On 11th November 2001, when speaking at the dinner of the Associated Chinese Chamber of Commerce and Industry of Malaysia (ACCCI), Dr. Mahathir said it was all right for the Chinese to think that Malaysia is a secular country. It is significant that neither Mahathir nor UMNO could or would endorse Malaysia as a secular state, although they have no objections if Chinese political parties and leaders think so - although one layman definition of a secular state is that “it is not an Islamic state”!
What is very surprising is that Mahathir even said that “the Chinese have been living in Malaysia long before independence 44 years ago and while they may not know, they are in fact living in an Islamic state”.
Barisan Nasional leaders should not distort history and the Constitution as well as mislead Malaysians that they have been living in an Islamic State for the past 44 years since Independence without knowing about it, because this is simply not true.
The first Prime Minister and Bapa Malaysia, Tunku Abdul Rahman, who held office for 15 years as head of government, two years as Chief Minister 1955-1957 and 13 years as Prime Minister, 1957-1960 never knew that Malaysia was an Islamic State or he would not have publicly declared soon after Merdeka in Parliament in 1958: “I would like to make 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 State.” (Hansard 1 May 1958)
The second Prime Minister, Tun Razak, and the third Prime Minister, Tun Hussein Onn also never knew that Malaysia was an Islamic state.
Even Mahathir, the fourth Prime Minister of Malaysia, never knew that Malaysia was an Islamic state in his first 19 years and 11 months in office from July 1981 - June 2001, as it was only in the past five months starting in June this year that he began talking about Malaysia being an Islamic state!
No framers of the Federal Constitution ever knew that 44 years ago, they were drafting a constitution for an Islamic State for Malaysia.
In providing for Article 3(1) of the Federal Constitution which declares: “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”, the framers of the Constitution and the founding fathers of the nation clearly intended Malaysia to be a secular state with Islam as the official religion.
This was why the Reid Constitution Commission Report 1957 stated that in “the memorandum submitted by the Alliance Government it was stated 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 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 in 1957 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.”
In the 1962 Cobbold Commission of Enquiry, North Borneo and Sarawak Report leading to the formation of Malaysia including Sabah and Sarawak, the Malayan Government members referring to fears and objections to the status of Islam as the religion of the Federation gave the assurance that Article 3 would “in no way jeopardizes freedom of religion in the Federation, which in effect would be secular”.
No judicial officer, including the highest in the land, past and present, knew that Malaysia was an Islamic state in the past 44 years.
Former Lord President of the Federal Court Tun Mohamad Suffian wrote in 1962 that under Article 3, Islam in Malaysia is “primarily for ceremonial purposes, for instance, to enable prayers to be offered in the Islamic way on official public occasions such as the installation of the birthday of the Yang di pertuan Agong, Independence Day and similar occasions.”
In his book Our Constitution, former Chief Justice Hashim Yeop A. Sani
was of the following view:
“The words ‘Islam is the religtion of the federation’ appearing in clause (1) of that article has no legal effect and that the intention was probably to impose conditions on federal ceremonies to be conducted according to Muslim rites.”
In the case of Che Omar bin Che Soh v. Public Prosecutor (1988), a Muslim was sentenced to death for a firearm offence under the Firearms (Increased Penalties) Act 1971. On appeal to the Supreme Court, his lawyers argued that since Islam was the religion of the Federation, the imposition of the death penalty for such an offence was not in accordance with the hudud law of Islam and was therefore unconstitutional. The Lord President of the Supreme Court Tun Salleh Abas after reviewing Malaysia’s constitutional history ruled that the religion of Islam in Article 3 means only such acts as relate to rituals and ceremonies rather than an all-embracing concept which consists not only of the ritualistic aspects but also a comprehensive system of life, including its jurisprudence and moral conduct.
Mahathir had explained that the government had to declare Malaysia an Islamic state because PAS keeps harping on having Islamic State.
For PAS, the Islamic state is not the end but a means to an end - to realise the Islamic law where the shariah replaces the Merdeka Constitution as the supreme law of the land.
Does this mean that if PAS continues to harp on having an Islamic State ala-PAS where shariah is the supreme law, UMNO will have to progressively concede and yield over a period of time to the PAS demand?
