Friday, July 27, 2007


On July 17, 2007, Deputy Prime Minister Datuk Seri Najib Tun Razak declared that Malaysia is an Islamic state which is driven by fundamentals of Islam and was not a secular state. He even went further by emphasizing that Malaysia had “never been a secular state”.

Malaysians still remember how Tun Dr Mahathir Mohamed (then Dato) on July 29, 2001 unilaterally, unconstitutionally and without even consulting his Barisan Nasional coalition partners (so much for a united national front) declared that Malaysia was an Islamic state.

While there is no denying that Dr Mahathir’s unilateral declaration and Najib’s statement could be construed as political gimmickry aimed to appease the Malays to believe that UMNO is no less Islamic than PAS but also to convince the Non Muslims that UMNO’s version of Islamic state is more moderate and acceptable when compared to PAS’s version of Islamic state, the danger is that, if these declarations remain unrebutted, uncorrected and unchallenged it would only mean further undermining of the Malaysian constitution.

Clearly, attempts are being made by certain quarters to rewrite history and the social contract of 1957 surreptitiously.

So is Malaysia an Islamic state? Proponents could show physical characteristics, among others Islamic schools, colleges and universities, Shariah laws and shariah courts (for muslims) in every state in Malaysia, Islamic banks and Islamic banking system, Islamic medical centres and hospitals and even membership to international Islamic organizations such as Organisation of Islamic Countries (O.I.C) and Islamic Development Bank. While these attributes may also be found in other Muslim countries, Malaysia with these attributes and despite having a larger Muslim population, remains a secular state as expressed in the Federal Constitution.

Support for the view that Malaysia was conceived as a secular state can be found in Malaysia’s document of destiny - The Constitution of the Federation of Malaysia. Article 4 clearly declares that it is the supreme law of the land. In fact the Hansard of 1st May 1958 records the reaffirmation of the then Prime Minister Tunku Abdul Rahman: when he on behalf of the government placed it on record and said “I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provided that Islam shall be the official religion of the Federation”.

Thus to cite Article 3(1), to infer that Malaysia is an Islamic state runs contrary to the original intention of the Constitution. In fact, Tun Salleh Abbas in the case of Che Omar bin Che Soh v Public Prosecutor reiterated that religion in Article 3 was never intended to extend the application of shariah law to the sphere of public law.

Unlike the constitution of Pakistan which declares the shariah law as the supreme law of the land and laws inconsistent with the shariah are deemed inconsistent, in Malaysia, no where in the Federal Constitution does it state that the governance is based on the Holy Quran and the Sunnah. There is a clear and crucial distinction between a country where the majority of the population are Muslims and is accepted as an Islamic country and a country where the supreme law is the shariah and is deemed to be an Islamic state. In Che Omar’s case Tun Salleh Abbas said “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 junction of Islam would be void.”

Evidences found in constitutional documents points to the view that at various stages of the formation of the Federation of Malaya (1957) and subsequently Malaysia (1963), the nation was founded on the basis that it should remain a secular state. It is worth remembering that initially, the Rulers did not want Islam to be the official religion because of fears that their status as head of religion in the states would be usurped. (see Ahmad Ibrahim “the Position of Islam in the Constitution of Malaysia”, in Mohd Suffian The Constitution of Malaysia, its development : 1957-1977 p.49 ).

The Alliance Party ( a coalition of UMNO, MCA and MIC) recommended to the Reid Commision that:
…the religion of Malaya shall be Islam. The observance of this principle shall not impose any disability on non-Muslims nationals professing and practicing other religions and shall not imply that the state is not a secular state.” (cited by Supreme Court in Teoh Eng Huat v Kadhi Pasir Mas (1990) 2 MLJ 300. The recommendation became the basis of Article 3 of the 1957 Constitution.

This reflects the thinking of our founding fathers. Islam was given a special position in the constitution by making it the official religion of the Federation. Freedom to practice other religions was guaranteed by the Constitution. Thus, it can be said with certainty that the founding fathers who represented the Malays, Chinese and the Indians never went as far as agreeing to accept Malaysia as an Islamic state or to acknowledge that shariah was to be the supreme law of the land. Shariah laws applies exclusively to Muslims only and that too in areas as demarcated under Schedule 9, List 11, Item 1 of the Constitution.

We should not confuse the crucial distinction between a country in which the majority are Muslims and therefore an Islamic country and where the supreme law is the shariah, an Islamic state. In Che Omar Che Soh v Public Prosecutor the Supreme Court stated that “ If it had been otherwise (an Islamic State), 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, (the Constitution) on the other hand, purposely preserves the continuity of the secular law prior to the Constitution…”.

It is grossly unbecoming for politicians and other parties, for their own political expediency and self interest to distort the constitutional status quo and declare Malaysia an Islamic state. Politicians and others with an agenda must be reminded that the Federal constitution cannot be subverted through reinterpretations inconsistent with the objectives underlying the Federal Constitution.

In conclusion, Malaysians irrespective of race and religion must ensure and guard the Constitution from being hijacked by those who finds the ‘secular’ Constitution and the State an anathema and are determined to impose their own agenda.