(Corrected at 12:35pm, 1 Feb 2010)
THE Home Ministry’s ban on the use of “Allah” by the Catholic Herald publication has once again raised the issue of Islam’s position in Malaysia.
“The special position of Islam is enshrined and protected under the constitution,” said senior federal counsel Mahamad Naser Disa during arguments in Herald’s suit against the Home Ministry in the High Court. “Allah is the holy name and a special verse in Islam. Any deviation to the holy verse of Allah is an insult to the religion of the country and the Federal Constitution,” he argued.
But does the constitution really place Islam in a “special position”? Was that the understanding of our nation’s founding leaders? And if not, how are these conclusions being justified?
Special position?
Some of the Herald‘s critics have been lambasting the Catholic Church for suing the government over the use of “Allah”. As Mahamad Naser argued, they say the Herald’s insistence on the use of “Allah” diminishes Islam’s “special position” as enshrined in the constitution.
Muslim Lawyers Association president Zainul Rijal Abu Bakar cites his reasons for affirming Islam’s special position in the constitution:
1. Article 3(1) says Islam is the religion of the federation.
2. Islam is specifically mentioned in other parts of the constitution such as:
a) Article 11(4) relating to the control or restriction of the propagation of other religions among Muslims; and
b) Article 12(2) which allows the federal government to assist Islamic institutions.
3. No other religion has been specifically mentioned in the constitution except Islam.
4. The majority in Malaysia are Muslims.
Zainul concludes that although Article 3(1) says other religions may practise their religions in peace and harmony, due to Islam’s special position, they can only do so without interfering with the peace and harmony of the practice of Islam.
The constitution
But where does it say in the constitution that Islam has a “special position”?
The correct answer is actually, nowhere.
This is unlike the “special position” of the Malays and natives of Sabah and Sarawak which is explicitly spelt out in Article 153 of the constitution.
It cannot be said that as Islam is the religion of Malay Malaysians and since the Malay Malaysians have a “special position”, therefore Islam also has a special position. By that measure, the religion of native Sabahans and Sarawakians, many of whom are Christians, would also have a special position.
In any case, if the constitution’s architects meant Islam to have a special position beyond what was stated in Article 3(1), wouldn’t they have made sure that the constitution said so?
The constitution in fact, suggests otherwise. Article 3(4) states that “nothing in [Article 3] derogates from any other provision of this constitution.” This means that Islam as the religion of the federation does not diminish any other part of the constitution, including the fundamental liberties enshrined in Part II, in any way.
Historical documents
Contemporaneous documents during the drafting of the constitution also demonstrate that Islam was never meant to have a “special position” as claimed. There were in fact clear assurances that other faith communities would not be hampered in the practice of their religions.
“There was universal agreement that if any such provision [on Islam being the religion of the federation] were inserted it must be made clear that it would not in any way affect the civil rights of the non-Muslims,” said a report by the Reid Commission, the drafters of the Malaysian constitution. (Corrected) The Reid Commission held extensive consultations with various interested parties, including the Alliance which preceeded the Barisan Nasional, and the Malay rulers.
Indeed, Universiti Malaya historian Joseph M Fernando cites written evidence that Umno representatives specifically assured their non-Muslim counterparts that Article 3(1) would have “symbolic” significance rather than practical effect.
Fernando quotes the remarks of former MCA president Tun Tan Siew Sin in Parliament: “[Islam as the religion of the federation] does not in any way derogate from the principle, which has always been accepted, that Malaya will be a secular state and that there will be complete freedom to practise any other religion.”
Court judgment
A 1988 Supreme Court decision by former Lord President Tun Salleh Abas also clarified what “Islam as the religion of the federation” means.
After an examination of the historical facts and documents relating to the constitution, his judgment stated: “…we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law [does not enjoy] the status of law.”
Honestly speaking…
So why is the senior federal counsel from the government taking a position contrary to the constitution, historical documents and a Supreme Court judgment? How could he argue against the historical documents that say that Article 3(1) was not meant to give Islam a “special position” in Malaysia and that non-Muslims are guaranteed freedom to practise their own religions?
says so? (Tunku Abdul Rahman pic source: public domain | Wiki Commons)
To be fair, Mahamad Naser may only be supporting the position of his superiors. After all, Datuk Seri Najib Razak, Tun Abdullah Ahmad Badawi and Tun Dr Mahathir Mohamad have all stated that Malaysia is an Islamic state. This is in direct contrast to Tunku Abdul Rahman, our first prime minister, and Tun Hussein Onn, our third, who expressly said that Malaysia is not an Islamic state.
