The Scope of the Official Religion
Since Merdeka, the constitutional position of Islam as “the religion of the Federation” has generally been understood as primarily for ritual and ceremonial purposes. In the recent years, nonetheless, Article 3(1) has been consistently used by those who argue for syariah to be the underlying principle of all civil laws.
The Fundamental
The Federal Constitution is a document forging together the aspirations of different communities. The system of our government is therefore designed
v to enable these communities to achieve their aspirations together, and
v to assure basic rights which cut across religious and ethnic bounds.
Islam is the religion of the Federation
Art. 3(I) Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation.
Art. 3(4) Nothing in the Article derogates from any other provisions of this Constitution.
This means:
v No legal right, interest or entitlement is extinguished as a result of A3(1), e.g. it does not abrogate the fundamental rights contained in Articles 5-13.
v Free exercise of religious practice and free expression of religious beliefs.
v It permits the use of tax-payers money for Islamic purposes (e.g. to build mosques, promote Islamic education) and to promote Islam as a religious, moral, social, and economic force to strengthen Muslims.
v In light of the effect of Article 4(1), the other laws cannot be interpreted Islamically through Article 3(1) as they would in an Islamic state.
v In light of the effect of Article 11, it ensures equal rights of all citizens in regard to freedom of religion.
What it is not:
v The constitutional document explicitly expresses that A3 does not purport to make Malaysia a theocratic state.
o The Reid Commission Report, based on the historical covenant (i.e. the social contract) made by the country's founding fathers, has made clear that the observance of such provision
§ shall not impose any disability on non-Muslim nationals professing and practicing their own religions and
§ shall not imply that the State is not a secular state.
o In the Hansard of May 1st 1958, Tunku Abdul Rahman declared in Parliament as follows:-
"I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provided that Islam shall be the official religion of the State."
o The late Tun Mohamed Suffian Hashim, the Lord President of Malaysia, stated in his article "The Relationship between Islam and the State in Malaysia" in 1962 that Islam in Malaysia "is primarily for ceremonial purposes, for instance, to enable prayers to be offered in the Islamic way on official public occasions such as the installation of the birthday of the Yang di-Pertuan Agong, Independence Day and similar occasions."
o The late Tun Sri Hashin Yeop Sani, Chief Justice, wrote in his book "Our Constitution" in 1980. The words "Islam is the religion of the Federation" appearing in Clause 1 of that Article has no legal effect and that the intention was probably to impose conditions on federal ceremonies to be conducted according to Muslim rites.
o The then Lord President Tun Salleh Abas, in the case of Che Omar bin Che Soh v. Public Prosecutor (1988), after reviewing Malaysia's constitutional history ruled that the religion of Islam in Article 3 meant only such acts as related to rituals and ceremonies and it was never intended to extend the application of Syariah to the sphere of public law. "If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the junction of Islam would be void."
v The Federal Constitution never intended to raise Islamic law above civil law.
Therefore
NECF Malaysia affirms that "Islam is the religion of the Federation" as stated (A3) and that it is not the basic law of the land (A4) and only Islamic laws governing personal and family matters are allowed by the Constitution (9th Schedule List II).
Recognizing the uniqueness of Malaysia as a multicultural country, we concur that Malaysia can be described as a Muslim country because the majority of our citizens are Muslims and that she can be at best described as a qualified secular state.
We are proud to be Malaysian citizens living in a pluralistic society and therefore believe that respect for one another regardless of ethnic/religious background and mutual accommodation are essential.
Posted 7 July 2006, modified 6 Aug 2007 |
