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I entirely agree with Umran Kadir of Islamic state term too nebulous and his ultimate conclusion that Malaysia is a secular (and not an Islamic) country. And he is right to point out that no lesser person than the father of Malaysia, Tunku Abdul Rahman, once famously stated in Parliament that Malaysia is a secular state.

Indeed, Tunku actually said the following in Parliament (in response to an assertion by an MP that Malaysia was an Islamic state): 'I would like to make clear that this country is not an Islamic state as is generally understood, we merely provide that Islam shall be the official religion of the State.' (Hansard, May 1,1958).

Fortunately, he was not alone in making such declarations. Hussein Onn also once declared that Malaysia was set up 'as a secular state with Islam as the official religion' as enshrined in the Constitution.

In the very first document which preceded and built up what is now the Federal Constitution, known as the Reid Commission Report (1956-57), it was observed that in the 'memorandum submitted by the Alliance it was stated that the religion of Malaysia shall be Islam. The observance of this principle (as conceded by the Alliance itself) 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.' [para. 169].

In the White Paper which introduced the Constitution ('Federation of Malaya Constitutional Proposals 1957') it was stated (para 57) that there 'has been included in the proposed Federal Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular state.'

In the Cobbold Commission (1962), which report was the spring board to the creation of Malaysia, two members of the Federation of Malaya conceded that [Para 48(e)(ii)] 'the Federation would be secular'.

In his work, The Malaysian Constitution, Hashim Yeop Sani SCJ, as regards Article 3(1) of the Constitution (which states that 'Islam is the religion of the Federation'), said that that article 'has no legal effect.'

Professor Ahmad Ibrahim once wrote that it was telling in respect of the question whether Malaysia was a secular state that the Alliance in its submission to the Reid and Cobbold commissions 'did not ask that the constitution should also declare, as it did the Pakistan Constitution, that the state shall be an Islamic State'.

In Che Omar Bin Che Soh v PP [1988] 2 MLJ 55 (Supreme Court), Salleh Abas LP observed that by 'ascribing sovereignty to the ruler ie, to a human, divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus laws had to receive their validity through a secular fiat'.

The truth is that the inclusion of Article 3(1) was always hugely contentious. For example, it was recorded in the Cobbold Commission that there was outright opposition from non-Muslim communities in Sabah and Sarawak to the provision making Islam the religion of the Federation. However, there was a process of 'give and take' or 'quid pro quo', in which Article 3(1) was left to remain in the Federal (but not the state) Constitution in return for recognition that the Federation will always remain secular.

That was the 'modus vivendi' (or social contract, if you will) which was reached, but which is now being repudiated and negated by Mahathir and revisionist modern courts.

That this bodes ill for the Federation was presciently sketched (admittedly in respect of another provision, but the spirit runs parallel) by Raja Azlan Shah LP (as His Highness then was) in Dato Mentri Othman Baginda v Dato Ombi Syed Alwi Syed Idrus [1981] 1 MLJ 29 (Federal Court), where he observed that the Federal Constitution was enacted as a result of negotiations and discussions between the British Government, the Malay Rulers and the Alliance Party relating to terms on which independence should be granted.

One of its main features is the enumeration and entrenchment of certain rights and freedoms which pre-existed Merdeka, and the purpose of entrenchment is to protect them against encroachment.

In other words, according to the then Lord President, such provisions are graphic examples of the depth of our heritage and the strength of our constitutional law to guarantee and protect rights and freedoms which already exist against encroachment, abrogation or infringement.

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