1. What is an Islamic State ？
“Islamic State” is a State governed and guided by Islamic principles. In an Islamic State, all citizens, whether they are Muslims or non-Muslims, must abide by Islamic rules and regulations, and must be governed and ruled according to Islamic principles.
In 2001, a scholar well-versed in Islamic jurisprudence, Chandra Muzaffar, wrote an article in Penang, affirming that: the Quran makes no mention of the establishment of an “Islamic State”.
Patricia Martinez, a Ph.D holder, pointed out that, in an Islamic State, non-Muslims are known as Dhimmi (or Zimmi). Dhimmi are in fact people who are subjugated by the Muslims. They are only entitled to be second-class citizens. They do not enjoy equal rights as ordinary Muslims do. This goes against the provisions of the Federal Constitution which guarantee fundamental liberties, that is, basic human rights. In other words, such practice violates the constitutional provision of the fundamental human right of “equality before the law” (See Article 8).
This would mean that, once our country becomes an Islamic State, it will adversely affect the position, interests and rights of the non-Muslims. That will have far-reaching consequences and implications on the rights of various communities in all aspects, such as political, economic, cultural and educational aspects.
2. Federal Constitution : Malaysia is a secular state
As a constitutional democracy, Malaysia is not an Islamic State according to our Federal Constitution and the existing law. Whether or not our country is an Islamic State, is not to be arbitrarily declared by an executive head of the government.
The administrative head of the government must act according to the Federal Constitution and the existing law. If he acts according to his whims and fancies, having no regard for the provisions of the Federal Constitution and the current law, this country is no longer a constitutional democracy. In reality, it is sliding towards authoritarianism, or fast becoming an oligarchy, that is, a government by a tiny minority.
The provisions of the Constitution and the laws of a genuine Islamic State usually state clearly that the country is an Islamic State. Good examples are Iran and Pakistan. However, our Federal Constitution stipulates otherwise:
“Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”: Article 3(1).
“Every person has the right to profess and practise his religion and … to propagate it”: Article 11 (1).
3. Historical facts show that Malaysia is a secular state!
(1) In 1957, just before independence, the Reid Constitutional Commission drafted the “Constitution of the Federation of Malaya”. The Report of the Reid Commission, in paragraph 169, says:
“We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provision were inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims.
“In the memorandum submitted by the Alliance it was stated that the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on Muslim nationals professing and practising their own religions, and shall not imply that the State is not a secular State.”
The Report showed that even though Islam is the official religion of Malaya, it does not mean that this country is an Islamic State. It is still a secular State.
In other words, in 1957 even before independence, the Alliance government had confirmed that, our country is a “secular state” after independence.
(2) In 1957, the Alliance government presented a White Paper titled “Federation of Malaysia Constitutional Proposals 1957” to describe the more important changes in the recommendations of the Constitutional Commission. This White Paper is to be read in conjunction with the Report of the Reid Commission.
(3) One of the important changes relates to the freedom of religion, and confirms that this country is a secular state even though Islam is declared to be official religion of the Federation. Paragraph 57 of the White Paper says:
“There has been included in the proposed Federal Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular state, and every person shall have the right to profess and practise his own religion, and the right to propagate his religion, though this last right is subject to any restrictions imposed by the State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.”
The speech by first Prime Minister Tungku Abdul Rahman in 1958
In 1958, a member of Parliament attempted to describe our country as an Islamic State, and felt that it was not appropriate to serve drinks on official functions. But our first Prime Minister Tunku Abdul Rahman expressed his regrets about the statement made by the MP. He declared in Parliament that: “I must make it clear that this country is not an Islamic State as the general public would have imagined. In fact, we only regard Islam as the official religion of the country.”
[See Dr. Ahmad Ibrahim “The Position of Islam in the Constitution of Malaysia” The late Dr Ahamd Ibrahim was an expert on Islamic Law in Malaysia.]
An assurance given by “Cobbald Commission” in 1962
When Malaysia was about to be formed in 1962, to avoid any doubts among the peoples of North Borneo and Sarawak about the position of Islam, as well as to prevent their opposition to the formation of Malaysia, the Malayan government gave an assurance in the Report of the Cobbald Commission that Article 3 of the Federal Constitution would not in any way jeopardise the freedom of religion in the Federation. The Federation of Malaysia will be a secular state.
An interview with Tunku Abdul Rahman in 1988
In 1988, the first Prime Minister Tunku Abdul Rahman gave an interview, and made a statement to the following effect:
“Now or in the near future, it is unnecessary to pretend that Malaysia will become an Islamic state. It is for the people to choose to become Muslims, and it is not for the State to decide. It must be left to the people’s own free will.
