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 3(4) Nothing in this Article derogates from any other provision of this Constitution. • Art 4(1) (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
State Support: official religion?Islam: ceremonial or beyond? 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. 4
Federation of Malaya Constitutional Commission, 1956-1957 Report Para 11. 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.
Piecemeal reference to discrete secular values 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 7
Historical Origins: Europe 8 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
Historical origins: Beyond Europe 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) 9
State & Religion 1. State Ambivalence owing to competing loyalty • Transnational Faith Community e.g. ummah • Ultimate values and transcendent reason to question state power e.g. JWs and military service • Religious revivalism and fundamentalisms
State ambivalence towards Religion 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 11
Constitutions and Religion Degree of Identification Theocracy Complete Identification Establishment Endorsement “Public” / “Private” Co-operationist contested categories Accommodationist Separationist Non Identification 12
Separationist Regimes: Non Identification with Religion 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); (legal schizophrenia) 13
Cooperationist Regimes No official religion Significant state funding? Luxembourg Constitution 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” 14
Theocracy 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. 15
Establishment/Endorsement 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). 16
Confessional: Malaysia 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 17
Honour without support? 18 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.”
Non-Establishment (‘Two Jurisdictions’) • ‘Two Jurisdictions’ Idea: ‘Render Unto Caesar / God’ • Separation of Religion & State = limited government: resistance: Roman Empire • Saeculum (root word of ‘secular’) • Jurisdictional idea: parts of civil order not governed by religious bodies e.g. Imperial Cult and Julius Caesar (Deo Invicta) as “civic religion”
Secularism: Basic Idea – a principle of limited government • Separate sphere of ‘religion’ and ‘government’ • State cannot assume ultimate significance • Dissent from state absolutism
US Non-Establishment Experiment(‘Two Jurisdictions’) US Religious Liberty Experiment – • No National Church (religious refugees) • US First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof • Freedom “of” and not freedom “from” religion
Secularism in Context • France: anti-clericalism: State vs Catholic Church • US: many religious groups • India: Secularism as saviour? (genocide) • Malaysia: secularism as bane? – resentment towards secular law as colonial imposition
Secularism as Saviour? India Secular state not a godless, irreligious or anti-religious state (HV Kamath, Congressman) General Law but Muslim resistance to Uniform Civil Code 23
Historical Origins: what’s in a word? • In Freedom of Religion in Malaysia by Lee Choon Min, the writer is of the opinion that Malaysia is not purely a secular state like India or Singapore but is a hybrid between the secular state and the theocratic state. The constitution of this hybrid model accord official or preferential status to Islam but does not create a theocratic state like Saudi Arabia or Iran. Lina Joy v Majlis Agama Islam Wilayah & Anor  2 MLJ 119 para 18 (High Court, Malaysia)
What does constitutional secularism entail? • Source of Power – LEGITIMACY • Preferential Treatment of one religion /ideology? – cf: STATE ATTITUDE: malevolent to benevolent to champion? • Religion in Public Culture and Debate –cf: Religion & Politics –– DEMOCRACY • Religious Symbols in public (ceremonial vs. public law) – SACRED TO NAKED PUBLIC SQUARE • Religious law in civil courts? JURISDICTIONAL CONFLICTS no Strict Separationism
Proposed Official Religion Clause • Islam shall be the religion of the State of Malaya, but nothing in this article shall prevent any citizen professing any religion other than Islam to profess, practise and propagate that religion, nor shall any citizen be under any disability by reason of his being not a Muslim. (1956-1957 Report) 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
Art 11 • (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.
Federal-State Powers: Art 74 • (1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List of the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).
List II, State Powers 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 • Islamic law relating to succession, marriage, adoption, divorce etc… • organisation and procedure of Syariah courts, which shall have jurisdiction only over person professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law*, • control of propagating doctrines and beliefs among Muslims;
Art 121(1A) • Article 121(1A) provides that the High Courts 'shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.’
Art 160 • "Malay" means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and -
Che Omar v PP 2 MLJ 55 • Meaning of “Islam” a. Art 3, Federal Constitution (rituals and ceremonies) b. Islam free standing: (a comprehensive way of life, jurisprudence and moral standards)
“Islam”:Lord President Tun Salleh Abas 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.
