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Wednesday, November 07, 2012

Secular or non-secular?–What history tells us

Lately there has been a public discourse on whether Malaysia is a secular country or otherwise.

Let us take a break. And take a visit down memory lanes. Perhaps history might shed some lights on the issue.

To begin with, article 3 (1) of our Federal Constitution 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.”

Initially, when the Reid Commission was set to draft our Constitution, the Alliance (UMNO, MIC and MCA) 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.”

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’.

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 Paraguay (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.”

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 states:

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 was passed without amendment.

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.

It is interesting to note that Justice Abdul Hamid, the sole member of the Reid Commission who proposed article 3 (1) to be inserted had described the provision as “innocuous”. What does that innocuous little provision mean than?

Professor Sheridan, a well-known expert on Malaysian Constitution opines as follows:-

“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

Considering recent events, that provision has however ceased from being innocuous. Hopefully, it would not be monstrous instead.


Musa_Ng said...

As usual, very useful info, Art.

I guess it settles the question quite decisively.

Thank you.

Ellese A said...

Thank you for the Informative write. I have yet to verify but trust you've not been selective.

The argument Is straight forward. What do you mean by religion of federation? We have interpreted innocuously that in official functions the face of it can be Islamic. It does not stop others from exercising their rights of believe.

The debate of secularism is political. Mahathir's proclamation of Islamic state and DAPs declaration of secular state are in substance the same. Both avowed by our constitution. But PAS avows to change our constitution to a theoracratic state. But the strange thing Is those against the theoracratic state sleeps in the same bed with the proponents thereof.

It's still an innocuous semantics arguments out there but with a monstrous political guffaw. It is a comedy of sorts but because of gullibility, it's becomes a life and death farcical debate.

It's obvious the Reid's commission usage of the word secular is as opposed to a theoracratic state and not separation of state and religion. For in the same breath they acknowledge the role of Islam. Our constitution is littered with provisions on Islamic administrations, courts and jurisdictions. And the head of state being a protector of Islam says it all. Hardly can this be called a secular in the general meaning.

But politicians being politicians in the greed for power can oppose on one hand but do the opposite by supporting it and amazingly get people to believe they are right all the time. Pity Malaysians.

art harun said...

Ellese A,

The pedant in me would classify Malaysia as a Liberal Secular. Meaning, it is a secular country which allows governmental participation and involvement in religious matters, unlike for example, the absolute secularism (the Laicite)as practised in France.

Kasim said...

I'm sorry, are we still a British colony? Why are we holding on to the words of our former colonial masters to decide that we are a secular state? We are a sovereign nation and have the right to decide on our own identity.

Anonymous said...

Correct & I'm with you.

Ellese A said...

My earlier write did not appear. So I'll rewrite in another way.

To argue we're secular as opposed to a theoracratic state is fine. To argue we're a secular state in the ordinary sense of the word is not only untenable but misleading. We are a state with religious bias. We have state religion. We have in our constitution recognized a preferred Islamic administration, jurisdiction, courts and even taxes over other religion. Malaysia is not neutral on religion. There is a preference and bias for Islam. Why? As Suffian says, due to our historical past.

If you want we can take the definition of secular argument and even concepts elsewhere and argue here. It'll be a semantic argument which I can't see how you can argue we're secular in the ordinary meaning of the word. But Let's see how others see us. If we simply google secular states and Wikipedia you see in no uncertain terms they categorize us as non secular states. We're not theocratic but we
sure is a country with state religion. By that, we cannot be in any way be secular.

You may call us a liberal secular. You're in the category like Mahathir call us Islamic state or kit siang call us secular state. But others don't see it that way. Others understood the meaning of secular as they are and we can't pass the test of secularism.

Ps when I refer to others it does not include blind partisan supporters.

Anonymous said...

Well, reading through those documents, it is very clear that, for all intents and purposes, Malaya was to be secular State as agreed by our founding fathers.

