— Clive Kessler
Malay Mail Online
January 19, 2016

JANUARY 19 — Enough of this nonsense! Enough already!

Malaya and then Malaysia was created as a secular nation.

Denial of this basic fact has become commonplace in recent times.

The pioneers in promoting the revisionist myth that there was or is nothing secular in the nation’s origins or about its Constitution have been the creative legal innovators and myth-makers of the PPMM: Persatuan Peguam Muslim Malaysia (Malaysian Muslim Lawyers Association) –- notably Datuk Zainul Rijal Abu Bakar — and their like-minded associates in CENTHRA, the Putrajaya-based and Saudi-friendly Centre for Human Rights and Advocacy, headed by on Azril Mohd Amin.

Their lead is followed, and their disruptive views are echoed, by a horde of Utusan Malaysia scribes and ideologues and, in their wake, a claque of well-connected writers and publicists and ambitious politicos.

In the absence of any clear refutation, their increasingly unchallenged view now threatens to become “the default position”, the received and undeniable truth.

But are they right?

In short, no. And for three main reasons.

1. The explicit and the implicit.

A key and basic tenet of their position is that the word “secular” can nowhere be found in the Constitution. Therefore, they hold, the Constitution and nation cannot be secular. It is in no way tainted in even the slightest way by any suggestion of secularist principles or ideas.

And since it — the word — cannot be found there, and since Article 3 affirms that, in its public international personality, Islam is the emblematic religion of the state, then (so they argue) Malaysia must be, on core constitutional and historical grounds, an Islamic state — or, at the very least, one that has been authoritatively launched from birth on an irrevocable path towards becoming an Islamic state based upon Shariah law.

Some now even go further. They now argue that, since Article 3 is allegedly “the best known” article of the Constitution in public consciousness (on what grounds or empirical evidence they claim this they do not say), it follows that Article 3 is the key or central article of the Constitution as a whole and that, in resolving all contested matters, Article 3 (in their own strong, revisionist sense of its meaning) takes precedence over and must “trump” all other legal arguments and considerations and constitutional niceties.

Is this supposed primacy of Article 3 explicit?

No. Just implicit, implied, inferred.

These authors are in fact very familiar with the idea of the explicit and the implicit, of what is tersurat and what is also tersirat, what is in the words and what is behind them, “between the lines.”

These same authors and creative doctrinal and Constitutional myth-makers are elsewhere quite happy to argue that the controversial idea of Ketuanan Melayu — which did not exist when the basis and terms of the Constitution were negotiated between 1955 and 1957, and which only achieved currency after it was coined by Tan Sri Abdullah Ahmad in 1986 — is a foundational principle of the Constitution.

How do they argue this?

They say that, while the term itself is not used and does not appear explicitly in the Constitution, the idea is there, implicit and immanent, in Article 153 (the “Malay special rights” provision) and in the web of meanings linking that Article to other related articles of the Constitution.

The idea, they insist, is there behind the words and between the lines.

They cannot find it there explicitly. They impute its presence, and in that way “build back” this post-1986 idea into the foundational meaning and conceptual texture of the Constitution. Even though the word itself cannot be found there!

On these inferred or imputed grounds they insist that Ketuanan Melayu is a key constitutional principle, that it is, and always has been, a part of the “social contract” that enabled the Constitution to be adopted and promulgated — and that people are now obliged in perpetuity to uphold that constitutionally “retrofitted” principle or doctrine as part of the nation’s founding “social contract”: as a key principle of the nation’s core official character and identity.

The stark contrast of approach here in these two related matters (their anti-secularist, pro-Islamic state reading of Article 3 and the imputing or inferring of Ketuanan Melayu as constitutionally based and embedded) proves one thing: that their ways of arguing are not consistent and principled but arbitrary and opportunistic.

That is no basis for solemn and serious Constitutional reasoning.

2. History

Article 3 does not say that Malaysia is a secular nation, but it does say that Islam is its official emblematic religion: therefore Malaysia is in no way secular. On far stronger and clearer Constitutional grounds, it can be said to be Islamic: even an Islamic state, or one in the making.

That is the revisionist position.

It is one that is ignorant of history.

It is one that is even based upon a wilful refusal to acknowledge the history of the Constitution and its origins in the so-called “Merdeka Process” and “Merdeka Agreements.”

To serious scholars the facts are clear and well-known.

That the ideologues and revisionists do not care to accept them is another matter. But not one that adds any credence to their position or authority to their arguments.

The entire “Merdeka Process” was quite explicitly about creating Malaya as a modern, progressive, democratic and secular nation.

For a while it was thought that the word secular might be used explicitly in its Constitution. But, to allow for certain Malay sensibilities (including the fairly widespread Malay misunderstanding of the term “secular” as meaning or entailing “atheistic”), it was decided that the idea would be left unsaid — largely because it did not need to be spelled out.

But the secular idea was basic to the emerging Constitution and pervasive within it. The proposed basis of nationhood could not be seen or understood as anything but a modern secular Constitution: one that sought and was designed to create a progressive nation prospectively grounded in the popular sovereignty of its people, all of its people.

Nor, equally, in a balanced way, was there to be any formal mention of Islam as a key principle in the Constitution. This, it was felt, would add further weight to the Constitution’s and the nation’s secular, plural, inclusive and democratic character.

This was how things stood until the final evening of the long drafting deliberations of the Reid Commission. That was what the members of the Commonwealth-based Commission had thrashed out and agreed upon.

Suddenly, at the last moment, something happened.

Some say that he had been lobbied heavily. Others say that a personally bitter argument erupted over Kashmir between the Indian member of the Commission, Judge B. Malik, and the Pakistani member, Judge Halim Abdul Hamid.

