Religion & State in Malaysia Religious Composition Article 3 Art 3 (1) Islam is the religion of the Federation ; but other religions may be practised in peace and harmony in any part of the Federation.
Art 12(2):(2) Every religious group has the right to establish and maintain institutions for the education of children in its own religion, and there shall be no discrimination on the ground only of religion in any law relating to such institutions or in the administration of any such law; but it shall be lawful for the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur such expenditure as may be necessary for the purpose.
It has been recommended by the Alliance that the Constitution should contain a provision declaring Islam to be the religion of the State. It was also recommended that it should be made clear in that provision that a declaration to the above effect will not impose any disability on non-Muslim citizens in professing, propagating and practising their religions, and will not prevent the State from being a secular State.
Hungary Constitution art 60(3)
(3) In the Republic of Hungary the Church functions in separation from the State.
2. East Timor Constitution
Section 45(1) Every person is guaranteed the freedom of conscience, religion and worship and the religious denominations are separated from the State
3. Singapore Constitution: arts 15, 12, 16, 150
“democratic secular state” – para 38, Wee Commission
Religious Loyalties = politically significant; religious wars (Protestant Reformation vs Holy Roman Empire)
Cuius regio eius religion (whose district it is, his religion it is)
1648 Treaty of Westphalia: limited protection for religious minorities in ceded lands
Ottoman Empire – Theocracy – Sultan wields absolute divine power
Religious-based classifications: Ummah (Muslims) and dhimmis (non-Muslims): unequal citizens
Millet system – confessional autonomy and peaceful co-existence (pre-modern religious pluralism)
1. State Ambivalence owing to competing loyalty
State attempt to domesticate religion e.g. “Patriotic Religion” – 1992 Vietnam Constitution
Preamble: In the light of Marxism-Leninism and Ho Chi Minh's thought, implementing the Political Program for National Construction during the transitional period to socialism, the Vietnamese people pledge to bring into full play their traditional patriotism, unite as one, uphold the spirit of self-resilience in building the country, pursue a foreign policy of independence, sovereignty, peace, friendship and co-operation with all countries in the world, scrupulously abide by the Constitution, and forge ahead in the cause of reform and renewal, and of building and safeguarding their homeland.
Article 70 No one can violate freedom of belief and of religion; nor can anyone misuse beliefs and religions to contravene the law and State policies
Degree of Identification
Theocracy Complete Identification
Endorsement “Public” / “Private”
Co-operationist contested categories
Separationist Non Identification
Communist: church, press, universities serve the state
Hostile / Militant Secularism:
Demands Religion’s retreat from any area of state activity
No (indirect) subsidies to religion
No religiously-based exemptions from general laws
3. French Secularism (Laïcité);
No official religion
Significant state funding?
Article 106 [Salaries of Priests]The salaries and pensions of ministers of religion shall be borne by the State and regulated by the law.
“recognised religious groups”
Identification of Religion / State
No ‘sacred’ / ‘secular’ divide
Role of divine law & revelation in public life
Example: Art 1 (Saudi Arabia)
The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God's Book and the Sunnah of His Prophet, God's prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital.
To ‘establish’ is to lend state support, financial or non-pecuniary e.g. Church of England; Monarch as Fidei Defensor
Endorse /Confessional Constitution, Privileged Treatment for Official Religion
ART 9, SRI LANKA CONSTITUTION: The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).
Art 3(1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
Art 3(2) – State Rulers are Head of the Religion of Islam
Irish Constitution: Art 44(1): “The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.”
