Most states expound the freedom of belief or religion. Religion is both belief and practice.

The First Amendment to the American Constitution permits the free exercise of religion. Freedom to believe can hardly be denied. It's the freedom to exercise and practise one's beliefs that are at issue.

The Supreme Court in the United States (US) in 1976 declared that the American Constitution requires its government to pursue a policy of neutrality regarding religion as among religions and between religious activities and other activities.

The United Kingdom (UK) has no written constitution. She is, however, bound by the European Convention on Human Rights under which everyone has the right to freedom of expression, conscience and religion. Malaysians would easily deem the US and UK as secular states.

In 1976, UK passed the Motor-Cycle Crash Helmets (Religious Exemption) Act, giving Sikhs an exemption from the Road Traffic Act, 1972. The 1972 Act makes it a criminal offence to ride a motorcycle without a crash-helmet. A male Sikh wears a turban as a religious observance.

In moving the 1976 UK law, Sidney Bidwell MP asked, "Can we seriously say that we are carrying on our tradition of religious tolerance if society imposes its will in such a way that a Sikh begins to turn away from his family religion ?" Religious tolerance in this example is neither indifference of religion nor positive assertion of religion. Religious tolerance as governance is the withdrawal of state interference over a range of individual activity.

From these examples, the allegation that a secular state is anti-religion is a secular heresy of sorts. A secular liberal state does not get involved with matters religious or inhibits religious expression and activities. The secular liberal state is neutral towards religion.

Twin principles

State neutrality towards religion, i.e. the separation of state and religion, means that there is no favoured role of religion in the public forum which may be used by religion to impose sectarian views upon other religions or non-religious people.

In a separation of state and religion scenario, religion is 'privatised'. Religious observances and beliefs are the private matters of individuals and beyond the scope of governmental regulation for as long as the activities do not develop into a public harm.

The twin principles of separation of state and freedom of religion regulate the notion of state neutrality. These two principles correspond to two legal norms, namely the principle of non-establishment of religion and the principle of free exercise of religion. These legal norms are entrenched, for example, in the constitutions of the US and Australia.

As a quick illustration, these two principles as applied would not, for example, support any coercive imposition of specific religious observance by the state upon its citizens.

The application of these two principles is not without problems. There is a constant tension. The free exercise of religion principle calls for some degree of government accommodation of religion. For example, a US Court in 1972 invalidated criminal penalties upon Amish parents who refused to send their children to a public high school.

The non-establishment of religion principle calls for suspicion towards any accommodation of religion. Perhaps it is easier for us to identify with the case of wearing headscarves for Muslim school children in France and Turkey. This was not allowed in both countries.

It is hard for some to understand that the personal act of covering one's head as a religious observance threatens the creation of a theocracy and thus contravenes the non-establishment of religion principle. It could well be argued that the wearing of headscarves is a private act, and call is to be made for religious tolerance not quite unlike the turbaned Sikh case.

It is also possible to argue that even if the wearing of scarves is to be voluntary, given children's impressionability and need to conform, the pressure on Muslim children who do not wear headscarves would be very strong. These other children run the risk of being stigmatised and labelled as outsiders.

Notwithstanding its voluntary character, the practice would be seen by the children as a norm, promoted and encouraged by the school and hence offends the non-establishment principle. There are also views expressed by groups in Europe that the decision to disallow headscarves in school is actually anti-Muslim prejudice or Islamophobia.

Original intention in Constitution

It is not the intention of this very short article to get into the plethora of legalese of these two celebrated principles. Much of this type of constitutional jurisprudence in any case, has yet seen its day in our own courts. This brief mention is merely indicative of the issues deliberated and adjudicated.

We have heard statements of politicians on the secular or Islamic nature of our political arrangement under the Federal Constitution. Was there an original intention?

The report of the 1957 Constitutional Commission recorded the proposal of the Alliance that "the religion of (the Federation) 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 " (writer's emphasis).

However, the Commission noted that there is nothing in the draft Constitution to affect the recognition of Islam or to prevent the recognition of Islam by legislation or otherwise in any respect which does not prejudice the civil rights of non-Muslims. The majority of the Commission's members thought it best to leave the matter alone.

The decision of the Commissioners on the matter was also guided by the Counsel for the Rulers who conveyed the intention of the Highnesses " that it would not be desirable to insert some declaration such as has been suggested that the Muslim Faith or Islamic Faith be the established religion of the Federation."

The report also noted that the Commissioner from Pakistan, Mr Justice Abdul Malik in his Note of Dissent, was of the opinion that a declaration as suggested by the Alliance should be inserted in the Constitution. According to Justice Abdul Malik the declaration that Islam is religion of the state "will not prevent the state from being a secular state."

Justice Abdul Malik added that all constitutions of the individual Malay states already have a similar provision and "all that is required to be done is to transplant it from the . constitution (of the individual states) and to embed it in the Federal".

The draft proposed by Justice Abdul Malik reads: "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 disability by reason of his being not a Muslim."

The final draft appears as Article 3 (1) of the Federal Constitution. It reads: "Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation."

The expressions of the Alliance and Justice Abdul Malik that the inclusion of such a declaration does not imply that we are not a secular state are not part of the expressed provisions of the Constitution.

Cover all bases

We are into our 44th year this month and the ramifications of whether we are secular or Islamic in nature are just slowly sinking into our consciousness. It is certainly not a simple case of opting one over the other or even making a claim of a hybrid nature. There are implications flowing from each course which must be carefully studied.

We already have a growing set of unresolved problems which have seen public debate. Suhakam received at least two memorandums last year on the freedom of religion. One came from a group of Muslims who opposed a rehabilitation law for Muslims proposed for the federal territories.

A memorandum from a lawyer, Lee Min Choon, contained the problems of non-Muslims in the belief and practice of their religion and the issue of conversions. This year, the Shiah (Muslim minority here) support group lodged their complaint. Suhakam has not put out its report.

Our own constitutional jurisprudence of the nature of our Constitution is still in its infancy. Some decisions have merely ruled on the basis of which court has jurisdiction to try the matter as opposed to viewing the case in the secular state-Islamic state framework.

There are choices. We can choose to entrust the matter to the political process or to proceed with constitutional checks on legislative and executive action, applied and interpreted by the courts. It would be prudent to cover all bases, including running up our grievances to Suhakam. In a broad sense, all three courses are political processes. The original intent waits to be discovered