Religion & the Federal System – A Comment
By Lim Heng Seng
Member of Religious Liberty Commission
Malaysia is a federation of states. A federal system of government carefully defines the powers of the Federation and its component states. In Malaysia, these are divided into various matters set out in three lists, viz. the Federal list, the State list and the Concurrent list.
Distribution of Powers
Under the Federal list, the greater part of the powers of governance is vested in the Federal Government. This includes authority over external affairs, defence, internal security, criminal and civil law, administration of justice, education, medicine and health, transport and communications, labour and industrial relations, finance and tax, newspapers, publications and broadcasting. The authority of the states set out in the State List (List II) is limited to, among others, land, municipal matters, state public works, public health, drainage, irrigation and the religion of Islam.
With regard to Islam, the constituent states have powers over Islamic law and personal and family law of persons professing Islam. The range of Islamic matters includes wakaf, religious revenue, mosques, the creation and punishment of offences by Muslims against the precepts of Islam. The states can establish syariah courts with jurisdiction only over Muslims and only in matters stated in the State List.
It is important to note that the Federal Government is not vested with any specific role or authority on matters of religion. Islam is fundamentally a state, not a federal, matter. Unlike the powers vested in the states, federal involvement in Islam is constitutionally limited. But because Islam is an official religion of the country, the Federal Government can incur expenditure on Islamic education and educational institutions. Islamic rites and rituals can be performed in official functions, at the state and federal levels.
In the distribution of powers between the federal centre and the constituent states, the lion’s share of powers is given to the Federal Government as in the case of sources of revenue. Federal funding of and involvement in the Islamic matters through Islamisation policies can only distort the fundamental underpinnings and foundation of a secular federal central government. The constituent states’ involvement with limited powers and territorial reach, confined to their respective state boundaries and funds, would in contrast be less overwhelming in terms of impact on administration and the populace. However, the Federal Government has the corresponding powers to incur expenditure over the same Islamic matters in the Federal Territories of Kuala Lumpur, Putrajaya and Labuan.
The Supremacy of the Federal Constitution
There can be little doubt that from the very conception of a Malaysian nation, it was agreed that Malaysia is to be a secular state. She is not to be a theocratic state. In the context of the preliminary provisions of the Malaysian Constitution declaring Islam as the religion of the Federation, she is not to be an Islamic State.
It is not intended that Islam will be the fundamental basis for governance. While Islamic ceremonies and rituals may be used for official purposes, Islamic norms, system and laws are not intended to be the ground rules on which Malaysia and its peoples are to be organised and governed. Islamic law is not the grundnorm against which all other laws stand to be judged as valid or otherwise. Neither are the policies and conduct of the government, ministers and its officers to be legitimated by reference to Islamic norms. Syariah is not to be the basis upon which the rights, duties and status of the peoples of the nation, non-Muslim citizens in particular, are recognized, honoured and protected.
Rather, the government of this nation is to be guided by the Constitution in the execution of its duties of good governance. It is the Constitution which the citizens of this nation invoke in its interaction with the state, its organs and its officials. It is the Constitution which all members of Parliament, the Prime Minister and his Cabinet, the Chief Justice and his judges are obliged to pledge to "preserve, protect and defend" before exercising the functions of their office.
The Assertion of Religious Role in Public Sphere
In the early post-Merdeka years and thereafter, the administration under the leadership of Tunku Abdul Rahman and his successors appeared to have been scrupulous about maintaining the essential secular character of the Federation. Activities in the promotion of Islam by the government were generally confined to the permitted areas set out in the Constitution or were carried out in the non-governmental sphere. That changed with the resurgence of Islam in the aftermath of the 1979 Iranian revolution. In 1982, the UMNO-dominated government announced the policy of inculcating Islamic values in the administration.
Over the past three decades religion has played an increasingly significant role in politics, law and government. Albeit qualified by the special position of Islam and the limited role of the state with regard to Islam, the foundational and fundamental constitutional provisions pertaining to the secular character of the nation are unambiguous. Notwithstanding this, there are claims and increasing pressures to assert for Islam a role and position beyond what was envisaged and solemnly agreed upon at the two pivotal points of our nation's history, i.e. at Merdeka and upon the formation of Malaysia.
The ruling government’s policies and programmes are viewed with concern as Islamisation initiatives extending beyond the limits envisaged by our founding fathers. There is growing disquiet over the way in which certain quarters have attempted to embark on a programme of “gradualist Illumination” of Malaysian society, its governance, its legal order, its institutions and its way of life. It bears an uneasy resemblance to certain features of an Islamic State premised on Islam as a political ideology.
PAS’ political objective of establishing an Islamic State was countered in the pre-Merdeka constitutional drafting deliberations by the then Alliance formula declaring Islam the religion of the Federation. Today, Pas is countered by the UMNO-dominated Barisan Nasional with Islam Hadhari.