THE question whether Malaysia is an Islamic or secular state has come in for continuous debate in Malaysia. Prime Minister Tun Dr Mahathir Mohamad argues that in an Islamic state like Malaysia, justice applies to all, Muslims and non-Muslims alike.
For some, this position remains simply because Islam is the only religion stated in the Federal Constitution. Unlike Turkey and India where the word “secular” is clearly provided in their respective constitutions, such a provision is not found in the Federal Constitution.
Notwithstanding the above, the relevant White Paper signifies that the country was meant to be a secular state. In the early stage of the drafting of the Federal Constitution, the Reid Commission had proposed inserting a provision stating the country is a secular state. However, in the final stage, they agreed to accept a provision that made Islam the official religion of the federation, but it shall not impose any disability on non-Muslim nationals professing their own religions and shall not imply that the state is not a secular state.
Furthermore, historians have suggested that Malaya was an Islamic state. Islamic laws were in practice, which included criminal and civil laws. The most common Islamic laws notably are Hukum Kanun Melaka, Undang-undang Pahang, Undang-undang Johor, Undang-undang Perak and others. However, when the British colonised Malaya, all these laws were gradually changed to English laws through courts’ judgements where English judges preferred to refer to English laws. English law also made its presence here through codified laws, such as the Contract Act, Penal Code, Criminal Procedure Code etc.
Ironically, when Malaya gained independence on Aug 31, 1957, the words “Islamic state” were not incorporated into the Constitution. Nor is the word “secular” found in the Federal Constitution. It was only on Sept 29, 2001, after 44 years of independence, during his tenure as the fourth prime minister, Dr Mahathir made a declaration that Malaysia was an Islamic state.
This announcement was not followed by any amendment to the Federal Constitution until today.
Article 3(1) reiterates the rights protected under Article 11(1) and also reaffirms the supremacy of Islam under the Federal Constitution. Furthermore, Islam is placed above other religions in the federation, yet in Che Omar bin Che Soh v Public Prosecutor  2 MLJ 55, the Supreme Court (now the Federal Court) held that “although there can be no doubt that Islam is not just a mere collection of dogmas and rituals, but a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial”, the provision of Article 3(1) merely provided for a ritualistic and ceremonial role of Islam.
Sheridan (a constitutional text writer) also seems to agree with the Che Omar decision. He posits that Article 3(1) does not mean anything except that it imposes an obligation on the participants in any federal ceremony to regulate any religious parts of the event according to Muslim rites.
However, according to another constitutional text writer, Abdul Aziz Bari, this case does not elaborate clearly the position of Islam as stated in the Reid’s Commission Report and the White Paper.
Thus, he argues that the Che Omar decision merely ruled that Article 3(1) should not become the basis to challenge the legality of statutes. In other words, it merely limits the operation of Islam as stated in the provision. It must also be noted that the extent and implementation of Islam in the Federal Constitution should not be assessed or interpreted solely from the context or point of view of Article 3(1).
It is also contended that the Che Omar decision merely differentiated the position of Islamic law as prescribed by Article 3(1) of the Federal Constitution. It was argued by the appellant that since Islam is the religion of the federation, and since the Federal Constitution is the supreme law of the land, the imposition of the death penalty upon drug traffickers, not being an Islamic law per se and not in accordance with hudud or qisas laws, is contrary to Islamic injunctions and is therefore unconstitutional. The Supreme Court (now the Federal Court) rejected this argument, saying that the provision in Article 3(1) does not actually give the meaning that Malaysia is an Islamic state, where in reality Islamic law only applies to Muslims merely in matters of personal laws. And since the Constitution makes a clear distinction between private law and public law, offences like drug trafficking are under the Federal List, and therefore constitutional.
Perhaps the position taken by Shad Faruqi and Aziz Bari that categorises Malaysia somewhere between the secular state and the Islamic state could be the answer to the ambiguity of the position of Islam in Malaysia. Thus, according to Shad Faruqi, “Malaysia is neither a full-fledged Islamic state nor wholly secular”, but that “in view of the fact that Muslims constitute the majority population, and Islamisation is being vigorously enforced, Malaysia can indeed be described as an Islamic or Muslim state”.
In addition, Shad Faruqi adds that “in a secular constitution, there is no prescribed official religion and no state aid is given to any religion or for any religious activities, but the word religion does occur at least 24 times in the Federal Constitution”.
Despite the fact that the Federal Constitution does not provide a clear provision to advocate that Malaysia is an Islamic state, there are significant provisions such as Articles 3(1) and 12(2) in the Constitution that signify the religion of Islam is given a special position in the Federation. One may conclude that Malaysia is not a secular state, nor is it a truly theocratic state.
Dr Mohamed Azam Mohamed Adil is associate professor and deputy chief executive officer, International Institute of Advanced Islamic Studies (IAIS) Malaysia