The position of Islam in the constitution of Malaysia

Journal of Southeast Asian Studies

Volumn 37, Issue 2, 2006, Pages 249-266

  Fernando, Joseph M ^a  

^a UNIVERSITY OF MALAYA   (Malaysia)

Author keywords

[No Author keywords available]

Indexed keywords

DOCUMENTARY SOURCE; ISLAMISM; POLITICAL HISTORY;

ASIA; EURASIA; MALAYSIA; SOUTHEAST ASIA;

EID: 33646792252     PISSN: 00224634     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0022463406000543     Document Type: Article

References (82)

1. Article 3 (1) states: 'Islam is the religion of the Federation; but other religions maybe practiced in peace and harmony in any part of the Federation.' Malaysia at the time of the drafting of the Federal Constitution in 1956-57 was known as the Federation of Malaya.
2. The Reid Commission, which drafted the Federal Constitution between 1956 and 1957, was chaired by Lord Reid, an Appeal Court judge in Britain. The other members of the Commission were Sir William McKell, a former Governor-General of Australia and Cabinet Minister; Sir Ivor Jennings, a constitutional expert and Master of Trinity Hall, Cambridge; Justice B. Malik, a former Chief Justice of the Allahabad High Court in India; and Justice Abdul Hamid, a High Court judge and former Secretary to the Ministry of Law in West Pakistan. The Commission, which was appointed following agreement between the Alliance government, the Malay Rulers and the British government at the London Conference in January 1956, took evidence in Malaya from political parties, organisations and individuals from June to October 1956 before travelling to Rome to prepare the draft Constitution. The draft was published on 20 February 1957 and submitted to the Alliance government, the Malay Rulers and the Colonial Office simultaneously. Joseph M. Fernando, The making of the Malayan constitution (Kuala Lumpur: Malaysian Branch of Royal Asiatic Society, 2002).
3. Federation of Malaya Legislative Council Paper No. 42 of 1957.
4. Kenneth Wheare, Modern constitutions (London: Oxford University Press, 1964), p. 98.
5. Mohamed Suffian Hashim, 'The relationship between Islam and the state in Malaya', Intisari, 1, 1 (1962):8.
6. Che Omar bin Che Soh v Public Prosecutor (1988), 2, Malaysian Law Journal 55
7. Tan Sri Mohamed Salleh bin Abbas, Constitution, law and judiciary: Selected articles and speeches (Kuala Lumpur: Malaysian Law Publishers, 1984).
8. Ahmad Ibrahim, 'The position of Islam in the constitution', in The constitution of Malaysia: Its development, 1957-1977, ed. Mohamed Suffian, H. P. Lee and F. A. Trindade (Kuala Lumpur: Oxford University Press, 1979), p. 53.
9. See also Ahmad Ibrahim, The administration of Islamic law in Malaysia (Kuala Lumpur: Institute of Islamic Understanding Malaysia, 2000), pp. 377-407.
10. Hussin Mutalib, Islam in Malaysia: From revivalism to Islamic state (Singapore: Singapore University Press, 1993), pp. 117-18
11. Muhammad Kamil Awang, The Sultan and the Constitution (Kuala Lumpur: Dewan Bahasa dan Pustaka, 2000),p. 157
12. Ozay Mehmet, Islamic identity and development (Kuala Lumpur: Forum, 1990)
13. Mohamad Abu Bakar, 'Islam and nationalism', in Islam and society in Southeast Asia, ed. Taufik Abdullah and Sharon Siddique (Singapore: ISEAS, 1986), pp. 157-8. Mohamad Bakar notes that Malay nationalists, who dominated Malaysian political life in the post-independence period, 'turned the country into a secular state with a nominal commitment to Islam'.
14. Abdul Aziz Bari, Malaysian Constitution: A critical introduction (Kuala Lumpur: The Other Press, 2003), p. 46.
15. Shad Saleem Faruqi, 'Secularism or theocracy: A study of the Malaysian Constitution', paper delivered at the Malaysian Strategic Research Centre- Konrad Adenauer Foundation Intercultural Discourse Series, 5 Sept. 2002, Kuala Lumpur.
16. Shad Saleem Faruqi, The Malaysian Constitution, the Islamic state and the hudud laws', in Islam in Southeast Asia, ed. K. S. Nathan and Mohammad Hashim Kamali (Singapore: ISEAS, 2005), p. 265.
17. Ibid., p. 268.
18. Abdul Rashid Moten, 'Malaysia as an Islamic state: A political analysis', in Malaysia sebagai sebuah negara Islam (Kuala Lumpur: Institute of Islamic Understanding Malaysia, 2005), p. 61.
19. Jan Stark, 'The Islamic debate in Malaysia: The unfinished project', South East Asia Research, 3, 2 (2003): 173-201
20. Patricia A. Martinez, 'The Islamic state of the state of Islam in Malaysia', Journal of Contemporary Southeast Asia, 23, 2 (2001): 474-529
