Loyal Followers

Tuesday, May 10, 2011

Islam as the religion of the Federation - a historical background

Much have been said lately about Islam being under siege and an alleged plot to turn Malaysia into a "Christian state."

This of course led to the inevitable lodgment of multiple police reports in various states by the usual suspects and various other parties. Soon I suppose we will have a demonstration by some people with suitable props, like a severed cow head or most likely a burning large crucifix, this time around.

Welcome to Malaysia ladies and gentlemen. It is nice and hot, and not to mention hazy nowadays. And when it is hazy, we, Malaysians go a bit bonkers.

There are some on tweeters who actually defended Utusan Malaysia and its ilk. There are also many who condemn them, including Malays and Muslims. I have nothing to say to them.

All I want to add is this. If we think ourselves as leaders, we'd better lead. Not follow. As leaders we have to come down hard on wrong-doings - on both side of the fence - and we also have to show the way. It is not enough going around town meeting flag-waving school children amidst huge posters and banners bearing nice catchy slogans while closing our eyes to bigotry; irresponsible acts of goons and political thugs as well as some disgruntled Mafiosi chiefs spewing hate message.

As leaders, we should at all time lead. And lead not only by words and catchy tuneful and sexy slogans, but also by deeds. Otherwise, we would have failed as leaders. Otherwise, we would have breached our oath of office. Otherwise, we would have breached our fiduciary duties. Otherwise, we would have breached the trust given to us by the people.

Meanwhile, a learned friend of mine, Syahredzan Johan, today issued a statement that Malaysia has no official religion. That is his reading of the Federal Constitution. He might be correct. He might be wrong. One thing is clear though, not many of us Malaysians read the Federal Constitution. And I am sure some people in Utusan Malaysia have never ever even seen a copy.

In my opinion, the true meaning of Article 3 of the Federal Constitution could only be known if, apart from reading the provision, we also study the historical background of the said article. The purpose of this post is to do just that.

Article 3:

(1) Islam is the religion of the Federation; but other religions may be practised 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 acknowledged and declared by the Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observance 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 shall be Head of the religion of Islam in that State.

(4) Nothing in this Article derogates from any other provision of this Constitution.

Historical Background

During the fact finding mission by the Reid Commission (the Commission which was entrusted by the British to draft our Constitution), the Alliance (the precursor to Barisan Nasional) presented a 20 page memorandum to the Reid Commission. On Islam, the memo says:

The religion of Malaysia shall be Islam.  The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion, and shall not imply that the State is not a secular State.”

After 118 meetings, the Reid Commission wrote its report in Rome and published it in February 1957. On the position of Islam, it says:

“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. (emphasis is mind).

At this juncture, it has to be pointed out that initially, as could be seen from the above, the Counsel of Rulers (meaning, the Majlis Raja-raja) themselves were against the inclusion of a provision to the effect that Islam shall be the religion of the State. This has to be made clear in order to bring the issue to the right perspective.

Justice Abdul Hamid, a member of the Reid Commission  from Pakistan however disagreed. He proposed to include the following article;

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’.

Justice Hamid says,

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 MalayaIn 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.”

It was obvious that in Justice Hamid's mind, such provision, if included in the Federal Constitution, would be, in his own word, "innocuos." Why would he use the word "innocuous"? That is due to the fact that it wasn't suppose to bring with it any massive issue at all relating to the right of other faiths to be practised in Malaysia as well as the rights of people of other faiths in Malaysia.

He, obviously, couldn't be more wrong in his assessment! I wonder whether he would have suggested that such provision be included in our Federal Constitution had he been able to foresee how we, Malaysians, react to that provision nowadays.

In proposing as such, Justice Hamid was actually mirroring the memo by the Alliance. He said,

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.

In "The Making of the Malayan Constitution” by Joseph Fernando, the author wrote:

“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.

Shortly after the London Conference the British Government issued a White Paper 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.

The Constitutional Bill was then  passed without amendment. This of course, went against what was recommended by the Reid Commission (as the Commission, except for Justice Hamid, was against the inclusion of the provision in the Federal Constitution).

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 state.

So, it would appear that Article 3 was inserted in the Federal Constitution after the Council of Rulers had changed their mind about it.

In Che Omar bin Che Soh v. P.P., the Supreme Court comprising of, among others LP Tun Salleh held that Malaysia is a secular country;

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.

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.”

Professor Sheridan, a well known expert on Malaysian Constitution says that position is “doubtless correct”.

“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” - The Religion of the Federation”, [1988] 2 MLJ xiii

Viewed from a historical perspective, it is obvious that Article 3 was intended to be no more than an "innocuous" provision giving Islam and Muslims alike, no more rights than the rights of citizens of other faith in the country.