At all events, on the last evening the Pakistani member broke ranks. He would no longer be bound by the agreements already reached. The Constitution might remain implicitly secular, he conceded, but there should be some mention of Islam as the formally emblematic religion of the new state, as part of its international identity and personality in the world family of nations.

Held over a barrel, and with their bags already packed, the other members of the Commission agreed to accommodate Judge Halim Abdul Hamid’s last-minute requirement — on the understanding that the added affirmation was to be purely nominal or symbolic: that it would have no flow-on effects upon any other Constitutional matters, and that it would not compromise or diminish (as had been agreed in extended discussions) the modern, democratic and secular character of the Constitution as a whole and of the nation to be founded upon it.

On that basis, and with little choice in the matter in the face of one man’s sudden intractability, the other members of the Commission agreed to Judge Abdul Hamid’s extraordinary last-minute requirement.

But what is significant now is not the dramatic personal ins-and-outs of the Reid Commission and its workings.

It is what followed from that last minute accommodation of Judge Abdul Hamid’s exercise of a shock, peremptory veto.

Many, especially the negotiators for Umno’s partner parties, were deeply disquieted by this last-minute development. So they sought and received formal assurances — which, on the grounds that they were sincerely meant and offered and so would remain binding, they accepted.

This assurance was approved and issued by Tun Abdul Razak, on behalf of Umno and his successors who would later lead it, in the form of a document (now a key part of the official collection of British government published documents recording the decolonization process in Malaya) that was intended as a codicil, or accompanying explanatory document, to the Constitution itself — and specifying the terms of the agreement of all parties to it.

As is well-known, the Alliance Memorandum stated that “although the religion of Malaysia would be Islam, the observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion, and shall not imply that the State is not a secular State.”

If there is any such thing as a Malayan and Malaysian “social contract” by which people remain bound, this is surely a key part of it.

“Pacta servanda sunt” is a key principle of law: solemn agreements are to be solemnly observed and punctiliously upheld.

Those who these days loudly shout that “the social contract” must be respected and that it entails, and has always entailed, general acceptance by all Malaysians (and especially non-Malays), in perpetuity, of the doctrine of Ketuanan Melayu would do well to recall and abide by that obligation here in this matter.

They owe it not only to others, especially their non-Malay and non-Muslim fellow citizens.

They owe it to themselves, if they are to live honourably and honestly and decently with their own recent political past — with themselves.

3. Context.

To assess accurately whether or not Malaysia is foundationally a secular or an Islamic state, it helps to consider its Constitution.

Not just legally, in lawyer-like manner, clause by clause but more broadly. Historically.

In the light of comparative political and Constitutional and social and intellectual history.

There is no need to try to hunt down, as the decisive and tell-tale indicator, whether the word “secular” appears in its political or conceptual lexicon.

And there is no need to get too fancy or philosophical about this matter.

All one has to ask is:

What kind of a Constitution is Malaysia’s?

Is it culturally and doctrinally and conceptually a Buddhist Constitution?

Is it a Hindu Constitution?

Is it an Islamic Constitution?

The answer is no, three times no.

What is it then?

It is a modern, liberal-democratic Constitution.

A modern Constitution, born of a modern and progressive and largely secular age, one that is couched in secular terms, and formed upon secularist assumptions.

There is no other way to understand or classify or to typify it.

It was drafted and promulgated and enacted as the modern Constitution of, and for the continuing growth and development of, a modern, progressive, inclusive, pluralistic but cohesive, and secular society and nation.

A Constitution that — while it acknowledges and finds an honoured place for the ancient royal mystique and semi-sacred aura of its traditional Malay rulers, for their world-focusing daulat — was nevertheless founded upon the consent of its many and diverse subjects; meaning, on the principle of “popular sovereignty” (here the modern Malay word, often confusingly, is kedaulatan).

But remember, as one always must, that daulat and kedaulatan, despite their being linguistically and etymologically cognate terms, are two entirely different things.

They are born of, stem from, and are anchored within two entirely distinct, different and mutually incommensurate universes of political meaning.

The rulers have daulat, the nation is built upon and (like all modern nations) is an expression of the sovereignty of its people.

That is where modern political legitimacy comes from.

The Federal Constitution is the supreme law of the land. It is a Constitution that rests upon and which affirms the principle of popular sovereignty.

That is what modern Constitutions and nations are. That is their “ontology”.

And, yes, Malaysia’s Federal Constitution is — or was by initial intention and design — a secular Constitution. One for a society that was, or was to become, an increasingly secular nation.

One that would not be hostile to religion but hospitable and equitably hospitable to religious and human diversity.

Malaysia and its Constitution were incontrovertibly established as secular, on secular foundations and principles and assumptions.

The struggle these days — and it is now no easy struggle — is to keep it that way.

4. In conclusion

So what can one say about the claim that Malaysia is not, and never was and was never intended to be, a secular state?

That its Constitution is not secular and makes no provision or space for secular principles?

That Article 3 establishes Malaya and Malaysia as, at least prospectively but irrevocably, an Islamic state operating on the basis of Shariah law?

That the doctrine of Ketuanan Melayu, of Malay ascendancy and primacy and domination, is a key principle of the Constitution, one that is deeply and pervasively embedded throughout its many clauses and pages?

Simply, that this claim is a crude “try-on.”

An outrageous, and outrageously over-reaching, “ambit claim.”

A third-rate “con job.”

One that could persuade only the ignorant.

And that is precisely to whom it is these days addressed and targeted.

Clive Kessler is Emeritus Professor of Sociology and Anthropology at the University of New South Wales, Sydney, Australia.