Andrew Yong‘s attempt at shedding light without generating too much heat.
Once again, the great debate about whether Malaysia is a secular or an Islamic state rears its ugly head. This debate is divisive and sterile, primarily because it is a debate that “generates lots of heat but little light” — which is to say, it raises a great deal of emotion but contributes little to greater understanding.
This article aims to shed some light while generating the minimum amount of heat, and propose alternative ways of approaching this increasingly fruitless debate.
A Clash of Terminologies
The first problem with the current Islamic vs secular debate is that it is not a descriptive but a normative debate, and thus incapable of objective resolution. If a foreigner who knew nothing about Malaysia were to ask, “Is Malaysia a secular state or an Islamic state?”, none of us would hope to provide a satisfactory answer by choosing one of the two stated options. We would have to answer, “It’s complicated”, and give a more detailed explanation of the Malaysian Constitution. Despite this, the protagonists on each side of the Islamic vs secular debate feel that they can choose one or the other answer because they are not interested in describing what Malaysia “is”, but what they feel Malaysia “ought to be”.
The second problem with the Islamic vs secular debate is that it revolves around words and concepts that lack any shared understandings or shared meanings. The first problem is one of language: take for instance the term “Islamic state”, or in Malay, “negara Islam”. In English, the word “state” usually refers to the governmental institutions of a country — for instance, when we speak of fiscal conservatives wishing to “reduce the size of the state”, we mean that they want to reduce the size of government spending as a percentage of national GDP.
But the Malay word “negara” has no such connotation, as its meaning is more akin to the English word “country”. Ask an educated Malaysian whether Malaysia is an “Islamic country”, and he might well say yes, insofar as Malaysia has a Muslim majority population, is a member of the OIC and has Islam as its official religion.
But if you ask him whether Malaysia is an “Islamic state”, or indeed whether Malaysia has a “kerajaan Islam”, he will probably say no, because the government institutions, laws and policies of this country are primarily based on secular, democratic and not religious principles. For instance, the criminal law in our country is based on Lord Macaulay’s Indian Penal Code, and not the hudud and qisas of the Qur’an.
Degrees of secularity
We next have to turn to the term “secular state” or “negara sekular“. Again, the words “state” and “negara” do not connote the same object. But the problem here is not just linguistic, but conceptual. On a strict definition, the word “secular” can be used to refer a state that is unassociated with any particular religion, whose laws and policies are neutral as between religions or between religion and non-religion, and can be justified without assuming the truth or falsity of any particular religious beliefs.
On this strict definition, Malaysia does not meet the criteria of a “secular” state. We have an official religion, as well as criminal and family laws based on Islamic teachings that apply to Muslims only. But on this definition, neither does India, which has no official religion but has different religious-based family laws for Muslims and Hindus and criminal laws that prohibit the slaughter of cows. Likewise, the United Kingdom may have the same family laws for everybody, but it also has an official religion, with the Queen as the head of the established Church, bishops with automatic seats in Parliament and a special place for the Church of England in the solemnisation of marriage. Some very liberal European countries such as Norway and Denmark also have official state churches, while others such as Germany and Italy have no official church, but have church taxes, which the state collects from citizens on behalf of the churches to which they belong.
Among Muslim countries, there is also a wide variation in the “Islamic” nature of supposedly Islamic states. Most people are familiar with theocracies such as Iran and Saudi Arabia. But by contrast, in Tunisia, which also has Islam as its official religion, Muslims are free to change their religion, alcohol can be bought and sold freely in public and the wearing of hijab is discouraged in public places and restricted in government offices. So in both Christian and Muslim countries, secularity is not a question of black and white, but can be seen as a question of degree.
Islam in the Malay States
In the Malay States, Islam has been the State religion continuously since around the 15th century. The treaties between the British Crown and the Malay Rulers by which the British took over the administration of the Malay States left matters relating to Islam and Malay custom to the Rulers. But Islamic law, originally the law of the land, was gradually supplemented with secular statutes until it was finally almost completely supplanted by the common law of England. This process began in 1807-26 with the First and Second Charters of Justice in the Straits Settlements and continued with the 1937 Civil Law Enactment in the Federated Malay States, which was extended in 1951 to the Unfederated Malay States. Today, the Civil Law Act 1956 provides for the reception of common law of England throughout Malaysia.
In Che Omar Che Soh v PP  2 MLJ 55, Lord President Salleh Abas traced the history of Islamic law in Malaysia after the intervention of the British in the Malay States in the late nineteenth century:
Before the British came to Malaya, which was then known as Tanah Melayu, the sultans in each of their respective states were the heads not only of the religion of Islam but also as the political leaders in their states, which were Islamic in the true sense of the word, because, not only were they themselves Muslims, their subjects were also Muslims and the law applicable in the states was Muslim law. Under such law, the sultan was regarded as God’s vicegerent (representative) on earth …
By ascribing sovereignty to the ruler, i.e. to a human, the divine source of legal validity [was] severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat …
Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only.
In addition to Islamic family law, State statutes also gave Islamic religious courts limited jurisdiction over religious offences in the Malay States. For instance, under the Administration of Muslim Law Enactment 1952 (Selangor), religious courts could impose criminal sentences ranging from a fine of up to $25 for public consumption of liquor to a fine of $500 and imprisonment of 6 months for contempts of religion. But in both family law and in religious criminal law, the jurisdiction of Islamic religious courts applied to Muslims only.