Can the constitution’s meaning be changed by prime ministerial decree or popular opinion? If the government says it long enough and loud enough, does that mean we eventually have to accept that Islam being the religion of the federation means it has a special position? And therefore the “peace and harmony” of Islam must be considered first, before the peaceful practice of other religions?
Instead of trying to read meanings into the constitution which were never there, the government should openly and honestly state its intentions. If its position is that Islam should have a special position in the constitution, it should propose constitutional amendments which can then be debated in Parliament. At least Malaysians would then be clear about the government’s stand.
If the government is unwilling to attempt to amend the constitution to correctly reflect their position, it should stop manipulating the electorate to accept as fact a constitutional myth unsupported by historical evidence. 
For related stories, see In the Spotlight: Political Islam
The Nut Graph needs your support
Please take our five-minute reader survey
mae says
If “Islam is the religion of the Federation” does not convey the message that Islam should be put into special position, then what? If Islam is your religion, wouldn’t you do anything to make it utmost in your action? Using “Allah” in a manner not suitable to Islam thus is not a reflection that the religion of the Federation is Islam. If there is a conflict, then the hold of Islam must be held to maintain the meaning of “the religion of the Federation”, otherwise the paragraph has no meaning.
Main says
I am amazed by the way some Malaysians try to understand the proper way to comprehend matters be it by law or by any other means. And about how to actually use the constitution to pave ways to gain something which could disrupt the understanding process, [the Malaysian way]. It causes a lot of confusion.
Why can’t we just let matters be understood and live with it – there’ll be no great danger coming in unless it is disturbed or forced to be aired. Simply not happy, or just needing proper explanation on how things should be, or plain ignorance?
Z00L says
A pinch of Islamophobia in the homeland.
Great, just what we need.
M.K. says
Very well said! This is precisely how Justice Lau Bee Lan arrived at her decision. Everyone must read her judgement.
aizley says
The link is very simple…and it is stated in the constitution.
ALL MALAY = MUSLIM !!!
In accordance to the constitution, anything to do with Malay [Malaysians] is protected by Article 153 and Article 10 para 4.4, which clearly states that non-Muslims have no right even to question the special position of Malay [Malaysians], ie Islam.
Other laws curtailing the freedoms of Article 10 are the Police Act 1967, the Printing Presses and Publications Act 1984, which grants the Home Affairs Minister “absolute discretion” in the granting and revoking of publishing permits, and also makes it a criminal offense to possess a printing press without a license.
The Sedition Act in particular has been widely commented upon by jurists for the bounds it places on freedom of speech. Justice Raja Azlan Shah (later the Yang di-Pertuan Agong) once said:
“The right to free speech ceases at the point where it comes within the mischief of the Sedition Act.
YJ says
Malaysia is not an Islamic State, even Indonesia is better than Malaysia due to this.
sang kancil says
ISLAM is the official religion. No more no less. These so-called ex-PMs and the current PM must be [forgetful].
Z00L [again...] says
The bulk of PR politicians are trying to win the hearts of Malay Malaysians. They are trying to convince the hardcore Malay Malaysians that by choosing PR (PAS, PKR and DAP), the status and position of Islam in the country will not be hurt. The position of Islam will be protected by laws and acts, whether it’s the federal law or the state law.
This article on the other hand, says that the special position is non-existent.
How can the PR garner support then? Should we expect them to amend the constitution in case they become the government?
int says
This seems like an article that is fighting semantics with semantics, which means noone is going to be persuaded.
ellese A says
Are you blind or what. If Islam is not accorded with a “special” position, how do you explain the separation of civil and Islamic courts in the constitution? How do you also explain that amendments on Islamic matters require the most complicated process of amendments? Why don’t you also read the history of the laws in Malaysia? [It] is utter rubbish to [select] only one view. Be fair and transparent. Have credibility.
alphaenigma says
I don’t see it, Z00l… I don’t see anywhere in the article that refers to PR or any other party for that matter… I also do not see it anywhere in the [common policy] of PR that refers to ‘de-throning’ Islam.
———————————————————————–
For me, personally, I agree with the author of this article.
But let’s brainstorm a little… freedom of speech, no? You see, we cannot have a ‘special’ or ‘official’ religion in the context of a globalized world. We’re not living in the days of Raja and Sultans where the world was ruled by kings, and the kings had an explicit support for a particular religion. And, like our sejarah book teaches us, the people under the rule of the raja/sultan converts in the name of ‘respect’ for the raja/sultan. Today’s democracy demands a shift away from such religious conversions. Thus, having an ‘official’ religion only causes confusion and clashes with the idea of ‘religious freedom’… especially with the presence of ‘religious internment camps’.
