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1 Islamic Interfaces with Constitutionalism in Malaysia * Mohammad Hashim Kamali Abstract This presentation begins with introductory remarks on the Malaysian mosaic and a birds- eye view it offers of some of the facets of diversity and pluralism in the make-up of Malaysian society. The discussion proceeds, in the succeeding two sections, with a general profile of Islam, which is the majority religion, and then on the role of ethnicity and race as a fact of Malaysian life and its perennial preoccupation. The succeeding two segments examine references to Islam in the constitution of Malaysia, and the ‘special position’ of the Malays in that constitution. This latter consists essentially of affirmative action measure to overcome the problematic of social justice and the predicament of the disadvantaged majority in the country. The application of Islamic law, or Shariah, in Malaysia is the subject of a separate section that is followed, in turn, by a review of issues of concern to ethno-religious pluralism and how the government and civil society address them. Then follows a section on ‘contextualising the Christian faith,’ on how the Christians of Malaysia respond to perceptions that Christianity in Malaysia is burdened with the legacy of colonialism. Another issue that features separately in this presentation is over the use of certain Islamic expressions by Christian speakers and writers and some of the solutions proposed to address this potential area of inter-religious misunderstanding. What follows next is a review of the Islamic state debate over the last few decades in Malaysia and the responses it has invoked from non-Muslim individuals and representative bodies in the country. The last section provides an overview of diversity and pluralism in Islam: how ethno-religious diversity is featured in the scriptural sources of the religion, and whether Islam provides space for recognition of the religious other within a predominantly Muslim populace. My reform and policy-relevant proposals appear in context as and when issues are discussed. The essay ends with a conclusion. I. The Malaysian Mosaic Malaysia is a multi-ethnic and multi-religious society having among its 26 million population no fewer than 178 ethnic groups, of which in the 2000 census the total Muslim portion stood at 60.4 per cent, an increase from 53.6 per cent in 1980. All Malays and a small number of Indians are Muslim. Buddhists account for 19.2 per cent, reduced from a higher figure of 28 per cent 20 years earlier, and Christians at 9.1 per cent, up from 6.4 percent in 1980. Most Malaysian Indians are Hindus (6.4 per cent), down from 7 per cent 20 years earlier. Confucians and others account for 5.3 per cent. The three main ethnic groups are the Malays (58 per cent), Chinese (30 per cent) and * This is a revised and enhanced version of the paper I presented at the South-South Symposium on Constitutional Designs for Diversity and Conflict, organised by the International Institute for Democratic Electoral Assistance (IDEA), Jakarta, 12-15 October 2009. I would like to thank my colleague and research assistant, Fariz Zainal, for helping me with data search and translation of passages from Bahasa Malaysia.

Islamic Interfaces with Constitutionalism in Malaysiaconstitutionnet.org/sites/default/files/Kamali_Nov. 2009.pdf · Malaysia is a multi-ethnic and multi-religious society having

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    Islamic Interfaces with Constitutionalism in Malaysia* Mohammad Hashim Kamali Abstract This presentation begins with introductory remarks on the Malaysian mosaic and a birds-eye view it offers of some of the facets of diversity and pluralism in the make-up of Malaysian society. The discussion proceeds, in the succeeding two sections, with a general profile of Islam, which is the majority religion, and then on the role of ethnicity and race as a fact of Malaysian life and its perennial preoccupation. The succeeding two segments examine references to Islam in the constitution of Malaysia, and the ‘special position’ of the Malays in that constitution. This latter consists essentially of affirmative action measure to overcome the problematic of social justice and the predicament of the disadvantaged majority in the country. The application of Islamic law, or Shariah, in Malaysia is the subject of a separate section that is followed, in turn, by a review of issues of concern to ethno-religious pluralism and how the government and civil society address them. Then follows a section on ‘contextualising the Christian faith,’ on how the Christians of Malaysia respond to perceptions that Christianity in Malaysia is burdened with the legacy of colonialism. Another issue that features separately in this presentation is over the use of certain Islamic expressions by Christian speakers and writers and some of the solutions proposed to address this potential area of inter-religious misunderstanding. What follows next is a review of the Islamic state debate over the last few decades in Malaysia and the responses it has invoked from non-Muslim individuals and representative bodies in the country. The last section provides an overview of diversity and pluralism in Islam: how ethno-religious diversity is featured in the scriptural sources of the religion, and whether Islam provides space for recognition of the religious other within a predominantly Muslim populace. My reform and policy-relevant proposals appear in context as and when issues are discussed. The essay ends with a conclusion. I. The Malaysian Mosaic Malaysia is a multi-ethnic and multi-religious society having among its 26 million population no fewer than 178 ethnic groups, of which in the 2000 census the total Muslim portion stood at 60.4 per cent, an increase from 53.6 per cent in 1980. All Malays and a small number of Indians are Muslim. Buddhists account for 19.2 per cent, reduced from a higher figure of 28 per cent 20 years earlier, and Christians at 9.1 per cent, up from 6.4 percent in 1980. Most Malaysian Indians are Hindus (6.4 per cent), down from 7 per cent 20 years earlier. Confucians and others account for 5.3 per cent. The three main ethnic groups are the Malays (58 per cent), Chinese (30 per cent) and

    * This is a revised and enhanced version of the paper I presented at the South-South Symposium on Constitutional Designs for Diversity and Conflict, organised by the International Institute for Democratic Electoral Assistance (IDEA), Jakarta, 12-15 October 2009. I would like to thank my colleague and research assistant, Fariz Zainal, for helping me with data search and translation of passages from Bahasa Malaysia.