The 3 points confirming this are that, having Islam as the State religion "shall not imply that the State is not a secular State’, "will not prevent the State from being a secular State" and "even though Malaya is to be a secular state".

Now, those statements were for Malaya then. With the formation of Malaysia later, do we have any doubt that the constitution would have been re-confirmed as a secular one? Sabah, Sarawak and Singapore would not have agreed if it were otherwise. As Art has said, liberal secular would be most apt. Thanks Art for the post.


art harun said...

Sorry. I don't know why your earlier comment did not appear. You have pushed the wrong button perhaps. :-)

As I said earlier, it is not my case that Malaysia is an absolute secular country. Hence my labeling it as a liberal secular.

What it means is that it is a religious-centric secular country.

No matter what it is, it is my argument that we are first and foremost secular. It is not at all foreseen or intended that this country is to be ruled by or in accordance with religious edicts or theologians.

It is also wrong for some to say that we are a "hybrid secular-theology" because by terming it as a hybrid, there is a notion that we are in fact governed by democratic reps as well as theologians. That is not the case at all.

What we have first of all is a system of governance premised on secularism. That is what is clearly intended. We have to admit that. WE can't run away from that.

However, the type of secularism that we practise allows governmental involvements in matters concerning religions, particularly Islam (which is the religion of the Federation).

I am not going into the width and breadth of the jurisdictions and the extent of such involvement here.

Suffice for this discussion for me to say that our form of secularism does not envisage an absolute separation of religion and state.

Kasim said...

Dear Art,

Referring to your statement, "... secularism does not envisage an absolute separation of religion and state." Well, the problem is, to the layperson, secularism means exactly that - separation of religion and state. You can't go around and say that Malaysia is secular, but it's a different definition of secular than what everyone is used to. Maybe you lawyers are used to using words that have different meanings than what is understood by the common folk, but if you want to be understood by non-lawyers, then do speak in a language that we all can understand. Otherwise, put in big bold fonts on your blog, "This article is meant to be read by lawyers only. Non-lawyers need not proceed."

Else find some other word instead of "secular" that can describe what you want to communicate.

art harun said...

Well Encik Kassim,

If you do not know please feel free to read my article again. And if you cannot understand, please read it again. And again.

I can't promise you can understand what I write about. Perhaps it's my fault. I am not a good writer.

As with cancer, there are many types of cancer. Same with democracy. There are many types. Nasi also has many types.

It is the same with secularism.

HY said...

"Well, the problem is, to the layperson, secularism means exactly that - separation of religion and state."

u r right kasim, but to some layperson, secularism not necessarily means ABSOLUTE separation of religion and state.

hence the article is meant to be read by layperson like me, layperson like you need not proceed.

Ellese A said...

You are right Kassim. But it seems everybody like to simply name everything they like sesuka hati. If a country like us which has very deep religious bias is called liberal secular country then how do you classify countries like France US or countries which actually separates state and religion? Extremely absolutely liberal secular states? What a mouthful? Which other states are considered liberal secular? Who else in the world introduce the definition of "liberal" to "secular"?

This is the problem. Suka define sesuka hati without basis. Mana ada orang define liberal secular. Create your own definition and say other definition salah. If that is the case I can call Malaysia a Islamic secular state lah. An oxymoron? I justify how I want lah. Its Islamic coz it's governed by Muslims as Its recognised as one of the interpretation in fiqh discussion. It's secular coz not purely theoracratic. Separation of state and religion doesn't matter coz everyone doesnt care.

At the end you know what? we become like kit siang and Mahathir. Both called differently but in substance it's the same. Both avowed by our consti. This is what we have become. We don't care what the actual meaning of the word. Expand it as what we like. And argue for nothing. Something so innocuous has become a debate of life and death. You know why? Because of our prejudice and aversion to the term "secular" and "Islamic". So let it be lah. While we fight please remember outsider sees us as non secular state where a secular state are defined and seen as states which purport to be officially neutral in matters of religion. Lets fight against them juga lah. Each one of us have our own definition and since we're aversed to the term "Islamic" and "secular" and since we like to argue on semantic things, let's spend time and resources arguing with them. Amacam?

