JUNE 4 — The topic has been debated, dissected and analyzed by politicians, academicians, lawyers and judges who are much more qualified than myself. I humbly submit this op-ed merely as a simplified analysis for the ordinary Malaysian to better understand the issue.

What is an Islamic State?

An Islamic State is defined as a form of government primarily based on Syariah Law. The tenets of Islamic law oversee the governance of a country’s politics, judiciary, education and lifestyle.

What is a Secular State?

The definition of a secular state is where a country purports to be officially neutral in matters of religion, thus taking the position of supporting neither religion or irreligion. There is a clear separation between religion and the state and in this neutrality, its three branches of government function.

Islam in the Federal Constitution

Article 3 of the Federal Constitution states that “Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.” Note that the word ‘official’ is not present in the wordings of Article 3, thus any arguments on the basis of multi-religion state is effectively false. The interpretation here is quite simple -the Federation being tangible, identifies itself with Islam as its religion.

Article 12(2) of the Federal Constitution states, in part that “but it shall be lawful for the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur such expenditure as may be necessary for the purpose.”

In today’s Malaysia this means State funds (including tax payers money) is used to further the cause of Islam. This is depicted for instance by referencing Jabatan Kemajuan Islam Malaysia (JAKIM) which is a federal body under the purview of the Prime Minister’s Office (PMO) with a reported annual budget allocation of MYR 1 Billion. It can be summarized then that a secular state does not allocate national funds to further the cause of a specific religion.

Secularism in the Federal Constitution

It is interesting to note that the Federal Constitution makes no direct reference of the word ‘secular’. However, upon closer inspection, it becomes clear that the Constitution was drafted with the intentions of fulfilling the concepts of democracy and equality – which are often referred to as key components of secularism.

Article 8(1) expressly states that “all persons are equal before the law and is entitled to the equal protection of the law”. This effectively renders the Shariah courts powerless when involving legal matters of all Malaysians. The criminal code and civil procedure reign supreme and the Apex courts supersede any religious laws.

It can also be inferred that under Islamic law, the al-Qur’an is the supreme text while Malaysia’s ultimate text reference is the Federal Constitution, as per Article 4(1). The dichotomy between the Islamic faith and the Federal Constitution is further expounded when the Federal Constitution accepts the belief, practice and propagation of other religions.

The intentions of the founding fathers 

Malaysia is truly unique for many reasons and chief among them is how we obtained our independence without any wars. The founding fathers understood that there needed to be a compromise between the various races and the only way to achieve independence was to form a consensus on key principles. The formative discussions leading up to Independence conducted by the Reid Commission and the Cobbold Commission prior to the Malaysia Agreement of 1963 state that:

(a)    The (White Paper) Federation of Malaya Constitutional Proposals 1957 succinctly states that “there has been included in the proposed 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...”

(b)   The Cobbold Commission (1962) elucidates that “.... we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardizes freedom of religion in the Federation, which in effect would be secular.”

There were over a hundred meetings that took place involving various stakeholders before Malaysia achieved its Independence. What is clear from the above is that the Founding Fathers intended for the country to be secular in spirit, although conceding that Islam and Malays hold special positions within the Constitution.

What about the Rukun Negara

The preamble goes along the lines of “memelihara satu cara hidup demokratik” and “menjamin satu cara hidup yang liberal terhadap tradisi”. Although there are words alluding to secularism such as ‘democracy’ and ‘liberal’, these two principles are inherently stand-alone and do not automatically qualify as being secular. Interestingly, the Rukun Negara makes no reference to Islam or any other religion per say.

The first line of the Rukun Negara states clearly that Malaysia as country is not irreligious as “Kepercayaan Kepada Tuhan” or belief in God discounts the very notion of secularism. It can perhaps be summarized that the Founding Fathers intended for Malaysia to be governed along the lines of the principles of democracy and liberalism instead of rigid secularism. This taking into factor the various races and religions coming together to form one country.

Secular or Islamic?

Malaysia cannot claim that it is a secular nation simply because there are clear indications of religion playing a pivotal role in the governance of the country such as Islamic schools, Islamic courts and Islamic finance. The special position of Islam also effectively removes any ‘neutrality’ in the government and contradicts with the core tenets of secularism.

However, Malaysia can neither claim to be Islamic because the spirit and letter of the Federal Constitution goes against several core tenets of the Islamic belief system, chief of it is the supremacy of the Constitution and not the Al Qur’an. The fact of the matter is, the Civil courts outrank the Shariah courts whenever conflicts arise to ensure uniformity and equality before the law, an inherently secular concept.

Although we are separated by a myriad of differences, we have and always will be united as Malaysians. For Malaysia to truly move forward, we must first understand the nuances that gave this country its independence. Only by looking back can we can we then bridge the divide and grow as one nation.

Is Malaysia secular or Islamic? Malaysia is neither. Malaysia is both. Malaysia is all of us.

* V.Vivegavalen is a Legal Consultant for an IT Consulting Firm in Kuala Lumpur. In his spare time, he writes about politics and public policy.

** This is the personal opinion of the writer and does necessarily represent the views of Malay Mail.