Perhaps it is worth repeating what Justice Hamid had said in the Reid Commission report:

"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."

No less than our great leader, Tun Dr Mahathir himself has advised people  to learn from history. I would therefore urge that all Malaysians embrace Tun DrM's call.

Let's learn from history.

21 comments:

d'enricher said...

Art,

Nice informative writing, can copy and paste your article ?

TQ

A.Alshukor

___P___ said...

great piece, as always, art! oh and yes, lets all hail our great glorious past leader and, of course, hark his hallowed words! :-D

Anonymous said...

Great piece Art,how can we educate the UMNO goons on this important constitutional matter??Thanks

Anonymous said...

Brave and brilliant!
The problem with Malaysia is its brazen stupidity!

chikahaji said...

"...On Islam, the memo says:

“The religion of Malaysia shall be Islam..."

Some factual correction surely is warranted here, Art. The memo was in 1957 whereas 'Malaysia' as a concept arose only circa 1963. More likely the memo mentioned 'Malaya' or 'the federation'?

Prof Sheridan's point on the difficult notion of 'religion of the federation' needs expanding and publicising, in my opinion. I believe you may have done that in a previous article but it bears further repetition and expounding because it is an important point. Its miscomprehension is causing a lot of grief, as you may well agree.

Great article, keep it up, please!

Anonymous said...

If that's the case, then I don't see there's anything WRONG with Christianity as the religion of the state for as long Christians don't erode non-Christians rights to practice their faiths in peace

It also shows that Malaysia sure has FAILED as an ISLAMIC STATE and it better to go SECULAR

IbnAbdHalim said...

Thank you very much, Art. I think it will serve the purpose if you had it translated into simple Bahasa Melayu for the sake of our friends in Utusan Melayu and UMNO.

Anonymous said...

Art,

Good article as usual. However as a layman, could you give your opinion as to why the Reid Commission did not state "Islam is the OFFICIAL religion of the Federation" but chose instead to exclude the word "OFFICIAL"? Is this just only a matter of semantics as UMNO, Perkasa, Pembela and a host of Malay/Muslims NGOs are implying that Islam is the Official religion of Malaysia even though the "Official" word is not in the Constitution. I am confused!!

ck said...

.. learn from history.

Unfortunately, cakap tak sama bikin

Caesar said...

Art,

Thank you for this enlightening and well researched piece. The real lesson however to be learnt from history is that we should trust our better judgment and not ignore our deeper misgivings despite all the assurances.

Anonymous said...

From historical perspective, Federation of Malaya is founded on secular principles and is in fact founded as secular state...inclusion of Sabah and Sarawak ought to make it more secular than ever....UMNO government + perkasa should be re-educated or even better b isolated before they bring ruin to our beloved nation...

telur dua said...

The Federal Constitution was written in English. Many people reading it today do not think in English.

Hence we are having the problems we face today.

Sang kancil said...

A learned Malaysian.

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

Dear Art:

I have an article that I intend to submit to The Insider on this topic.

I would like it to be reviewed.

Would you kindly have a look at it?

Please email me at pksako@gmail.com.

Thank you.

Anonymous said...

I think all this got to do with politics, for 50 plus years, they harping that islam under 'threat' but has anybody once, propose to amend the constitution regarding the position of islam as official religion in the federation?None. This debate came up because of some bloggers claim 0f 'christian plot',which is ridiculous.(Now,apparently one has deleted its entry )and Umno is seen as 'saviour' here defending something out of...what, i dont know

john brown said...

bro,
i agree 300 percent with you. majority of the citizens of malaysia, refused to learn from history. the malays, chinese, indians and other bumiputras in sabah and sarawak are all the same, especially the younger generation. maybe we should blame the education ministry for changing the history syllabus!

Anonymous said...

The crux of the matter is Utusan (aka UMNO), Perkasa and Pembela are themselves the biggest threat to Islam and Malays in 1Malaysia.

As I see said...

Was all finding and recommendation in the Reid Commission adopted?

Ultimately, it is the words and spirit derived from the actual wording of the Constitution that matters.

It is not Lord Reid that agreed to the final draft of the Constitution but the Raja-Raja Melayu being keeper of the sovereign rights as signatory to various treaty with British decided.

Remember that Independence is negotioated between British and raja-Raja Melayu with rakyat as interested third party.

The only rakyat with locus standi then to speak as rakyat were Malays by virtue as being subject of the Raja. Non Malays were British subjects.

Anonymous said...

Informative

Anonymous said...

A very researched article