We can therefore see that British colonial rule did not fully convert the Malay States into secular states, but allowed them to retain Islam as the State religion, and Islamic law and Malay custom in the regulation of Islamic family law and religious offences among Muslims.
Islam in the Merdeka Constitution
When the Federation of Malaya was established in 1948, Islam and Malay custom remained matters fully under the control of the States, and the Federation was therefore a purely secular institution. With the advent of Merdeka in 1957, the Malay Rulers initially opposed the declaration that Islam be the religion of the Federation, fearing that this would encroach on the powers of the States and the Malay Rulers. Counsel for the Rulers told the Reid Commission:
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.
The Reid Commission’s draft Constitution initially followed the Rulers’ original position and made no provision for an official 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. In the memorandum submitted by the Alliance 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.” 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 …
Eventually the Rulers were persuaded to follow the Alliance position for ceremonial and other reasons, e.g. to allow the Yang di-Pertuan Agong to represent the Federation in national religious ceremonies and to act as Head of Islam in Malacca and Penang. The final 1957 Constitutional White Paper stated:
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.
Outside the realm of ritual and ceremony, the 1957 Constitution also allowed the Federation and the States to give special financial aid for the establishment and maintenance of Muslim religious educational institutions.
Evidently, all parties at the time of Merdeka believed that notwithstanding the position of Islam as the official religion, and the existence of Islamic family and religious criminal laws in the States, that the Federation could still be described as a “secular” state in the sense that existing secular laws would continue to be in force and the civil rights of non-Muslims would not be affected.
Islam and the Borneo States
With the formation of Malaysia in 1963, the position of Islam as the official religion throughout the Federation was substantially diluted. It was agreed that there would be no official religion and no Head of Islam in the Borneo States, that restrictions on the propagation of religion amongst Muslims could not be imposed without two-thirds majorities in the State Legislatures, and that the Borneo States would be compensated for any financial aid given by the Federation to Muslim religious educational institutions.
However, these provisions, which safeguarded the secular aspect of the Federation with regard to the Borneo States, were swept away by a constitutional amendment in 1976, following Sabah’s adoption of Islam as its State religion in 1973.
The role of the civil courts
In Che Omar Che Soh, the Supreme Court held that the declaration of Islam as the official religion did not by itself extend the application of Islamic law or principles in Malaysia, but was relevant only to rituals and ceremonies. As the Civil Law Act 1956 provided for the application of the common law throughout Malaysia, and as the Constitution provided for the continuance of existing secular laws, Lord President Salleh Abas concluded:
[W]e 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 law. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.
Our laws and institutions, as described by Salleh Abas LP, derive their authority and legitimacy not from religious doctrine, but from secular fiat: the Yang di-Pertuan Agong, the Rulers, Parliament, the Courts, the States, all owe their existence to the Constitution. Even the Islamic courts and other religious authorities owe their existence to statutes passed by State Legislatures, which include both Muslims and non-Muslims (in some States, a majority of non-Muslims). None of these institutions can act in a manner contrary to the Constitution and the statutes that established them.
When considering to what extent Malaysia is or continues to be a secular state, it is important to focus on the role of the civil courts in Malaysia as the guardians of the Constitution, to whom citizens can turn for redress of violations of constitutional rights. As the famous English constitutionalist A V Dicey famously observed of the inseparable connection between a right and the means of enforcing that right: “[t]he Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”.
Under our original Merdeka Constitution, the Islamic religious courts were, like penghulu’s courts and native courts, clearly inferior tribunals, created by State law and subject to the supervisory jurisdiction of the High Courts by means of the prerogative writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Unfortunately, during the constitutional crisis that ultimately resulted in the sacking of the Lord President and the neutering of the judiciary, the Constitution was amended by Dr Mahathir’s administration to insert Article 121(1A), which removed from the jurisdiction of the High Courts all matters within the jurisdiction of the syariah courts.
Thus for the time being, Malaysia currently has a parallel syariah judicial system, including courts going by the names of “Syariah High Courts” and “Syariah Courts of Appeal”, which are largely immune from the supervisory jurisdiction of the civil High Courts created by the Constitution.
It would, as we have seen, be difficult to describe the governing laws and institutions of Malaysia as either wholly “secular” or wholly “Islamic”. The truth is that our Constitution is far too complex to allow yes-or-no answers to be given to either of these appellations. These are descriptive terms that admit of differing degrees of compliance: in comparison to any other country, the laws and institutions of Malaysia may be more or less “secular”, and more or less “Islamic”.
If therefore it is desired to know whether the States can impose hudud law, whether the Federation can establish religious police, or the answer to sundry other questions of this nature, it does not help to ask whether Malaysia is or should be a secular or Islamic state. We must turn instead to the detailed provisions of the Constitution, the supreme law of our country, and which encapsulates the terms of the shared commitments and compromises that led to our country’s formation.
But there is no use the Constitution and the civil courts saying one thing if they can be ignored by a parallel syariah jurisdiction. In my opinion, the only way to reassert the supremacy of the Constitution in Malaysia within the constraints of Article 121(1A) is to confer the Federal Court, which is unaffected by that Clause, with an additional original jurisdiction, similar to that conferred upon the Indian Supreme Court by Article 32 of the Constitution of India, to enforce the fundamental liberties guaranteed by the Constitution through the issuance of the prerogative writs, through an amendment to the Courts of Judicature Act 1964. Unless this is done, or the civil courts find some other way of reasserting their role as the guardian of our Constitution, this fruitless debate will continue to lumber along without resolution.