Fiji Constitution Section 5 State and religion: “Although religion and the State are separate, the people of the Fiji Islands acknowledge that worship and reverence of God are the source of good government and leadership.”
e.g. Imperial Cult and Julius Caesar (Deo Invicta) as “civic religion”
US Religious Liberty Experiment –
Secular state not a godless, irreligious or anti-religious state (HV Kamath, Congressman)
General Law but Muslim resistance to Uniform Civil Code
Lina Joy v Majlis Agama Islam Wilayah & Anor  2 MLJ 119 para 18 (High Court, Malaysia)
12. A provision like one suggested above is innocuous. Not less than fifteen countries of the world have a provision of this type entrenched in their Constitutions
Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including
a. Art 3, Federal Constitution (rituals and ceremonies)
b. Islam free standing: (a comprehensive way of life, jurisprudence and moral standards)
There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial. This way of ordering the life with all the precepts and moral standards is based on divine guidance through his prophets and the last of such guidance is the Quran and the last messenger is Mohammad SAW whose conduct and utterances are revered.
Lord President Tun Salleh Abas
3. From God’s Vice-regent to (human) Sovereign within territory The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler`s power and sovereignty. The ruler ceased to be regarded as God`s vicegerent on earth but regarded as a sovereign within his territory
4. The concept of sovereignty ascribed to humans is alien to Islamic religion because in Islam, sovereignty belongs to God alone. By ascribing sovereignty to the ruler, i.e. to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat
We have never been secular because being secular by Western definition means separation of the Islamic principles in the way we govern a country. We have never been affiliated to that position. We have always been driven by our adherence to the fundamentals of Islam. So, your premise is wrong," he said.
Article 11 Coalition: fear creeping Islamic theocracy as government officials (65% Muslim) abdicating duty to defend secular constitution.
(1)Every person has the right to professand practice his religion and, subject to Clause (4), to propagate it.
(4) State law and in respect of the Federal Territories of Kuala Lumpur and Lubuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
(5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.
3. Interpretive Method
Dual Court Structure: Which court has jurisdiction over personal status of a Muslim?
Art 121(1A): "The [High Court] shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts."
Parliamentary debates: prevent High Court from exercising judicial review over Syariah Court decisions (overlapping jurisdiction)
Rationale: Prevent someone adjudicating a dispute before a religious court from switching to civil court to get fresh hearing
8 May 2008 Report
2. Res Materiae: The issue might implicate both Islamic and general law e.g. trust land
Daud bin Mamat:“the act of exiting from a religion is not a religion” as to read otherwise would “stretch the scope of article 11(1) to ridiculous heights.”
Need for “additional hypothetical ingredient” of the term “renounce” in art 11 to invoke it
Right to ‘profess’ does not include the right to choose one’s religion. (Lina Joy, High Court)
Lina Joy (2005), Court of Appeal:
“Renunciation of Islam is generally regarded by the Muslim community as a very grave matter. … The Muslim community regards it as a grave matter not only for the person concerned, in terms of afterlife, but also for Muslims generally, as they regard it to be their responsibility to save another Muslim from the damnation of apostasy.”
Religious Authority Counsel, Lina Joy FC
Abdul Aziz Bari, (2004) IIUMLJ 145 at 146
Rituals and ceremonies (Che Omar)
Islam as ad-deen (Meor Atiqulrahman)
Art 11 & religious practice
Custom or Religion? Halimatussadiahcase
Mandatory or Optional?
Abdul Hamid Mohamad FCJ
A. Evaluating the nature of the practice
Importance of practice to religion - if integral, give more weight to it; if not importance, less weight
In the Islamic context, the classification made by jurists on the “hukum” regarding a particular practice will be of assistance. Prohibition of a practice which is “wajib” (mandatory) should definitely be viewed more seriously than the prohibition of what is “sunat” (commendable).
whether the wearing of turban by boys of the age of the Appellants is a practice of the religion of Islam.
Islam is not about turban and beard. The pagan Arabs, including Abu Jahl, wore turbans and kept beards. It was quite natural for the Prophet (P.B.U.H.), born into the community and grew up in it, to do the same. As it was not repugnant to the teaching of Islam, he continued to do so.
