I refer to your report entitled Drama in the Dewan Rakyat in which the Minister in the Prime Minister's Department in charge of Islamic Affairs was reported to have said that the assertion by MP for Bukit Gelugor Karpal Singh's that Malaysia is a secular state premised on a decision of the Federal Court was a matter of 'personal interpretation'.
I write now in support of the assertion by Karpal.
The Federation of Malaya Constitutional Commission, 1956-57 Report (otherwise commonly referred to as the Reid Commission Report), in relation to the proposal to have incorporated in the proposed constitution a provision that Islam shall be the religion of the Federation (this was ultimately incorporated in Article 3 of the Federal Constitution), emphatically states that this principle '... shall not impose any disability on non-Muslim nationals professing and practising their own religions and shall not imply that the State is not a secular State' . (Italics are writer's).
Some 30 years later, as pointed out by Karpal in Parliament, the Federal Court in the case of Che Omar bin Che Soh v Public Prosecutor (1988) 2 MLJ 55, was confronted with the argument that as Islam is the religion of the Federation, pursuant to Article 3(1) of the Federal Constitution, the mandatory death sentence for drug trafficking, not being a 'hudud' or 'qisas' offence, was contrary to the injunctions of Islam and therefore void.
The Federal Court, comprising five judges, considered the intent of the framers of the constitution in entrenching the principle that Islam is the religion of the Federation and in the process, traced the history of Islam in this country after the advent of British colonialism. The learned judges first noted that consequent upon British intervention:
- The notion of the Malay rulers being God's viceregent on Earth, which is a precept held by Muslims, was displaced and instead each Malay ruler was regarded as a sovereign within his territory;
The Federal Court concluded, an page 56 of the reported judgment: '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.
'In our view, it is in this sense 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.' (Italics are writer's).
The framers of the Constitution never intended that the provision in Article 3(1) that 'Islam is the religion of the Federation' should be read as meaning that the Federation was not a secular state. The Federal Court, in construing that 'Islam is the religion of the Federation' in Article 3(1)' intended to confine Islamic law to the narrow confines of the law of marriage, divorce and inheritance only and that the Constitution purposely preserves the continuity of secular law prior to the Constitution.
Surely, the honourable minister in the Prime Minister's Department cannot, in all honesty and in the light of that which is stated in the Reid Commission Report and the judicial construction in relation to Article 3(1) rendered by the Federal Court, continue to insist that the assertion by Karpal is a 'personal interpretation'.
As for the member of parliament from Jerai, if he finds it intolerable that Malaysia is a secular state, he may wish to consider relocating.
