Is Malaysia Secular State?

Announcement: "Tan Sri Ramon is prepared to offer RM500 to ANY PERSON in a congregation who brings in the highest number of FIRST TIME VOTER registrations.

Another RM500 will be given to the CHURCH with the highest number of FIRST TIME VOTER registrations. Please inform CCM of your registrations. The CCM EXCO will decide the winner.

Dateline: 31st August 2007.
It is a small token but a positive step to encourage all Christians to exercise their right to vote."

Thanks to our resident devil's advocate at Total Truth study group, YJ, I was alerted to the DPM's opinion on "Is Malaysia a secular state"? It reminds me of a thoughtful book review by Kian Ming back in 2004, hope that it would help us to think through this crucial issue as we approach the 50th anniversary of Merdeka!

Insight into the Malaysian constitution
Mon Jan 5, 2004
Review by ONG KIAN MING

MALAYSIAN CONSTITUTION: A Critical Introduction
By Abdul Aziz Bari
Publisher: The Other Press
250 pages

THIS book is a timely one, especially in light of the commotion caused by the recent announcement by the Prime Minister that Malaysia is already an Islamic state.

Many legal experts have analysed and debated the exact nature of the Malaysian constitution. But while this debate has generally been restricted to one particular
section of the constitution, this book presents a more comprehensive and, as indicated by its subtitle, critical examination of the Malaysian constitution in
its entirety.

The important areas concerning the executive, the legislative and the judiciary are discussed in depth as well as other issues, including the role of the Agung and the various Sultans, federalism, fundamental liberties, provisions for emergency, citizenship and elections.

The breadth and scope of this volume is a welcome addition to the literature on the Malaysian constitution following Tun Mohd Suffian’s An Introduction to the Constitution of Malaysia and, more recently, Andrew Harding’s Law, Government and the
Constitution in Malaysia.

Instead of only producing a factual account of these different areas, the author critically analyses some of the tensions contained within the constitution.

He also usefully highlights many of the unresolved issues involving constitutional interpretations in some crucial aspects of law in this country.

I found the section on “the Offices of the Head of State” particularly enlightening and thought-provoking.

The role of the Yang di Pertuan Agung as an important component in the check-and-balance system envisioned within this constitution is something which is rarely
discussed or emphasised in the public realm.

The importance of this role is magnified during possible crisis situations where, for example, there is a hung government or in the event of an outbreak of war.

The tension between the office of the head of state and the executive is another important constitutional element highlighted.

The overall impression of a deterioration of constitutional principles is unmistakable and the author has carefully presented his arguments on each area of the constitution as proof of this development.

In view of this deterioration, the author unabashedly proposes some reform recommendations which aim to reclaim the “ideas laid down by the Constitution”.

As an example, the author points out the deterioration of the effectiveness of the Malaysian parliament in playing a check-and-balance role vis-à-vis the executive as well as the lack of debate on policy issues in this institution.

The role of the Senate to safeguard the interest of the states has been eroded with the number of federal appointees to the Senate vastly outnumbering the state representatives.

Possible suggestions for reform include the strict following of rules, procedures and customs in Parliament regardless of party affiliations, the defence of parliamentary privileges, especially with regard to freedom of speech within Parliament, and the possibility of government funding for good back-up staff for the members of the legislature.

The section describing the constitutional amendments which have taken place since Independence was also eye-opening. There have been 44 amendments to the Malaysian constitution since 1957 compared with 27 amendments for the American constitution which was written in 1787.

Some of the more controversial amendments are described in this section, including the amendments affecting the position of the head of state in giving assent for laws to be passed, amendments which occurred during emergency periods as well as “amendments” through judicial interpretations.

The last, although not formally declared, occurs when the courts make judgments which, in the author’s opinion, are narrow interpretations of the constitution, thereby “amending” these provisions.

Of greatest pertinence is the area of civil liberties and rights. For this section, the author recommends that the NGOs, the press and other organisations should be involved in educating the public on what these constitutional amendments entail and what possible consequences they might have.

He also suggested opinion polls or referendums on some of these issues raised in the process of amending the constitution.

A note of caution – this book is written for lawyers and students of law, as acknowledged by the author. Those who are not familiar with many of the cases
cited here would lose sight of the arguments presented in each section. Coming from a non-legal background but with some knowledge of some of the cases, I encountered some difficulty in some sections.

The only other area which I thought the author could have covered in greater detail was to analyse the kinds of tensions that existed and the compromises that were made during the drafting of the constitution. This would give us some understanding
into the “spirit” of this constitution and explain some of the currently existing tensions.

For example, what were the factors during the drafting process which resulted in the wording of Article 3 where it is stated that Islam is the official religion of the country but that all other religions can be practised freely? How did the ongoing battle against communist insurgency forces affect the framing of the sections on fundamental liberties?

Perhaps another author would take up this unenviable but necessary and important task.

I would recommend that first-year constitutional law students and those with some background knowledge of the Malaysian constitution read this book and think
through many of the issues that are raised by the author.

If the readers agree with the author in that constitutional principles in this country have been eroded over time, then perhaps some remedial actions can be taken by the readers to attempt to stem this tide.

Ong Kian Ming worked for a non-profit think tank that does research on nation-building.