Rejected argument seeking to equate wearing turban with Hajj (pre Islamic practice) - Islamic Hajj different from pagan Arab Hajj and Quran verses identify hajj as mandatory
Turbans were (and are) not only worn by Arabs. Other peoples, living in the desert or semi-desert areas, e.g. the Afghans and Persians wore/wear them too. Indeed, anybody who goes to Mecca will immediately realize that a piece of cloth, by whatever name it is called, to cover his head and face from the heat, the dryness and the dust, is most useful. Nowadays, the turbans… symbolize the nationality of the persons wearing them e.g. whether they are Saudis, Sudanese, Afghans, Omanis, etc. The turban has become part of the national dress of those countries.
1960s: only Hajis wore turbans i.e. went on Haj (pilgrimage) and worn as sign of “alim” (knowledgeable in matters of Islamic religion) and “warak” (piety). Non-Hajis would not wear them. They would be ashamed to do so.
1970s: influence of “dakwah” (missionary) groups. They distinguished themselves by their dress, the men and their male children wore “jubah” and “serban”.
Today: “very few of our Muftis and hardly any Shari’ah Court Judge wears turban.”
“As far as I can ascertain, the Al-Quran makes no mention about the wearing of turban..”
no “fatwa” in this country on the wearing of turban.
Prophet wore turban but “he also rode a camel, built his house and mosque with clay walls and roof of leaves of date palms and brushed his teeth with the twig of a plant. Does that make the riding a camel a more pious deed than travelling in an aeroplane?... Is it more Islamic to brush one’s teeth with a twig than using a modern tooth brush with tooth paste and water to wash in the privacy of one’s bathroom?”
It is not everything that the Prophet (P.B.U.H.) did or the way he did it that is legally (according to Shariah) or religiously binding on Muslims or even preferable and should be followed.
Is a practice (a) Mandatory (b) commendable (c) permissible?
Non Legal and Legal Sunnah: Principles of Islamic Jurisprudence” by Mohammad Hashim Kamali (1991)
The best place to see whether it is the practice of boys (Arab not Malay boys) of the age of the Appellants to wear turban or not, is to go to Masjid Al-Haram, the birthplace of the Prophet (P.B.U.H.), where the “House of Allah” (“Baitullah” or the “Kaabah”) stands. Go there after the “Asar” prayer. One can see scores of boys of the age of the Appellants sitting cross-legged learning to read and reciting the Al-Quran. None of them wears turban, whether tied the way the Appellants do or otherwise.
Concludes: the “practice” is of little significance from the point of view of the religion of Islam
B. Evaluating the Restriction
The next step is to look at the extent or seriousness of the prohibition. A total prohibition certainly should be viewed more seriously than a partial or temporary prohibition. For example, a regulation that prohibits an adult Muslim male from leaving his job to perform the Friday prayer is more serious than a regulation that requires adult male Muslims employees to take turn to perform their “Asar” prayer, all within the “Asar” period.
We are not dealing with a total prohibition of wearing of the turban: cannot wear during school hours only. ..
In- School Exception: Even in school, certainly, they would not be prevented from wearing the turban when they perform, say, their “Zohor” prayer in the school “surau” (prayer room). But, if they join the “Boy Scout”, it is only natural if they are required to wear the Scouts uniform during its activities. .. Certainly, there is a place for everything.
Available Alternative: Furthermore, there is nothing to prevent them from changing school, e.g. to a “pondok” school that would allow them to wear the turban.
B. Evaluating the Extent of the Restriction to evaluate constitutionality
Then, we will have to look at the circumstances under which the prohibition is made. An air traffic controller will have to be at his post even during Friday prayers, where replacement by a non-Muslim or a female employee is not possible. A surgeon who starts an emergency operation just before the “Maghrib” prayer may have to miss his prayer. (Even the Shariah provides exceptions and relaxation of its application under certain circumstances).
Whether we like it or not, we have to accept that Malaysia is not the same as a Malay Stateprior to the coming of the British. She is multi-racial, multi-cultural, multi-lingual and multi-religious. It is difficult enough to keep the 14 States together.
Tensions between races and amongst Muslims noted: need for inter-mixing in national schools – “polarisation” as dangerous trend
Deference to expertise of educators: “when they formulate some regulations applicable in their schools for the general good of all the students, the society and later the nation.”