Ellese A said...

Dear Art,

There is a fundamental flaw in your argument in secularism. We in Malaysia are actually shaped by rules and fatwas of religious people. It's constitutional. Muslims cannot consume alcohol. Muslims cannot eat in public during fasting months. Muslims cannot change religion. Muslims cannot fornicate outside marriage. All have the backing of laws. Religious authorities issues fatwas and enforce them. Similarly in banning Muslims from partaking in beauty paegents. Muslims cannot gamble and play at genting highlands. Then what about rules regulations and actions preferring Islamic transactions/ financing than conventional financing. Muslims daily personal life are affected and to an extent indirectly non Muslims. All these are perfectly the doing of our constitution. It's perfectly legal. Our constitution recognized a certain form of theocratic state. How can this be termed secular? It's mixing religion and state. Allowing clergyman (religious authority) having a say in the ordinary life of the majority of Malaysians.

art harun said...

In deference to Encik Kassim, who may not understand this comment, please be advised that this comment is only intended to lawyers as well as those who think they can grasp the meaning of this comment. LOL! (jangan marah Encik Kassim, lawak saja).

Ok here goes.

I like it when Ellese A lamented the fact that people now just love to argue on concepts just for the sake of argument. Do you remember who started this thing, ie, as far as Islamic State versus Secular State argument? Surely that needs no reminding. And was there a tinge of altruism in the arguments or polemics. With respect, I don;t think so. We all know his motivations.

I am trying to avoid this thing. But poor me have been bombarded by statement after statement after statement. So what do I do? I went back to history and left it to my readers to conclude. That is all.

On liberal secular terminology, I admit that was purely invented by me in response to your first comment here. It was impromptu and it lacked any kind of intellectual basis. So don't take it seriously. (why do people take me so seriously I wonder).

When I said liberal secular, I had meant to contrast and differentiate the type of secularism which is "liberal" in its application (or at the risk of you accusing me of coining yet another useless term, let's call it loose secular) as opposed to a strict secular like the Laicite system practised by France.

I call it liberal because the secularism here is not absolute. It is liberal in the sense that our secularism does allow the state's involvement and participation in religions and religious matters. That's why I call it as such.

Don't worry too much about that. As I said in my response to your first comment, it was just the pedant in me speaking.

I understand your last comment and the arguments there very well Elesse. And I don't deny that.

However, from the historical point of view and the constitutional point of view as well, what was intended is that this country should be secular in nature. That's the premise. And that's why I had produced all those speeches and statements in my article.

The inetention was to have a country which is fundamentally secular. But that secularism is tampered with certain allowances for state involvement, participation and enforcement of religious matters or laws.

That however don't detract from the basic secular premise. That is why the Reid Commisssion, the Alliance, which included UMNO of course, (which represented the people), the British government and everybody were at pain to say that the inclusion of article 3 shall not imply that Malaysia is not a secular country. You can read that in all the statements in my article. All of them was at pain to say and emphasise that.

You know a racing car by the name of Radical? It is a car. It uses a car chasis and have 4 wheels. It has a steering wheel. But it also uses a motorbike's 2-stroke engine and gearbox. But it is categorised as a car and not a motorbike. It races in a car category and class. It is also not called a hybrid car-motorbike. The pedant in me would call it a liberal car. Hahaha...

So that's what I mean. This country is secular in nature. But the secularism is liberal in its application.

Have a good weekend guys. And don't take me too seriously. I have no agenda whatsoever. I am just a person who sometime like to write down what I think and put it on this blog. I am no difference from some people who sometime like to sing in a karaoke lounge and maybe take videos of them and post them on youtube.

Ellese A said...

