MAY 10 — I am a member of the Bar Council constitutional law committee but have a different point of view on the position of Islam under the Constitution.

Firstly, the correct way of interpreting and understanding the Constitution is by looking at the provision concerned as well as the entire structure. One should not apply literal and pedantic means alone.

Secondly, it is not quite right to say the Constitution is secular. For one thing, there is no provision to that effect in the constitutional document. It may not be Islamic but the Constitution is certainly not secular.

The reasons for this are:

(a) The position of Islam as “the religion of the Federation” as stated in Article 3(1) could be taken to mean that Islam is a national or constitutional ideology. It is just saying I am a Muslim or my religion is Islam.

There is no case law on this but Professor L.A. Sheridan, former law dean at Singapore University, once opined that one of the possible implications of Article 3(1) is that state functions such as the opening of Parliament must be conducted in an Islamic way. The law professor was making a comment in response to the Supreme Court decision in Che Omar bin Che Soh (1988) that was rather confusing.

(b) Even though the Yang di-Pertuan Agong is not the head of Islam for the entire federation, he is required by the Constitution to take the Islamic oath of “wallahi, wabillahi and watallahi” that is contained in the Federal Constitution. A secular constitution, like that of Turkey, would forbid this.

(c) The Constitution, through Article 12(2), has allowed the authorities to use public funds for Islam.

(d) A secular state would not allow religious courts, such as the syariah courts.

These are just some of the reasons why the Constitution and the state are not secular. There are too many other reasons to rebutt the argument put forward by En. Syahrezan this morning. Just look at the state constitutions and other laws, passed by Parliament and the state assemblies.

Thirdly, the mere fact that the Constitution does not say or specify “official religion” or “state religion” is not a good enough argument to bring about the conclusion that Malaysia is therefore a secular state.

Fourthly, having said that, it does not follow that the position of non-Muslims is thus in danger.

Their position has been protected by Article 3(1) which allows other religions to be practised in peace and harmony in the country. They are also protected by Article 11 which provides the right to religious freedom. In fact, one could say that Article 12(2) does not mean that the state is prevented from assisting other religions.

Fifthly, secularism is not necessarily the means to protect non-Muslims. There are countries that profess as such but they are somehow unable to guarantee the equality and the protection of minorities.

Just because I have a different point of view from Syahrezan on Article 3(1) does not mean that I am changing my mind on a non-Muslim and non-Malay becoming prime minister.

My view remains that a non-Muslim and non-Malay can be PM so long as he or she has what it takes under Article 43 of the Federal Constitution to become PM.

And I think having a non-Muslim and non-Malay PM who upholds the Constitution is better than a Malay Muslim PM who puts himself above the law. Or someone who amends it as he pleases, as seen during the Mahathir administration.

* Abdul Aziz Bari reads The Malaysian Insider.

* This is the personal opinion of the writer or publication. The Malaysian Insider does not endorse the view unless specified.