Malik Munip, NST
WRITING'S IN THE LAW: Several provisions in the Constitution disqualify Malaysia from being the physical state, writes Malik Munip
The discuss upon the inlet of Malaysia's identitywhether it is the physical or an Islamic stateis mired in confusion. The difficulty firstly is of the semantic naturea lack of clarity upon what defines the physical or an Islamic state. The second difficulty is about the border of any entity's authoritybe it former Premiers, The Alliance Memorandum or the Reid Commission--in deciding the debate. This essay will plead the second difficulty first.
Secular or Islamic State: Premier vs. Premier
Though Malaysian Prime Ministers have been vested with the total battery of executive authority, nonetheless, they do not have the power to establish the temperament of the republic merely by making an announcement possibly way. Indeed, if we consider about it, even an individual's temperament cannot be dynamic by the pronouncementa chairman doesn't become the Muslim, the Christian, an dissident or any temperament along the 'faith- atheist' spectrum simply due to the declaration. To have clarification as well as force, the stipulation contingency correspond with the individual's thought as well as practice. So if by itself the stipulation cannot establish the religious temperament of an individual, can it establish the temperament of the state?
Nonetheless, many people charge Malaysia temperament as possibly Islamic or Secular, by citing the positions of previous Prime Ministers upon the subject. Hence to shore up their claim, the proponents of! the phy sical state will mostly pull upon the statements of Tunku Abdul Rahman as well as Tun Hussien Onn.
In this courtesy an mostly cited make the difference (but not the usually example) used to represent the in front of of the former Premiers would be from the February 1983 Star inform where the Tunku said "The republic has the multi-racial population with assorted beliefs. Malaysia contingency continue as the physical State with Islam as the central religion". Another emanate additionally reported Tun Hussien's await for the Bapa Kemerdekaan, "The republic can still be functional as the physical state with Islam as the central religion."
Unsurprisingly those which disagree which Malaysia is already an Islamic State wouldn't cite the initial as well as third Premiers. Instead they would allude to Tun Mahathir's following make the difference in Sep 2001 to await their position: "Umno wishes to state clearly which Malaysia is an Islamic nation. This is formed upon the perspective of ulamaks who had clarified what constituted as Islamic country.... " .
But with all due respect, there have been boundary in last the inlet of the country's temperament by simple anxiety to the Prime Ministerial declaration. After all, if Malaysia already possesses many of the features which conclude the physical state, afterwards her physical inlet doesn't change usually since the Prime Minister says otherwise. And vice versaif Malaysia has many attributes of an Islamic state, or the underline which disqualifies her from being the physical state, afterwards it won't be the physical State regardless of how many previous as well as future Prime Ministers states to the contrary.
So although they have been Prime Ministers, nonetheless, their statements, in as well as by themselves do not automatically establish the inlet of Malaysia's identity. At many appropriate their statements would be the description of Malaysia's pr! e-existi ng identity. And similar to many descriptions, it would be current usually in so distant it is accurate.
The Alliance Memoranda vs. The Reid Commission
Of course, in articulating their positions, participants in the discuss do not extent themselves to Prime Ministerial declarationsreferences to authorised authorities as well as authorised documents will additionally be part of the controversial arsenal. In this courtesy nothing comes with higher station than the Federal Constitution as well as the drafters, the Reid Commission. So with apply oneself to either Malaysia is an Islamic or the physical state, let's penetrate the teeth into what the Federal Constitution as well as the Reid Commission have to contend upon the matter.
In the Federal Constitution, both terms, Islamic State or Secular State does not appear. Nonetheless, Article 3 of the Federal Constitution states which Islam is the sacrament of the Federation. This sustenance has mostly been cited to await the explain which Malaysia is an Islamic State or at least not the physical one.
Yet, many who explain to have review the Reid Report find this argument unconvincing; they say which the Commission stated which any sustenance in the due Constitution upon condition which for Islam as the state sacrament will not nullify the in front of of the Federation as the physical state.
Strictly speaking, this description of the Reid Commission's in front of is incorrect. In apply oneself to Islam being done the state religion, the Commission did not dedicate itself to which position. As historian Joseph Fernando wrote in his book 'The Making of the Malayan Constitution': "In apply oneself of religion, the Commission decided not to make any sustenance relating to an central sacrament for the Federation although the Alliance had due which Islam should be done the central religion".
< div> In actuality it was the Alliance as well as not the Reid Commission which wanted the stipulation for Islam to be done the State Religion. And similarly, it was the Alliance which done the explain which such the stipulation would not annul the in front of of the federation as the physical state. What the Reid Commission did was to admit (see paragraph 169 of the report) which the Alliance wanted to insert such the provision; they themselves were reluctant to dedicate to it (with the difference of one member, Justice Hamid).
Be which as it may, even if was the Alliance as well as not the Reid Commission which done the explain which carrying the state sacrament would not annul Malaya's station as the physical state, nonetheless, shouldn't such the explain infer beyond doubt, which Malaysia is the physical State? After all, the Alliance played the consequential purpose in the constitution-making processbefore, during as well as after the Reid Commission's drafting. Additionally, they were the first characters involved in securing Independence; hence, if the Founding Fathers explain which the republic is the physical State, afterwards it contingency be contracting right? Uhm, not quite.
