcome before an Islamic State is to be established freely and voluntarily, and without resort to violence in Malaysia, was frankly admitted by its spiritual leader Nik Aziz in February 1999 when agreement had still not been reached between the Opposition parties on the united front it was hoping to present in the General Elections, held subsequently in November 1999.
“It is a pity that Karpal Singh knows very little about an Islamic State….But what is an Islamic State? I do not blame Karpal Singh for misunderstanding the concept….Islam recognizes the rights of other religious groups….PAS has refused to ban the sale of liquor to non-Muslims…Is it not enough guarantee for Karpal Singh that in an Islamic state the Rule of Law will be supreme and justice will be the cornerstone of every move it makes viz-a-viz a non-Malay comments….PAS has already committed itself to power sharing with non-Muslims….Since PAS has also committed to democratic means in the struggle for an Islamic State, the issue is actually a non-issue as PAS would never be able to change the constitution as it stands now on its own without the support of its partners in government”65 .[my emphasis]
Perhaps the greatest obstacle facing proponents of the establishment of an Islamic State is that it would threaten the very existence of Malaysia as a federation because of strong opposition from Sabah and Sarawak. One should recall that the two States were reluctant entrants into Malaysia in 1963 after Brunei had declined (with Singapore separating less than 2 years later). Islam is not the major religion in either state. Compared to Malaya, the 2 States are more ethnically diverse 66 , and include Kadazan, Murut and Kelabit in Sabah and the Iban, Bidayah and Melanau in Sarawak. In both States the Chinese make up about 25% of the population. It would also be useful to remember that SUPP, a major political party, objected to Sarawak joining the Malaysian Federation when the idea was first publicly mooted, while in Sabah an all-party consensus insisted on the Twenty Points prior to the establishment of Malaysia. Having regard to the 42-year history of Malaysia, one would be very surprised if the idea of Malaysia becoming an Islamic State makes any headway in Sabah and Sarawak — indeed, it would be political suicide for any politician or political party to campaign on that issue there.
I. THE POLITICS OF DR MAHATHIR
If the legal effect of Article 3 is so clearly settled, unambiguous and never challenged by any constitutional lawyer of note, why did Prime Minister Dr Mahathir make the Islamic State declaration in September 2001. I suggest that it was made purely for political considerations, divorced from the constitutional position.
In May 1988, Lord President Tun Salleh Abas was suspended by the Mahathir administration, and charged with 5 counts of misbehaviour. In Charge 2, Tun Salleh was accused of advocating “the acceptance of the Islamic legal system not only in the interpretation of the civil law of Malaysia but in its general interpretation”. The particulars of the charge accused Tun Salleh of attempting “to restate the law generally along Islamic legal principles ignoring the character of Malaysian society as one which is multi-religious and multi-racial with deep cultural differences. No responsible Government can allow the postulation of such views by the head of the Judiciary without causing fear and consternation among its non-Muslim population” 67. What is of particular significance for present purposes is not that this charge was totally unsubstantiated in fact or in law, but that Dr Mahathir’s Government, when it suited it, was not only prepared to defend the common law system but also to charge the Head of the Judiciary with attempting to change it to an Islamic system.
The sacking of Deputy Prime Minister Datuk Seri Anwar Ibrahim in September 1998, followed by his prosecution and conviction in circumstances which called into question the very fairness of the judicial process caused political upheaval in Malaysia and resulted in a split among the majority Malay race, unprecedented since Merdeka. The establishment of Parti Keadilan, led by Anwar’s wife, Datin Seri Dr Wan Azizah and the formation of Barisan Alternatif meant that for the first time since 1957 the Barisan Nasional (the successor to the Alliance) faced a real threat from a credible opposition nominally led by a former Deputy Prime Minister, albeit under custody, and comprising the major opposition parties, PAS, DAP, Keadilan and PRM. Although electoral pundits did not expect the Barisan Nasional (“BN”) government to lose power, they expected a close contest in the November 1999 General Elections. The BN again secured the 2/3 majority at the nation’s 10th General Elections, but the Barisan Alternatif (“BA”) won 42 Parliamentary seats. The major victor was PAS which secured 27 seats in the Federal Government, retained the Kelantan State Government and secured power in Trengganu, winning 28 of its 32 state seats. The major casualties were UMNO and DAP, with the latter winning just 10 seats and its stalwarts, Lim Kit Siang and Karpal Singh defeated. The Chinese voters deserted DAP for its association with PAS, which refused to declare that it will not establish an Islamic state if it was voted to power.