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    Indians (11 per cent). The remainder is represented by the aborigines of West Malaysia and indigenous tribes of East Malaysia some of whom have animistic beliefs.1 Malaysia has a positive record of peaceful co-existence among its various ethnic and religious groups. Multi-ethnic and multi-religious pluralism is never without its problems, as I shall later elaborate, yet there is much interaction and friendship across the ethnic and religious divides in Malaysia. Christian and Hindu festivals are marked by national holidays alongside those of the Muslims. Malay is the official language but Chinese, Tamil and English feature in trade and commerce, in language schools, clubs and associations. Religious clubs exist in primary and secondary schools and students are free, notwithstanding school uniforms, to wear a turban (as for Sikh boys) songbook and serban (for male Muslims) and hijab (for Muslim females). Christian pupils may wear crosses on chain, and Hindus dab their forehead with holy ash. Missionary schools, bookshops and hostels exist in significant numbers. Hotel rooms in the country carry the King James Version of the Bible, while marking, at the same time, the direction of the Muslim Qibla (direction of prayer toward the Ka’bah). Liquor shops, gambling casinos, and pig farms operate up and down the country, albeit under some regulatory regimes that may be in force. Financial allocation and tax exemptions are granted to all religions. Foreign priests and missionaries are granted permits to enter and work in the country.2 Malaysia subscribes to a constitutional monarchy and administrative federalism, elected parliament and state legislative assemblies. It has held 13 general elections since its independence without any serious distortion, an impressive record hardly matched by other post-colonial Muslim countries. The federal constitution of Malaysia 1957 (Art. 8.1-henceforth as FC) provides that “all persons are equal before the law and entitled to equal protection of the law.” The FC guarantees personal liberties such as the freedom of movement, freedom of speech, assembly and association, and freedom of religion, while recognizing Islam as the religion of the federation. The constitution also protects the ‘special position of Malays and natives of Sabah and Sarawak’ (Art.153), a “form of affirmative action that sought to redress socio-economic inequalities through the equalization of opportunities for hitherto marginalized groups.”3 II. Islam in Malaysia Islam is integral to the self-image and identity of the Malay Muslims who constitute majority of the population. Malay is defined as a person who professes the religion of Islam, habitually speaks the Malay language, and conforms to Malay custom. (FC: Art.160). This definition has been criticized for its parochialist leaning since Islam itself does not recognize ethnicity as a basis of identity. Be that as it may, for Malay it is almost unthinkable to be anything but Muslim just as he also expects the government and legal

    1 Data from the 2000 census as reported in Department of Statistics Malaysia (2000). 2 Cf., Shad Saleem Faruqi, “The Malaysian Constitution, the Islamic State, and Hudud Laws,” in K.S. Nathan and Mohammad Hashim Kamali, Islam in Southeast Asia: Political, Social and Strategic Challenges for the 21st Century, Singapore: Institute of Southeast Asian Studies (ISEAS), 2005, p. 256. 3 Chandra Muzaffar, “Responsibility of citizenship gels with 1Malaysia,” New Straits Times, Kuala Lumpur, August 26, 2009, p. 17.

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    system to protect that identity. Within Malay society, Islam is integrated in family values and customary practices. Islam is observed in state ceremonies, in mosques and public places, and protected by Malay Rulers, or sultans, who are the heads of religion in their respective states. The pluralist make-up of Malaysia’s population, especially with reference to ethnicity and religion prompted one observer to write that “very little of any political importance that goes on in that country is not influenced by the ethnic and religious diversity” of its populace.4 The Islamic identity of Malaysia acquired greater prominence in the wake of the Islamic resurgence of the 1970s and ever since. Many have held the view that during the Mahathir premiership (1981-2003) Malaysia embraced a policy of Islamisation. The claim, although not officially acknowledged, is not without substance. Malaysian leaders have initiated and approved numerous projects that could be seen as parts and parcels of an Islamisation policy, but if viewed from their perspective, they have done so in response to the prevailing sentiment of the Malay Muslims, on the one hand, and also to mark a shift from the post-colonial secularism that stood at odds with the position of Islam. An informed observer thus saw “the resurgence of Islam as the correction of an imbalance; as a counter to the dominant western civilization with its massively successful appeal to hedonism, consumerism and capitalism.”5 Although Malaysian political leaders and judges had for decades maintained a secularist view of the constitution, this image was adjusted through injection of Islamic segments in the laws and institutional profile of Malaysia during the Mahathir administration (1981-2003), as also continued under his successor, Abdullah Ahmad Badawi (2003-2009). Many government-supported Islamic organizations were established, including the National Council for Islamic Affairs, State Islamic Religious Councils, fatwa committees at the state and national levels, the Islamic Research Centre, the Religious Affairs portfolio at the Prime Minister’s Department, the International Islamic University Malaysia, the Institute of Islamic Understanding Malaysia IKIM), Bank Islam, Takaful Insurance, the International Institute of Advanced Islamic Studies (IAIS) Malaysia and so forth. Malaysia also holds an annual international Qur’an reading competition. The azan and Islamic programmes are aired over the radio and TV channels. Islamic salutations and prayers are offered at most government functions, and Islamic form of dress is becoming increasingly mainstream. In the 1999 election, the Islamic party of Malaysia, PAS, extended its control, from its traditional base in Kelantan to the second Malay dominated state of Terengganu. The PAS government has since introduced new laws and measures such as a new dress code for women, a ban on sale of alcohol in hotels, separate lanes for males and females in supermarkets, as well as introduction in 2001 of six Syariah Enactments,6 all in rapid

    4 Von der Mehdan, “Islamic Resurgence in Malaysia,” in ed. John Esposito, Islam and Development, New York: Syracuse University Press, 1980, p. 163. 5 Faruqi, “The Malaysian Constitution,” p. 276. 6 These are: the Syariah Criminal Procedure Enactment (Terengganu); Syariah Court Evidence Enactment; Syariah Criminal offences (Taazir) Enactment; Syariah Court Enactment; Islamic Religious Affairs Administration Enactment; and the Syariah Criminal Offences (Hudud and Qisas) Bill 2002.

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    succession, which generated fresh anxiety among the non-Muslims over the larger PAS plan for the introduction of an Islamic state in Malaysia. Yet the government of Malaysia tends to control Islam, a tendency which has also been increasing over the years. Unlike many other Muslim countries where the ulama are relatively free to issue juristic opinion and fatwa, Malaysian law lays down procedures that restrict public debate on Islam as well as issuance of fatwa by lay ulama. The main reason given for this is the multi-religious composition of the Malaysian populace. Shariah law applies to the Muslims of Malaysia in a number of chosen fields. In other areas, their life is regulated by Malay adat and temporal laws passed by democratically elected assemblies. Non-Muslims are governed entirely by secular laws. As for the question as to who speaks for Islam, traditionally most Muslims entrusted this task in their religious personalities, mosque leaders (imams), and the ulama who have been influential among the masses. They advised the people on religious matters, managed the mosque affairs, provided voluntary education in mosques and madrasahs that were often set up and funded through charitable endowments (awqaf) by pious individuals. The religious leaders attended to birth and burial ceremonies and their verdict and advice, often given in response to questions by their local constituencies was generally respected. This is still the position to a large extent in Malaysia, as in most other parts of the Muslim world, notwithstanding the many instances of intervention by the government and the religious bureaucracy that have acquired effective decision making powers on matters of concern to Islam. In Malaysia, the Malay Rulers are the official heads of Islam in their respective states and authorise the appointment of Muftis, members of the Islamic Religious Council and Shariah court judges. As already noted, the fatwa issuance function that used to be a preserve of the ulama has also been transferred to the religious bureaucracy. Mosque leaders, or imams, are also paid government officials who follow guidelines in the management of mosques and the contents of the sermons they deliver in Friday congregations. The National Religious Council that is headed by the Prime Minister, the National Fatwa Council, the state Muftis, the Minister in the Prime Minister’s Department responsible for religious affairs, the Department of Islamic Development Malaysia (JAKIM)7, and its equivalents in the various states (e.g., in Selangor it is known as JAIS) and so forth have considerable say in Islamic affairs in the country, and on the whole tend to be authoritarian and conservative. In sum, it is the government religious bureaucracy that speaks for Islam. Yet the ulama, religious teachers and personalities, past Muftis and imams remain influential among the general public. It is also true to some extent that even within the government rank and file, the ulama and Muftis are not always subservient to their official superiors, and it is not unusual for senior figures among them to oppose official government policy.

