Malaysia is a Secular Country

There is a swelling momentum recently by the more extreme Islamist sections of the Malay community in spreading the widespread misguided belief that Malaysia is an Islamic nation. They base their claims on Article 3(1) of the Federal Constitution which provides 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.

Is there any basis to their claim? In a word, no. Let me explain.

Article 3(1) has actually be conclusively and judiciously considered and interpreted in the Supreme Court decision of Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 comprised of a five-man bench: Tun Salleh Abas LP, Wan Suleiman SCJ, George Seah SCJ, Hashim Yeop A. Sani SCJ and Syed Agil Barakbah SCJ (SCJ is short for ‘Supreme Court Justices’). The decision was unanimous (or as they say in Malay, sebulat suara) and Tun Salleh Abas himself delivered the judgment and here are the good bits:

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 law has to be tested according to this yardstick.

There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial. This way of ordering the life with all the precepts and moral standards is based on divine guidance through his prophets and the last of such guidance is the Quran and the last messenger is Mohammad S.A.W. whose conduct and utterances are revered. (See S. Abdul A’la Maududi, The Islamic Law and Constitution, 7th Ed., March 1980)

The question here is this: Was this the meaning intended by the framers 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.

… [tedious bits of history] …

… 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 preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.

… [yawn] …

It is the contention of Mr. Ramdas Tikamdas that because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles and Mr. Mura Raju, in addition, submitted that, because Syariah law is the existing law at the time of Merdeka, any law of general application in this country must conform to Syariah law. 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.

… [huh? whodat?] …

We thank counsel for the efforts in making researches into the subject, which enabled them to put the submissions before us. We are particularly impressed in view of the fact that they are not Muslim. 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 law. Perhaps that argument should be addressed at other forums or at seminars and perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.

It is an excellent decision and one of Tun Salleh Abas’ best decisions. Let us also not forget that it was unanimous. And this decision makes it manifestly clear that our Constitution is secular and not Islamic. Since we have a thoroughly secular Constitution, the effect of this is that we are a secular country. So if any politician tells you otherwise, I hope you take the trouble to correct them. The last person you should consult about the law is a pure politician (by this I mean someone prior to his successful election spent the bulk of his time politicking instead of devoting themselves to honest, hard work). And any comment by them should be treated with the utmost suspicion if not utter contempt, when found to be wanting.

After all, one does not consult an ass about the nature of a baboon.

And now let’s consider the entire first part of that phrase a little more carefully. A highly relevant Federal Court decision is that of Kesultanan Pahang v Sathask Realty Sdn Bhd [1998] 2 MLJ 513, particularly the following passage by Mohd Azmi FCJ (i.e. Federal Court Judge):

Moreover, for the purposes of the Enactment, s 2(a) defines ‘Malay’ as a person belonging to any Malayan race who habitually speaks the Malay language or any malayan language and professes the Muslim religion. Section 2(b) goes on to state that every Malay born within the State of Pahang shall be deemed to be the subject of the Ruler of Pahang. Therefore, in the context of s 2, an artificial legal person, as opposed to a natural person, cannot be a ‘Malay’ and become subject of the Ruler of Pahang. This is because a corporation cannot speak Malay or any Malayan language and cannot profess Islam. Moreover, since it cannot be born in Pahang, it cannot be deemed to be a non-Malay subject of the Ruler of Pahang. Again, in view of a clear definition of the word ‘Malay’ and the deeming provision in the Enactment, the word ‘persons’ in the expression ‘persons not being Malay subjects of the said Ruler’ must refer to natural persons (see pp 563 H-I and 564 A).

And a little more recently, the High Court decision of the irrepressible Justice Hishamuddin Yunus in the decision of Sime Bank Bhd v Tetuan Projek Kota Langkawi Sdn Bhd [1999] 1 CLJ 307 where his Lordship wrote the following:

… On examining the definition of “Malay” in s. 2 of the Kedah enactment, it is my view that the definition only refers to natural persons and not to artifical legal persons such as the defendant.

What these decisions demonstrate is that a religion such as Islam cannot be ‘held’ by an artificial entity. Islam can only be held by natural persons. This makes sense. An artificial entity is merely a concept given legal force but does not actually exist. I mean just think about it – can XYZ Sdn Bhd be admitted into heaven or even hell for that matter?

Now if a company is seen as an artificial entity – what more a Federation? The Federation is defined in Article 1(2) of the Federal Constitution and it is defined as comprising of the following States: Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Trengganu. So a Federation is made up of States – again, artificial entities.

