Secular Malaysia in dire need of harmony laws

In a secular nation like Malaysia, the choice of one not to attend the Better Beer Festival on grounds of religion carries an equivalent weight of freedom as one who chooses to attend the beer festival.

COMMENT

By Khoo Suk Chyi

In an interesting occasion back in May 1958, shortly after the Malayan Independence, a Muslim member submitted a motion in the Federal Legislative Council seeking to prohibit the serving of alcoholic drinks at all functions of the federal government on the grounds that the then Malaya had been “officially recognised as an Islamic State” and that everyone “must, therefore, respect the rules of Islam and Islamic laws”.

In response, then prime minister Tunku Abdul Rahman rejected the proposal and firmly maintained that Malaya was a secular nation.

He said: “I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provide that Islam shall be the official religion of the State.”

One’s right to freedom of religion is expressly spelt out in Article 11 of the Federal Constitution. Article 11(1) reads: “Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.”

However, one’s right to freedom of religion is not absolute. Article 11(5) of the Constitution provides: “This Article does not authorise any act contrary to any general law relating to public order, public health or morality.”

The question now arising is what amounts to an “act contrary to any general law relating to public order, public health or morality”.

It must first be borne in mind that Malaysia was and has always been a secular nation. Although Islam was given a status as the official religion of the nation, other religions may be practised by Malaysians under Article 3(1) of the Federal Constitution (the “Constitution”).

In preparing and drafting the Constitution, the Reid Commission noted in their report: “In the memorandum submitted by the Alliance it was stated the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religions and shall not imply that the State is not a secular State.”

In Che Omar bin Che Soh v Public Prosecutor (1988) 2 MLJ 55, the Supreme Court refused to rule that the death penalty for drug trafficking offences was unconstitutional on grounds of inconsistency with the principles of Islam because Malaysia was a secular nation practising secular legislations regardless of one’s yardstick of morality.

Then Lord President Salleh Abas said: “… 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.”

Coming back to the question arising, there are two points which must be noted. -FMT