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WRITING’S IN THE LAW: Several provisions in the Constitution disqualify Malaysia from being a secular state, writes Malik Munip
The debate on the nature of Malaysia’s identity—whether it is a secular or an Islamic state—is mired in confusion. The confusion firstly is of a semantic nature—a lack of clarity on what defines a secular or an Islamic state. The second confusion is about the extent of any entity’s authority—be it former Premiers, The Alliance Memorandum or the Reid Commission--in deciding the debate. This article will discuss the second confusion first.
Secular or Islamic State: Premier vs. Premier
Though Malaysian Prime Ministers are vested with a whole battery of executive authority, nonetheless, they do not have the power to determine the identity of a country merely by making an announcement either way. Indeed, if we think about it, even an individual’s identity cannot be determined by a pronouncement—a person doesn’t become a Muslim, a Christian, an apostate or any identity along the ‘faith- atheist’ spectrum simply due to a declaration. To have meaning and force, the declaration must correspond with the individual’s belief and practice. So if by itself a declaration cannot determine the religious identity of an individual, can it determine the identity of a state?
Nonetheless, many people attribute Malaysia identity as either Islamic or Secular, by citing the positions of previous Prime Ministers on the subject. Hence to shore up their claim, the proponents of a secular state will often draw on the statements of Tunku Abdul Rahman and Tun Hussien Onn.
In this regard an often cited statement (but not the only example) used to represent the position of the former Premiers would be from a February 1983 Star report where the Tunku said “The country has a multi-racial population with various beliefs. Malaysia must continue as a secular State with Islam as the official religion”. Another issue also reported Tun Hussien’s support for the Bapa Kemerdekaan, “The nation can still be functional as a secular state with Islam as the official religion.”
Unsurprisingly those that argue that Malaysia is already an Islamic State wouldn’t cite the first and third Premiers. Instead they would quote Tun Mahathir’s following statement in September 2001 to support their position: “Umno wishes to state clearly that Malaysia is an Islamic nation. This is based on the opinion of ulamaks who had clarified what constituted as Islamic country.... ” .
But with all due respect, there are limits in determining the nature of a country’s identity by simple reference to a Prime Ministerial declaration. After all, if Malaysia already possesses many of the features that define a secular state, then her secular nature doesn’t change just because a Prime Minister says otherwise. And vice versa—if Malaysia has many attributes of an Islamic state, or a feature that disqualifies her from being a secular state, then it won’t be a secular State regardless of how many previous and future Prime Ministers states to the contrary.
So although they are Prime Ministers, nonetheless, their statements, in and by themselves do not automatically determine the nature of Malaysia’s identity. At best their statements would be a description of Malaysia’s pre-existing identity. And like most descriptions, it would be valid only in so far it is accurate.
The Alliance Memoranda vs. The Reid Commission
Of course, in articulating their positions, participants in the debate don’t limit themselves to Prime Ministerial declarations—references to legal authorities and legal documents will also be part of the argumentative arsenal. In this regard none comes with higher prestige than the Federal Constitution and its drafters, the Reid Commission. So with respect to whether Malaysia is an Islamic or a secular state, let’s sink our teeth into what the Federal Constitution and the Reid Commission have to say on the matter.
In the Federal Constitution, both terms, Islamic State or Secular State does not appear. Nonetheless, Article 3 of the Federal Constitution states that Islam is the religion of the Federation. This provision has often been cited to support the claim that Malaysia is an Islamic State or at least not a secular one.
Yet, many who claim to have read the Reid Report find this argument unconvincing; they maintain that the Commission stated that any provision in the proposed Constitution providing for Islam as the state religion will not invalidate the position of the Federation as a secular state.
Strictly speaking, this portrayal of the Reid Commission’s position is incorrect. In respect to Islam being made a state religion, the Commission did not commit itself to that position. As historian Joseph Fernando wrote in his book ‘The Making of the Malayan Constitution’: “In respect of religion, the Commission decided not to make any provision relating to an official religion for the Federation although the Alliance had proposed that Islam should be made the official religion”.
In fact it was the Alliance and not the Reid Commission that wanted a declaration for Islam to be made the State Religion. And similarly, it was the Alliance that made the claim that such a declaration would not negate the position of the federation as a secular state. What the Reid Commission did was to acknowledge (see paragraph 169 of its report) that the Alliance wanted to insert such a provision; they themselves were reluctant to commit to it (with the exception of one member, Justice Hamid).
Be that as it may, even if was the Alliance and not the Reid Commission that made the claim that having a state religion would not negate Malaya’s status as a secular state, nonetheless, shouldn’t such a claim prove beyond doubt, that Malaysia is a secular State? After all, the Alliance played a crucial role in the constitution-making process—before, during and after the Reid Commission’s drafting. Additionally, they were the primary characters involved in securing Independence; hence, if the Founding Fathers claim that the country is a secular State, then it must be binding right? Uhm, not quite.