    7 In early 1997, the Islamic Centre, the central arm of the federal government’s Islamic bureaucracy was elevated to JAKIM (Jabatan Kemajuan Islam Malaysia), under the Prime Minister’s Department. Despite being granted purportedly wide responsibilities, JAKIM’s functions are primarily advisory and its directives often are not always implemented by the states. See the special supplement on JAKIM in the New Straits Times, 10 September 2007.

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    As explained in a separate section below, the former Prime Minister Dr Mahathir‘s somewhat outspoken announcement in 2001 to declare Malaysia an Islamic state invited much media attention as it marked a departure from the generally secular orientations of the Malaysian polity. In support of the Prime Minister, government spokesmen and Islamic think-tanks argued that significant elements of the country’s legal and administrative systems had manifestly Islamic foundations, and Islam was increasingly prominent in the economic, educational and constitutional spheres.8 In an Islamic State Discussion (Muzakarah Daulah Islamiyyah) on 3 August 2001 chaired by Dr. Abdul Hamid Othman, the Religious Advisor to the then Prime Minister, had gathered 70 religious scholars, notables and academics who reached an unequivocal agreement that Malaysia qualified as an Islamic state.9 Dr Mahathir’s successor, Abdullah Badawi, did not repeat that announcement but instead countered PAS’s Islamic state discourse with a major initiative of his own. Abdullah’s landmark speech at the 55th UMNO General Assembly in September 2004 on Islam Hadhari (Civilisational Islam), unfolded a policy programme that called for a more progressive, moderate, inclusive and development-oriented Islam that does not threaten the faiths and interests of other Malaysians. Abdullah emphasized that an ultra-conservative interpretation of Islam was out of tune with the national unity and harmony of Malaysia. Islam Hadhari is based on ten component principles that seek to articulate Islamic values in governance and give priority to people’s harmony and welfare needs. The ten principles of Islam Hadhari thus speak of faith in God and piety, a just and trustworthy government, balanced economic development, moral and cultural integrity, and protection of the rights of minorities and women. Included in this range are also protection of the natural environment, a vigorous pursuit of knowledge, a free and independent people, defence capabilities, and realization of a good quality of life for the people.10 During Abdullah’s premiership, Malaysia became chair simultaneously of the OIC and NAM. This may explain why Islam Hadhari, by far the most substantive engagement with Islam any Malaysian leader has provided, is also couched in a language that is not confined to Malaysia and seeks to provide a contemporary vision of Islam for the larger Muslim community worldwide. III. Ethnic Diversity Ethnic diversity is an inalienable part of Malaysia’s societal make up. Yet in Malaysia ethnicity has been translated into communal politics which tends to present the country with many challenges. Malaysia has enjoyed political stability due partly to its economic success, a participatory and democratic government, and also the stabilizing effects of the monarchy that has ensured continuity and commitment to national unity. Political parties in Malaysia have to this day retained their communal identities. The main political parties, namely UMNO (United Malay National Organization-the ruling party as at present), MCA (Malaysian Chinese Association), and MIC (Malaysian Indian Congress),

    8 Utusan Malaysia (Kuala Lumpur) 1 October 2001, 4 October 2001. 9 Minguan Malaysia, 5 August 2001. 10 Cf., Abdullah Ahmad Badawi, Islam Hadhari: A Model Approach for development and Progress and Development, Kuala Lumpur: MPH, 2006.

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    the three major components of the ruling Barisan Nasional coalition are organized along ethnic lines. Another factor of note in this picture is that the ethnic lines of division in the party system coincide with the religious divides, thus making the task of national unity even more challenging. The Islamic Party of Malaysia, PAS, apparently does not exhibit an ethnic element in its nomenclature, and does to that effect allow non-Malay and non-Muslim membership; it is nevertheless predominantly Malay in its composition. A more recent coalition of parties that crossed the traditional lines of division is the Pakatan Rakyat led by Anwar Ibrahim that won a respectable presence in parliament in the March 2008 election. This coalition consists of Anwar’s own Parti Keadilan (Justice Party), PAS, and the mainly Chinese DAP (Democratic Action Party). Pakatan Rakyat won five of the thirteen states of Malaysia that are currently under its control. UMNO that had won over 90 percent (more than two-thirds) of parliamentary seats in the 2004 election lost grounds in 2008 (with a reduced majority of about 61 per cent) but still retaining the majority to form a government. The 2008 election thus marked a watershed in Malaysian politics and gave rise to a host of questions over Malaysia’s politics of pluralism and questions whether more effective measures are called for to redress issues of polarization of the minority groups. To suggest a transition from ethnicity to principles that can bring all political parties together on a set of common objectives would require a major shake up of the existing party structure, but this would be a worthwhile engagement that can bring a fresh impetus and meaning to pluralism and socio-political diversity of Malaysia. It seems timely in the wake of the 2008 election results, and the 1Malaysia policy initiative of the incumbent Prime Minister Dato Sri Najib Razak, to take the bold step of doing away with communal party structure in favour of one that is founded on a set of principles. This is undoubtedly a daunting task, and may take time and careful preparation, yet a worthwhile objective to be pursued. Malaysia has in so many ways nurtured the positive features of diversity and pluralism. The government’s policy of accommodation and compromise that seeks to balance out ethnicity and religion with the wider concerns of common citizenship is in any case likely to remain “a most challenging aspect of the Malaysian political system.”11 The recent suggestion made by Tun Mahathir that race and religion columns should be omitted from official forms and documents as “the columns were unnecessary and should have been dropped a long time ago” received an overwhelming response from civil society groups across the ethnic divides.12 This was followed by the Deputy Premier, Muhyiddin Yassin’s announcement that the government would look into the matter, and if the proposal is successful, it would certainly bode well for the future of racially-blind politics in Malaysia. IV. Islam in the Constitution

    11 Chandra Muzaffar, “Tolerance in the Malay Political Scene,” in Syed Othman Alhabshi and Nik Mustafa Nik Hassan, Islam and Tolerance, Kuala Lumpur: Institute of Islamic Understanding Malaysia, 1994, p. 144. 12 “Dr M nods to drop ‘race’ in official forms,” Kuala Lumpur, New Straits Times, August 20, 2009, p. 2. See also “All-round support to drop ‘race’ column’” NST, August 21, 2009, p. 14.