21. Farish A. Noor, 'Blood, sweat and jihad: The radicalization of the political discourse of the Pan-Malaysian Islamic Party (PAS) from 1982 onwards', Journal of Contemporary Southeast Asia, 25, 2 (2003): 200-32.
22. See The Star, 12 July 2005, on the debate in the Malaysian parliament on the question of whether Malaysia is an Islamic state; The Sun, 25 July 2005, on an interview with Malaysian political scientist Farish Noor on the question of the Islamic state; and 'Letters to the Editor', in Malaysiakini online newspaper (www.Malaysiakini.com), June and July 2005. On 29 Sept. 2001, then Prime Minister Datuk Seri Dr Mahathir Mohamad announced at the Gerakan Party's annual general assembly that Malaysia is in fact an Islamic state. The leading opposition parties, the Democratic Action Party (DAP) and Parti Se-Islam Malaysia (PAS), strongly contested the validity of Mahathir's statement (The Star, 30 Sept. 2001). The DAP adopted the issue as one of its main campaign issues in the 2004 general election campaign.
23. The Alliance Party, the leading nationalist movement from 1952, comprised three communal parties representing the three major communities in the Federation: The United Malays National Organisation (UMNO), the Malayan Chinese Association (MCA) and the Malayan Indian Congress (MIC).
24. Alliance Memorandum to the Reid Constitutional Commission, 27 Sept. 1956, p. 19. The Alliance memorandum stated: 'The religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religions, and shall not imply that the State is not a secular State.'
25. UMNO/SUA (Secretary-General) 154/56, Report to the Alliance National Council by Dato Razak bin Dato Hussein, chairman of the Alliance Ad-Hoc Political Sub-Committee, 4 May 1957. In its report to the Alliance National Council, the Sub-Committee noted: 'The Political Sub-Committee agreed that Islam shall be the official religion of Independent Malaya, and that it should be written into the Constitution that there will be complete freedom to propagate and practice all other religions and to establish and maintain other religious institutions.' See also minutes of Alliance Ad-Hoc Political Sub-Committee meeting, 2 April 1957. The minutes of this meeting indicate that the provisions on the religion of the Federation and Malay Special Position were a concession made by the MCA and the MIC in response to the concessions made by UMNO on citizenship and language.
26. See 'Proposals of Their Highnesses the rulers made to the Constitutional Commission', 12 Sept. 1956, B/X/5/III (93), Ivor Jennings Papers.
27. Verbatim report of hearing granted to Rulers' counsel and representatives, 14-15 Sept. 1957, CO 889/1.
28. Article 5 of the 1948 Federation of Malaya Agreement reads: 'Except as provided in Clauses 100 and 101 of this Agreement, nothing in this Agreement (including the Schedules thereto) shall apply in any Malay States to matters relating to the Muslim Religion or the Custom of the Malays: Provided that provision may be made by Federal Ordinance for enabling any Court of Justice to ascertain the Hukum Shara' or the Custom of the Malays, concerning any matter before it.'
29. Report of the Federation of Malaysia Constitutional Commission, 1957 [hereafter Reid Report] (Kuala Lumpur: Government Press, 1957), p. 73.
30. Summary record of 34th meeting of Commission, 26 Sept. 1956, CO 889/1. The minutes note: 'The question of the religion of the State officially being Islam at the same time as the State is secular require further explanation.'
31. Minutes of hearing given by Commission to the Alliance representatives, 27 Sept. 1957, CO 889/1.
32. 'Comments on Reid Report,' by Sir Ivor Jennings, B/X/7/II (26), Jennings Papers (undated).
33. See, for example, the submissions of the Malayan Tamils Association (6 June 1956, memorandum), Eurasian Union (31 Aug. 1956, hearing) and the Straits Chinese British Association, Malacca (7 June 1956, memorandum), CO889/1, (2) and (11), respectively; Minutes of the 23rd meeting of the Commission, 25 Aug. 1956, CO 889/1.
34. Memorandum by Labour Party of Malaya, 25 Sept. 1956, CO 889/6.
35. Memorandum by the Straits Chinese British Association, 7 June 1956, CO 889/6; See also CO 889/1 (18). The General Secretary of the Malaysian Christian Council, for example, told the Commission in a hearing on 23 Aug. 1957 that 'it would be proper if the new independent state were to be a secular one giving no particular favours or privileges to any one religion, as is the case in India'.