Firstly, none of them were recognized authorities on the inter-related issue of secular states and secularism, or its relationship to religion and Islamic States. It should be noted that the issue of an Islamic State has theological dimensions, yet none of them were theologians. And on the issue of a secular State, the problem was that they never defined properly what a secular state is; they just claimed that having Islam as the religion of the Federation doesn’t annul its status as a secular state. Within the context of such statements, their conception of a secular state seems to be a conception by negation—conceiving it by what it is not, rather than what it is. Such a conception is not convincing.
In short, since the Alliance were not experts on the issue of Secular States, secularism or its relationship to Islam and not exact in conveying what they meant, does it make sense for us to elevate their claim (that having a state religion doesn’t negate Malaya as a Secular State) as being the final authority on the matter?
Indeed according to the Joseph Fernando, there is evidence that in private, even the Reid Commission were not convince by the Alliance claim—to them, it was a contradiction. And for those who have some exposure to the literature on secular states and secularism, this shouldn’t be surprising. Why? Because the Alliance’s position just doesn’t correspond with the accepted understanding of what constitutes a secular state. And that is the point: if a statement or description doesn’t match up with the reality then regardless of the social standing of the entity making the statement, it cannot be authoritative.
So in determining whether Malaysia is a secular state or otherwise, instead of citing what former Premiers or the Reid Commission or the Alliance Memoranda says on the matter, it would be more pertinent to ask: What defines a secular state? And does the statement of the Alliance Memoranda and those that echo it, tally with such a definition?
What is a Secular State? The acid test
The literature on the subject of secular states and secularism is vast; as such there exist various interpretations. Nonetheless, there is a general consensus that the foundation of a secular state is the principle that state and religion must be separate. Consequently, a secular state will have, among others, the following characteristics: the state must be neutral towards religion; the state cannot give religion a privilege position in the public arena; the state’s coercive powers and resources cannot be utilised in the service of any religion; the State should not privilege a religion or its adherents over another; the state should not privilege religion over irreligion; the state should not permit religion to be a requirement of public office; and the state should not interfere with the affairs of religion and vice- versa.
Now by having Article 3 of the Federal Constitution, obviously Malaysia is not neutral towards religion. It gives Islam a privileged status over other religions. Nonetheless, if Article 3 was the only Islamic feature in the Constitution, perhaps the claim by the Alliance that having a State Religion doesn’t imply a non-secular state can still be defended. But let’s have a peek at other Articles of the Federal Constitution.
Through Article 11(4), missionary work amongst Muslims can be controlled and restricted. Yet there are no laws restricting missionary work to adherents of other faiths. Then there’s Article 12(2). This article has far reaching consequences; it empowers the Federation and the states to establish or maintain Islamic institutions or provide assistance in that process. It also sanctions them to do same with regards to providing instruction in the religion of Islam. In pursuant of those purposes, it also authorises the use of public funds.
Both the above Articles violate the principles of a secular state on multiple scores. And these two Articles are not the only one; there exist other Articles that do the same. For instance, Malays are entitled to wear the cloak of Article 153, but professing Islam is a requirement of being Malay under the Federal Constitution. But let’s cast our view beyond the Federal Constitution to the State Constitutions whereby the Islamic features are even more pronounced.
Many State Constitutions require the State Secretary to be a person who professes Islam. In those States the default legal requirement for the position of the Menteri Besar is also a person who professes Islam. And the state religion of most of the States that make up the Federation is Islam. In these States, not only is neutrality towards Islam not practice, but unlike the federal position of Prime Minister, religion is made a requirement of the public offices of the Menteri Besar and State Secretary. And beyond the formal structure of the constitution, there are other characteristics that these states have which are at odds with the essence of a secular state. With a name like Terengganu Darul Iman for example, is it realistic to expect otherwise? And does Kelantan under Nik Aziz seem like a secular state to you? But it is not the scope of this article to elaborate.
So to recapitulate the question: Is Malaysia a secular state? Well, by the characteristics that define a secular state then Malaysia by definition is not a secular state; it violates the principle attributes of a secular state on multiple fronts. Breaches to the tenants of a secular state are not the exception; it is almost the rule. In Malaysia, religion is not separated from the state but entrenched, empowered, enforced, expressed and elevated.
Hence, does this mean Malaysia is an Islamic State? My answer is: I don’t know; I have no idea what a universally accepted Islamic state in the contemporary world looks like. But it does mean Malaysia disqualifies from being a secular state.
Dr Malik Munip taught history at University of Malaya for two decades, and was also a former Member of Parliament for Muar