Original Intent • Was this the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century. Lord President Tun Salleh Abas
Pre Colonial Malaya (Tanah Melayu) • the sultans in each of their respective states were the heads not only of the religion of Islam but also as the political leaders in their states, which were Islamic in the true sense of the word, because, not only were they themselves Muslims, their subjects were also Muslims and the law applicable in the states was Muslim law • Under such law, the sultan was regarded as God`s vicegerent (representative) on earth. He was entrusted with the power to run the country in accordance with the law ordained by Islam, i.e. Islamic law and to see that law was enforced
Advent of British Colonialism • Treaties with Malay Sultans (Treaty of Pangkor) – progressive diminution of sultan’s authority by British Advisers • Introduction of secular law and cabining of Islamic Law: “the religion of Islam became separated into two separate aspects, viz the public aspect and the private aspect.”
Advent of British Colonialism 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
Sovereignty as alien concept 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
Retreat of Islamic Law from General to Particular Law • The law was only applicable to Muslims as their personal law. 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
Setting aside personal feelings • However, 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 law. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.
The Return of Personal FeelingsHigh Court: Meor Atiqulrahman • In my opinion, Article 3 of the Federal Constitution means that Islam is the dominant religion amidst other religions which are practised in the country like Christianity, Buddhism, Hindu and others. Islam is not of the same status as the other religions; it does not sit side by side nor stand side by side. Rather, Islam sits at the top, it walks first, and is placed on a mantle with its voice loud and clear. Islam is like a ‘jati’ tree – tall, firm and able. Otherwise, Islam will not be the religion of the Federation but just another of the many religions embraced in the country and everybody would be equally free to embrace religions, with none better or more than any other.
Judicial Revisionism of an Innocuous Clause? High Court: Meor Atiqulrahman • The designation of Islam as the religion of the Federation must be given the right interpretation. It means that the government is responsible for…spreading Islam as is done by the current government, for example building mosques and religious centres, sponsoring musabaqah al-Quran, reciting the al-Quran, restricting acts forbidden by Islam like banning alcohol, gambling, prostitution and undesirable cultures, and by right should include making laws to ensure that religious places of other religions do not exceed or compete with National / State Mosques in terms of location and prominence, size and overly-majestic architecture… • Other religions must be arranged and directed to ensure that they are practiced peacefully and do not threaten the dominant position of Islam, not just at the present but more importantly in the future and beyond.
Law, Politics, ReligionMalaysia Not Secular State, Says NajibJuly 17, 2007Bernama.com • "Islam is the official religion and we are an Islamic state. But as an Islamic state, it does not mean that we don't respect the non-Muslims. The Muslims and the non-Muslims have their own rights (in this country)," 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. • Najib said Malaysia does not want to be stereotyped with the Western definitions of a secular and a non-secular state.
RELIGION-MALAYSIA: Rediscovering SecularismBy Baradam Kuppusamy IPS News, 14 March 2006 Article 11 Coalition: fear creeping Islamic theocracy as government officials (65% Muslim) abdicating duty to defend secular constitution. • ''They took an oath to defend the constitution but they are not doing it... 'We want to reaffirm the supremacy of the secular constitution because there is a danger Malaysia is being turned into an Islamic state in a silent and insidious manner.'' • The minds of politicians, judges and civil servants have become clouded às they see themselves as Muslims first and citizens second,'' • ''Malaysia is not an Islamic state, Malaysia is a secular state and the constitution is the supreme law of the land,''
Art 11 (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.
Religious Freedom Issues • Jurisdictional issues: which court? • Scope of Religious Freedom in Malaysia • Content: free conscience? • Liberty vs. Public Order • Individual vs. Group Rights • Equality: differentiated regimes for believers? 3. Interpretive Method • Common Law Legal Transplant • Article 3 – status and effect?
Dual Court Structure • Status of Civil & Syariah Courts (hierarchy?) • Court of Judicature Act (1964): no case transfers from syariah court to High Court
Jurisdictional Conflicts: Civil & Religious Courts 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
Jurisdictional Conflicts: Civil & Religious Courts • Significance of Art 121(1A): enhanced status of syariah courts • Subordinate • Co-ordinate • Superior? • Political Context: Malay ethno-nationalism and Islamic supremacy
Interpreting Art 121(1A) • Which matters fall within syariah court jurisdiction? • Who decides this question?