:-). Up to you lah art. Now we have secular state, Islamic state and liberal secular state to mean the same thing. I think someone should also add liberal Islamic state, Islamic secular state, or all religion campur state to the fray and it's still ok since we mean the same thing. I really like how we increase our knowledge.

Then we have your write criticizing the person who introduce the term and questioning his intention but funnily you have no issue introducing a new unused term into the fray and confusing further this useless argument.You question mahathirs motive but your motive is the same but the opposite side ie to influence people to say its secular.

You know and admit my argument that our religious authority influence the daily life Of the majority of Malaysians is correct, yet insist its consistent with the term secular. This is funny and in fact antithetical. Holyoke who introduced the term secular would turn in his grave. Instead of further admitting that this really water down and qualify the meaning of secular you opted to widen it's application. Use the term secular liberally. Mana Ada orang lain dalam Dunia buat cam Ni. And further, There's no such thing as absolute secularism. The debate has terms like hard and soft secular and even then not a generally acceptable terms. And here we have a guy trying to liberalize the word secular. Secularists are trying to make it tighter and you the opposite pula. Come on. You can wrongly influence many others. You know your write is picked up by the the left leaning bias TMI to be propagated and many gullible people will accept It as the only truth. But you can't con all. Liberal secular in the way you use is an oxymoron.

Try lah to be objective. See respectable Constitutional expert Shad Faruqi write. He also noted the Supreme court case in this matter,which strengthen your secular argument. But still he said it's a polemic which has no meaning. Everyone who knows the constitution and secularism principle would know this is an absolutely useless polemic. The more well thought write by you would be to say that our constitution is neither secular nor theocratic in the ordinary meaning of the word. But you purposely chose selective part of the discussion. Yet you say you have no agenda. I put to you you're in the same boat as Mahathir and LKs. You just want to defend secularism at all cost. Your semantic gymnastic of liberal secularism says it all. I had thought you're beyond this.

Ps. If you mean that youre not serious and take it as the same level as karaoke singing, you should have written so. TMI and others think it's serious and worthy enough as an ammunition to spread your so called "main-main" write to the public. Perhaps you are dead serious in saying you're not serious. But theres a whole gamut of tmi readers who don't think so. I just countered some in other blogs who mati2 defend your position and unlike you can't accept my argument. To them your argument is dead serious. I suggest next time you put a qualification that you're main-main aje. Next time I can tell you're main2 as TMI is putting a joke in their posting.

Sorry art, main2 aje.....:-) jangan marah ya...........

Ellese A said...

I wish to withdraw my last line/ sentence as its a misplaced remark.

art harun said...

Ellese A,

While I admire your resolve to put your stand and position through to the gamut of readers who apparently agree with me, I am sorry that divergence of opinions seem to aggrieve you.

I never said in my article that Malaysia is a secular country. I only set out what historical documents say about the matter in the hope that my readers could counter-balance their exposure to the daily rhetoric by others on the same issue with the historical records.

Don't be too taken up by my liberal-secular term because I had never used it in my article. It was just a flippant response to your first comment here. I had stated clearly that it was the "pedant in me speaking."

I have also never subscribed to this country being an absolute secular. I am at pain hereto tell you that it is my position that this country is a secular country with allowance for the state's involvement, participation and enforcement of religious matters/rules. How clearer can I be?

Even in France, which professes to be a Laicite, there is state sponsorship of Christian schools for example. Britain is the same. India is too.

As for DrM, everyone knows his motivations. And I doubt altruism was one of them.

Have a good weekend.

Anonymous said...

Dear Art,

I agree with you that eventhough secular countries are supposed to be neutral to religion, invariably there would be some religious and cultural elements introduced which are partial to only certain sections of society. For example, the Native courts in East Malaysia only apply to the natives and from what I have read, they relate to their customs and also some religious affairs too.


Ellese A said...

:-). Hope you had a good weekend and a fruitful Monday. I'll let live you with your first of its kind liberal antitgetical secular definition just as I let live with those who call us an Islamic State. After all it's semantics untuk sedap hati aje kan.

