Islamic State? The Bar's answer

PRESS STATEMENT FROM THE BAR COUNCIL

The statement made by the Deputy Prime Minister in this 50th year of Merdeka that Malaysia has never been a secular state is startling as it ignores the undisputed constitutional history of the country as well as the social contract by which the multi-racial and multi-religious people of this nation came together.

The Federal Constitution was a carefully thought out, carefully negotiated document that evolved after much debate and discussion. Some historical context is necessary. In 1956, Tunku Abdul Rahman had headed a Merdeka Mission to London to negotiate for independence. The negotiations were conducted by 4 representatives of the Malay Rulers, 4 representatives of the then Alliance Government and representatives of the British Government. The Reid Commission was then appointed to draft a constitution for independent Malaya. The Reid Commission held 118 meetings in Malaya. It met a wide cross-section of people and organisations and received 131 memoranda.

One of the striking features of the Reid Commission report and the Federal Constitution is the inter-communal compromises. These compromises were essentially the result of proposals set out in a memorandum by the then Alliance party which had in turn been vigorously debated over many months by a core group from UMNO, MCA, and MIC under Tunku’s chairmanship. The Alliance Memorandum referred to the issue of religion as follows:

“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 religion, and shall not imply that the State is not a secular State.” (Emphasis added)

Subsequent to the issuance of the Reid Report, further reviews were carried out by a Working Party that again consisted of representatives from the Malay rulers, the Alliance party and the British Government. The Alliance party set up its own sub-committee chaired by its then deputy president, Datuk Abdul Razak. Again the Alliance maintained its position that they had no intention of creating a Muslim theocracy and that Malaya would be a secular State. A white paper subsequently issued by the British Government in June 1957 confirmed this by stating “This will in no way affect the present position of the Federation as a secular State”.

Since then Tunku himself, respected Academics, and our own Supreme Court in 1988 have reiterated in one way or another that we are a secular State and not an Islamic State. Thus for more than 40 years (until 2001), no-one had suggested that Malaysia is an Islamic State.

One has to only look at the Articles in the Federal Constitution, our system of government and the administration of justice to know that we are not an Islamic State. The Civil Courts set up under the Constitution dispense secular justice on a daily basis to all the citizens of this country. Secular law governs contracts, commerce, international relations and trade and every aspect of the lives of a citizen. Islamic law governs specific matters set out in the Federal Constitution in relation to persons professing Islam.

In the context of our history and the Constitution itself that proclaims its supremacy, it is the Bar Council’s view that there is no doubt whatsoever that Malaysia is a secular state and not an Islamic state. It is noteworthy that the Prime Minister in his speech delivered at the conference yesterday and in his propagating Islam Hadhari has never referred to Malaysia as an Islamic State.

It is time that the proposition that Malaysia is not secular, (which is a rewriting of the Constitution), be put to rest once and for all and that there is due recognition and reaffirmation of the clear legal and constitutional position that Malaysia is, and has always been, a secular State.