Side Views

Secular or non-secular: What history tells us — Art Harun

November 08, 2012

NOV 8 — 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 May 31, 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 then?

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. — art-harun.blogspot.com

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.