Relationship between state and religion — Jaharberdeen Mohamed Yunoos

OCTOBER 24 — The relationship between state and religion has often been debated in the history of mankind for centuries.

The debate can turn emotional as the adherents of religion often want the teachings and doctrines of their religion to influence significantly the political direction and policies of the state. In the process, tensions may arise between political masters and the clergy of the respective religions.

Where the politicians find that the masses are aligned to religion, they try to strike a balance while making sure that the clergy do not significantly diminish their political influence.

The most often quoted and known political contest is the relationship between the state and church. Thomas Jefferson, the third president of the United States, is credited for the phrase “separation between church and state”.

This phrase is meant to express the intent of the First Amendment to the Constitution of the US which reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...”.

Though less known, there were also major contests between the Brahmin clergy and Hindu political masters in the history of Hindu India. The Indian constitution fundamentally defines the relationship between state and religion by having stated in its constitution that India is a secular state and that there shall be freedom of faith.

The best starting place to understand the relationship between state and religion in Malaysia is the Federal Constitution. Article 3(1) of the Federal Constitution, while stating that Islam is the “religion of the Federation,” also states that “other religions may be practised in peace and harmony in any part of the Federation.”

It recognises the existence and freedom to practise a diversity of religion in the federation. The ongoing debate is on what is meant by “Islam as the religion of the Federation.”

The general view so far has been that this refers to Islam as the “official religion” in the sense that it is respected during official ceremonies. This view holds that Article 3 does not detract from the secular nature of the state.

There is, however, another view that has been developing for the past 20 years over that Article 3 actually means that Islamic laws, and doctrines may be extended to the whole of the federation.

Those who hold this view point to other articles in the Constitution and to the fact that state rulers are heads of Islam to support their argument. Islam, they argue, is not a merely a ritualistic or ceremonial religion but an all encompassing “way of life” and hence, the word “Islam” here should be given its full meaning as generally understood.

Furthermore, Article 3(3) provides that “... but in any acts, observances or ceremonies with respect to which the Conference of Rulers has agreed that they should extend to the Federation as a whole each of the other Rulers shall in his capacity as of head of the religion of Islam authorise the Yang diPertuan Agong to represent him”.

In other words, the Conference of Rulers can agree to achieve uniformity of “Islamic acts, observances and ceremonies” in the federation. However, it is doubtful if Article 3 can supersede other provisions in the Constitution due to Article 3(4) which states that “nothing in this Article derogates from any other provision of this Constitution.”

Hence, it may be argued that Article 3 cannot supersede provisions relating to the so called “civil liberties” provisions in the Constitution save in accordance with the law.

Article 11(1) states that “every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it. This clause has been subjected to much debate when it comes to Muslim citizens.

On the face of it, it appears that the freedom given therein is for all persons, both Muslims and non-Muslims, to practise the religion of their choice.

However, distinction has been made that this provision is unlike the Indian Constitution which speaks of “freedom of faith” as opposed to freedom of “religion.” Hence, through such arguments, the right of Muslims to change religion is still unclear as one view appears to be that the Muslim who wants to apostate is subject to the dictates of the “syarak.”

It must be noted that some states have made apostasy a crime. The extent and application of Article 11(1) is also relevant on the control over the practice of some sects within the “Muslim world”. It appears that the interpretation of Article 11(1) appears to be influenced by the fact that the “Islam” of the majority Muslims is that of sunnah wal jamaah and as defined by the religious authorities.

It is arguable that Article 11(4) further confirms that the state can determine the nature of “authorised Islam” as it provides that “state law and in respect of the federal territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.”

What this effectively may mean is that unauthorised Muslims cannot propagate Islam to Muslims and the propagation of unauthorised versions of Islam may equally be prohibited. I submit, however, that all these views have yet to be fully tested in the courts of law.

As to the jurisdiction of courts to hear matters that relate to Islam, Article 121A states that “the courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.” While the provision appears clear, it has been subjected to much debate and confusion.

Lastly, the word that will determine the extent to which the state will have an influence on the development of authorised Islam in the country is the word “precepts of Islam” in the State List of the Ninth schedule of the Federal Constitution. The interpretation and application of this word will also determine the extent to which authorised Islam may become the “legal face” of the nation.

Again, this is still an untested area subject to judicial interpretations in the future.

* Jahaberdeen is a senior lawyer and founder of Rapera, a movement which encourages thinking and compassionate citizens. He can be reached at [email protected].

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