Article 3(1) of the Federal Constitution provides:
“Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”
There is no provision in the Federal Constitution which stipulates that Malaysia is an Islamic State. “…the law in this country is still what it is today, secular …” (See Che Omar case 1988)
Secular English Law applies in this country
In fact, in 1956, before independence, there was legislation providing that this country must adopt the secular English Law, and not the Islamic Law. This piece of legislation was known as the Civil Law Ordinance 1956, which came into effect on 7 April 1956: s.3(1).
[Note: The English Law adopted by the various states is somehow different. West Malaysia adopted the English Law as at 7 April 1956. Sabah adopted the earlier English Law as at 1 December 1951. Sarawak basically adopted the earliest English Law as at 12 December 1949.]
The secular English Law mentioned above is applicable to this country until today.
Supreme Court in 1988: Malaysia is not an Islamic State.
On 29 February 1988, in a Supreme Court case of Che Omar bin Che Soh v Public Prosecutor. (The Supreme Court was formerly known as the “Federal Court”) 5 Supreme Court Judges sat and decided that Malaysia is not an Islamic State, but a secular state. Although Islam is the official religion of our country, the Islamic ceremony is to be used in official functions only.
The facts of the case are as follows:
A Muslim, was charged under the Arms (Increased Penalty) Act 1971 for being in possession of arms. He was sentenced to death. He appealed to the Supreme Court. The argument put forth by the defence counsel was: to impose death sentence in such a case was contrary to the Islamic Law; it was unconstitutional; since Islam is the official religion of the Federation, no death penalty should be imposed. But the Supreme Court did not accept such argument.
Tun Salleh Abas, the then Lord President of the Supreme Court, discussed the history of our Federal Constitution. He said that during the period of the British rule since the 19th century, “through their system of indirect rule and establishment of secular institutions, Islamic law was render isolated in a narrow confinement of “the law of marriage, divorce and inheritance only”.
To argue that Malaysia is an Islamic State “will be contrary to the constitutional and legal history of the Federation” The Civil Law Act provides for the introduction of English law in this country.
Article 3 of the Federal Constitution (that provides: Islam is the religion of the Federation), merely relates to Islamic rituals and ceremonies. It does not involve the entire concept of Islam. “The all-embracing concept of Islam is not limited to Islamic rituals and ceremonies only, but it is a comprehensive system of life, including its jurisprudence and moral standard”.
Prime Minister has no legal authority to declare that Malaysia is an Islamic State
By virtue of the doctrine of separation of powers, which is the basic principle of parliamentary democracy, the Prime Minister, as the executive head of the government, has no legal authority to declare our country as an Islamic State. Whether this country is an Islamic State or not, it has to be determined by the Constitution and the legal decisions of our Courts. In other words, it is within the purview of the judiciary, and not the executive.
The reason for this is that because in a parliamentary democracy, the doctrine of separation of powers applies. It requires the three branches of the State to be separate and apart from each other. No branch should encroach upon the province of the other. In particular, the judiciary ought not to be interfered with.
The judiciary must be independent. Any court decision should not be arbitrarily ignored by the executive head of the government. It is for the legislature, that is, Parliament, to amend the law and alter the decision of the highest court.
A decision of the Supreme Court (the highest court) is the final decision on the current law of the land. It must be respected and followed by every administrative head of the government and his officials. It can only be removed by Parliament introducing amendments to the current law. Under the doctrine of separation of powers, the head of the government has no legal authority to jettison overboard any decision of the Supreme Court at his whims and fancies.
(Source: Suaram: Viewed From the Legal Perspective, Malaysia is Not an Islamic State.)
Malaysia is certainly NOT an Islamic State
On 14 April 2004, Nanyang Siang Bao published a piece of news that the Chinese Study Research Centre, Kuala Lumpur conducted a discussion on the issue: “Is Malaysia an Islamic State?” The gist of the discussion is summarized as follows:
When our government declared that Malaysia is an Islamic State, it should have considered whether such declaration is consistent with the Federal Constitution.
Constitutionalism implies that power is to be restricted. We do not believe in a “government with absolute power”. It must be a “government with restricted power”. This is not so in the case of a government in an Islamic State.
Viewed from the historical perspective, constitutionalism had its origins in the dissatisfaction with totalitarianism. The main purpose of a Constitution is to decentralise the powers of the government with a view to preventing the emergence of a totalitarian government.
The BN government affirmed that it will not amend the Federal Constitution. On the other hand, it has openly declared that Malaysia is an Islamic State. This is far from being reasonable, and its legality is open to question.
In Malaysia, the Federal Constitution is the supreme law of the land. The supremacy of the Constitution implies that our Constitution is never a constitution of an Islamic State, where the divine law is above all secular law, including the Federal Constitution. The Federal Constitution is secular in nature, and not divine law.
The secular Federal Constitution has been upheld and practised up to this date. Such practice is inconceivable in an Islamic State. Any law in contravention of our Federal Constitution is void. Any law, whether it is divine or otherwise, which is inconsistent with the spirit of the Constitution as the supreme law of the land, is unconstitutional.
