Friday, May 22, 2009

This is an article which has found a way to my heart. I always maintain that the country is secular and must remain so. But that does not mean that the law formulated cannot be islamic or comply to Islam. As long as the law is fair and just it is islamic law but whhether it is syariah than let the expert debate. As Tantawi say as long as the country is rule by Muslim and there is fair and just we can call ourselve as an Islamic nation. I agreed but we are not an Islamic state.

Malaysia is a secular country — Fahri Azzat

MAY 22 — There is a swelling momentum recently by the more extreme Islamist sections of the Malay community in spreading the widespread misguided belief that Malaysia is an Islamic nation. They base their claims on Article 3(1) of the Federal Constitution which provides as follows:

Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.

Is there any basis to their claim? In a word, no. Let me explain.

Article 3(1) has actually be conclusively and judiciously considered and interpreted in the Supreme Court decision of Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 comprised of a five-man bench: Tun Salleh Abas LP, Wan Suleiman SCJ, George Seah SCJ, Hashim Yeop A. Sani SCJ and Syed Agil Barakbah SCJ (SCJ is short for Supreme Court Justices). The decision was unanimous (or as they say in Malay, sebulat suara) and Salleh himself delivered the judgment and here are the good bits:

“The first point to consider here is the meaning which could be given to the expression ‘Islam’ or ‘Islamic religion’ in Article 3 of the Constitution. If the religion of Islam in the context means only such acts as relate to rituals and ceremonies, the argument has no basis whatsoever. On the other hand, if the religion of Islam or Islam itself is an all-embracing concept, as is normally understood which consists not only the ritualistic aspect but also a comprehensive system of life, including its jurisprudence and moral standard, then the submission has a great implication in that every law has to be tested according to this yardstick.

“There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is 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. This way of ordering the life with all the precepts and moral standards is based on divine guidance through his prophets and the last of such guidance is the Quran and the last messenger is Mohammad S.A.W. whose conduct and utterances are revered. (See S. Abdul A’la Maududi, The Islamic Law and Constitution, 7th Ed., March 1980)

“The question here is this: Was this the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century.

… [tedious bits of history] …

“… Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only. (See M.B. Hooker, Islamic Law in South-East Asia, 1984)

“In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word ‘Islam’ in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.

… [yawn] …

“It is the contention of Mr Ramdas Tikamdas that because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles and Mr Mura Raju, in addition, submitted that, because Syariah law is the existing law at the time of Merdeka, any law of general application in this country must conform to Syariah law. Needless to say that this submission, in our view, will be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act which provides for the reception of English common law in this country.

… [huh? whodat?] …

“We thank counsel for the efforts in making researches into the subject, which enabled them to put the submissions before us. We are particularly impressed in view of the fact that they are not Muslim. However, 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 is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and perhaps, to politicians and Parliament. Until the law and the system are changed, we have no choice but to proceed as we are doing today.”

It is an excellent decision and one of Salleh’ best decisions. Let us also not forget that it was unanimous. And this decision makes it manifestly clear that our Constitution is secular and not Islamic. Since we have a thoroughly secular Constitution, the effect of this is that we are a secular country. So if any politician tells you otherwise, I hope you take the trouble to correct them. The last person you should consult about the law is a pure politician (by this I mean someone prior to his successful election spent the bulk of his time politicking instead of devoting themselves to honest, hard work). And any comment by them should be treated with the utmost suspicion if not utter contempt, when found to be wanting.

After all, one does not consult an ass about the nature of a baboon.

And now let’s consider the entire first part of that phrase a little more carefully. A highly relevant Federal Court decision is that of Kesultanan Pahang v Sathask Realty Sdn Bhd [1998] 2 MLJ 513, particularly the following passage by Mohd Azmi FCJ (i.e. Federal Court Judge):

“Moreover, for the purposes of the Enactment, s 2(a) defines ‘Malay’ as a person belonging to any Malayan race who habitually speaks the Malay language or any malayan language and professes the Muslim religion. Section 2(b) goes on to state that every Malay born within the State of Pahang shall be deemed to be the subject of the Ruler of Pahang. Therefore, in the context of s 2, an artificial legal person, as opposed to a natural person, cannot be a ‘Malay’ and become subject of the Ruler of Pahang. This is because a corporation cannot speak Malay or any Malayan language and cannot profess Islam. Moreover, since it cannot be born in Pahang, it cannot be deemed to be a non-Malay subject of the Ruler of Pahang. Again, in view of a clear definition of the word ‘Malay’ and the deeming provision in the Enactment, the word ‘persons’ in the expression ‘persons not being Malay subjects of the said Ruler must refer to natural persons (see pp 563 H-I and 564 A)."

And a little more recently, the High Court decision of the irrepressible Justice Hishamuddin Yunus in the decision of Sime Bank Bhd v Tetuan Projek Kota Langkawi Sdn Bhd [1999] 1 CLJ 307 where his Lordship wrote the following:

“… On examining the definition of ‘Malay’ in s. 2 of the Kedah enactment, it is my view that the definition only refers to natural persons and not to artifical legal persons such as the defendant.”

What these decisions demonstrate is that a religion such as Islam cannot be ‘held’ by an artificial entity. Islam can only be held by natural persons. This makes sense. An artificial entity is merely a concept given legal force but does not actually exist. I mean just think about it — can XYZ Sdn Bhd be admitted into heaven or even hell for that matter?

Now if a company is seen as an artificial entity — what more a Federation? The Federation is defined in Article 1(2) of the Federal Constitution and it is defined as comprising of the following states: Johor, Kedah, Kelantan, Malacca, Negri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu. So a Federation is made up of states — again, artificial entities.

So, in law, is there really any meaning to the phrase, “Islam is the religion of the Federation”? If you think you know please tell me. I am all ears. But only to legal or historical arguments. — loyarburok


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