This is a most elementary principle of constitutional law and parliamentary democracy in Malaysia and it is most surprising that Rais, with his most controversial doctoral thesis and book , Freedom under the Executive Power in Malaysia, seems unaware.
Rais can be very flippant about his doctoral thesis and book on the rule of law and executive powers in Malaysia, claiming that it was “merely an academic exercise” which should not be held against him for the rest of his life, but he should realise that a solemn guarantee of a Prime Minister in the highest legislature in the land cannot be treated as “an academic exercise” which could be jettisoned in a most frivolous manner if public trust and confidence in the government is not to suffer irreparable damage.
Rais cannot just explain away Tunku’s categorical and unequivocal declaration in Parliament four decades ago that Malaysia is not an Islamic state by claiming that what the Tunku stated decades ago “must be understood contextually” and that “Malaysia has gone a long way from the Tunku days”.
Rais should realise that times can change but fundamental principles and commitments cannot alter like the change of dress or fashion.
In the past 44 years, there had been no amendment to the Malaysian Constitution
to undo Tunku’s guarantee that Malaysia is not an Islamic state, and unless
Rais could prove otherwise, the Barisan Nasional government is honour-bound
to remain loyal to the spirit and letter of the intention of the framers
of the 1957 Merdeka Constitution as declared by Tunku in the Legislative
Council in 1958:
“I would like to make it clear that this country is not an Islamic State as it is generally understood; we merely provide that Islam shall be the official religion of the State.”
The position of the constitutional cornerstone that Malaysia
is a secular and not an Islamic state was further reinforced in the negotiations
for the formation of Malaysia in 1963, as Sabahans and Sarawakians
were assured that Article 3 of the Constitution "does not imply that
Malaysia is not a secular state."
Information Ministry Parliamentary Secretary Datuk Zainuddin Maidin is out of his depths and shows his ignorance when he claimed that Malaysia was never regarded as a secular State.
He should go back to history and read up the founding principles for the formulation of the Federation Constitution before Independence. For instance, the Reid Constitution Commission Report 1957, which recommended the form of constitution we should have, stated that there was “universal agreement” that “any statement in the Constitution to the effect that Islam should be the State religion… would not in any way affect the civil rights of non-Muslims”.
The Reid Constitution Commission report said:
“In the memorandum submitted by the Alliance it was stated the religion of Malaya shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religions and shall not imply that the State is not a secular state.”
That the independent nation formed on August 31, 1957 was established
as a secular nation was specifically stated in the White Paper on
the Reid Constitution Commission Report presented by the Alliance Government
headed by Tunku, which stated:
“57. There has been included in the proposed 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 restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.”
Zainuddin should also refer to case law, as the fundamental
constitutional principle that Malaysia is a secular nation has been upheld
by the highest court in the land in Che Omar bin Che Soh vs
Public Prosecutor (1988).
Delivering the judgment of a five-man Federal Court panel, the then Lord President Tun Salleh Abas held that the Constitution and the legal system are “secular” and held that the meaning of the expression “Islam” or “Islamic religion” in Article 3 “means only such acts as relate to rituals and ceremonies”.
He said that “There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial” but rejected the contention that the terms “Islam” or “Islamic religion” in Article 3 is “an all-embracing concept, as is normally understood, which consists not only the ritualistic aspect but also a comprehensive system of life, including its jurisprudence and moral standard” as this was not the meaning intended by the framers of the Constitution.
Salleh Abas’ judgment that Malaysia was a secular nation was in keeping with the interpretation of his predecessor, the late Tun Mohamed Suffian Hashim who in 1962 defined the scope of Islam in the constitution as being primarily for ceremonial purposes, such as the permission for prayers to be offered in the Islamic way on official public occasions such as the installation of the Yang di Pertuan Agong, his birthday, Merdeka Day and other occasions.
Nobody says that the Barisan Nasional cannot change its mind to jettison the fundamental constitutional principle and nation-building cornerstone of Malaysia as a secular state upheld by the Alliance since the early decades of nationhood, but this cannot be done surreptitiously or by the mere declaration of one person.
If the Barisan Nasional today wants to deviate from the original Alliance position since before the nation’s independence that a secular Malaysia is a fundamental bedrock of the Malaysian nation-building process, this can only be done by an open amendment to the Malaysian Constitution in Parliament and not by a mere declaration by the Prime Minister of the day and endorsement by the Barisan Nasional Supreme Council, without any popular consultation, public feedback or even consent and mandate from their respective party central committees and congresses!
Zainuddin showed further ignorance when he said no secular state will approve laws advancing the interests of a particular religion. He said: “In this country, provisions for the development of other religions cannot be made by parliament and the propagation of other religions through official government organs such as television and radio is not allowed. This has already been accepted as a convention.”
Is Zainuddin suggesting that the grants which the government had made, whether through Ministers or Barisan Nasional MPs to churches and temples especially during election times are unlawful and that they should all be paid back to the government coffers?
There is nothing in the Constitution to prohibit the use of public funds for the development of other religions or through official government organs such as television and radio. The current ban on the use of television and radio for the other religions is not sanctioned by the Constitution but reflects a narrow and un-Malaysian outlook of the Barisan Nasional government and must be lifted immediately if the first Rukunegara principle of “Belief in God” to create a god-fearing society is to have any meaning.
DAP calls on the Barisan Nasional Supreme Council to convene an emergency meeting to retract its endorsement that Malaysia is an Islamic state and to revert to the fundamental constitutional principle and cornerstone of Malaysia as secular nation specifically intended in Merdeka Constitution 1957.
(8/10/2001)