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    Islam occurs 23 times in the constitution while shariah occurs in three places, and Mufti, Kadi Besar and Kadi at least once each.13 Article 3 of the FC provides that “Islam shall be the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation.” Article 11 provides that every person has the right to profess and practice his religion and also to propagate it. It is further stipulated that the law may control or restrict the propagation of any religious doctrine or belief among Muslims (note that the text specifies Muslims only). Article 3 provides that every religious group has the right to manage its own affairs, to own property, establish and maintain institutions for charitable purposes. These provisions should in principle not affect the civil rights of non-Muslims, yet they do enable the government to be protective of Islam, promote it, and incur expenditure on Islamic education, maintenance and establishment of Islamic institutions. The constitution proscribes discrimination against any citizen on the ground of religion, race, descent or place of birth. This position is also extended to the sphere of public education, provision of funds, the admission of pupils or students and payment of fees (Art.12). Every religious group is, furthermore, entitled to establish and maintain institutions for the education of children in its own religion. (Art.12.2) It would appear that references to Islam in the FC in Articles 3, 11 and 12 tend to place Islam above other religions without, however, infringing on the basic right to freedom of religion. Article 3 which declares Islam as the state religion has historical roots as most of the constitutions of the Malay states contained such a provision in almost exactly the same words. Yet references to Islam in the FC are not comprehensive and have given rise to questions that ultimately leave “the position of Islam to be still uncertain, and perhaps in a state of flux.”14 The King (Yang Di-Pertuan Agong) and the Malay Ruler must be a Muslim. However, some of the earlier provisions of the constitutions of the various states which required the chief ministers to be Muslim have been subsequently amended to enable the government to appoint non-Muslims to that position. There is, however, nothing in the FC to require the Prime Minister, or a federal minister, to be a Muslim. Members of the cabinet, legislative assemblies, the judiciary and public services including the police and the armed forces, as well the constitutional commissions are not required to be of the Muslim faith. The oath of office for cabinet ministers, parliamentary secretaries, Speaker of the lower house, MPs, senators, judges and members of constitutional commissions, as stipulated under the Sixth Schedule, is quite non-religious in its wording and does not require allegiance to a divine faith or to Islam. All the three organs of state under the coalition government, the cabinet, parliament, and judiciary include at any given time non-Muslims of up to one-third of their total membership. The supremacy of the FC is the subject of Article 4 which declares the constitution as the supreme law of the Federation and any law which is inconsistent with it is deemed to be

    13 Cf., Faruqi, “The Malaysian Constitution,” in ed. Nathan and Kamali, Islam in Southeast Asia, p. 271. 14 See for a discussion Abdul Aziz Bari, Malaysian Constitution: A Critical Introduction, Kuala Lumpur: the Other Press, 2003, p. 46.

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    null and void to the extent of its inconsistency with the constitution. Thus in the event of a conflict arising between a provision of the Shariah, or customary law, and that of the constitution, it will be determined in favour of the latter. Although Islam is the religion of the federation, there is no head of Islam for the whole of the federation. In every state, the sultan plays this role, and so does the king who is the head of religion for Federal Territory, Melaka, Penang, Sabah and Sarawak as these states have no sultans of their own. The king’s representatives in these states, known as Yang di-Pertuan Negeri, are effectively the patrons of Islam. The remaining nine states of Malaysia have each their own Malay Ruler, or sultan, as the Head of Islam in that state. Each of the nine sultans takes turns, every five years or so, to elect one among them as king, who is the supreme head of the federation. Constitutionally the monarchy in Malaysia collectively refers to the king, sultans, and the Conference of Rulers. These are the ultimate guardians of the Malays and of Islam.15 Article 11 of the constitution on freedom of religion is couched in a language that makes this freedom available to all persons, citizens and non-citizens alike. It is also a right that may be claimed by both individuals and groups. Furthermore, an individual may not be compelled to pay any tax that may be used for the purpose of promoting a religion other than his own. However, freedom of religion under this Article is subject to one important limitation: a person may not propagate a religious doctrine or belief other than Islam to the Muslims. Non-Muslims are thus prohibited to convert Muslims out of Islam, a position which also applies to Muslims, and that unauthorized Muslims are also not allowed to propagate Islam among their fellow Muslims. No such restriction is imposed on propagation of religious doctrines for the non-Muslims. This provision which effectively places Islam above other religions is said to be aimed at the preservation of the public order rather than infusing Islamic spirit into the constitution.16 This may seem a plausible explanation when read in conjunction with the limitations found under Article 11(5), but the end result still favours Islam, which has historically maintained a superior profile in the country. Commentators have stated, nevertheless, that non-Muslims in Malaysia do not fare too badly; they do enjoy personal liberty and are reasonably satisfied with the level of religious freedom they have. Each ethno-religious community is able to adhere to its own particular forms of worship, establish its own religious institutions and observe its own lifestyles, custom and culture.17 In the leading case of Jamaluddin bin Othman,18 it was held that the constitutional clause on religious freedom is enjoyed equally by the Muslims. Thus the court ruled that

    15 Id., 64., 16 Cf., Andrew J. Harding “Islam and Public Law in Malaysia,”(1991) MLJ xci. See also Aziz Bari, Malaysian Constitution, p. 157. 1717 Ahmad F. Yousif, Religious Freedom, Minorities and Islam: An Inquiry into the Malaysian Experience, Kuala Lumpur: Thinkers Library, 1998, p. 191. 18 [1989] 1 MLJ 369 at 418.

