Wednesday 11 May 2011

Islam as the religion of the Federation: A historical context — Art Harun

May 10, 2011
MAY 10 — Much has 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 lodging 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 Twitter who actually defend 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 of ourselves as leaders, we’d better lead. Not follow. As leaders, we have to come down hard on wrongdoings — on both sides 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: the irresponsible acts of goons and political thugs as well as disgruntled Mafiosi chiefs spewing messages of hate.

As leaders, we should at, all times, lead. And lead not only by words and catchy 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 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 can 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 authorise 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.


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 said:

“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 the recognition of Islam or the prevention of 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 the 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.

At this juncture, it has to be pointed out that initially, as can be seen from 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 frame the issue in 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, practise and propagate that religion, nor shall any citizen be under any disability by reason of his being not a Muslim’.

Justice Hamid said, “A provision like the one suggested above is innocuous. No fewer than 15 countries 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 as 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 cause hardship 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 needs to be done is to transplant it from the State Constitutions and to embed it in the Federal.”

It is obvious that in Justice Hamid’s mind, such a provision, if included in the Federal Constitution, would be, in his own words, “innocuous.” Why would he use the word “innocuous”? That is due to the fact that it wasn’t suppose to bring with it any issue relating to the right of other faiths being 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 a 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 organisations, 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 practise 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 31 May 1957 paying tribute to and expressing gratitude for 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 faiths in the country.

Perhaps it is worth repeating what Justice Hamid 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 hardship to anybody, no harm will ensue if such a declaration is included in the Constitution of Malaya.”

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

Let’s learn from history.

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