So, in law, is there really any meaning to the phrase, ‘Islam is the religion of the Federation’? If you think you know please tell me. I am all ears. But only to legal or historical arguments.

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Posts by Fahri Azzat

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.

Posted on 21 May 2009. You can follow any responses to this entry through the RSS 2.0.

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16 Responses to Malaysia is a Secular Country

  1. Hakimi Abdul Jabar

    As a practising lawyer who's a member of both the Malaysian & KL Bars, I'd noticed that the continuous declaration of the hunt & war on atheists in Malaysia as reported by David Hutt in the Diplomat Magazine in August 2017 this year is reminiscent of Al-Qaeda's Declaration of Hunt & War upon Atheists including targeting judges, lawyers, engineers and doctors "who don't allow others to follow the rulings of the Islamic Shariah" as reported by CNN in April 2016, last year :……

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  3. Abdullah

    Fahri / AMZ

    I agree that Malaysia, or at least its law as AMZ put it, is secular. To me it does not matter whether you choose to say the country is secular or its law is secular. The effect is the same either way. Fahri has taken us through the various case law that reiterated the secular nature of the country. However, it would also not be correct to say that the position of Islam in this country is the same that of the other religions. A reading of the various provisions relating to Islam, Muslims and matters related to it (Shariah Court, Zakat etc) in the constitution and the statute, would reveal a somewhat more exalted position of Islam in the country.

    I know there could be a lengthy debate as to whether the concept of Islamic state exists in Islam and if it does, the characteristics of such a state. But since Fahri's article is on whether Malaysia is an Islamic or secular state, I am assuming that the concept of Islamic state exists. I think it is widely accepted by the proponents of the existence of Islamic state e.g. Ikhwanul Muslimin, Jamaat Islamiya and PAS, that the position of the Quran as the supreme law of the land is one of the principal criterias of an Islamic state. Pakistan and Iran, 2 countries that call itself Islamic, state in their constitution that Quran is the supreme law of the land. Seen from this point, the fact that the Quran is not the supreme law of the land in Malaysia is suffiient to show that the country is not an Islamic state.

    Frankly, I am not quite sure who Fahri referred to as the extremist at the beginning of his post. You have to rule out PAS because PAS never regarded this country as an Islamic country. In fact, it is still the struggle of PAS to turn this country into an Islamic state. If this country is already an Islamic country, it seems that the raison détre for the existence of PAS would be destroyed.

    I think these Islamists (or extremists if you like) should stop reacting to issues as if this country is an Islamic country. It is not. If they want, they must first turn this country into an Islamic country with Quran as the supreme law of the land (which is what PAS has not abandoned) before they could react to issues on the basis that Malaysia is an Islamic country.

    Conversion out of Islam is a case in point. The constitution clearly provides for freedom of religion under Art. 11. Art. 11 does not discriminate between Muslims and non-Muslims except with regard to propagation of non-Islamic religions to Muslims. All have this right to freedom of religion. The constitution provides as such because this country is not an Islamic country where Shariah law relating to conversion would apply. So they should stop behaving like the Shariah law applies. These Islamists or extremists should stop calling for apostates to be punished by the state and all because the constitution guarantees that right. If you are not happy, then you should remain in the struggle to change the entire system of law to the one that regards the Quran as the supreme law.

    This would include the civil judges. They have taken the oath to uphold the constitution. If they cannot uphold the cosntitution, including Art. 11, then they should not have taken the oath and if it is a supervening religious conscience, then they should resign.

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  5. animah

    If we had an Islamic State, the NEP should be the first to go. So yes, clearly statements by politicians that this is an Islamic state is just that – politician statements, hollow and subject to change.

  6. Crabbrain

    If gov of the day declare the country an islamic state,the constitutionalised citizen could always throw them out. Funny, if elections still alllw, how to justify that it is islamic in the first place. Funny, if Mal is an islamic statem how come dr mamak hands not being the first pair to chop off for ransacking the state coffer?

  7. Janetlee

    Fahri,thugstone souljah… I think you are cool!!!

    This is what I call SEPARATION OF POWERS… yep, let's be professional in governing the country by leaving religion in your own back garden and start adopting the Constitution to run the country like a corporation with the creation of a new Bill Of Rights Act 2009 MALAYSIA.. to summaries all the Rights of Liberty and Freedom for everyone to glance all their rights in just one page .. everyone gets a copy to keep or memorise before they begin arresting someone for providing legal service or holding a peaceful candle lit vigil….and the right to sue for compensation for wrongful detention???