More importantly, BN’s share of the popular vote dropped from 65% to 56% which would have been worse had about 680,000 new voters (representing 7% of the existing 9.5 million electorate) not been disenfranchised. UMNO’s supremacy in the northern Malay states of Kedah, Perlis, Kelantan and Trengganu was severely threatened. The Malay vote in these states were approximately about 55% UMNO and 45% PAS. The trend was indeed worrying for Dr Mahathir.
It was to stem the PAS tide at the next General Elections – scheduled to be held in 2004/5 — that Dr Mahathir made his unprecedented statement in September 2001. Even by the controversial style that Dr Mahathir brought to the office of Prime Minister for 2 decades, this was extreme political brinkmanship. It caused great unease among all non-Muslims, without satisfying the needs of any Muslim who wanted a genuine Islamic State, since such a person would probably be a typical PAS voter who would hardly be convinced by Dr Mahathir’s announcement — form over substance. It was thus an unexpected statement by Dr Mahathir, particularly as he was leading a Barisan Nasional/UMNO government previously led by Tunku Abdul Rahman, Tun Abdul Razak and Tun Hussein Onn, all of whom were always absolutely supportive of the social contract agreed to during Merdeka. Dr Mahathir retired from office in October 2003, and was succeeded by Datuk Abdullah Badawi, who immediately projected a softer and gentler image, particularly on religious issues. Prime Minister Abdullah Badawi also introduced the concept of Islam Hadhari, loosely translated as “civilizational Islam”. The Prime Minister’s concept consists of 10 principles; what is striking is that there is no reference to an Islamic state under Islam Hadhari.
As the grandson of Sheikh Abdullah Fahim, and the son of Datuk Ahmad Badawi, both well known religious teachers trained in Mecca and UMNO leaders, the new Prime Minister’s pedigree in Islam and UMNO is first class. His credentials as an expert in Islam are further enhanced by the fact that he was a University of Malaya Islamic Studies graduate. With Datuk Seri Abdullah as leader of UMNO, PAS’s historical agenda of accusing UMNO of not doing enough for Islam had to be proceeded with carefully. Indeed, for the 2 years he has been leader of UMNO, PAS has been very restrained in their criticisms of Datuk Seri Abdullah, unlike their vitriolic attacks on his predecessor.
That Dr Mahathir miscalculated the influence of Islam as a major contributing factor to PAS’s electoral success in 1999 was best demonstrated by the results of the March 2004 General Elections. The elections turned out to be a referendum on the popularity of the new Prime Minister who obtained perhaps the highest margin of victory since Merdeka, with BN winning 199 seats while the opposition was crushed, winning a mere 19 seats. PAS lost the State Government of Trengganu, and barely held on to Kelantan. It won a mere 6 Parliamentary States. The subject of an Islamic state was hardly an election issue. Informed opinion on the outcome of the 2004 General Elections was that:-
Dr Mahathir was no longer an issue – his treatment of Anwar Ibrahim was not held by the voters against his successor;
Prime Minister Abdullah Badawi was perceived by the electorate as a soft and gentle leader who was at the same time firm and decisive, less authoritarian than Dr Mahathir, and willing to open up greater political space;
With the benefit of hindsight, a major factor propelling PAS’s impressive performance in 1999 was its exploitation of the Anwar issue, and not its inherent qualities. Once the Anwar factor receded over time, PAS seemed to have lost its main trump card;
The drift by PAS to Islamisation, including the emphasis on the hudud, did not impress the Malay/Muslim electorate, particularly among the women voters in Trengganu;
PAS seemed to be a better opposition than a ruling party, gaining an image that it was bereft of ideas when actually given the responsibility of governance;
PAS also performed poorly in Kedah and Perlis which meant that UMNO, under Prime Minister Abdullah Badawi, had regained mastery of the key northern Malay states; and
DAP, after distancing itself from PAS and campaigning vigorously against an Islamic state, regained some ground among its traditional Chinese voters.
