There are some law issues being argued of late, among them like Secular state and Islamic country, etc. Shad Saleem Faruqi Professor of Law at UiTM clarified that:
De facto law minister Datuk Seri Nazri Aziz crossed
swords with DAP’s Lim Kit Siang over the latter’s claim that Malaysia is
a secular state.
The law minister correctly pointed out that nowhere in the Constitution is there any mention of the word “secular”.
as Islam is recognised in the Constitution as the religion of the
federation, it would be improper to regard the country as a secular
In support of this view, one can point out that the word “Islam” is mentioned at least 24 times in the Constitution, the words Mufti, Kadi Besar and Kadi
at least once each. In Schedule 9, List II, paragraph 1, state
legislatures are permitted to apply Islamic law to Muslims in a variety
of civil areas.
The state legislatures are also permitted to
create and punish offences by Muslims against the precepts of Islam
except in relation to matters within federal jurisdiction.
Syariah courts may be established. Under Article 121(1A), syariah courts are independent of the civil courts.
the other side, Lim correctly pointed out that Malayan constitutional
documents and pronouncements by early leaders indicate that at its birth
the federation was meant to be a secular state.
To back this
view, one can point to the Supreme Court decision in Che Omar Che Soh’s
case that although Islam is the religion of the federation, it is not
the basic law of the land.
Article 3 on Islam imposes no limits
on the power of parliament to legislate contrary to the syariah. Islamic
law is not the general law of the land either at the federal or state
It applies only to Muslims and that too in limited and
specified areas. It is noteworthy that non-Muslims are not subject to
syariah or to the jurisdiction of the syariah courts.
Tun Dr Mahathir Mohamad’s declaration on Sept 29, 2001 that Malaysia is
an Islamic country, this debate ignites periodically and no firm
conclusion is ever possible because of the problem of semantics – the
assignment of different meanings to the words “secular” and “theocratic”
by participants in the discourse.
My personal view is that if by
a theocratic state is meant that the law of God is the supreme law of
the land and that the temporal ruler is subject to the final direction
of the theological head, then clearly Malaysia is not a theocratic state
due to the presence of a supreme Constitution and the overriding power
of secular authorities over the religious establishment.
same time if by a secular state is meant that law and religion are
separated from each other; that there is no legally prescribed official
religion; that religion is not interwoven into the affairs of the state;
that no state aid is given to any religious creed; and that religion is
left entirely to private establishments, then Malaysia is certainly not
a secular state.
Then how should we be described? It is
submitted that the Malaysian legal system is neither fully secular nor
fully theocratic. It is hybrid. It permits legal pluralism.
avoids the extremes of American style secularism or Saudi or Taliban
type of religious control over all aspects of life. It walks the middle
path. It promotes piety but does not insist on ideological purity.
Muslims are governed by divinely ordained laws in some fields but in others their life is regulated by Malay adat and by secular provisions enacted by elected legislatures. Non-Muslims are entirely regulated by secular laws.
In sum, the secular versus theocracy debate is full of semantics and polemics and will take us nowhere.
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM.
Malaysia a transit point for terrorists or a terrorist recruitment centre?