September 28, 2018
By Abdul Rahmat Omar
STAMFORD Raffles once wrote to his missionary cousin Reverend Thomas Raffles that Borneo be given vigorous campaigns by the missionaries as “the island is inhabited by a race scarcely emerged from Barbarism” (Buitenzorg, 10th February 1815, Mss. Eur. F.202/6).
He wrote the above after the latter had sought to spread Christianity among the population of the Malays in the Malay States.
Raffles, in his letter also said, “Religion and laws are so united (that the introduction of Christian beliefs will bring about) much mischief, much bitterness of heart and contention”.
Islam has been the religion of the land since its introduction in the 12th Century A.D. 1,000 years before that it was Hinduism with temples built in the Sungai Batu Pahat, south of Gunung Jerai.
This was preceded by a much earlier civilisation in Sungai Batu, Kedah that practised some form of animism with temples that had southerly staircase directions aligned with Gunung Jerai.
After that, the rulers of the respective states embraced Islam. As a result, the Syariah law, such as the Undang-Undang 99 Perak, the Batu Bersurat Terengganu and the Hukum Kanun Melaka, was established.
Those who think that Syariah law exists only after the introduction of the Common Law are gravely erroneous.
In 1908, Richard James Wilkinson, a British colonial administrator who, with the backing of Sultan Idris I, was responsible for the establishment of the Malay College in Kuala Kangsar, and who was also a scholar of Malay and history, wrote on the status of Islamic law in the Malay states:
“There can no doubt that Moslem law would have ended up becoming the law of Malaya had not British law stepped in to check it.” (William R. Roff, Patterns of Islamization in Malaysia, 1890s-1990s: Exemplars, Institutions and Vectors, Journal of Islamic Studies Vol. 9, Is. 2 (1998), 210-228, at 211).
This was reinforced by two British judges in the landmark case of Ramah binti Ta’at v Laton binti Malim Sutan 6 FMSLR (1927).
Their judgment reaffirmed that Islamic law was the law of the land.
In the pursuit of our independence, the Reid Commission, commissioned by both Her Majesty the Queen of England and the Malay Rulers had initially omitted a proposal by the Malay Rulers to have Islam as the religion of the Federation.
Reid saw it fit that matters of religion be handled only by the Ruler of the respective States, and that the special position of the Malays be reviewed after 15 years.
When the report was published, the strongest objections came from the man revered by Malaysians now as the father of multiracialism – Dato Onn Jaafar, who as the leader of Parti Negara, said that the Malays had been let down.
PAS claimed that the Malay interests had been cast aside (von Vorys (1975)
Hence, Tunku Abdul Rahman later submitted that Islam be made the religion of the Federation with two provisos added:
* that it would not affect the position of the Rulers as head of religion in their respective States; and second,
* the practice and propagation of other religions to the non-Malays in the Federation would be assured under the Constitution (UMNO/SUA 154/56, Minutes of Alliance ad-hoc political sub-committee meeting, 2 April 1957).
Sir Donald Charles MacGillivray personally felt that such a provision would be advantageous because the Yang DiPertuan Agong could at the same time become the head of the faith in the Settlements of Penang and Malacca (CO 1030/524 (10), MacGillivray to Secretary of State, 25 February 1957; See also CO 1030/524 (18), MacGillivray to Secretary of State, 21 March 1957).
Fast forward to the present, Article 3 of the Federal Constitution has clearly mentioned Islam as the religion of the Federation with the Rulers being the Head of religion in their respective States, while the Yang DiPertuan Agong becomes the Head of religion in the States of Pulau Pinang, Melaka, Sabah and Sarawak, as well as in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
Islam is not an official religion but the religion of the Federation.
The provisos, added to safeguard the practice and propagation of other religions, are now enshrined in Article 11 with limits to propagate given in Clause 4 of the said Article, to safeguard and honour the position of Islam as the religion of the Federation.
There is even a separation of jurisdiction when it comes to the position of Islam in the Federal Constitution.
The Syariah Law comes under the purview of the respective Rulers, and the Attorney-General of Malaysia, under Article 145(3) does not have the jurisdiction over proceedings before a Syariah court, a native court of a court-martial.
This separation of jurisdiction is also present as provided by Article 121(1A) where both the High Court of Malaya and High Court of Sabah and Sarawak do not have any jurisdiction over Syariah matters.
An accord was reached between those who were party to the discussion – the Malay Rulers, the British who administered the Rulers’ sovereign states on their behalf, and the multiracial government chosen by the people in 1955 to represent them.
Therefore, any claim that the Syariah law infringes on the rights of the non-Muslims is fallacious.
Prof Dr Abdul Aziz Bari opined that Malaysia is not a secular state because Islam has been put as the religion of the Federation by Article 3(1) of the Federal Constitution (DPM: M’sia Is Not A Secular State, The Sun Daily, 18 July 2007) while Prof Dr Shad Saleem Faruqi believed that Malaysia is never secular but at the same time, is not an Islamic state (The Sun Daily, op. cit.,).
For me, Islamic law has always had a precedence in this land making the nature of it, as underscored by Article 3(1), an Islamic state.
Being so however, does not mean that it is a theocratic state as it allows its non-Muslim inhabitants to practise their religion freely.