Recognising Malaysia’s plural society, Prime Minister Abdullah Badawi continued to make statesmanlike remarks after the March 2004 General Elections:
“Let all citizens of Malaysia, without feeling inferior, without feeling sidelined, irrespective of race or religion, rise to be statesmen in our own land. We are equal, we are all Malaysians. No individual in this country is more Malaysian than another” 68 .
The Prime Minister declared that there is a place for everyone under the Malaysian sun and that he is not only a leader for Muslims, but also for all other Malaysians:
“It is my responsibility to make sure that their rights are protected and that they are free to practice their religions and that they will not be prosecuted
just because they are not in the majority. It is my responsibility to convey this message of tolerance to all, particularly to the Muslims who are the majority.69
It is therefore an irony of history that the political milieu that Dr Mahathir thought operated in West Malaysia after the November 1999 General Elections which led him to make the September 2001 Islamic State announcement was absolutely transient. A combination of factors, including the appointment of Prime Minister Abdullah Badawi in October 2003, his tolerant approach to all Malaysians, regardless of race and religion, the Anwar Ibrahim issue fading and disappearing after his release in September 2004 and PAS’s own poor policies meant that just 4 years after Dr Mahathir’s unilateral declaration, the political landscape of Malaysia had changed. Islam Hadhari is the flavour of the moment, and the call for an Islamic State has receded.
As this paper runs to an undue length, it is essential that I summarise, as follows:-
great care was taken by all concerned in the run-up to Merdeka and the adoption of the Merdeka Constitution to achieve consensus and compromises, particularly on communal issues;
in the forefront of this endeavour was Bapa Kemerdekaan Tunku Abdul Rahman, first, as Chief Minister and then independent Malaya’s first Prime Minister;
no one had suggested in the period leading up to 31st August 1957 that the expression “Islam is the religion of ‘the Federation’ “ in Article3 of the Federal Constitution means that Islam is the State Religion;
on the contrary, everyone concerned from the British, the Alliance Party, the Malay Rulers and the majority in the Reid Commission and, in particular, Tunku Abdul Rahman, the chief architect of Merdeka, was at pains to expressly declare that Malaya is a secular state;
even Justice Hamid, the minority voice in the Reid Commission whose draft became Article 3 of the Merdeka constitution described it as an “innocuous” provision;
all the commentators who have studied the issue, most of whom are Malaysia’s leading constitutional scholars and/or Islamic law experts, are unanimous of the opinion that Article 3 has a limited meaning and scope, and certainly does not constitute Malaysia, an Islamic state;
prior to the formation of Malaysia on 16th September 1963, the States of Sabah, Sarawak and Singapore were adamant that Islam was not going to be State Religion of the new Federation;
the Supreme Court, in a 5-member panel, in the landmark case of Che Omar gave Article 3 the limited meaning that the Founding Fathers had intended, expressly stating that Malaysia is a secular nation;
thus, for a period of 44 years until September 2001, no one had suggested that Malaysia is an Islamic State;
even PAS, the most vocal advocate for the establishment of Islam as Malaysia’s State Religion, has publicly declared that it was going to take a long time to persuade Malaysian voters to give it sufficient seats in the Federal Parliament to effect the necessary changes to the Federal Constitution in order to establish an Islamic State;
Prime Minister Dr Mahathir was therefore the first person to publicly declare that Malaysia is an Islamic State;
Dr Mahathir’s statement on 29th September 2001 was not based on the Federal Constitution or the law;
his statement was made solely for political purposes;
the results of the 2004 General Elections suggest that the electorate was hardly concerned about the issue, seeming to be content in accepting Prime Minister Abdullah Badawi’s concept of Islam Hadhari, which does not mention that Malaysia is an Islamic State;
Malaysia is therefore not an Islamic State. In the words of Article 3, Islam is the religion of the Federation, which means an altogether different thing; and
having regard to the delicate and sensitive nature of this issue in plural Malaysia, one hopes that it will not be resurrected, that the social contract agreed to in 1957 and reaffirmed in 1963 would continue to operate for generations to come, and Dr Mahathir’s 2001 statement consigned to historical oblivion.