The Barisan Nasional government and leaders must respect the 44-year fundamental constitutional principle and nation-building cornerstone of Malaysia as a democratic, secular and multi-religious state drafted by the framers of the Constitution and recognised by all the first three Prime Ministers and the highest courts in the land for over four decades.
In the same speech, Dr. Mahathir gave the government’s “categorical undertaking” to all Malaysian Chinese that their rights as citizens as stated in the Constitution would not be taken away.
He said: “The Chinese community should not be worried and go around saying that the Government will deprive them of their rights. Please do not listen to people who want to make an issue out of it.
“In Malaysia, the community is always represented in the Government and we have no wish to obstruct or curtail your rights. Your rights will remain your rights.”
The Prime Minister should realise that the fears of the Chinese and non-Muslims that they will be relegated to second class citizenship status in an Islamic state in Malaysia cannot be allayed by mere verbal assurances.
This is because the irrefutable and ineluctable consequence of the Prime Minister’s declaration that Malaysia is already an Islamic state is that the Chinese and non-Muslims face the erosion and loss of the 44-year fundamental constitutional principle and nation-building cornerstone of Malaysia as a democratic, secular and multi-religious nation.
How can such a fundamental loss of a Malaysian citizen be regarded as not a loss at all?
It is not just the Chinese or non-Muslims in Malaysia who are concerned about the sudden lurch of the nation-building direction towards an Islamic state, the majority of Muslims in Malaysis are also concerned, as the establishment of an Islamic state in Malaysia even ala-UMNO and not ala-PAS has far-reaching legal, political, economic and citizenship implications for all Malaysians, both Muslim and non-Muslim.
Malaysians cannot take lightly the abandonment of the clear-cut constitutional and nation-building principle declared by the Bapa Malaysia and the first Prime Minister, Tunku Abdul Rahman, and backed up by the constitutional, political and legal history of the past four decades, that Malaysia is not an Islamic state but a secular state with Islam as the official religion.
This is why the Bar Council was guilty of irresponsible and dangerous complacency when it took the stand that the Prime Minister’s declaration that Malaysia is an Islamic state was an “essentially political statement” which would not affect the 44-year fundamental constitutional principle that Malaysia is a secular state on the ground that it does not change the status of the country as expressed by the constitution.
It is also astounding that the Malaysian Consultative Council for Buddhism, Christianity, Hinduism and Sikkhism, which on the eve of the 1999 general elections, pledged support to the Barisan Nasional to oppose an Islamic State being foisted in Malaysia - a major cause for DAP’s electoral disaster - could be so quiescent as to accept such an explanation to “whitewash” the gravity of the pronouncement that Malaysia is already an Islamic state.
It is a matter of grave concern that Malaysians are still largely unaware of the tectonic shift that had taken place in Malaysian politics and the nation-building process - where the top national agenda to develop a democratic, secular, tolerant, multi-religious and progressive Malaysia in the past four decades has been replaced by the question as to what type of an Islamic state Malaysia should become, whether ala-UMNO or ala-PAS.
Malaysians must realise that once they agree that Malaysia is already an Islamic state - or even more shocking, that Malaysia had been an Islamic state for the past 44 years - they are not only jettisoning the fundamental constitutional principle and nation-building cornerstone of Malaysia as a secular state but creating a new dichotomy of Malaysian citizens into Muslim and non-Muslim Malaysians.
This is because non-Muslim Malaysians can have no meaningful role or say in the debate and contest as to what type of a Islamic state Malaysia should be, ala-UMNO or ala-PAS.
This is why the abandonment of the fundamental constitutional principle and nation-building cornerstone of Malaysia as a secular state, and acceptance that Malaysia is an Islamic state, has far-reaching political, legal and citizenship consequences, regardless of whether there is an amendment to the Constitution or not.
It is only when Malaysia remains committed to the fundamental principle in the Merdeka Constitution of a secular nation with Islam as the official religion that non-Muslim Malaysians can have a meaningful role in shaping the national destiny.
Far from promoting irresponsible and dangerous complacency, the Bar Council, the Consultative Council for Buddhism, Christianity, Hinduism and Sikkhism and all other organisations and Malaysians committed to a democratic, secular, tolerant, multi-religious and progressive Malaysia should urgently create awareness of the tectonic shift in Malaysian nation-building with the declaration that Malaysia is already an Islamic state.