36. See G. N. Joshi, The Constitution of India (London: Macmillan, 1956), p. 85.
37. Memorandum by the Malay Forum, 6 Aug. 1956, CO 889/8. The memorandum is signed by Yacob bin Abdul Latif, Director of Information, Federation of Malaya; Abdul Kadir bin Shamsuddin; and Raja Mohar Badiozaman of the Malayan Civil Service.
38. Singapore Standard, 25 Apr. 1956. Dato Onn was formerly the chief of UMNO, the leading party in the Alliance coalition. Onn did not submit a memorandum to the Commission because he disagreed with its terms of reference.
39. 'Fundamental liberties' by Jennings, 21 Sept. 1956, CO 889/2.
40. Note by Justice Abdul Hamid on the list of points to be raised with the Rulers' representative, 3 Sept. 1956, B/X/5/III (26), Jennings Papers. See also 'Note on Hamid's dissent' in Jennings Papers, p. 4.
41. Reid Report, p. 99.
42. Reid Report, p. 100.
43. Fernando, The making of the Malayan Constitution, p. 154.
44. Outward Telegram from Commonwealth Relations Office (CRO), 1 Mar. 1957, CO 1030/522. The Rulers' statement read: It appears that misunderstandings have arisen concerning Their Highnesses the Rulers' attitude to the question of establishing the Muslim religion as the state religion of the Federation under the new constitution. It must, therefore, be made clear that Their Highnesses' view that this should not be done, is based on two matters - firstly that they are the respective heads of the Muslim faith in their States in which the faith is constitutionally established-secondly that under the present and proposed constitutional arrangements, Muslim faith is a matter which is preserved to the State. It is Their Highnesses' view that to declare the faith as the established religion of the Federation would then prejudice their own position as heads of the faith in their respective States, and would also seriously encroach upon rights of States and their governments solely to deal with the question of the Muslim faith.
45. Minutes of the First Working Party Meeting, 22 Feb. 1957, CO 941/85. See also MacGillivray to secretary of State, 22 Feb. 1957, CO 1030/524 (1). The meeting was attended by High Commissioner Sir Donald MacGillivray, Tunku Abdul Rahman, Dato Abdul Razak bin Dato Hussein, V. T. Sambanthan, Ong Yoke Lin (all Alliance) and the Rulers' representatives: Tuan Haji Mustapha Albakri bin Haji Hassan, Che Shamsuddin bin Nain, Tunku Ismail bin Tunku Yahya and Neil Lawson.
46. First Meeting of Working Party, 22 Feb. 1957, CO 941/85. The minutes read: The Alliance representatives said that they wished a statement to be inserted in the Constitution to the effect that although the States should be secular the official religion would be the Islam religion. They said that if the Federation government decided to set up a Department of Religious Affairs, it would be for liaison purposes only. The High Commissioner pointed out that there was at present no Head of the Faith in the two Settlements and suggested that it would be convenient if the Yang di-Pertuan Besar [later termed 'Yang di-Pertuan Agong'] could be the Head of the Faith in the new States of Penang and Malacca. It was agreed that an acceptable solution might be to include a statement in the Federal constitution that Islam should be the official religion of the Federation with the Yang di-Pertuan Besar as the Head of the Religion for the Federation as a whole but without any derogation from the position of each of the individual Rulers as Heads of the Religion in their respective States and without affecting the implementation of the recommendation that the Muslim religion should be included as an item in the State list. It was agreed that the Alliance representatives would draft an article on these lines and thereafter discuss the draft with the Rulers' representatives.
47. MacGillivray to Secretary of State, 8 Apr. 1957, CO 1030/324 (300). See Straits Times, 29 and 30 Mar. 1957. The Tunku told the UMNO General Assembly on 28 Mar. that four big issues in the Reid Report had been settled: The responsibility for safeguarding the right and privileges of the Malays would be left to the Paramount Ruler; Islam would become the state religion written into the new constitution; Malay would be the only national and official language, although English would continue to be used for 10 years; and, UMNO would not accept dual citizenship.