Please don’t misunderstand me… I’m just voicing out. Having said that, Islam is a great religion. I admire its teachings at times, eg when it is aired on radio 4 (a.k.a. Traxx.fm). I like the teachings. I admire those who have the will power to pray 5 times a day… and I also believe in the good morals it gives us, unlike certain godless countries which have become so secular, their citizens live for the dollar and for the goods it buys.
————————————————————
Let’s analyze the situation now. Do we really want fanatics from ANY religion to destroy our peace? What we need is less fanatics, and not just religious fanatics. “hat we especially need is the reduction of those chanting “Ketuanan Melayu” which, btw, is NOT in the constitution.
Kate Green, Zombie Shooter says
I think this article is a little simplistic. It doesn’t touch crucial things that weave Islam into the legal framework of this country.
1. What is the role of the monarchs when they are stated to be the ‘leader of Islam’ in the country? I understand that the model is based on the Anglican Church, which places the king as a lead figurehead ala the Catholic Pope. Since Islam does not have that hierarchy of leadership, what is the role of the monarchs? Has it ever been defined?
2. How does the Syariah Court, which is a pre-Independence institution, factor into the Constitution’s framework?
Azizi Khan says
Mae,
Islam may be the religion of the federation, but it does not me that it can strip away rights and privilages of non-Muslim citizen’s of Malaysia. It should be read along the lines of an official sponsor of any event.
The official sponsor may have certain privilages it doesn’t make any other sponsor any less.
What is a common mistake made my some Malay [Malaysian] masses is that they have the final say in the rights of non-Malay [Malaysians]. This is not only illegal in the Constitution of Malaysia, it is also forbidden in Islam. Such proponents of Islam, show their lack of understanding of law and religion. A fine example of this would be the supermodel of religious zealotness – Zulkifli Noordin. I believe the appropriate Malay [language] word would be “kurang ajar” and the appropriate word would be “munafiq”.
Malaysian Muslims are not the chosen children of God. The word ‘Malay’ is not mentioned anywhere in the Quran. So at the best, this is a case of “syok sendiri”.
It is time, all Malaysian truly understand the standing of Islam in Malaysia. Frankly I find any Malay [Malaysian] who clings to such a feudalistic idea that without illegally stepping over other races and religion Islam cannot be supreme – is an insult to the intelligence of any Muslim everywhere.
But it also portrays the danger of Umno’s decades of brainwashing of the Muslim Malay [Malaysians] to suit their own needs.
So the question is – is the average Malay Muslim in Malaysia today is really a Muslim by international standards ?
Ellese A says
Dear Azizi. Since when is there an international Islamic standard? We have different practices even in the prayer methods depending on locality. That’s why in Islamic law urf or custom is a source of law. The issue of Malay [identity] has a local context. The issue of Allah is due to this also. We are not like Indonesians [for whom] Islamic practices developed differently.
Azizi Khan says
If you remember your Islamic education correctly, you will understand that Islam itself is universal. Unfortunately the “purity” of Islam is often desecrated by self serving people who “localise” Islam to suit their needs.
In the Middle East and Pakistan, this would be “honour killings”. In Malaysia however we allow bigotry and racism in the name of Islam. Apparently Malay Malaysians are “special” because they are Muslims. It’s utterly disgusting that some of these people are willing to go on record by saying that non-Muslim Malaysians are “second class citizens” because Islam is “special” and Malays are “special”.
But the fact of the matter is, every Muslim knows such things are explicitly forbidden in Islam. Thus by following these “localisations” they are actually being “deviant” from the true teachings of Islam.
migrate says
@ YJ: “Malaysia is not an Islamic State, even Indonesia is better than Malaysia due to this.”
What are you waiting for? Their border is always open for people like you.
Kong Kek Kuat says
@ migrate
If Malaysia can return all that YJ and his/her/its ancestors have contributed to Malaysia, I’m sure that YJ will leave on the next flight out of this country.
You can be sure that I WILL leave Malaysia on the next flight out if Malaysia can return all that I and my ancestors have contributed to this country.
[The] Malaysian govt can start with the taxes that I have been paying. Don’t forget to remind the Malaysian govt of the annual compounded interests accumulated over the years.
I am sure that Malaysia will be able to find a way to liquidate the taxes (that I and my ancestors have been paying) from the roads in the kampungs, the scholarships for the bumiputeras, and (oh, did I mention?) the funds that built mosques all around the country.