Academic journal article Journal of Southeast Asian Studies

The Position of Islam in the Constitution of Malaysia

Academic journal article Journal of Southeast Asian Studies

The Position of Islam in the Constitution of Malaysia

Article excerpt

Article 3 (1) of the Federal Constitution of Malaysia states that Islam is the religion of the Federation. (1) This provision has drawn considerable debate in recent years from scholars, politicians, lawyers and the general public in Malaysia. Varied interpretations of the article have surfaced in recent years and the provision in the Federal Constitution continues to be widely debated from time to time because of its perceived ambiguity. Most scholarly work on the issue, however, has been based on information derived from a reading of the published material available on the Constitution--the report of the Reid Constitutional Commission, (2) the White Paper on the Constitutional bill, (3) Parliamentary proceedings, newspaper reports and judgements handed down by the courts in the post-independence period. None of the existing works have examined adequately the primary Constitutional documents to ascertain the intentions of the framers. These documents include the minutes of the Working Party, which reviewed the Reid Commission's draft Constitution; the documents relating to the Constitutional talks in London in May 1957; the Constitutional papers of the Alliance Party; and Colonial Office documents relating to the Constitution-making process. This article seeks to fill this gap by examining these primary documents to provide a clearer picture of the intentions of the framers. For a proper understanding of Constitutional provisions, a study of the primary documents is essential. A constitution is not only the product of political and socio-economic forces operating at the time of its framing, it is also about the intentions and motives of its framers. Thus the historian's tools--a chronological examination of the debates, the disputes and compromises between the framers--are indispensable to a fuller understanding of the meaning of Article 3 (1) of the Federal Constitution. This approach allows latitude in examining more directly the evolution of the article and the debates surrounding it at the different stages of the Constitution-making process. As Kenneth Wheare has noted, to understand the significance of the document, we must look beyond the formal legal phrases, to discover the predominant forces in the framing and adopting of a constitution. (4) The articles of a constitution are often ambiguously couched in cryptic legal parlance, and it is here that the historical approach is most useful in unravelling the ambiguity of the legal phrases through a close scrutiny of the documents.

A general survey of the existing works indicates that the views of two former Chief Justices have until recently largely tempered this contentious debate over Article 3(1) and provided a sort of consensus. Former Lord President Tun Mohamed Suffian Hashim has written that Islam was made the official religion primarily for ceremonial purposes, to enable prayers to be offered in the Islamic way on official public occasions, such as the installation or birthday of the Yang di-Pertuan Agong (the Supreme Ruler [King]), Independence Day and similar occasions. (5) His article, which was the first real attempt to address the issue of a state religion in the Federation, served as a benchmark for a long period. Following this, another former Lord President, Tan Sri Mohamed Salleh Abas, in a landmark judgement in 1988 ruled that the term 'Islam' in Article 3(1) meant 'only such acts as relate to rituals and ceremonies'. (6) Salleh Abas noted further that 'the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law'. These two clarifications have in the past been considered definitive in any discussion of Article 3(1) of the Federal Constitution. Both these jurists nonetheless have had to rely only on the published documents of the Reid Constitutional Commission and the sparse writings on Malaysia's Constitutional and administrative history to draw their conclusions. Their references and authoritative citations were in a sense restricted as they had no access to the primary documents at the time. …

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