By Debra Chong and Ida Lim
The Malaysian Insider
October 23, 2012

KUALA LUMPUR, Oct 23 — Malaysia is and has always been a secular state even though not expressly stated in the Federal Constitution because the country’s supreme law and founding document is secular, several law experts say as debate continues to storm over the mainly Muslim nation’s status.

The legal pundits refuted minister Datuk Seri Nazri Aziz’s remarks in Parliament yesterday that Malaysia is not a secular state because it had never been declared or endorsed as such and is wholly absent in the Constitution though he stopped short of labelling the country an Islamic state.

“It’s absolutely untrue,” said Tommy Thomas, regarded as one of the country’s foremost authorities on constitutional law.

“To me, to say that Malaysia is not a secular state because the Federal Constitution does not say so is a real, oversimplistic argument. Just like the Federal Constitution does not say Malaysia is an Islamic state,” he told The Malaysian Insider last night.

The veteran lawyer, who had studied the subject and presented an essay debunking Malaysia as an Islamic state at the Malaysian Law Conference seven years ago, said his research had shown that the country’s forefathers and the legal experts who helped draft the Constitution had intended the country remain secular even as it acknowledged the individual Malay state Rulers’ rights and power over religious matters which, he pointed out, was for the most part ceremonial.

Thomas pointed to a Pakistani Federal Court judge, Abdul Hamid, who was part of the five-man Reid Commission formed in 1956 to help draw up Malaysia’s Constitution and held the minority dissent on religion, did not go so far as to say Malaysia must have an Islamic state in its Constitution.

He said Abdul Hamid’s remarks from then was the clearest indicator that the country should remain secular.

Abdul Hamid was the main proponent for including a provision that read: “Islam shall be the religion of the State of Malaya, but nothing in this Article shall prevent any citizen professing any religion other than Islam to profess, practice and propagate that religion, nor shall any citizen be under any disability by reason of his being not a Muslim.”

Thomas said Abdul Hamid, who was from Pakistan, which had gained its independence from Britain in 1947 — a good 10 years before Malaya — and had an Islamic Constitution that put it squarely as an Islamic state, had noted that such a proviso was “innocuous” and would not cause any “hardship” to anyone, but that the judge’s suggestion was rejected by the Conference of Rulers which was against the idea.

The lawyer of more than 30 years’ experience told The Malaysian Insider he still stands by his 2005 essay titled “Is Malaysia an Islamic State?” which concluded that the country was and remains secular, and that no one has disputed his argument to date.

“No one has ever written in to say it’s nonsense,” Thomas said, who blamed Malaysia’s fourth and longest-serving prime minister, Tun Dr Mahathir Mohamad, for sparking the present confusion over Malaysia’s Islamic or secular state status.

The former Bar Council secretary-general noted in his 2005 essay that it was Dr Mahathir who unilaterally declared Malaysia to be an Islamic country in a political speech at the Gerakan party’s national delegates conference on September 29, 2001.

Dr Mahathir had single-handedly negated the secular pronouncements made by his predecessors including first prime minister and the country’s founding father Tunku Abdul Rahman Putra Al-Haj and third PM, Tun Hussein Onn, by saying: “Umno wishes to state loudly that Malaysia is an Islamic country. This is based on the opinion of ulamaks who had clarified what constituted as Islamic country. If Malaysia is not an Islamic country because it does not implement the hudud, then there are no Islamic countries in the world.”

Thomas’ views on Malaysia’s secularism found strong support with three other legal experts.

Former de facto law minister Datuk Zaid Ibrahim, who is among the most vocal opponents to the introduction of hudud law, the strict Islamic penal code, took to Twitter yesterday in an immediate response to Nazri’s remark.

“Constitution don’t define lots of things. It doesn’t define democracy, so does it mean we are not democratic?” the former lawyer who started Malaysia’s biggest private practice posed on his microblogging account @zaidibrahim.

“If Malaysia is neither secular or theocratic, then its whatever BN says it is,” said Zaid, referring to the ruling Barisan Nasional coalition.

Civil liberties lawyer Syahredzan Johan echoed the two law veterans.

“Just because the Federal Constitution does not have the word ‘secular’ does not mean that Malaysia is not a secular state.

“Just like how the word ‘democracy’ does not appear in our Constitution, yet we are a country that practises parliamentary democracy,” he said in weighing in on the debate that raged in Parliament yesterday following Nazri’s remark.

Syahredzan stressed that Malaysia is secular because the Constitution is secular.

“An Islamic state would place the Quran as the highest authority, but our Constitution provides in Article 4 that the Constitution is the highest law of the land.

“The validity of laws therefore must be measure upon the yardstick of the Constitution, and not Islamic principles, thus making the Constitution a secular one,” he said in an emailed response to The Malaysian Insider.

He pointed out that the Supreme Court had set a precedent in 1988 when it rejected an argument in the landmark case of Che Omar Che Soh, a Muslim drug trafficker facing the mandatory death sentence, that because Islam is the religion of the Federation, laws passed by Parliament must be imbued with Islamic principles and that the death penalty was void because it was not according to hudud, or Islamic law.

Tun Salleh Abas, who was then Lord President and head of the judiciary, had said in the landmark ruling that “however, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of the law.”

Just because the Federal Constitution does not have the word ‘secular’ does not mean that Malaysia is not a secular state. — Civil liberties lawyer Syahredzan Johan

Universiti Malaya law lecturer Azmi Sharom also agreed with Syahredzan’s view and went a step further to explain the confusing dual-track judicial system that allows for an Islamic or syariah court to be practised alongside the civil courts.

“Malaysia is a secular state in my point of view because ALL laws must be in line with the constitution and the Constitution is a secular document.

“We have a syariah system because a secular constitution allows it. We have Islamic government agencies but their behaviour is governed by the principles of a secular constitution,” he told The Malaysian Insider.

Azmi seemed confident that Malaysia’s secular status will remain unchallenged despite Nazri’s remark yesterday and Dr Mahathir’s 2001 declaration.

“The only way that Malaysia can lose its secular status is through a serious amendment of the Constitution and that will require two-thirds majority agreement in both Houses of Parliament and the agreement of the Conference of Rulers and the states of Sabah and Sarawak,” he said, and added: “Unlikely.”

But Syahrezan was less sure, noting that while legal eagles were splitting hairs over Malaysia’s Islamic versus secular state, a more worrisome trend had emerged in the courts whereby the civil courts appeared to be ceding their authority to the Islamic courts in disputes involving Muslims.

“We are seeing a trend lately to place what the authorities deem as ‘Islam’ on a higher pedestal, even higher than the Constitution itself.

“If the nation is as how the minister described it, ‘founded on the basis of an Islamic government’, then it makes it easier to justify unconstitutional laws and acts because they are ‘Islamic’,” he told The Malaysian Insider.

The up-and-coming lawyer said that the whole debate over the country’s secular or non-secular status was linked to hudud, which is being hotly debated in public in the run-up to the 13th general election that must be called by next April.

“Unfortunately, we seem to be dancing to the tune of those with political motives, who for whatever reasons want Malaysia to be transformed into a theocratic state, or at the very least be seen to champion such a cause.

“The fear is that these will be justified by ascribing extra-constitutional meanings to the words in Article 3, ‘religion of the Federation’, so much so that laws and acts that are unconstitutional would become permissible merely by attaching an Islamic label on them.

“We may see more and more encroachments into the realm of fundamental liberties, and actions taken by authorities inconsistent with the Constitution or ultra vires their powers all in the name of religion,” said Syahredzan.