Firstly, nothing of them were recognized authorities upon the inter-related emanate of physical states as well as secularism, or the relationship to sacrament as well as Islamic States. It should be remarkable which the emanate of an Islamic State has theological dimensions, yet nothing of them were theologians. And upon the emanate of the physical State, the complaint was which they never tangible properly what the physical state is; they usually claimed which carrying Islam as the sacrament of the Federation doesn't annul the station as the physical state. Within the context of such statements, their conception of the physical state seems to be the conception by negationconceiving it by what it is not, rather than what it is. Such the conception is not convincin! g.
In short, since the Alliance were not experts upon the emanate of Secular States, secularism or the relationship to Islam as well as not design in conveying what they meant, does it make clarity for us to elevate their explain (that carrying the state sacrament doesn't annul Malaya as the Secular State) as being the final management upon the matter?
Indeed according to the Joseph Fernando, there is evidence which in private, even the Reid Commission were not remonstrate by the Alliance claimto them, it was the contradiction. And for those who have some exposure to the literature upon physical states as well as secularism, this shouldn't be surprising. Why? Because the Alliance's in front of usually doesn't correspond with the accepted understanding of what constitutes the physical state. And which is the point: if the make the difference or description doesn't match up with the reality afterwards regardless of the amicable station of the entity making the statement, it cannot be authoritative.
So in last either Malaysia is the physical state or otherwise, instead of citing what former Premiers or the Reid Commission or the Alliance Memoranda says upon the matter, it would be more impending to ask: What defines the physical state? And does the make the difference of the Alliance Memoranda as well as those which echo it, tally with such the definition?
What is the Secular State? The poison test
The literature upon the theme of physical states as well as secularism is vast; as such there exist assorted interpretations. Nonetheless, there is the ubiquitous accord which the substructure of the physical state is the element which state as well as sacrament contingency be separate. Consequently, the physical state will have, among others, the following characteristics: the state contingency be neutral towards religion; the state cannot give sacrament the pr! ivilege in front of in the open arena; the state's coercive powers as well as resources cannot be utilised in the make use of of any religion; the State should not privilege the sacrament or the adherents over another; the state should not privilege sacrament over irreligion; the state should not permit sacrament to be the order of open office; as well as the state should not interfere with the affairs of sacrament as well as vice- versa.
Now by carrying Article 3 of the Federal Constitution, patently Malaysia is not neutral towards religion. It gives Islam the absolved station over alternative religions. Nonetheless, if Article 3 was the usually Islamic underline in the Constitution, maybe the explain by the Alliance which carrying the State Religion doesn't imply the non-secular state can still be defended. But let's have the peek at alternative Articles of the Federal Constitution.
Through Article 11(4), companion work amongst Muslims can be controlled as well as restricted. Yet there have been no laws restricting companion work to adherents of alternative faiths. Then there's Article 12(2). This essay has distant reaching consequences; it empowers the Federation as well as the states to establish or say Islamic institutions or provide assistance in which process. It additionally sanctions them to do same with regards to upon condition which instruction in the sacrament of Islam. In pursuant of those purposes, it additionally authorises the make use of of open funds.
Both the upon top of Articles violate the beliefs of the physical state upon mixed scores. And these dual Articles have been not the usually one; there exist alternative Articles which do the same. For instance, Malays have been entitled to wear the cloak of Article 153, though professing Islam is the order of being Malay under the Federal Constitution. But let's cast the view beyond the Federal Constitution to the State Constitutions whereby the Islamic featur! es have been even more pronounced.
Many State Constitutions need the State Secretary to be the chairman who professes Islam. In those States the default authorised order for the in front of of the Menteri Besar is additionally the chairman who professes Islam. And the state sacrament of many of the States which make up the Federation is Islam. In these States, not usually is neutrality towards Islam not practice, though distinct the federal in front of of Prime Minister, sacrament is done the order of the open offices of the Menteri Besar as well as State Secretary. And beyond the grave structure of the constitution, there have been alternative characteristics which these states have which have been at contingency with the hint of the physical state. With the name similar to Terengganu Darul Iman for example, is it picturesque to design otherwise? And does Kelantan under Nik Aziz appear similar to the physical state to you? But it is not the range of this essay to elaborate.
Conclusion
So to reproduce the question: Is Malaysia the physical state? Well, by the characteristics which conclude the physical state afterwards Malaysia by clarification is not the physical state; it violates the element attributes of the physical state upon mixed fronts. Breaches to the tenants of the physical state have been not the exception; it is roughly the rule. In Malaysia, sacrament is not separated from the state though entrenched, empowered, enforced, voiced as well as elevated.
Hence, does this mean Malaysia is an Islamic State? My answer is: we do not know; we have no thought what the zodiacally accepted Islamic state in the contemporary universe looks like. But it does mean Malaysia disqualifies from being the physical state.
Dr Malik Munip taught story at University of Malaya for dual decades, as well as was additionally the former Member of Parliament fo! r Muar
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