Director of Suara Rakyat Malaysia (SUARAM), Kua Kia Soong wrote an article, “Keep the Constitution secular and inclusive” which was published on SUARAM’s website on February 20, 2017, in which he stated his view on the move to make Rukun Negara as the preamble to our Federal Constitution of Malaysia.
What really caught my attention was the fact that the SUARAM leader:
- claims the Federal Constitution as secular and,
- disagree with the first principal of the Rukun Negara which is, “Belief in God”.
The arguments in the press statement are totally out of context as Kua Kia Soong fails to understand both the Federal Constitution and the definition of the word, “secularism”.
The fact is, t is just impossible for the Federal Constitution to be secular when Article 3(1) of the Federal Constitution says that Islam is the religion of the Federation.
Of course, I too do not agree with the idea of making the Rukun Negara as the preamble to our Federal Constitution, but not because I do not agree with any of its five principals; instead my reasons are:
- The Rukun Negara it is not a law, therefore having the Rukun Negara as a preamble will undermine the supreme law of the Federation.
- Adding a preamble will not help the people to understand the Federal Constitution better.
- Having the Rukun Negara as a preamble will increase the probability of misinterpretation of the Federal Constitution.
- I cannot see any reason why we need a preamble to the supreme law of our Nation.
Below are my answers (in blue) to Kua Kia Soong’s article in red:
There is an attempt by some “eminent persons” to install the Rukunegara as the preamble to the Malaysian Constitution. If there is indeed a need for such a preamble, it ought to reaffirm the principles of secularism and inclusiveness in the Constitution.
There are no “principles of secularism” in the Federal Constitution of Malaysia. The third Article of the Federal Constitution states that Islam is the Religion of the Federation and that itself denies any allegation that our Federal Constitution is secular. Furthermore, neither can we find any Article in the Federal Constitution that says the Constitution is secular nor can we find the word, “secular” in the Constitution.
In my humble opinion, any attempt to have a preamble to our Constitution needs first to be discussed by all the communities in the country including the Orang Asli, debated and passed through Parliament; secondly, it has to be inclusive.
This “national philosophy” of Rukunegara was proclaimed on Merdeka Day, 1970 as a response to the racial riots of May 13, 1969, when the country was still under a state of Emergency.
Rukun Negara is drafted as a national ideology to bond Malaysians of all races in order to establish peace among the races and to prevent future racial tension in order to avoid racial riots like the May 13 tragedy.
Like the National Culture Policy, it was drafted by selected “eminent persons” rather than involving representation from all Malaysian communities and it did not go through a democratic process of debate, nor was it passed by the Federal Parliament.
The Rukun Negara “did not go through a democratic process of debate, nor was it passed by the Federal Parliament” because it is not a law and was not meant to be a law, therefore, it does not have to go through that process.
While most of its aspirations are noble and acceptable, namely, “achieving a more perfect unity…; preserving a democratic way of life; creating a just society…; guaranteeing a liberal approach towards her rich and varied cultural traditions; and building a progressive society…”; nevertheless, its principle of “Belief in God” is not inclusive of all Malaysian faiths.
There is nothing wrong with the first Principle of the Rukun Negara. “Belief in God” is chosen as the first Principle of Rukun Negara because:
The People and Nation were established based on our strong faith in God. It is indeed in the name of God that the People and Nation were established as a sovereign People and Nation. – Department Of National Unity And Integration (Prime Minister Department)
“Belief in God” is not against the Federal Constitution. Every religion has its god, even those who practice animism worship certain ‘figure of god’. In the case of atheism, there is no constitutional provision that recognises atheism or other liberal ideologies because our Nation is not established based on liberalism.
Any preamble should include all peoples and stress social justice and democracy
In the first place, there is no need for a preamble. Secondly, it is the peoples who must respect the laws and the ideologies of their countries and not the other way around.
