Secular or Islamic?

Secular or Islamic? This is in the mind of every Malaysians since the controversial proclamations by our UMNO leaders. People are confused, some would just couldn’t be bothered but for me, I’m a defender of secularism not because I’m anti Islam but it is an agreed format of governing Malaysia as agreed by our founding fathers when Sabah and Sarawak was incorporated into what we call now Malaysia.

As such I must give definition what is a secular state, and why Secular was chosen as a form of understanding in this country. A secular state is where a state or country that is neutral in matters of religion, neither supporting nor opposing any particular religious beliefs or practices. It is not anti God or anti religion as claimed by some quarters notably UMNO, in which the state officially opposes all religious beliefs and practices. In some secular states in the world, there can be a huge majority religion in the population e.g. Turkey who are predominantly Muslim and yet upholding their constitution to be religiously neutral. This shows maturity in her citizen.

A secular state also treats all its citizens equally regardless of religion, and does not give preferential treatment for a citizen from a particular religion over other religions. In Malaysia however our constitution in Article 3 states the religion of the federation is Islam should have only a symbolic meaning, not affecting the ordinary life of its citizens.

A secular state is defined as protecting freedom of religion as pursued in state secularism. It is also described to be a state that prevents religion from interfering with state affairs, and prevents religion from controlling government or exercising political power. Laws protect each individual including religious minorities from discrimination on the basis of religion.

Not all legally secular states are completely secular in practice. In France for example, lots of Christian holidays are official vacations for public administration, and teachers in Catholic schools are salaried by the state. So this is the same in our country whereby the building of the mosque or the salaries of the religious teachers are paid by the federation and yet there is a hoo haa over Islamic or Secular.

In Malaysia, it is a clear fact that our founding fathers refuse to accept Malaysia to be an Islamic state as this will cause discontent among its people. Even the Supreme Court, notably in the case of Che Omar Che Soh in 1988 where it was held that Malaysia is not an Islamic State but Secular. This decision has not been reversed or departed from. In fact, during the recent Lina Joy Federal Court appeal, the court asked whether it was being asked to depart from the principle in Che Omar Che Soh. Counsel opposing the appeal indicating an acceptance that declared law in this country is as it stands in Che Omar Che Soh. The Court states:

‘... 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 the law … Until the law and the system is changed, we have no choice but to proceed as we are doing today.’

Malik Imitiaz in one of his article “Artcle 11 Setting The Record Straight” states that “We must not confuse the crucial distinction between a country in which the majority are Muslims, and is thus an Islamic country, and a country in which the supreme law is the Syariah, an Islamic state. In Che Omar Che Soh, the Supreme Court stated:

‘If it had been otherwise (an Islamic State), 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, (the Constitution), on the other hand, purposely preserves the continuity of secular law prior to the Constitution …’

Unless of course the Constitution in itself declared that Malaysia is an Islamic State like what was written in the Pakistan Constitution which had the provision that which declared Syariah law as the supreme law of this land. In Malaysia, Article 4 states that the supreme law of the country is the Federal Constitution that in itself intended Malaysia to be Secular and not Islamic. Why not our founding fathers at that point of time insists that Malaysia is an Islamic state, of course that did not happen as it was not intended to be Islamic. Anything that is inconsistent with that of Article 4 will be null and void.

Supremacy of the Constitution

I must first applaud the recent decision by the Federal Court especially from the learned decision of Judge Datuk Abdul Hamid Mohamad who said that the civil court was the right forum because non-Muslims could not commence action or appear in syariah courts. As such any disputes between a Muslim and a non-Muslim family and religious matters should be settled in a civil court.

The reason he mooted the idea was that the non Muslim cannot be present to defend themselves in the syariah court and that it is not the function of the civil courts to review laws passed by parliament and state assemblies. The function of the court is to apply and interpret the law. An interesting observation his Lordship made was that it is the legislature to decide which issues fell under the jurisdiction of the civil court and syariah court.

His Lordship also observed that he was confronted again by the issue of conflict of jurisdiction between civil and syariah courts, a problem that arose and had become more serious over the last two decades. As such, he was tempted to take a fresh look at the jurisdiction issue from a broad perspective since the federal constitution was now 50 years old and had the opportunity to review 46 other judgments from 1970 to last year. His Lordship strongly felt that there must be laws to vest jurisdiction in the High Court and the syariah court. The syariah courts will have no jurisdiction if the the state legislature did not pass an enactment to give them the power.

I have not heard a bold statement for such a long time until today. It is definitely a matter to be applaud. Glad to know that the Constitution is supreme.