JANUARY 21 — It was with interest, if also great bemusement, that I read the article entitled “Enough of this nonsense! Malaysia was created as a secular nation” by Professor Clive Kessler and published on January 19, 2016 in The Malay Mail Online. Without citing any binding or persuasive legal authorities whatsoever, the professor had had the audacity to dismiss those affirming the constitutional position of Islam as the religion of the Federation (and thus rejecting the alleged secular notion of our nation), like Datuk Zainul Rijal Abu Bakar of the Malaysian Muslim Lawyers Association and Azril Mohd Amin of the Centre for Human Rights Research and Advocacy, as mere “creative legal innovators and myth makers.”

In 2014, I wrote an article, also published in The Malay Mail Online, entitled “Wither the Myth of a Secular Nation”, wherein I argued that the secular notion of our nation is actually a myth not supported by any legal or constitutional basis. I shall reconstruct my arguments therein, albeit trancated, as a response to Professor Kessler herein, but for a more complete and holistic perspective, it is advisable to read my full arguments there.

When one reads the provisions of the Federal Constitution, it is important that the provisions be read as it is, and not to disingenuouosly add words that are not there just to satisfy a certain ideology that one believes in.  In Dato’ Menteri Othman bin Baginda & Anor v Dato’ Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29, the Late Royal Highness Raja Azlan Shah (as HRH then was) cautioned that “[r]espect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language.”

In this regard, a plain reading of the language used in Article 3(1) says that “Islam is the religion of the Federation.” So to suggest, as Professor Kessler did, that Islam is merely the “official emblamatic religion” of Malaysia,  when neither the word ‘official’ nor ‘emblamatic’ ever appeared in the provision, is nothing short of constitutional fraud, not to mention intellectual dishonesty. It makes a world of a difference here, between the former and the latter.

A comparison with the constitution of another country with similar constitutional history to ours would throw more light to this. For which purpose, I propose a comparison be made with the constitution of India, particularly because our own Federal Court had acknowledged in the landmark decision in Merdeka University v Government of Malaysia [1982] 2 MLJ 243, that since “our constitution is modelled on the Indian constitution,” whenever there is a parting of way in the wordings of our Constitution from that of the Indian, it is reasonable to suppose there are good reasons for it.

For starters, there is no provision with regards to the state’s religion in the Indian constitution, while there is in ours. The preamble to the Indian constitution also, following amendment, provides for a clear and unequivocal declaration that India is a “sovereign socialist secular democratic republic,” while there is none such declaration in ours despite many previous amendments. It is only reasonable therefore for us to suppose that the framers of our constitution did not merely accidentally part from the wordings of the constitution of India, but rather that they had actually deliberately chosen to do so because they so intended it to be.

Now, when Article 3 is concerned, there have been many judicial pronouncements with regards to the impact of such a declaration as to the religion of the Federation. One of which is the landmark decision of the High Court in Meor Atiqulrahman v Fatimah Sihi and others [2000] 5 MLJ 375, wherein in addressing the meaning and application of Article 3(1) of the Federal Constitution, the Court made a powerful remark, the passage of which, due to its delicate nature for being so beautifully written in a poetic-quality prose, shall be reproduced in its original Malay for fear that any attempt to translate thereof would not do justice to the learned judge’s dazzling and astonishing use of language:

“Islam ialah ugama bagi persekutuan tapi ugama-ugama lain boleh diamalkan dalam aman dan damai. Islam adalah ugama utama di antara ugama-ugama lain yang dianuti di negara seperti Kristitan, Buddha, Hindu. Islam bukan setaraf dengan ugama lain. Bukan duduk berganding bahu dengan agama lain atau berdiri sama sama tegak. Ia duduk di atas, berjalan dahulu, terletak di tempat medan, dan suaranya lantang kedengaran. Islam ibarat pokok jati. Tinggi, teguh, dan terang. Jika bukan sedemikian, Islam bukanlah ugama bagi persekutuan, tetapi adalah salah satu di antara beberapa ugama yang dianuti di wilayah ini, dan setiap orang sama-sama bebas mengamalkan mana-mana ugama yang dianuti. Tiada lebih di antara satu sama lain.”

On appeal, admittedly and undeniably the decision of the High Court was overruled by the Court of Appeal and also by the Federal Court. But make no mistake – the above quoted passage of the judgment was never really reversed or expunged. The determining issue considered in the appeals was rather restricted to the question of whether the wearing of the Muslim’s turban a prescribed sunnah. In no way did the Court of Appeal or the Federal Court hold that the High Court’s judgment regarding the position of Islam as being incorrect, and thus the above quoted passage remains intact and binding.

Further, the Court of Appeal in The Herald’s Case [2013] 8 CLJ 890 held that Article 3 is not a mere delaration, but imposes “positive obligation” on the Federation to protect, defend, promote Islam and to give effect by appropriate state action, to the injunction of Islam.

Clearly, these precedents show that our courts as the supreme arbiter of constitutional construct do not think that Islam is merely “official” or “emblematic”. And clearly, when there is such constitutional duty to give effect to the injunction of Islam, the nation cannot be said to be secular.