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    the police could not detain Malay who had converted to Christianity and preached it as this would be against the religious freedom granted under Article 11. In another case, Hajah Halimatussadiah, the court rejected the assertion of right to religious freedom, claimed by Halimatun, to wear the Islamic hijab. The court held that the government’s circular banning such attire for the public servants was within the scope of Article 11(5) which envisaged certain limitations on the practice of religious freedom.19 The case also distinguished between belief and practice in that the latter may be regulated if it would otherwise lead to public disorder, affect public health or public morality. However, in Meor Atiqurrahman,20 it was correctly held that the constitutional freedom extends to practices (like wearing a turban) which, though not mandatory, are part of the religious tradition. VI. The Special Position of Malays The special position of Malays has been in the making since 1948 when the Federation of Malaya was created and the position of the Federated Malay States was also established. It was the Malay Rulers from the four Malay states who originally put forward the case for special position of the Malays during the durbar conference of 1897. At the root of it all was the request to provide a legal basis for policies and programmes to help the Malays in business and education, the special position of the Malay language, and the position of the sultans. The request was justified to the extent that the British promoted on a massive scale migration of Chinese and Indians into Malaya and favoured them over the Malays through their employment and education policies.21 Yet the privileges that were consequently articulated in the constitution (Art. 153.1) are not exclusive for the Malays but extend protection also to the “… natives of any of the states of Sabah and Sarawak and the legitimate interests of other communities.” On an historical note, when preparations for independence were underway in the early 1950s, both UMNO and the MCA opted for an early termination of the British colonial rule and were able to strike a ‘bargain’. The Chinese agreed to support a special constitutional position for the Malays, Malay language and Islam. The Malay Rulers and representatives agreed, in return, that non-Malays born in the country after independence should automatically become Malaysian citizens, while non-Malays above the age of 18 could obtain citizenship after five years of residence. “The economically disadvantaged Malay community – 64 per cent lived below the poverty line in 1957 – agreed to confer citizenship on more than one million recently domiciled Chinese and Indians.”22

    19 Hajah Halimatussadiah bt Hj Kamaruddin v public Services Commission, Malaysia & Anor [1994] 3MLJ 61. 20 Meor Atiqurrahman Ishak v Fatimah binti Sihi [2000]5MLJ 375. 21 Thus it is noted that “ the colonial rulers practically ignored the Malays when it came to providing opportunities for secondary and tertiary education. For instance, all English schools were mission schools and elitist, which the rural Malays could neither afford nor liked. See Rosnani Hashim, “Education and Nation Building,” in ed. Syed Arabi Idid, Malaysia at 50: Achievements and Aspirations, Kuala Lumpur: IIUM & Thompson, 2007, p. 42. 22 Chandra Muzaffar, “Responsibility of Citizenship”, NST, August 26, 2009. See also Mohammad Hashim Kamali, Islamic Law in Malaysia: Issues and Developments, Kuala Lumpur: Ilmiah Publishers, 2000, p. 31. See also

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    The special provision so stipulated is a part of “the broader affirmative action in the constitution,” which also obtains in the constitutions of some other countries such as India and the U.S.23 The difference; however, is that the Malaysian constitution opted for an affirmative action based on racial identity rather than underprivileged status itself. The substantive validity of the special provision remains, in the present writer’s view, and is justified even today as the Malays are still economically disadvantaged. The race-based criterion of the affirmative action, difficult as it may seem to adjust, does nevertheless call for a review, but even then the net result would still be the same in that the Malays would still remain the valid beneficiaries of the affirmative action privileges. Yet to adjust and review the race criterion is likely to help strengthen the bonds of affinity across the ethno-religious divides. If the basic concern is with social justice, then assistance would naturally be due to all those that qualify, be it Malays or non-Malays. From the legal vantage point, the suggested changes would require amendment to the relevant sections of the constitution and the consent of the Conference of Rulers, which as one observer rightly put it, would be “extremely difficult” to obtain.24 The issue has aroused much sensitivity, confrontation and turmoil in the past, especially in the May 1969 riots and various other occasions in the 1980s and 1990s. This issue needs to be approached with the sensitivity that it takes, and one may need to prepare the grounds for a suitable constitutional amendment through confidence building measures, such as under the 1 Malaysia concept initiated by the current Prime Minister Najib Razak. The basic issue of economic disparity would have to be faced and addressed by all parties concerned, as that is the most fundamental challenge, one that can effectively remove the need for any affirmative action provision. For the time being, however, economic disparity remains a pressing issue of essential social justice. VII. Application of Islamic Law Islamic law and local custom were applied by the Malay sultanates as far back as 14th century, a position which was, however, diluted and marginalized under British colonial rule in favour of English common law. The Civil Law Act 1956 (s. 3, 5) mandated Malaysian courts to refer to the common law of England and the rules of equity in the absence of any written law in force. The Malay Rulers, however, still favoured selective application of Islamic law to their Muslim subjects. This state-centric feature of the administration of Islamic law in Malaysia was, in turn, articulated in the lines of the FC, which set in place an arrangement whereby federal parliament passes laws for the whole country, and state legislatures and sultans legislate on matters of concern to Islam in their respective states.25 The application of Islamic law in Malaysia is also confined to Muslim citizens and then to matters only of personal law such as matrimony, divorce, bequest, inheritance, mosque affairs, religious charities, and religious offences.26

    23 Aziz Bari, Malaysian Constitution, p. 49. 24 Id., p. 49. 25 Cf., Greg Fealy and Virginia Hooker, eds, Voices of Islam in Southeast Asia: A Contemporary Sourcebook, Singapore: ISEAS, 2006 – see article on “Malaysia” by John Funston pp. 51-63 at p. 52. 26 This is the subject of Article (76) of the constitution and its attached Schedule Nine that specifies the application of Islamic law according to a list of subjects that are provided under that Schedule.