The preamble to the US Constitution, for example is short and concise, stressing that their nation is defined and formed by its people and what it stands for:
“We the People … in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution…”
Although peopled largely by Christians, the preamble to the US Constitution makes no reference to a God or monarch. Apart from serving as an executive summary, it merely sets the stage for how the new government defined by the Constitution will establish justice and secure the blessings of Liberty. Thus, their preamble is absolutely secular and the first three words are perhaps the most important: “We the People…”
It is clear that Kua Kia Soong does not understand the basic principles of our Nation. It is illogical for him to expect our Federal Constitution to follow the Constitution of the United States that “makes no reference to a God or monarch” because:
- The United States is a secular country while Malaysia is an Islamic country.
- The United States is a republic while Malaysia has nine sovereign Sultans.
The SUARAM leader wrote, “Although peopled largely by Christians, the US Constitution makes no reference to a God”. The US, as a secular country it is unconstitutional for the US Constitution to make any reference to any God. So, even if all of the United States’ citizens are Christians, it is still unconstitutional for its Constitution to make any “reference to a God”. And it is crazy for the US Constitution to make any reference to a monarch because the country does not have a monarch.
Perhaps India is a better comparison since it was a former colony like ours. The preamble to the Constitution of India actually makes its secularism explicit:
Again, Kua Kia Soong’s facts are wrong because Malaysia is not a former colony like India. According to Profesor Emeritus Tan Sri Dr. Khoo Kay Kim, British has never conquered the Malay States or the Tanah Melayu except for Pulau Pinang, Melaka and Singapura. The rest of the Tanah Melayu are independent sovereign countries as proven by a few court cases such as Mighell v. the Sultan of Johore (1983) and Duff Development Co v Kelantan Government (1924).
If the Malay States were conquered by British, then our nine sovereign Sultans will lose their sovereignty like what happened in India. The British attempted to conquer the Malay States through multiple ways but failed. (Please read: “Kebenaran Di Sebalik Sejarah Penubuhan Persekutuan Malaysia“)
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation…”
Thus the main purposes of having a preamble to the Indian Constitution are again, first, to refer to the source that is responsible for the authority of the Constitution (We, the People…), and to spell out the objectives of the Indian Constitution, namely, Equality, Justice, Fraternity and Liberty. Like the US constitution, there is no insistence on “Belief in God”.
Another out of context argument by the SUARAM leader. Again, unlike both India and the United States, Malaysia is neither a secular state nor a republic.
The importance of being secular
Malaysia is not a secular state.
So what is the significance of including “Belief in (the monotheistic) God” in the hypothetical preamble to our Constitution?
The Federal Constitution does not need a preamble, so there is no “significance of including “Belief in (the monotheistic) God” in the hypothetical preamble to our Constitution”.
Since the prevalence of Islamic populism in the Eighties, there has been attempts by politicians including one or two Prime Ministers to claim that Malaysia is an Islamic state. Nonetheless, this attempt has been rightfully frustrated by among others, Bapa Malaysia and the judiciary in the country.
Those are common statements made by people who either do not understand the Federal Constitution or purposely trying to misinterpret the supreme law. One must learn to accept facts and not to live in denial, or worst, trying to mislead the people with false facts. The supreme law of the country is the Federal Constitution, so any statement or any attempt by any politician or by any activist like Kua Kia Soong “which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”.
4. (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. – Article 4(1)
Article 3(1) of the Federal Constitution enshrines Islam as the Religion of the Federation hence making Malaysia an Islamic state no matter what were said by our former Prime Ministers.
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. – Article 3(1)
For example, on his 80th birthday on February 8, 1983, Tunku’s main message to the Barisan Nasional leaders was not to turn Malaysia into an Islamic State, stressing that Malaysia was set up as a secular State with Islam as the official religion and that this was enshrined in the Constitution. This was echoed a few days later by the third Malaysian Prime Minister, Tun Hussein Onn on his 61st birthday on February 12, 1983.
The Barisan Nasional leaders do not have to turn Malaysia into an Islamic state because from the very beginning Malaysia is already an Islamic state. It is the Supreme law of the land, which is the Federal Constitution that enshrines Islam as the Religion of the Federation, making Malaysia an Islamic Nation.
Statements made by both Tunku and Tun Hussein Onn are not above the Supreme law of the land and cannot change the words written in the Federal Constitution.