This is especially so since the Constitution must be accepted in it’s totality and read harmoniously amongst all its provisions, and Article 3 ought to be read together with Schedule 4 of the Federal Constitution, known as the oath of the Yang di-Pertuan Agong (YDPA) pursuant to Articles 32 and 37. As the supreme Head of the Federation, before exercising His functions, the YDPA is required to subscribe and take an oath in the name of God Almighty as follows:-

“Wallahi, Wabillahi, Watallahi … Further We do solemntly and truly declare that We shall at all time protect the Religion of Islam and uphold the rules of law and order in the Country.”

Moving on, I would have to confess that it astonishes me to learn that Professor Kessler cited the memorandum by the Alliance to support his contention that the Federal Constitution, and by extention the nation, is secular. This shows complete and utter lack of understanding of the negotiation and drafting process of the Constitution. Had the professor read paragraph 7 of the report prepared by the Reid Commission, being the then independent constitutional commission appointed to make recommendations for the form of Constitution, he would understand that in the course of coming up with the recommendations, the Commission took into account various conflicting interests inherent within the pluralities of the Malayan societies resident therein before delivering the final product based on the principle of give and take, which would later be known as the social contract between the races. As mentioned in paragraph 7 of the report, there were 131 memoranda received in total by the Commission. For the professor to cite one memorandum only, and to give effect to the same over and above the other remaining memoranda as authority to say that the nation is secular, is simply baffling.

Be that as it may, it must be understood that on the issue of the religion of the State, there are two prongs to the memorandum submitted by the Alliance:- first, is that Islam be established as the religion of the Federation; and second, that such delaration shall not imply that the State is not a secular State.

The first part on establishing Islam as the religion of the Federation was accepted by the Reid Commission, and subsequently came into being as Article 3(1) of the Federal Constitution as we know today; however, the second part on the secular status was left out when the Federal Constitution came into being. Now, having these contextual prespective in mind, how then, could the part of the suggestion by the Alliance — which was already rejected from being included in the Federal Constitution — be cited as an authority by the professor?

Professor Kessler tries to paint those denying the alleged secular identity of the nation as revisionists. But revisionists could only be so if there is already a widely and firmly established narrative that the revisionists seek to revise and depart from. On the issue at hand, there has never been any dispute as to the identity of the nation that Islam is the religion of the Fedration. From day one, the Constitution empowered the judiciary as the sole arbiter of constitutional interpretation; and based from this very constitutional duty, the Court has consistently upheld the role of Islam, that it transcends mere ceremonious or emblematic functions. So how could the people who are simply reiterating the positions taken by our Courts in interpreting and giving effect to the religion of the Federation be said to be revisionists?

One of the many fundamental traits of the Malaysian Federal Constitution is the principle of the separation of powers between the three branches of the government, namely the executive, the legislative and the judicary. Amongst these three branches, when it comes to the issue of constitutional construct and interpretation, it is the judiciary that would be the supreme arbiter, and as such, it it is imperative that reference and reliance be made to judicial pronouncements rather than mere whims and fancies of one or two persons, however learned he or she may be, or however respectable the figure is in the eyes of the public. This was recently reminded by Justice Hamid Sultan Abu Backer in the case of Teh Guat Hong v PTPTN [2015] 3 AMR 35, when His Lordship said that “[a]s per the Federal Constitution, the court is the ‘supreme arbiter’ of what is right and wrong at any given time.”

One who appreciates this doctrine of separation of powers would understand that there wouldn’t be much value for anyone advocating the alleged secular identity of the nation to cite or quote Tunku Abdul Rahman or Tun Abdul Razak, for instance; because in as much as one respects them as former prime ministers, one must also take cognizance that they are in no position to dictate how the Federal Constitution ought to be interpreted, for they were merely helming the executive branch of the government, not the judiciary. In the same breath, while one may agree with the position taken by Tun Dr. Mahathir Mohamed who declared in 2001 that Malaysia is an Islamic state, one must also be prepared to accept that such delcaration holds no legal effect, for he was making such a declaration as a person helming the executive, not as a judge of the court.

Such a position cannot be said to be a revisionist approach. Far from it, it is actually a constitutionalist approach. At this juncture and as a concluding remark, perhaps it is timely to cite and quote Professor Abdul Aziz Bari in his work entitled ‘Malaysian Constitution: A Critical Introduction’:

“Although some quarters feel that the constitution is secular, this is more of an interpretation or perhaps, rather than a matter of fact. Indeed there are arguments to say the reverse; i.e that Malaysian constitution is not secular. The latter view appears to be viable as, strictly speaking, a country that allows religion to have a place in public life could no longer be said as out and out secular although the recognition given to Islam also does not make the state concerned religious or Islamic one either. In any case, the constitution, or its accompanying documents has never stated, in categorical manner, about the alleged secular nature of the constitution.”

* Aidil Khalid is a lawyer practising in Kota Damansara, Selangor, a senior fellow of Centre for Human Rights Research and Advocacy (CENTHRA), and an activist member of Concerned Lawyers for Justice (CLJ).

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.