Dated this 18th day of November, 2005.
Advocate & Solicitor
1 Malaysiakini.com.,29th September 2001
2 Malaysiakini.com., 30th September 2001.
3 Malaysiakini.com., 1st October 2001. In June 2002 Lim Kit Siang published a pamphlet on the subject “No to 929”.
4 For an excellent history of the fortuitous circumstances under which the Alliance coalition was formed, see “Politics in a Plural Society” by R K Vasil (Oxford), 1971, Page 10 et seq.
5 “Malaya: Cabinet conclusion on policy to be pursued at the constitutional conference” 17th January 1956 — CAB 128/30/1, CM4 (56) 3 and “Federation of Malaya Conference: Constitutional Commission: co-memorandum (FMC3) on terms of reference and composition”. January 1956 — Co 1030/129 No. 17 reproduced in “British Documents on the End of Empire: Malaya Part III The Alliance Route to Independence 1953-1957” edited by A J Stockwell (HMSO), 1995, Pages 252-255.
6 Professor of Constitutional Law, University of Cambridge. Nominated by Britain.
7 Governor-General of Australia and nominated by its Government.
8 Chief Justice of the High Court of Allahabad. Nominated by India.
9 Judge of the High Court of Pakistan. Nominated by Pakistan.
10 For this part of my paper, I have relied heavily on “The Making of the Malayan Constitution” by Joseph Fernando (MBRAS), 2002, a brilliant monograph which has not received the attention it deserves.
11 Political testament of the Alliance : Memorandum by Tunku Abdul Rahman for the Reid Commission” 25th September 1956 Co 889/6, ff219-239. Stockwell op.cit. Pages 307 and 316.
12 Cited in Fernando. op. cit. Page 156.
13 Ibid. Pages 162-163.
14 Cmnd. 210, June 1957 (HMSO)
15 Reproduced in “The Road to Independence” edited by Bruce Gale. [Pelanduk], 1986, Pages 183 and 213.
16 Fernando op.cit. Pages 179-183
17 Cited in Stockwell op. cit. Page 388.
18 Lord Wilberforce in Minister of Home Affairs v. Fisher  AC 319 [PC] in an appeal from Bermuda to the Privy Council, and followed in Dewan Undangan Negeri Kelantan v. Nordin Salleh  1 MLJ 697 [SC].
19  2 MLJ 300 [SC]
2 Published in “Constitutional Monarchy, Rule of Law and Good Governance” — Selected Essays and Speeches by HRH Sultan Azlan Shah , Edited by Dato Seri Visu Sinnadurai [Thompson], 2004, Page 256.
21 Published in “Reflections on the Malaysian Constitution” (Aliran) 1987. Pages 18-19.
22 Infoline, December 2003. Page 8
23 Infoline, December 2003, Page 10.
24 “Federation of Malaya’s New Constitution”,  MLJ 1xiii
25  2 MLJ 55 [SC]
26 Pages 55-I to 56-B
27 Page 56-E
28 Page 57-A to B
29 Page 57-F Tun Suffian made a similar comment about the Judiciary. “In a multi-racial and multi-religious society like ours, while we judges cannot help being Malay, Chinese or Indian; or being Muslim, Buddhist, Hindu or whatever, we strive not to be too identified with any particular race or religion- so that nobody reading our judgment with our name deleted would with confidence identify our race or religion, and so that the various communities, specially minority communities, are assured that we will not allow their rights to be trampled underfoot.” “Four decades in the Law-Looking Back” – published in Trindade and Lee op.cit Page 216. It is critical that the judiciary, as the branch of government charged to determine the constitutionality of executive and legislative action, continues to treat the Federal Constitution and all other laws in a “colour-blind” and “ethnic/religious free” fashion.