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    The various states of Malaysia administer Islamic law according to by-laws or Enactments, which are similar in content, yet not identical. Each Enactment provides for the establishment of a Council of Islamic Religion (Majlis Agama Islam- CIL) under the chairmanship of a Mufti, and a network of Shariah courts. Leading appointments are made by the sultan. The CIL issues fatwas which are selectively gazetted upon approval of the sultan. The CIL also supervises collection and distribution of zakat (legal alms) and the works of various in-house committees.27 The Shariah court in each state, which operates separately from the CIL, is presided by a Qadi who is appointed by the sultan, or by the King for the Federal Territory, Penang, Melaka, Sabah and Sarawak, states which do not have a ruling sultan of their own.28 Long-standing disparities in the applied Islamic law of various states called for coordination efforts, and thus prompted a Conference of Rulers’ directive in 1968 to authorize the formation of the National Council for Islamic Affairs. Its chairman is appointed by the Conference of Rulers (the Prime Minister is usually appointed), and its members include a representative of each state in Peninsular Malaysia, appointed by the Ruler concerned, and five persons appointed by the King with the consent of the Conference of Rulers. The main function of the National Council is to make recommendations to the Conference of Rulers and State Governments on greater uniformity in the administration of Islamic law. Based in Kuala Lumpur, the Council has a National Fatwa Committee that comprises Muftis of all the member states.29 With regard to religious offences, the Shariah court jurisdiction in Malaysia is limited to imprisonment of up to three years, fines not exceeding RM 5,000, and whipping not exceeding six strokes, or any combination of these. All other offences are dealt with by the civil courts which are courts of general jurisdiction. Malaysia had inherited the British legacy of criminal trial by jury which was, however, abolished in 1995. The tendency in recent decades has been to enhance the role of Islamic law and to that extent also to adjust common law to its Malaysian environment that calls for greater harmony with Islam and the Malay adat. A gradual adjustment along these lines has been taking place by means both of legislation and case law. In issuing a fatwa the Mufti or Qadi (when the latter adjudicates) ordinarily follows the orthodox tenets of the Shafi’i school of Islamic law, but where the public interest so requires, a fatwa may be based on the tenets of any of the other three leading schools of Sunni Islam, namely Hanafi, Maliki and Hanbali. However, when a fatwa is based on the ruling of a school other than that of the Shafi’i, it must be approved by the sultan. In the event where none of the scholastic rulings meet the public interest in a particular case, the Mufti/Qadi may base their decision on their own best judgment in a manner that

    27 Under the Selangor Administration of Islamic Law Enactment 1989, “the Islamic Legal Consultative Committee” consists of the Mufti as chairman, the Deputy Mufti, the State Legal Advisor of Selangor, an officer of the Islamic Religious Department of Selangor to be appointed by the Majlis, and at least two, but not more than five, experts on Syariah to be appointed by the Majlis (S. 34.1). Other committees usually include Mosque Committee and Zakat Committee etc. 28 Cf., Kamali, Islamic Law in Malaysia, p. 39. 29 Id., p. 45.

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    secures justice in the best possible way.30 Whenever a fatwa relates to customary (adat) matters, the latter is given due consideration by the Mufti and the presiding judge. The fatwa-making process in Malaysia is characterised to some extent by weaknesses that erode the authority of fatwas and the credibility also of Muftis. Osman Haji Ishak has noted in this connection: first, that inconsistencies of fatwas among the various states weakens not only their authority but also confuse the general public. Second, if someone wants to avoid a fatwa he or she can do so by simply moving from one state to another to escape it. Third, fatwas issued have often failed to indicate their evidential bases and reference to sources that could also explain the methods of jurisprudence used to derive them. Fourth, sometimes a weak opinion (qaul da’if) is used and has been found to be inconsistent with Islamic law. Five, fatwa often lacks legal effect as and when it is opposed by the civil courts.31 The constitutional status of Shariah courts saw an improvement as a result of a 1988 amendment of Article 121. This Article expounds the jurisdiction of the civil courts, namely the High Courts, Court of Appeal, and Federal Court, but then adds under Article 121(1A) that “civil courts shall have no jurisdiction in respect of any matter that falls within the jurisdiction of the Shariah courts.”32 This was evidently intended to free the Shariah courts from the civil courts’ interference. As a result, cases decided by the Shariah courts are no longer appealable in the civil courts. The amendment has proven, however, to be less than comprehensive and has given rise to a new set of issues. Much remains to be done also to bring up the Shariah courts to a state of parity to that of the civil courts.33 The Civil courts have also been reluctant to discontinue their supervisory jurisdiction over the Shariah courts, partly because the amendment under review fell short of overruling the general jurisdiction of the civil courts, for it merely said that civil courts cannot exercise the Shariah court’s jurisdiction. The civil courts have, in fact, exercised, albeit selectively, its existing review functions even after that amendment.34 Internal uniformity in the laws and procedures of Shariah courts is a valid objective in its own right, yet it can at best provide a partial answer to the larger question of consolidation and uniformity of the entire judiciary in Malaysia. The internal duality of the court structure consisting of the civil courts and Shariah courts that is currently in place calls for an overhaul of judicial organization in the country. Shariah courts are courts of special jurisdiction and there is nothing wrong in retaining and streamlining them, but it is necessary to do so within a larger unity and a new structure that places all the courts of Malaysia under a single authority that puts an end to the current power struggle between the Shariah and civil courts.

    30 Thus according to Section 39, Administration of Islamic Law (Federal Territories) Act 1993, the Mufti is authorized, in the event he considers that none of the rulings of the four orthodox schools of Islamic law offers a solution in a particular case that upholds the public interest, the Mufti may issue a decision according to his own judgment. 31 Othman Haji Ishak, Fatwa Dalam Perundangan Islam, Kuala Lumpur: Fajar Bakti, 1981, pp. 186-193. 32 Cf., the Constitution (Amendment) Act 1988 (Act A704). 33 Ahmad Ibrahim, “The Introduction of Islamic Values in the Malaysian Legal System,” IKIM Journal (Institute Of Islamic Understanding Malaysia”, Vol.2, No.1 (1994), p. 41. 34 See for details, Kamali, Islamic Law in Malaysia, p. 47f.

