MCCBCHST-Minister For Non-Muslim Affairs

Date: 18th February 2025

ARTICLE 3(1) OF FEDERAL CONSTITUTION DOES NOT ABRIDGE OR OVERIDE THE OTHER ARTICLES OF THE CONSTITUTION.

1. The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) refers to the statement by UMNO Secretary-General Asyraf Wajdi Dusuki, who rejected a proposal by YB Chow Yu Hui for a minister for non-Muslim affairs to be appointed and calls YB Chow to “show respect to Article 3 of the Federal Constitution on the position of Islam”. He further added that “…. non-Muslim leaders from parties that formed the coalition government have signed an agreement not to challenge the Constitution in regards to Islam, special position of Malay and Bumiputra, Malay rulers and Bahasa Malaysia”.
    
2. The MCCBCHST is of the view that merely proposing for the appointment of a minister of non-Muslim affairs (although MCCBCHST does not wish to make any comment on its need) cannot be equated as disrespect to Islam. Further, MCCBCHST wishes to re-iterate that it fully supports the position of “Islam as the religion of the Federation (Art. 3(1)), the Special position of the Malays and natives of any of the states of Sabah and Sarawak” (Art.153), the “Yang Di Pertuan Agong and Rulers of States” (Art. 32 & 38), and the position of the “National Language shall be the Malay Language” (Art.152).
    
3. The MCCBCHST wishes to revisit Article 3(1) of the Federal Constitution, which provides that “Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation.” Asyraf Wajdi Dusuki did not explain the import of “Islam is the religion of the Federation.” We thus have to look at decided cases to derive its meaning. In the celebrated Supreme Court case of Che Omar bin Che Soh V. Public Prosecutor, [1988] 2 M.L.J 55, the 5 Supreme Court judges unanimously ruled that - “Held: (i) the term “Islam” or “Islamic religion” in Article 3 of the Federal Constitution in this context means only such acts as relate to rituals and ceremonies.”
   
   The Supreme Court observed that “Islam is not just a mere collection of dogmas and rituals, but it is a complete way of life covering all fields of human activities….”
   
   The Supreme Court, after tracing the history of Islamic law stated that: “….it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only.”
   
   After observing above, the Supreme Court concluded as follows: “In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. 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 injunction of Islam will be void.”
    
4. From above it is clear that although “Islam” normally means complete way of life, but
   the Supreme Court ruled that this was not what the framers of the Constitution meant,
   for if they had meant this then, there would have been a provision inserted in the
   Constitution which would have effect that any law contrary to the injunction of Islam will
   be void. Not only no such provision was inserted, but the Supreme Court went on to add: “Far
   from making this provision Article 162, on the other hand, purposely preserves the continuity of
   secular law prior to the Constitution, unless such law is contrary to the latter.”
    
5. The above ruling in Che Omar bin Che Soh has been approved and followed in recent
   cases, amongst them being (i) Indira Gandhi A/P Mutho V. Pengarah Jabatan Agama
   Islam Perak & 2 others (2018), (ii) Iki Putra Bin Mubarak V Kerajaan Negeri Selangpr &
   Anor [2021], (iii) Nik Elin Zurina Binti Nik Abdul Rashid & Anor V. Kerajaan Negeri
   Kelantan (2024).
    
6. In Article 3(1), the term “Islam” has been interpreted to mean “only such acts as relate to
   rituals and ceremonies.” This obviously will include Islamic rituals and ceremonies being
   followed during Merdeka Day, Malaysia Day, Tuanku Rulers coronation, etc.
    
7. However, there is limitation placed on Article 3(1) by Article 3(4). Article 3(4) provides
   that “Nothing in this Article derogates from any other provision of this Constitution.”
   
   Professor Dr. Shad Saleem Faruqi in his book “Documents of Destiny” explains effects of
   Article 3(4) on Article 3 at page 126 as follows, “This means that no right or prohibition, no
   law or institution, is extinguished or abolished as a result of Article 3’s adoption of Islam
   as the religion of the Federation. This is what was held in Che Omar bin Che Soh.” In
   simple language, Article 3(4) confines Article 3(1) to Article 3, and Article 3(1) cannot override or abridge the rest of the Articles in the Federal Constitution.
    
8. Thus, when a proposal is made, in this case calling for appointing a non-Muslim affairs
   Minister, it cannot be dismissed by invoking Article 3(1) as Article 3(1) has no bearing on it and
   cannot affect fundamental rights and provisions in the Constitution. The MCCBCHST hopes
   that the Government will push for the Federal Constitution provisions to be taught in the
   schools.

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