The continued debate over whether Malaysia is an Islamic or a secular state may just be nothing more than a meaningless tussle over semantics.

NONE Constitutional law expert Abdul Aziz Bari puts it thus: "It is a matter of academic interest and does not really mean anything to the vast majority of the men and women on the street."

He also believes that instead, individuals fixated on the matter "should get their priorities right."

Who is he referring to? Abdul Aziz names, among others, National Human Rights Society (Hakam) president Malik Imitiaz and veteran lawyer Karpal Singh, who keep bringing up the case of Che Omar bin Che Soh as decided by the Supreme Court in 1988.

Secular state defenders often use former lord president Salleh Abas' judgement in the case as proof of Malaysia's status.

Abdul Aziz argues that Salleh's statement, "framers intended to keep secular law" cannot be taken as conclusive. He says that Salleh meant ‘framers' in a general sense and did not define what was meant by the Alliance when they referred to a secular state.

In conclusion, the argument made by secular state proponents is flawed, according to Abdul Aziz.

While the pro-secular groups keep denying the inherent Islamic character of the constitution, Abdul Aziz cautioned that Islamists - like Pas hardliners Harun Taib dan Bakar Chik - keep asserting the secular character of the constitution to justify their rejection of it.

He said, "These Islamists say that they will throw the constitution out of the window and put a truly Islamic one in its place."

Abdul Aziz pointed out that despite differences in their outlook and aims, the two groups do eventually converge in a conclusion - that the current constitution is secular.

But regardless of whatever the issues are, Abdul Aziz rubbished both arguments as "elements that we do not need at the moment."

‘Malaysia is not a secular state'

Abdul Aziz opines that legally Malaysia is not a secular state given the provision in article 3 of the Constitution which says 'Islam is the religion of the federation'. He also cited article 12(2) which allows authorities to use public funds for Islamic purposes.

The above provision, he argued, underlines the fact that Islam is allowed and plays a key role in Malaysian governance.

"Such is not the case in a truly secular state," he added.

In a secular state, Abdul Aziz says, there is a clear separation between the religion and the state, whereby religion would not be allowed to play a role in the administration.

He opined that the provisions merely seek to retain the character of this land that has been around before the British came, which they respect and have never tried to remove.

The whole secular versus Islamic issue, Abdul Aziz argued, is just a red-herring which is being used by certain parties.

"It is also a thorn in the flesh in Barisan but their media plays it down.

"Such questions (about secular status) are not helpful in our attempt to bring Malaysians to get together. And the above provisions are actually innocuous; they are not harmful to non-Muslims."

A matter of semantics

Abdul Aziz said the secular or Islamic state debate is really about semantics.

"In certain contexts, the term secular is quite acceptable in Islam as the Holy Prophet once ruled that matters falling under the worldly or secular purview are left open for us to decide," he added.

Abdul Aziz explained that the ruling was made in the context of a farmer who followed the prophet's advice on how to increase the output of his orchard. It turned out to be bad advice, which prompted the Holy Prophet to declare that the farmer knew better about his work.

As such, it can be argued that in Islam there are provisions for ‘secular' issues.

Abdul Aziz also poked holes at UM law lecturer Azmi Sharom's argument that Malaysia must be declared a secular state.

Azmi, according to Abdul Aziz, said that ‘to argue otherwise is bad as it would lead to situations whereby religion becomes the benchmark'.

Abdul Aziz says that his argument underlines an ignorance of the true nature of the Malaysian legal system, especially about the sources of Malaysian law.

While it is true that parliament and state assemblies are the lawmakers, Abdul Aziz says that they in turn derive law from many sources including English common law as well as Islamic law.

Various statutes contain provisions on Islamic law, which Abdul Aziz said, underline the point that Islamic law already forms a part of the Malaysian law corpus.

To say that our law is taken only from the common law of England is wrong, he added, pointing out other sources of our law, like the National Land Code, which was modelled after the Australian Torrens System.

More pressing concerns

"Most importantly the constitution does not say a word about (the secular state issue)," he added.

But in the end, Abdul Aziz said, what is more pressing now are issues of human rights, rule of law, freedom of speech, accountability and greater democracy in the system.

Abdul Aziz cited India as an example where the state is declared secular and yet sees many bloody clashes involving people of different faiths.

Declaring the state and constitution out-and-out secular, he reasons, does not guarantee a peaceful coexistence.