“Malay” = “Muslim” in the Federal Constitution?
Article 160 (“Interpretation”) of the Federal Constitution defines the term “Malay” in the following manner:
“Malay” means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and [is of Malaysian/Singaporean origin]*.
*I have paraphrased the words in square brackets for brevity, as they are not relevant to the discussion that follows.
As we can see, there are several conditions that must be met before someone meets the constitutional definition of a “Malay”. Now, we can best understand the effect of this definition by turning it into a logical statement:
X is a person who professes the religion of Islam
X habitually speaks the Malay language
X conforms to Malay custom
X is of Malaysian/Singaporean origin
X is a “Malay”
Because the conditions are cumulative (i.e., they must all be met), it would be equally true to say:
X is not a person who professes the religion of Islam
X does not habitually speaks the Malay language
X does not conform to Malay custom
X is not of Malaysian/Singaporean origin
X is not a “Malay”
Now imagine the 25-year-old son of a Malaysian Malay couple who is brought up in Tokyo, going to a Japanese school and speaking to his parents in English and Japanese. Is the son a Malay? In our everyday, racial understanding of the word “Malay”, most of us would say yes. But for the purposes of the Constitution, if the son does not “habitually [speak] the Malay language“, then he is by definition not a “Malay”.
Now imagine that the son speaks Malay, but does not conform to Malay custom (whatever that entails). Perhaps he wears his shoes indoors, has a Mohawk, eats with chopsticks and calls his parents by their first names. Is he a Malay? Again, if the son is judged not to “[conform] to Malay custom“, he is by definition not a “Malay”.
Finally, imagine that the son speaks Malay and conforms to Malay custom, but has converted to the Shinto religion, and does not follow any Islamic teachings. Is he a Malay? If he does not “[profess] the religion of Islam“, then he is by definition not a “Malay”.
Does it make sense to say that a Malay must be a Muslim? In a sense it does – but only in the sense that if a person ceases to be a Muslim then he ceases to be a Malay. This is because the question of whether or not a person is a “Malay” is a question of law, a matter of constitutional definition.
In contrast, whether or not a person “professes the religion of Islam” must be a question of fact, to be determined by a competent authority on the basis of factual evidence, just as the question of whether he “habitually speaks the Malay language” and “conforms to Malay custom” undoubtedly are.
It is surely obvious that if a person does not as a matter of fact profess the religion of Islam, if he does not in his heart believe in Allah and the Last Day, then no law in the world can make him do so simply by definition.
Andrew is a Penangite with plans for world domination. Having escaped from a (metaphorical) dungeon where he was kept for five years by his enemies in the City of London, he is now finishing an LLM in human rights and constitutional law at the School of Oriental and African Studies. He intends to crush all who stand in his way (but in a nice, human-rights-compliant manner).
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