Malaysia is secular, say MCA wings

Jamil Khir Baharom

(The Rakyat Post) – Claims that Malaysia is not a secular state, made by Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom, have come under fire from two wings within MCA.

MCA Youth Legal Bureau chairman Choo Wei Sern said they were of the opinion that the statement by Jamil Khir was inaccurate, incorrect and flawed.

“The MCA Youth Legal Bureau is of the view that the premises on which the Honourable Minister’s contention was founded upon contradicted the Alliance Memorandum, which was the proposal and consensus of the Alliance, the predecessor to Barisan Nasional, under the chairmanship of Tunku Abdul Rahman in 1956 and which was adopted by the Reid Commission’s Report in February 1957,” wrote Choo in a statement.

Choo reminded the minister that the Alliance Memorandum stated that although the religion of Malaysia would be Islam, the observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion, and shall not imply that the State is not a secular State.

“In addition to that, the Supreme Court in the case of Che Omar bin Che Soh v Public Prosecutor (1988) 2 MLJ 55 which consists of a panel of five Supreme Court judges had considered in great length the history leading to the foundation and formation of Malaysia before coming to the decision that Malaysia is a secular state.”

He said that on page 57E of the judgment delivered by the then Lord President Tun Salleh Abas, the Supreme Court decided to set aside their personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.

“On this basis, it is our view that the Honourable Minister has erred in his statement made in the Parliament that Malaysia is not a secular state. On the contrary, these documents confirm in no uncertain term that Malaysia is a secular state.

“We therefore call upon the Honourable Minister to retract his statement and all the Members of Parliament, including the Honourable Minister, to respect and uphold this basic structure, and the fundamental pillar, of the Federal Constitution on which this country was founded upon,” wrote Choo.

Meanwhile, Wanita MCA National chairman Datuk Heng Seai Kie claimed Jamil Khir should revert to history on the formation of the Federal Constitution leading towards Merdeka, quoting the same memorandum as Choo.

“His arguments contravene the very tenets, spirit and basis of the Reid Commission in the drafting of the Federal Constitution leading up to our nation’s Independence.

“Archival documents involved in the process of drafting of the Federal Constitution reveals that Article 3 of the Federal Constitution does not mean that Malaysia is not a secular state, as this was the consensus and social contract agreed upon by our forefathers,” wrote Heng.

She said this was an unequivocal original intention of Umno, MCA and MIC.

“Reid Reports 1957 did not provide an article declaring Islam as the religion of the Federation. Justice Abdul Hamid from Pakistan opined that the Alliance’s proposal should be adopted because it was ‘innocuous’.

“The first meeting held on 22 February 1957 attended by Tunku Abdul Rahman, Tun Abdul Razak, Tun Omar Ong Yoke Lin, Tun V.T. Sambanthan and others stated that the Alliance desired a statement to be inserted that ‘the States should be secular’,” claimed Heng.

She also claimed that during the 19th meeting held on April 17, 1957, Tunku Abdul Rahman has said that “the whole Constitution was framed on the basis that the Federation would be a secular State.”

“Notes prepared by the Colonial Office dated 23 May 1957 at the London Conference Talks mentioned, ‘The members of the Alliance delegation stressed that they had no intention of creating a Muslim theocracy and that Malaya would be a secular State’.

“Furthermore, when Tun Tan Siew Sin spoke in Parliament on 10 July 1957 in support of the Constitutional Bill that although Islam would be the official religion, he said that ‘this does not in any way derogate from the principles, which has always been accepted, that Malaya will be a secular state and that there will be a complete freedom to practise any other religion’.

“The documents and facts shown above give a true picture for Malaysia, whereby a secular state is the foundation of the formation of Malaya, and this consensus made by our forefathers, who shed much sweat and toil in the progress of peacefully negotiating for independence, should always be remembered and obeyed,” wrote Heng.

She also labelled Jamil Khir’s statement that Malaysia is not a secular state as baseless and misleading.

“So long as one party does not convert, civil law prevails,” she wrote.

She also said Jamil was wrong to say that Malaysia is not a secular state due to Article 121(1A) of the Federal Constitution as the Article was inserted and intended only for matters involving familial disputes such as inheritance, divorce, custody where both parties are Muslims.

“This Article does not in anyway, negate the civil courts as inferior.

“Given public outrage in cases of unilateral conversion with the Inspector General of Police ignoring the civil courts’ orders, Wanita MCA stresses that where disputes arise over minor children’s custody and faith, maintenance after one spouse becomes a Mualaf while the other does not, all issues related to marriage dissolution be executed through civil law.

“This is to abide with the Supreme Court’s ruling in in 1994 in Tan Sung Mooi (f) vs Too Miew Kim which decided that civil High Courts have jurisdiction and civil law continues to apply even though one spouse has converted to Islam meaning embracing Islam does not negate the Mualaf’s responsibilities as contracted through the Law Reform (Marriage and Divorce) Act 1976.

“Therefore, although Article 121(1A) reads that the High Courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts, this condition applies only when both disputing parties are Muslims. If one of them is a non-Muslim, (such as) the prominent cases being M. Indira Gandhi and S. Deepa, then the dispute must come under the jurisdiction of the civil court,” said Heng.