My views on hudud


Ivanpal Singh Grewal, The Malaysian Insider

Malaysia has once again been thrown into a political vortex and the credit this time goes to Parti Islam Se-Malaysia (PAS) who have expressed their intention to table a Private Member’s Bill in Parliament to provide for the enactment of a Shariah Criminal Offences (hudud) Enactment in Kelantan.

Before we go into the legality of the proposed Hudud Enactment, it is prudent for the position of Islam, vis-à-vis the Federal Constitution (FC) to be clarified and elucidated.

The Malaysian Constitution and the position of Islam

Malaysia is neither a theocratic state nor it is a fully secular state like Turkey or India. I say this because the FC states that Islam is the religion of the Federation (Article 3) and also prohibits the propagation of non-Islamic doctrines amongst Muslims in Malaysia (Article 11(4)). Hence, Islam enjoys a protection within our constitutional framework that other religious groups do not, but it does not in any way place Islam above any other religion because Article 3 provides for an incontrovertible guarantee that “other religions (besides Islam) may be practised in peace and harmony in any part of the Federation”.

Our Constitution is secular and the best description of our governance model is one that is secular based. A good example of a theocratic state would be Iran, and the Iranian Constitution of 1979 unambiguously reinforces this. Article 1 of the Iranian Constitution of 1979 states that: “The form of government of Iran is that of an Islamic Republic” while Article 2 explains this to mean, among other things, “the necessity of submission [to Allah]” and the “fundamental role” of “divine revelation” in “setting forth the laws.” Meanwhile, article 56 states that “absolute sovereignty over the world and man belongs to God”.

A further example of an Islamic theocratic state is Maldives; in 2008, Maldives adopted a new constitution that states, inter alia, in order to be a citizen of Maldives, one has to profess the religion of Islam (Article 9(d)) and all laws have to be based on Islam and any law that is contrary to any tenet of Islam cannot be enacted in Maldives (Article 10(b)).

Malaysia’s constitution does not have such provisions, hence I am baffled by the attempts of certain quarters who maintain that Malaysia is an Islamic state. A year after Independence, on 1 May 1958, then–Prime Minister Tunku Abdul Rahman clarified this in the Legislative Council, saying, “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.”

Again on his 80th Birthday, the Tunku reiterated that “the country has a multi-racial population with various beliefs. Malaysia must continue as a secular state with Islam as the official religion”.

Malaysia is a fully functional secular-based constitutional monarchy with Islam as the religion of the Federation. In coming to this assertion, I am aided by the decision of the Supreme Court of Malaysia in the case of Che Omar bin Che Soh v Public Prosecutor (1988), that the term “Islam” in Article 3(1) of the Federal Constitution meant “only such acts as relate to rituals and ceremonies… the law in this country is… secular law”.

Secular laws for a multi-religious country

Malaysia enjoys a sterling tradition as a multi-religious country. For centuries Muslims, Buddhists, Christians, Hindus and others have lived in peace and harmony. However, disputes over the usage of the term “Allah” by Christians to refer to God in the Bahasa Malaysia version of their Bibles and the confiscation of Bahasa Malaysia Bibles in Selangor have indeed put a strain on the strong and durable relationships between the various religious groups in Malaysia.