An Islamic State is largely governed by the Islamic Law. But it is common knowledge that the laws of Malaysia are not Islamic law. Since Malaysia as a whole is not governed by Islamic law, how on earth can Malaysia be described as an Islamic State?
In Malaysia, the Federal government and the State Government administer different sets of law. With regard to the Islamic law, each State government is responsible for the administration of the Islamic law in its State only. The Federal government is above the State government. A State government has only power to administer Muslim affairs in its own State. It is therefore beyond power of any State government to direct the Federal government to request all the States to implement Islamic law.
Today, the issue of an Islamic State must be thoroughly argued from the political point of view. The major problem that we are facing is: that the Islamic State is completely a different system incompatible with our secular system. Many Islamic States all over the world are plagued by various problems, which can only be resolved by way of resorting to the establishment of an authoritarian rule. It may be necessary to go beyond viewing the issue from the perspective of our Federal Constitution alone, since the solution lies with politics in the ultimate analysis.
The issue of the Islamic State should also be looked at from the socio-economic point of view. This is especially so when we make a study of the Middle East countries. These countries are slow in the process of modernization, unlike the European countries, which have undergone modernization at a fast pace. The only Islamic State which gets on the bandwagon of modernisation is Turkey, the reason being that it constantly undergoes the process of secularization.
If we acknowledge openly that Malaysia is an Islamic State, attempts will be made to amend the Federal Constitution in line with the Islamic jurisprudence. Therefore, we must reject outright the spurious argument that Malaysia is an Islamic State, or the muddle-headed thinking that this country is a so-called “secular Islamic State”.
We must disagree with such argument. We must reject such argument by way of expressing our sentiments of dissatisfaction, otherwise, the specious claim that Malaysia is an Islamic State may become an accomplished fact.
Beware - BN’s “Islamisation” conspiracy!
BN leaders are trying to disseminate a misleading statement and create a false impression that “at the time of achieving independence, our predecessors had obtained consent from the various communities. That this country is an Islamic State is acceptable to the Chinese ethnic group. Such state of affairs has existed for the past few decades and it will not be changed.”
In reality, this is a travesty or distortion of history. It is a vain attempt to put us off guard, with a view to warding off the tide of discontent which has been building up over the years.
On 24 November 2003, Nanyang Siang Bao carried an article titled “UMNO’s Policy of Islamisation”. It pointedly levelled criticism against UMNO for implementing its islamisation policy on the sly. UMNO pursued such policy with a view to ultimately amending the Federal Constitution at an opportune time, thereby converting Malaysia to an Islamic State.
“We should not rely on the numerical strength of UMNO as a relatively large ethnic group to oppose theocracy, that is, a country that is governed by religious leaders. A detailed study of UMNO’s Islamisation policy shows that the policy is being implemented gradually and imperceptibly. Compared to PAS, UMNO are short of theoreticians on theocracy who are able to formulate Islamic policies. UMNO is not in a position to present a more Islamic policy or blueprint than PAS.
But we cannot rule out the possibility of UMNO being able to complete with PAS. UMNO leaders frequently disseminate erroneous ideas among the public just to confound the voters. They try to argue that UMNO has more liberal and advanced Islamic policy than PAS, and that the policy adopted by PAS is “conservative and feudalistic’. UMNO even went to the extent of declaring openly that Malaysia is already an Islamic State.
UMNO’s Islamisation policy is implemented in a gradual but effective manner. With the passage of time, UMNO may be on a par with PAS in the process of implementing islamisation policy.
UMNO’s islamisation policy manifests itself in the manner the local authorities exercise their administrative powers, for example, restricting the business hours of the places of entertainment; limiting the size of the advertisement posters on drinks in the Chinese coffee shops; monitoring the “sinful” conduct of persons in public places; and restricting pork stalls to designated secluded areas.
In conclusion, it may be said that PAS declares openly and publicly its intention to realise an Islamic State, though PAS is a relatively smaller political party. On the other hand, UMNO, as a larger political party, does it surreptitiously. Each of them adopts a different approach to please its respective voters.
The open and transparent approach adopted by PAS certainly attracts Muslims, but it scares away non-Muslims. On the contrary, the gradual and stealthy approach adopted by UMNO puts the non-Muslims off guard, but garners the support of the Muslims. The conspicuous reticence or acquiescence of the non-Muslim political parties within BN serves to give the green light to UMNO to go ahead with their sinister plan to establish an Islamic State free from all inhibitions.
Say ‘NO’ to an Islamic State now, or we will soon be in it.
DAP’s firm and unequivocal stand is:
Malaysia is not an Islamic State.
Malaysia is a secular state.
Give us your full support to defend our country as a secular state!