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    Justice is essentially monolithic and the concern for justice cannot be all that different whether one seeks it through the Shariah or the civil courts. It would make good sense therefore to consolidate the two systems under a single authority. The Federal Court can remain as it is but it may help to introduce a Shariah bench at every level of the court system in a way that Shariah and civil law judges would operate as separate benches of the same court, and even sit together as a court of mixed jurisdiction, at least in cases that would merit a mixed approach on a case by case basis. I have in some of my previous writings proposed a total shake up of the courts into a national system, or national courts of justice which would have specialized jurisdictions, such as family courts, juvenile courts, commercial courts and others that, while not designated as Shariah courts, still apply the Shariah wherever it is deemed appropriate. Yet I note that the Shariah courts system is well-entrenched in Malaysia and it would be difficult to persuade the Malay Muslims and their Rulers to accept drastic changes. But I still propose an overall consolidation that retains most of the existing structure under a unified regulatory authority, somewhat like the Central Bank (Bank Negara) which supervises both the conventional and the Islamic banking systems in the country. Let them both run the same course and vie for the same values and objectives, yet with distinctive characteristics of their own that ensure uniformity and coherence at all levels. This may not even require a constitutional amendment but an act of Parliament on consolidation of the judicial authority in Malaysia. On a broader note, a perception exists among Muslims and an increasing number of non-Muslims that the Islamic judiciary and state Islamic administrators tend to forego compassion and take a punitive approach toward to the dispensation of Islamic justice. They are involved in the so-called moral policing and witch-hunting searches that have not helped their public image. The federal government also displays increasing reluctance to interfere in the workings of the Islamic administrators.35 VIII. Minority Issues Religious minorities have been apprehensive over the strengthening of the position of Islam in Malaysia over the years, yet they have remained active and engage over issues with the government and civil society. They have also taken measures to better organize themselves in their campaign for greater recognition. The overall effect of such efforts has been a mixture of both positive and negative developments. On the positive side, the minorities have critiqued government policies and also engaged in a measure of self-criticism and recognition of the concerns of the majority, namely the Malay Muslims. At the organizational level, the religious minorities addressed the problem of internal disunity among the various groups within the Christian church, and engaged with the Buddhists, Hindus and Sikhs to create an umbrella organization, namely the Malaysian Consultative Council of Buddhism, Christianity, Hinduism and Sikhism (MCCBCHS) in 1983. This was welcomed by Tunku Abdul Rahman who promised it his support and the

    35 See for example a letter to the editor entitled ‘Bapa kecewa layanan Mahkamah Tinggi Syariah’ in Utusan Malaysia, 2 November 2007.

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    government has also remained open to engage with this representative body. Some of the specific objectives of MCCMCHS include promotion of religious and racial harmony enunciated in the Rukun Negara,36 holding conferences and seminars, and publication of books and periodicals. MCCBCHS has seven branch offices in the various states of Malaysia, and in recognition of its internal diversity, it chairmanship follows a two-year rotation among its component groups. It has held a record of active lobbying on a number of issues with government authorities with tangible results.37 When the cabinet decided in 1997 to introduce a course in schools and universities to study “Islamic and Asian Civilisations” the MCCBCHS general secretary Thiagaraja responded that Islamic civilization would have religious content whereas the Asian civilisation part would not. Its former Secretary Paul Tan also commented that the government should introduce a subject on other major religious civilisations so as to help the Muslims to better understand the non-Muslims.38 This is in line with the spirit of pluralism and multi-religious make-up of Malaysia. The course content should be internally diversified in a way that pays balanced attention to Islam and other religions in Malaysia.

    Notwithstanding the many positive features of the government’s engagement with the minority religious groups, it is no cause for celebration to note that the gap has widened and there is more polarization in Malaysia’s schools and universities now compared to say 20 or 30 years ago. This would suggest that the Islamisation policy of recent decades has to some extent brought parallel reactions. According to Ng Kiok Nam:

    Islamic revivalism tends to make the Muslim community more and more self-contained. As a reaction, non-Muslims also place more emphasis on their identity and religion. As a result…social interaction between Muslims and people of other religions, Christians included, is becoming more and more limited.39

    Christian leaders have called for inter-civilisational dialogue as a way to engage with the Muslim majority around them. According to the Catholic Church of Penang, the thrust of such dialogue should be on practical issues. Primarily a dialogue finds meaning in “shared values taught by the different religions and not from theological positions which can be technical and divisive.”40

    36 Somewhat like the Pancasilla of Indonesia Rukun Negara (pillar of the nation) consists of five principles: belief in God, loyalty to the King and country, constitutionalism, the rule of law, good behaviour and moral virtue. 37 For instance, in January 1993, MCCBCH representatives lobbied authorities in the state of Perak about plans to demolish 45 houses of non-Muslim worship. The plans were stopped after this meeting. Such plans often involve technical issues of unauthorized buildings on land without ownership title, town planning and the like. See for details on lobbying activities by MCCBCH Peter Reddel, “Islamisation, Civil Society, and Religious Minorities,” in ed. Nathan and Kamali, Islam in Southeast Asia, p. 175f. 38 Quoted in Kamali, Islamic Law in Malaysia, 196. See also Riddel, “Islamisation, Civil Society, “ id., p. 174. 39 Id., p. 174. 40 Rufus Bruno Pereira, “What is the Dialogue of Life?” Catholic Asian News, August 2002, p. 5.

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    Writing in 1996, the Anglican scholar S. Batumalia questioned the government’s commitment to dialogue, noting however that despite lack of encouragement form the government, dialogue has continued informally.41 Catholic Archbishop Emeritus in Kuala Lumpur, Tan Sri Vedargon, pointed out that “there is very little dialogue with Muslims. The Christian churches are working only among non-Muslims in Malaysia.”42 This shows that both sides have been reluctant to engage. The Malaysian Bar Council conference towards the formation of an inter-faith commission in Malaysia held in Bangi in the outskirts of Kuala Lumpur (February 2007) did not come to fruition for a variety of reasons, one among which was a certain reluctance on the part of the government that preferred inter-faith dialogue over the formation of interfaith commission.43 Malay Muslims tend to be somewhat reluctant to sit in open inter-faith dialogue with the non-Muslims. This is to some extent also the case in Singapore. According to Yacob Ibrahim, the Minister-in-Charge of Muslim Affairs, “Muslims need to engage their co-religionists, not as adversaries, but as equals, and on the basis of mutual respect.”44 Mutalib has characterized Malaysia as a basically ‘bi-model’ society where the state is walking a tightrope in its governance of the multi-racial and multi-religious polity. While Malays dominate politics, non-Malays (Chinese in particular) hold a disproportionate advantage in the economy. It is further added that Malaysia’s pluralism is constrained by the intra-ethnic tension from within the Malays. Ethnic Malays are not cohesive as they are torn apart between the two main Malay-based political parties, just as they are also pulled by dialect and regional loyalties.45 The Muslims have, on occasions, taken the initiative to interact with non-Muslims. For example, in May 2002 the International Islamic University Malaysia (IIUM), Department of Comparative Religions sent a group of 40 students to visit the Assumption Catholic Church in Kuala Lumpur. The visitors attended a full mass in the morning, mingled with church worshippers and then took part in a Q & A session. A Muslim spokesperson expressed the hope that this would become a regular semester event for IIUM students.46 Many commentators, both Muslim and non-Muslim, have spoken positively of the benefits of dialogue, and many have been held. Yet Ng Kam Weng had a point when he warned against a selective approach in seeking dialogue partners, and called on Christians to “dialogue with social and political activists who differ with us, whether they come from UMNO or PAS.”47

