On the secular state debate: A response to Dr Mohamed Azam Mohamed Adil — G25 Malaysia

JANUARY 27 — In his article in Berita Harian on January 19, 2020, Dr Mohamed Azam called out the G25 for claiming that Malaysia is a secular state. In doing so, he referred to G25’s recently-released report on the ‘Administration of Matters Pertaining to Islam’ and challenged the position that Malaysia is a secular state, based on three main arguments.

1. First, he asserts that the Federal Constitution does not contain, or make any reference to, the word ‘secular’, and in fact, it is only the religion of Islam that is explicitly mentioned in the Constitution. In light of this, he argues, the characterisation of Malaysia as a secular state is ‘inaccurate’.

2. This leads to his second argument: that Articles 3(1) and 12(2) places Islam in a ‘special’ position in Malaysia’s constitutional order, in spite of Tunku Abdul Rahman’s assurances that including Article 3(1) in the Constitution does not alter the secular character of the state. He also posits that if anything, the presence of Article 3(1) favours those who argue that Malaysia is an Islamic state.

3. Finally, Dr Mohamed Azam justifies his position by referring to the then Supreme Court decision in Che Omar bin Che Soh, the High Court decision in Meor Atiqulrahman, as well as various scholarly opinions.

While Dr Mohamed Azam is entitled to his academic opinion, we wish to point out that his arguments are flawed for a number of reasons. First, just because a state is not explicitly characterised as ‘secular’ in its constitution does not detract from the fact that it is ‘secular’. For example, the Singapore Constitution does not explicitly mention that it is a secular state and in fact, pursuant to the government’s constitutional obligations to care for the interests of racial and religious minorities, there are state-backed religious organisations and institutions, including the Syariah Courts. Yet, Singapore remains a secular state.

Likewise, the fact that a state privileges a particular religion (perhaps, as in Malaysia, to give recognition to the cultural and historical significance of the privileged religion in the country) does not mean that it is not a secular state. There are many examples of this arrangement worldwide: in Norway, the Evangelical-Lutheran church is the national church and supported by the state, and the King of Norway is constitutionally required to be a member of the Church of Norway. However, despite this and despite the absence of any references to the word ‘secular’ in its constitution, Norway projects itself as a secular state. Similarly, consider the United Kingdom: the Church of England is the country’s established church and the Monarch must be a member of the Church of England, but the UK remains a secular — not a Christian — state. Indeed, the UK model was what the constitution-makers had in mind when they agreed to include the provision on Islam in the Federal Constitution — Islam is the state religion but with full religious rights accorded, as is the case in the UK, to religious minorities. These examples are significant in the context of Malaysia, where secularism is widely and mistakenly understood as a monolithic concept and anti-religion.

Dr Mohamed Azam was correct in mentioning that Justice Abdul Hamid had raised the question on Islam as the state religion during the constitution-making debates. However, what Dr Mohamed Azam failed to mention was that Justice Abdul Hamid eventually supported The Alliance’s proposal on Islam because for him, there was enough positive evidence from other countries such as Ireland, Norway, and Denmark, that such an arrangement was ‘innocuous’; that is religious establishment was not detrimental to the exercise of rights. On this point, many have forgotten that alongside Article 3(1), there is also Article 3(4), which provides that the establishment of Islam does not derogate from any other provision in the Constitution. In short, and this view has also been expressed by Prof Shad Saleem Faruqi, Islam as the religion of the Federation does not prevail over other constitutional provisions and guarantees, including fundamental liberties. This has to be read together with Article 4, which provides that the Federal Constitution is the supreme law of the land. What this means, simply, is that any laws (including Islamic laws promulgated by the Parliament or state legislatures) are null and void if they are contrary to the Constitution.

A secular state is governed by laws and institutions that are ‘secular’ (man-made) that are not derived from religious books or texts. Even the state syariah enactments, which have minor differences across the states, and some of aspects of which are derived from British common law principles, are passed through ‘secular’ law-making processes. In addition, there are a variety of secular states — some are hostile to religion, some adopt a neutral approach toward religion, and some adopt a more accommodationist approach which does not preclude them from supporting religious institutions, education, and so on.

Finally, it is important to emphasise that a constitution has to be read in light of its text and context, which includes the intentions and objectives of those involved in its making. In this regard, it is imprudent to dismiss Tunku Abdul Rahman’s assurance that in spite of Article 3, the ‘whole constitution was framed on the basis that the Federation would be a secular state’. Although the constitutional drafters did not specify what ‘secular’ means, the assurance was a political bargain that has tremendous significance in the context of Malaysia’s multicultural and multireligious population.

The judgment in Che Omar supports our position. Dr Mohamed Azam was correct that the Che Omar decision did not diminish the position of Islam as the religion of the Federation (obviously, the Court could not have denied the existence of Article 3). However, he failed to elaborate the Court’s pronouncement on the effect of Article 3. In Che Omar, the Court emphasised that Article 3 could not be used as basis to argue that the mandatory death sentence for drug trafficking was unconstitutional as against Article 3 because Islam only has a limited role in the country’s constitutional order. Islamic laws and injunctions only applied in personal law matters for Muslims and more importantly, the Court affirmed that the law of the country remains secular (as opposed to theocratic).

In summary, G25 wishes to emphasise that we do not dispute that Islam is the religion of the Federation. However, the effect of this special constitutional position must be properly understood. The provisions that Dr Mohamed Azam mentions (Articles 3(1) and 12(2)) do not diminish Malaysia’s character as a secular state. This is not only supported by historical evidence, but also similar arrangements elsewhere in the world. And contrary to his opinion, the special position of Islam does not trump everything else in the constitutional order (Article 3(4)) and there are a variety of secular state models that makes it possible to accommodate religion in such state.

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

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