  8. If Malaysia is an Islamic State, why aren't our leaders embarassed about the rampant corruption, dishonesty, discrimination and injustice going on for years? Does Islam teach such values? It boggles the mind really.

  9. my best impression of an unbelieving of a typical disagreeing malay/muslim after reading your piece… "tak mungkin.. t-tak mungkin… tidakkk, tidakkkkkkkkkk!!!!"

    AMZ, if we were always a muslim state why didn't we have camels back then doing the desert boogaloo?

    OIC is a lousy excuse for proof that a country is an islamic state. it's one of those loser clubs that losers hang out with because the cool clubs don't dig all this loser shit these losers are hung up about. on the local front, even the Malaysian Bar has to deal with the frequent irritations of this loser club mentality, and our favourite punching bag has to be, and which we all have come to and love as everyone's fondly remembered retard loser of a club, the Persatuan Peguam Muslim Malaysia…

    dear annoying loser brothers, go back to your tempurung and shut it, if you can't even have a decent discourse with your "unbelieving" brethren showing your dissent to popular opinion.

    so i think OIC is a really bad example… even them saudis are the worst of the bunch with stories of philandering and human rights abuses… i'm not about to sit and wait on this.

    So the FC states that the official religion is islam… big deal… even america has the word "god" in their constitution… but do you see them going all religious/fundamentalist/talibanistic/biblebeltistic ( on everyone? it's the separation of the church and state, or in a local context "mosque and state".

    if you want to live in a religiously active environment, go start a commune or keep it within the four walls of your house or four corners of your garden.

    and don't anybody try to tegur me, because when it comes to religion i'll tegur my foot up that self-righteous patootie. because this invasion of the religion into the public sphere of life is causing people more grief and conflict than this country would ever have if people simply agreed to stick to the plan, ie. that this is firstly a secular country…

    by the way… if we're all so muslim, why was it our previous generations were much cooler and less anally retentive than the current self-serving politikus?

  10. AMZ, if there is any misunderstanding it lies with you. Your logic is flawed. And going by it, if I make a cup of coffee but call it tea and persuade others to do so, it becomes a cup of tea? That's not my cup of tea.

    Malaysia's Constitution, which according to Article 4(1) is the Supreme Law of the Land, is secular in character. And since it forms the basis of this country, certainly it follows as night does day that this country is secular. Just because everybody says this is an Islamic State or Nation doesn't make it such. Our membership to the OIC is proof of nothing except that we are members of tht organization (which one has to ask whether is of any use). Even if all the animals and the entire citizenry claims this to be an Islamic State, it will not make it so.

    The law is the law and it is manifestly clear.

    All that rhetoric about this being an Islamic State is just that – rhetoric.

  11. Lyn

    To be Muslim, one has to recite the syahadah and later believe & practice it. Has Malaysia done that? hehehe. Anyway, I agree with your views.

  12. AMZ

    I think there is a misunderstanding about the judgment by Tun Salleh etc. It does not mentioned that Malaysia is a secular state. It just stated that, in Malaysia, secular law (i.e. civil law), not the Islamic law, should be applied, in that particular case. Applying secular law does not imply that Malaysia is a secular state. Just like a Muslim who is not practising Islamic teaching cannot be considered as a non-Muslim.

    Throughout its history, Malaysia has always been considered as an Islamic state. Even during British occupation, Malaysia was an Islamic state. Malaysia is an OIC countries, which implies that as far the world is concerned, Malaysia is an Islamic state. It remains so, until the constitution is changed and clearly states that Malaysia is a secular state. Everybody who live in Malaysia should learn to accept this fact.

  13. PM

    Eeally informative article. Thank you.

    Pre-Mahathis days, the judges were men of high calibre and of high repute, and Men who are capable of acting independently and making wise and impartial judgement. Alas, nowadays what can we say about most of our judges? There are still a handful of very good ones but with the CJ who is ex-UMNO and the exposure about Lingam's manipulation in the selection and promotion of judges, and yet nothing has been done about it, I doubt if things can get better with regards to our judiciary system.

  14. John

    It is ridiculous to think of Malaysia as an Islamic state when 40% of its people don't even believe that Allah is God!

  15. me

    of course malaysia is a secular country! however, come 20 or 30 years time, if the 2/3 majority wants, the constitution can be changed and at that time malaysia can be an islamic country. 20-30 years time bukannya lama! the time will come…look at the demographic pattern now.

  16. TK

    known long times ago but Malays won't be able to understand/accept this fact.