Cabinet has no power to usurp apex court on secular Malaysia, say legal eagles

Any attempt by Putrajaya to declare that Malaysia is not a secular state goes against a 1988 decision by the then Supreme Court that held that the law in Malaysia was secular, say constitutional lawyers and academics. – The Malaysian Insider pic by Faisal Salehhuddin, June 20, 2014. 

A decision by the highest court in the land 26 years ago established that Malaysia is a secular state, and neither the prime minister nor his cabinet members have the authority to override that decision, constitutional lawyers and academics said.

Any attempt to do so would be acting outside their scope as the executive arm of the government, as their statements were mere opinions and had no force of the law, they said, referring to claims made in Parliament by Minister in the Prime Minister's Department Datuk Seri Jamil Khir Baharom that Malaysia was not a secular state.

In fact, they added, such statements violated the principle of separation of powers enshrined in the Federal Constitution that the executive administers and runs the country; the legislature makes laws; and the judiciary interprets the laws.

In 1988, a five-man bench of the then Supreme Court in the case of Che Omar Che Soh v Public Prosecutor had held that the law in Malaysia was secular.

Jamil Khir on Monday told DAP’s Sibu MP Oscar Ling Chi Yew in a written parliamentary reply that the formation of Malaysia was based on the Islamic administration of the Malay sultanates and that the Malay sultans were heads of Islam in their respective states.

“This was reinforced by Article 3 of the Federal Constitution which places Islam as the religion of the federation, though other religions can be practised peacefully anywhere within the federation,” he said in the reply.

Professor Gurdial Singh Nijar of Universiti Malaya's Law Faculty said ministers like Jamil Khir would be seen as usurping the function of the judiciary if they kept making conflicting statements.

"The 1988 ruling is binding on all, including the executive branch of the government, and must be respected," he added.

Otherwise, he said, the rule of law as reiterated in the Rukunegara and the separation of powers would be breached.

Gurdial said it would be superfluous to refer this question to the Federal Court again for adjudication as suggested by DAP MP Gobind Singh as the highest court had already given its view.

Lawyer Gurbachan Singh Johar said the Supreme Court ruling defined "Islam" or "Islamic religion" in Article 3 to mean acts that were confined to rituals and ceremonies.

"Moreover, there is no provision in the Constitution that states Islamic law will take precedence over civil rights of citizens," he said.

He said historical accounts of the formation of Federation of Malaya and later, Malaysia, also revealed that the architects of the creation of this nation had always intended the country to be secular.

Gurbachan said Jamil Khir’s reply to Ling clearly contradicted the judicial pronouncement of a competent civil court.

"At best, the statement was mere opinion of the present government to influence the public," said Gurbachan, a former law lecturer in Universiti Malaya.

Lawyer Nizam Bashir said legal experts would continue to have opposing views because the Malaysian Constitution contained Islamic and secular features.

"For example, states within Malaysia are allowed to make laws for Muslims and state governments are authorised to collect tax from the sale of toddy.”

He also said the legal system in Malaysia was similar to India’s where Muslims were also subjected to both civil and Shariah law while non-Muslims were governed by civil law.

"But the question that begs an answer is how secular are we compared with France where religion cannot be manifested in public life," he said.

France is a totally secular state, where religion is a private matter and kept out of the public domain.

Sarawak lawyer Baru Bian called Jamil Khir an “uninformed minister”, and said it was deplorable that Umno politicians were twisting facts to mislead the people for political gain.

Baru, who is Sarawak PKR chief, said there was sufficient evidence in historical documents to prove Malaysia was a secular state.

He said the first prime minister Tunku Abdul Rahman had referred to Malaysia as a secular state, and not an Islamic one, on a number of occasions.

Tunku was first recorded telling Parliament on May 1, 1958: “I would like to make it clear that this country is not an Islamic state as it is generally understood; we merely provided that Islam shall be the official religion of the state.”

The Star had also reported Tunku speaking on February 8, 1983, at a gathering to celebrate his 80th birthday, where he said “the country has a multiracial population with various beliefs. Malaysia must continue as a secular state with Islam as the official religion”.

The newspaper also reported that Malaysia’s third prime minister, Tun Hussein Onn, supported his predecessor in rejecting Malaysia being made an Islamic state.

“The nation can still be functional as a secular state with Islam as the official religion,” Hussein said.

Baru said during the talks leading to the formation of Malaysia, the non-Muslim communities of Sarawak had voiced their reservations about Islam being the official religion of the federation.

Referring to historical documents, Baru said it was finally agreed that, “while there was no objection to Islam being the national religion of Malaysia, there should be no state religion in Sarawak, and the provisions relating to Islam in the present Constitution of Malaya should not apply to Sarawak”.

“The absence of a state religion was key to Sarawak’s agreement to join in the formation Malaysia in 1963, due to the wisdom of our forefathers.

“Do not tell us now that we are part of an Islamic state. Sarawakians will not accept the unilateral changing of the contractual terms by one party,” Baru said.

He said the people of Sarawak 51 years ago would never have agreed to be part of the federation if the political, social and religious landscape of Malaya in 1961 had been what it is in the peninsula today.

“The Malaysia Agreement would not have seen the light of day as Sarawakians would never have agreed to become partners with a country where racists and religious bigots are allowed to spout their unsavoury propaganda while an emasculated leadership cowers in the corner,” he added.

He also said that if Malaysia was an Islamic state as claimed by Jamil Khir, he would propose to the state government that the Malaysia Agreement of 1963 be brought to an international forum for adjudication for misrepresentation and fraud.

- TMI