30 “The Religion of the Federation”,  2 MLJ xiii
31 Edited by Tun Suffian, H P Lee and F A Trindade.
32 Pages 41 – 68
33 Page 49. Ahmad Ibrahim also cited an article by Lord President Tun Suffian “The Relationship between Islam and the State of Malaya” Intisari, (1962) Vol. 1 No. 1 Page 8.
34 Page 53
35 Pages 54-55
36 “Freedom of Religion under the Federal Constitution of Malaysia — A Reappraisal”  2 CLJ 1viii
37 Edited by F A Trindade and H P Lee (Oxford) 1986
38 Pages 1-12
39 Page 7
40 In a paper entitled “Qadi Jurisdiction in Contemporary Malaysia and Singapore” published in Public Law in Contemporary Malaysia. Edited by Wu Min Aun (Longman) 1999.
41  1 MLJ 697 [SC]
42 Tun Suffian, H P Lee and F A Trindade. op. cit. Pages 27-28.
43 For a fuller discussion on the argument that freedom of religion is the greatest liberty under the Federal Constitution, see my article “Freedom of Religion and Registration of Religious Groups”, Insaf, December 2004, Page 15.
44  3 MLJ 418
45 For an interesting discussion on British motivation for Malaysia’s establishment, see “Britain and the Confrontation with Indonesia: 1960-1966” by David Easter (Taurus), 2004. Pages 5-18.
46 Cited by Datuk Nicholas Fung “The Constitutional Position of Sabah” Trindade and H P Lee op. cit. Page 93.
47 Tan Poh Leng in “Paying the Price for Religious Freedom — A non-Muslim perspective” — Wu Min Aun op. cit Page 150.
48 Islam is the official religion of more than 24 nations, and the religion of more than 90% of the population of Saudi Arabia, Eygpt, Iraq, Iran, Pakistan and Bangladesh. It is also the dominant faith in Indonesia and Turkey. Some of these weak states are terribly vulnerable to threats from military or ulamak leadership and have no parallel to Malaysia, where there is a strong, centralized and authoritarian state.
49 “The Reflowering of Malaysian Islam: Modern Religious Radicals and their Roots” (UBC), 1984, Page 69.
50 “Malaysia: State and Civil Society in Transition” (SIRD), 2004, Page 91.
51 “The Origins of Malay Nationalism” (Oxford), 1994, Page 67.
52 “Indigenous Political Systems of Western Malaya” (London), 1988, Page 139.
53 Reproduced in “The Politics of Islam in Contemporary Malaysia” by Kamarulnizam Abdullah (UKM), 2003, Page 141.
54 Published in “The Asian Renaissance” (Times), 1996, in a paper entitled “Islam in South-East Asia” – Pages 111-125.
55 Ibid – Pages 113-114.
56 “Islam in Malaysia: From Revivalism to Islamic State”. Page 93
57 Ibid. Page 94
58 Ibid. Page 94
59 Ibid. Page 95
60 Ibid. Page 99
61 Ibid. Page 100
62 Ibid. Page 103
63 Aliran. op. cit. Page 294
64 In a paper entitled “Freedom of Expression and Belief” published in “Human Rights in Malaysia” (DAP), 1985, Page 23
65 Harakah, 1st February 1999 and cited in “Malaysia: Mahathirism, Hegemony and the new Opposition” by John Hilley (Zed), 2001, Page 216
66 The diversity of races in Malaysia, making it a plural and cosmopolitan nation par excellence, is illustrated by Tables A and B (Pages 36-38) giving a breakdown of ethnic groups in its population.
67 See “May Day for Justice” by Tun Salleh Abas and K. Das (Magnus), 1989, Pages 173-174.
68 Commemorating the 47th Anniversary of Merdeka on 31st August 2004 and cited in “The Survivor meets the Challenge: Abdullah Badawi and Malaysian Politics” by Chamil Wariya (Times) 2005 Page 1.
69 Ibid. Page 193 —Opening Speech at the World Council of Chambers Meeting in Kuala Lumpur on 3rd August 2004.
*This paper was delivered at the 13th Malaysian Law Conference.