The Alliance Memorandum submitted to the Reid Constitution Commission on Sept 27, 1956, clearly stated that “the religion of Malaya shall be Islam … and shall not imply that the state is not a secular state.” Thus, both the Reid Commission in 1957 and the Cobbold Commission in 1962 characterised Malaysia as a “secular state”.
The Reid Commission was only given the responsibilities to draft the Federal Constitution but it is the Malay Royal Rulers who had the final say on the matter and gave the endorsements for the Articles chosen. Both the Reid Commission and the Cobbold Commission are not law makers of our country hence their words and intentions are not laws. Their intentions cannot change the words written in the Supreme law of our Nation.
In the Court of Appeal’s judgement of the case, Titular Roman Catholic Archbishop of Kuala Lumpur v. Menteri Dalam Negeri and Kerajaan Malaysia, the then Federal Court Judge, Tan Sri Mohamed Apandi Ali stated:
[31] It is my observation that the words “in peace and harmony” in Article 3(1) has a historical background and dimension, to the effect that those words are not without significance. The Article places the religion of Islam at par with the other basic structures of the Constitution, as it is the 3 rd in the order of precedence of the Articles that were within the confines of Part I of the Constitution. It is pertinent to note that the fundamental liberties Articles were grouped together subsequently under Part II of the Constitution.
Most importantly, former Lord President of the Malaysian Judiciary, Tun Mohamed Salleh Abas in Che Omar bin Che Soh v Public Prosecutor (1988), stated that the term “Islam” in Article 3(1) of the Federal Constitution meant “only such acts as relate to rituals and ceremonies… the law in this country is … secular law.” The previous Lord President Tun Mohamed Suffian Hashim similarly wrote that Islam was made the official religion primarily for ceremonial purposes, to enable prayers to be offered in the Islamic way on official public occasions, such as the installation or birthday of the Yang di-Pertuan Agong, Independence Day and similar occasions.
Che Omar Che Soh v Public Prosecutor (1988) 2 MLJ 55 is an old case which is no longer a good law. Furthermore, in the judgement of the case, Tan Sri Salleh Abbas has never said that Malaysia is a secular nation but Tan Sri Salleh Abbas only said that secular laws were used in Malaysia.
We must look at the judgements of other more important and prominent later court judgements including the Court of Appeal case of Meor Atiqulrahman bin Ishak & Ors v Fatimah Binti Sihi & Ors, High Court case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan, Federal and Court of Appeal case of Titular Roman Catholic Archbishop of Kuala Lumpur v Kementerian Dalam Negeri & Kerajaan Malaysia, and a lot more.
Against the background of confounding populist politicians, one would think that it is even more crucial – if there is a need for a preamble to our Constitution – for such a preamble to reaffirm the secular and inclusive character of our Constitution.
If there is a real need for a preamble to our Constitution, the preamble must reaffirm the Islamic character of our Constitution.
In a secular state, the state is officially neutral in matters of religion, supporting neither religion nor atheism. It treats all its citizens equally regardless of religion. Secularism is not merely desirable but essential for the healthy existence of a pluralist society such as ours. It implies a separation that exists between the State and religion. This does not detract from the fact that the right to religion is a fundamental right and the denial of this freedom is a violation of the basic principles of democracy.
This proves that Malaysia is not a secular state. The Article 3(1) of the Federal Constitution states, “Islam is the Religion of the Federation”, so it is impossible to classify Malaysia as a secular state.
Monotheism is not the only religion in this world
Monotheism is not a religion.
Secularism is also important in regulating the relation between the State and various religious groups on the principle of equality. When the Rukunegara espouses only “Belief in (Monotheistic) God”, it forgets that there are Malaysians of other faiths based on polytheism or animism and ancestor worship.