48. Minutes of Alliance ad-hoc political sub-committee meeting, 2 Apr. 1957, UMNO/SUA 154/56.
49. Minutes of 6th Working Party Meeting, 4 Mar. 1957, CO 941/85.
50. Minutes of 11th Working Party Meeting, 12 Mar. 1957, CO 941/85.
51. Later, after further talks, the Rulers agreed to the setting up of a Federal Department for Religious Affairs under the purview of the Yang di-Pertuan Agong.
52. Minutes of the 19th Meeting of the Working Party, 17 Apr. 1957, CO 941/ 87. The minutes of the Working Party relating to this discussion on state religion (Article 2A) read: The Working Party discussed the view of Their Highnesses the Rulers that the Federation government should not establish a Muslim Religious Department because such a department would be under the control of a Ministry which might be headed by a non-Muslim. It was agreed after discussion that if a Department was required for purposes of liaison and co-ordination between the Federal Government and the State Governments the Department would be set up as part of the establishment of the Yang di-Pertuan Agong. In this connection there was discussion on the proposal that Islam should be the religion of the Federation. It was thought that the proposed new Article 2A might be misinterpreted. The Chief Minister said however that the whole Constitution was framed on the basis that the Federation would be a secular State. He referred in particular to the Amended Article 11 and he thought that it would be clear that the Federation was to be a secular State.
53. Minutes of 23rd Meeting of Working Party, 23 Apr. 1957, CO 941/87.
54. Memorandum by Jackson on the Constitutional talks held in London in May 1957 with the Alliance delegation and the Rulers' representatives, 23 May 1957, CO 1030/494 (20). See also Minutes of First Working Party meeting in London, 14 May 1957, CO 1030/496 (10)
55. and Constitutional proposals for the Federation of Malaya Cmnd. 210 (London: HMSO, June 1957), p. 20.
56. Memorandum by Jackson, 23 May 1957, CO 1030/494 (20).
57. Brief for Parliamentary debate on Federation of Malaya Independence Bill (undated), CO 1030/487 (6).
58. Minutes of the London Constitutional talks, 13-21 May 1957, CO 1030/496. This meeting was attended by Secretary of State Alan Lennox-Boyd, High Commissioner Sir Donald MacGillivray, Chief Minister Tunku Abdul Rahman, Dato Abdul Razak (Minister for Internal Defence and Security, Federation of Malaya), Ong Yoke Lin (Minister for Transport), V. T. Sambanthan (Minister for Labour), Tuan Mustapha Albakri bin Haji Hassan (Keeper of the Rulers' Seal), Tunku Ismail bin Yahya (Mentri Besar, Kedah), Shamsudin bin Nain (Mentri Besar, Negri Sembilan), Dato Panglima Bukit Gantang (Mentri Besar, Perak), T. V. A. Brodie (Attorney-General, Federation of Malaya), Neil Lawson, Q. C. (Rulers' legal adviser) and E. O. Laird and officials from the Colonial Office, Foreign Office, Home Office, Commonwealth Relations Office and Parliamentary Counsel N.K. Hutton and H. P. Rowe.
59. Minutes of 1st Meeting of Working Party, 14 May 1957, CO 1030/496 (10).
60. Federation of Malaya Constitutional Proposals (Kuala Lumpur: Government Printers, 1957), p. 33.
61. See Federation of Malaya Constitutional Proposals (White Paper) 1957 (Kuala Lumpur: Government Printer, 1957), Legislative Council Paper No. 42 of 1957, pp. 18-19.
62. Ibid., p. 19.
63. Federal Legislative Council Debates, 10 July 1957, pp. 2662-862.
64. Ibid., p. 2872.
65. Ibid., p. 2900.
66. Ibid., p. 2909.
67. Ibid., pp. 2912-13.
68. Federal Legislative Council Debates, 11 July 1957, p. 2942.
69. Ibid., 10 July 1957, pp. 2992-3.
70. Ibid., p. 2980.
71. Official Report of Parliamentary Debates Commons, 12 July 1957, p. 692.
72. Ibid., p. 702.
73. Official Report of Parliamentary Debates Commons, 19 July 1957, pp. 1583-4.
74. Ibid, p. 1587.
75. Ibid., p. 1590.
76. Ibid., p. 1599.
77. Official Report of Debate in House of Lords, 29 July 1957, p. 250.
78. Ibid., p. 259.
79. The word 'Malaysia' is used in the Alliance memorandum to refer to the Federation of Malaya because the Alliance had wanted the independent state to be called 'Malaysia'. The Reid Commission decided that the change of name was outside their terms of reference.
80. Alliance Memorandum to the Reid Commission, 27 Sept. 1956, p. 19.
81. Minutes of the 19th Meeting of the Working Party, 17 Apr. 1957, CO 941/ 87.
82. Federal Legislative Council Debates, 1 May 1958, pp. 4671-2.