Ellese A said...

Didn't check. It should read "first of its kind anthithetical liberal secular definition".

Anonymous said...

is constitutional monarchy islamic or secular??

some muslims here think, that ppl in indonesia or turkey are 'lesser' muslims bcos they are secular nations.

what the point of calling' islamic nations' when countries like somalia, afghanistan, iraq etc are battled with violence and sectarian fightings??? shiok sendiri, loving semantic

Anonymous said...

a lot of argument on semantic but somebody quotes this - which part of secular laws are un-islamic?

Turkey PM ,once say in an interview, that all the secular laws are in line with islamic principles

art harun said...

Ellese A,

Thank you. Weekend was good. Monday not so good. Happy holiday. And selamat menyambut maal hijrah.

Anonymous said...

what does secular nation mean to u?
does it affect yr faith?

what does islamic nation means to u? does it also affect yr faith?

if u dont like Dr M version of islamic state, u can chose PAS version, which one give u a better sleep!!!

art harun said...

Anonymous of 14 November 2012 14:22,

Sadly, regardless of which faith I have and whether it is DrM's or PAS'version that I follow, I still don't sleep well.

I have sleep disorder.

Ellese said...

Dear Art,

When we started the debate, I assumed youved not been selective. Helen Ang printed the commission's page on this matter and Reid did not say its secular. Please clarify. I hope you have not been selective with purpose to mislead.

art harun said...
This comment has been removed by the author.
art harun said...
This comment has been removed by the author.
art harun said...

Good morning Ellese,

Thank you for bring to my attention the article appearing at Helen Ang's site.

Your assumption is right. I have not been selective. And all my writings, I have not set out to deceive or mislead.

Mistakes however do happen. You must understand I am a one man operation. I work for a living just like anybody else. I don't have a battery of researchers, spell checkers, editors or assistance working for me.

Juggling my time between endless meetings and researching cases as well as looking after my business and spending quality time with my family, I read and do some research on whatever topic which strikes my fancy. Then I write.

I normally write from the heart. Most of the time, I don't have draft because that's just the way I write. And I must admit I am one of the laziest person you would ever know, if you know me that is.

I have read the article at Helen Ang's site and thank you for bringing that one up. The writer was quite fair to me.

Let me unequivocally say that it is a mistake. It wasn't intentional. I was looking at that particular sentence and the one that I'd reproduced still have the inverted comas preceding the sentence and post sentence. Here it is:

Quote: — ‘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’.End quote.

I had also reproduced the Alliance's suggestion a paragraph away in my article. If I had wanted to mislead I would have also left out the Alliance's suggested provision, don't you think?

I can't explain how that happened (how half of the sentence disappeared) other than to say that it is not intentionally left out.

In "Zul Noordin and PKR - the lame and the lamer" (http://art-harun.blogspot.com/2009/10/zul-noordin-and-pkr-lame-and-lamer.html), the whole sentence was completely reproduced by me.

So, really, I don't know how this happened.

If this means shoddy work by me, than I would admit it and I apologise for it.

If you know the writer of the piece appearing on Helen Ang's site, please tell him or her to e-mail it to me because I would like to publish it here. Then I would add my statement.

As my article appeared in TMI and also Malay mail, I would also write to them to highlight the mistake. I could highlight the mistake as part of my next article and hope they would publish it.

That's all that I can do.

Have a good weekend.

Ellese said...

Thanks for your clarification. By your response and things you want to do, I have only respect for that. Though i had hoped you would request tmi n malay mail to clarify as its just been published, youre honorable in my estimation. Elsewhere I would have been banned many times for pointing out something similar. There are so few people with integrity. Keep it up.

Anonymous said...

that was a "blatant fundamental" mistake on this article that was most deceiving and misleading.

shocking to say and damaged done, as with TMI readers etc.

did those readers digest the misleading statement due to the so called mistakes? Nope!


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