Malaysia is not a secular state because it has a religion, which is Islam. In fact, it is unconstitutional to regulate “the relation between the State and various religious groups on the principle of equality” because as the Religion of the State, Islam is not equal to other religions. In the High Court decision of the case, Meor Atiqulrahman bin Ishak & Ors v Fatimah Sihi & Ors[2000] 1 MLJ 393, the then Justice Mohd Noor Abdullah had clearly clarified this matter:
In my opinion, “Islam is the religion of the Federation but other religions may be practied in peace and harmony” means that Islam is the main religion among other religions that are practied in the country such as Christians, Buddhists, Hindus and others. Islam is not equal to any other religion, not sitting together or stand upright. It sits on top, he walked past, located in the field and his voice heard. Islam is like teak trees – tall, strong and skilled. If not so Islam is not the religion of the Federation but is one among several religions practised in the country and everyone is equally free to practice any religion he professes, no more one than the other. Provisions ‘Islam is the religion of the Federation’ shall be defined and reviewed with the objective to read other provisions of the Constitution, especially Article 89, 152, 153 and 14.
I am truly surprised that our “eminent persons” cannot see that such an imposition of “Belief in God” does not include polytheists, animists and ancestor worshippers. Their attempt to argue that, despite their inclusion of “Belief in God” in the hypothetical preamble, other faiths of minorities are in fact protected by the Malaysian Constitution, unwittingly demonstrates the secularism and inclusiveness of our Constitution.
Now, if the Constitution already guarantees the equal rights of Malaysians of all faiths – monotheistic, polytheistic, atheistic, animistic as well as ancestor worshippers – is it not presumptuous if not sacrilegious to try to impose “Belief in God” on ALL Malaysians?
There is no other religion that was mentioned in the Federal Constitution other than Islam which shows the status of Islam as the Religion of the land. The fact that Malaysia respects minority religions despite being an Islamic state proves the beauty of Islam that respects other religions.
It is a pity that not only there are people who cannot understand and appreciate this fact but they are trying hard to change the history, erase the Social Contract and challenge the Supreme law of the land by claiming that Malaysia is a secular country. As the one and only religion of the Federation, Islam must be respected by people of all faith.
Even though people of other religions can practise their religions as long as it is in peace and harmony towards Islam, but there is no provision in the Federal Constitution to protect other religions other than Islam, for example, the Article 11(4). The interpretation of the term, “in peace and harmony” in the Article 3(1) was clearly made by the then Federal Court Judge, Tan Sri Apandi Ali in the Court of Appeal case of Titular Roman Catholic Archbishop of Kuala Lumpur v Kementerian Dalam Negeri & Kerajaan Malaysia:
The interpretation of the term, “in peace and harmony” in the Article 3(1) was clearly made by the then Federal Court Judge, Tan Sri Apandi Ali in the Court of Appeal case of Titular Roman Catholic Archbishop of Kuala Lumpur v Kementerian Dalam Negeri & Kerajaan Malaysia:
[33] In short, Article 3(1) was a by-product of the social contract entered into by our founding fathers who collectively produced the Federal Constitution, which is recognized as the Supreme Law of the country. It is my judgment that the purpose and intention of the insertion of the words: “in peace and harmony” in Article 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any possible and probable threat to the religion of Islam. It is also my judgment that the most possible and probable threat to Islam, in the context of this country, is the propagation of other religion to the followers of Islam. That is the very reason as to why Article 11(4) of the Federal Constitution came into place.
[42] It is my judgment that, based on the facts and circumstances of the case, the usage of the word “Allah” particularly in the Malay version of the Herald, is without doubt, do have the potential to disrupt the even tempo of the life of the Malaysian community. Such publication will surely have an adverse effect upon the sanctity as envisaged under Article 3(1) and the right for other religions to be practiced in peace and harmony in any part of the Federation. Any such disruption of the even tempo is contrary to the hope and desire of peaceful and harmonious co-existence of other religions other than Islam in this country.
To conclude, the concept of secularism is derived from the principle of democracy and secularism becomes meaningful only when it refers to democratic equality and includes diverse peoples of all faiths, beliefs and practices.
To conclude, neither the words “democracy” nor “secular” are ever mentioned in the Federal Constitution. Malaysia is an Islamic state with the DYMM Yang di-Pertuan Agong as the head of state and the Prime Minister as the head of the government which is democratically elected by the people through General Elections.
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