    41 Sadayandy Batumalai, Islamic Resurgence and Islamisation in Malaysia, Ipoh: Charles Grenier, 1996, p. 60. 42 Id., p. 144. 43 See for details Hadi Abdullah and K.S. Sieh eds. The Initiative for the Formation of a Malaysian Interfaith Commission- A Documentation, Kuala Lumpur: Konrad Adenauer Foundation, 2007. 44 As quoted in K. S. Nathan ed., Religious Pluralism in Democratic Societies, Singapore & Kuala Lumpur: Konrad Adenauer Stiftung & Malaysian Association for American Studies, 2007, p. 288. 45 Hussin Mutalib, “Religious Diversity and Pluralism in Southeast Asian Islam: the Experience of Malaysia and Singapore,” in Nathan ed., (at the previous note), p. 41. 46 “Announcements- 19 May 2002: Herald, the Catholic Weekly, 2 June 2002, p. 3. 47 Ng Kam Weng, “Dialogue and Conservative Social Engagement: Problems and Prospects for the Malaysian Church,” Trinity Theological Journal 5 (1995) p. 32. See also Lam Kee Hing, “Christians in Malaysia: Early Efforts at Inter-Civilisational Engagements,” in ed. Nathan, Religious Pluralism, p. 42.

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    Conversion-related issues that often revolve around child custody and religious identity of the child of the estranged couple often cloud the climate of understanding with the non-Muslim minorities. Since Islam is the protected religion, when one of the spouses converts to Islam while the other does not, Islam is presumed to prevail over determining the religious identity of the child. This is taken to be the purport also of Article 12(4) of the FC which provides that “the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” Soon after converting to Islam, often due to marital problems, the Muslim parent rushes to Shariah court to convert his child/children to Islam. When the cabinet announced its landmark decision on 23 April 2009 to say that when one of the parents converts to Islam and there is dispute over the religious identity of the offspring of marriage, the religion of the spouses at the time of marriage shall prevail – non-Muslims welcomed the decision but the Islamic religious personalities protested, and the issue became entangled so much so that fresh approaches were called for to find a way out of the problem. In the present writer’s opinion, it is the best interest of the child of marriage that should be the focus of attention rather than his religious identity. Sensitive as it, the point remains that religious identity of a child of one or two years of age should not be a big issue. In disputed cases, I also propose joint custody to be granted to both parents that should involve the child’s exposure to the religion of both parents. Other conversion related issues over marriage, property etc., should perhaps be adjudicated neither by the Shariah, nor by the civil court but by a court of combined jurisdiction to be established for this purpose. Legalities apart, what is even more important is the necessary degree of openness and the spirit of give-and-take in our multi-religious society that we need to develop for a common future of harmony across the religious divides. A more decisive approach is also needed to bring a fresh stimulus into the proposed formation of an inter-religious consultative body with a recognized status to represent and engage on issues of common concern. The form it takes may or may not be all that significant; what is important is recognition and effective engagement. One would hope that past initiatives should be taken to a more advanced stage that pays adequate attention to the socio-religious diversity of Malaysia. IX. Contextualising the Christian Faith Church leaders in Malaysia have voiced the need to address the issue of its being perceived as an alien implant of western legacy. Church leaders have commented that “the church has great difficulty knowing how to portray its identity in a way which is Malaysian, especially in West Malaysia where Christians are non-Bumiputra (lit. sons of the soil, usually referring to native Malays).”48 Anthony Rogers of the Catholic Church suggested that “the church needs to rediscover the Asian roots of Christianity.” Albert Walter also noted that “the challenge remains for the churches to relate themselves more fully to the soil of [Southeast Asia] to get down to the rice-roots level of Asian

    48 Fr. Philip Thomas and Dr John Gurusamy in interview with Peter Reddel, Kuala Lumpur, 29 August 2002 – as quoted in Reddel “Islamisation, Civil Society,” in Nathan and Kamali eds. Islam in Southeast Asia, p. 180.

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    civilization.”49 The factor of common perception among Muslims that Christians of Malaysia tend to look toward the West for recognition and support calls for reappraisal and adjustment, and I would say, on both sides. For there were Christians in Malaysia long before colonialism, just as one can hardly question their sense of attachment to Malaysia. The issue does, nevertheless, call for greater adjustment on the Christian side, as it stands in the way of their engaging in effective dialogue with the Muslims. Whereas some church leaders have spoken of nurturing the common values of hospitality and friendship through social interaction and jointly-organized events, others have added that the church should encourage the use of Bahasa Malaysia in their religious and social activities. Breaking down linguistic barriers is not only needed to improve relations with the Muslims but also within the Christian community and with the followers of other faiths in the country. For like the Muslims, the Christians of Malaysia are also internally diverse and represent a very multi-ethnic mix. All efforts to advance this key element of communication should be encouraged. English speaking churches should plan to conduct more and more congregations, masses, and retreats in Bahasa Malaysia. Some of this is already happening but it is a long term engagement that merits continuous attention.50 X. Restrictions over the Use of Religious Words In view of Islam’s acceptance and respectful attitude toward Christianity and other monotheist religions, one would not normally expect that the use of Islamic words such as Allah, salam etc., would become problematic, but they have unfortunately become so in Malaysia. Problems arose over the use of these and other Islamic words such as al-kitab (book, typically referring to Qur’an), bayt Allah (house of God), salat (ritual prayer), du‘a (supplication) in the context of Christian religious practices and beliefs. An Indonesian translation of the Bible had thus employed these words, and Christian missionaries in that country had reportedly utilised them with a view to convert Muslims to Christianity. Al-Kitab was thus used in reference to the Bible, bayt Allah (normally referring to Ka‘bah) was used in reference to the church, and mi‘raj (ascension of the Prophet Muhammad) in reference to the ascension of Jesus Christ. In 1989 the Malaysian government segregated 42 such Arabic-derived Malay words and banned their use by Malaysian non-Muslims. Subsequent deliberations with the MCCBCHS, however, led to their reduction to 22 words, and ultimately to four.51 The basic position in Islam with regard to the use of all these words is one of encouragement when they are employed for their proper meaning and import. However, when these are employed for questionable purposes that are beyond the purview of their legitimate usage, there may be a case of distortion. For instance, the use of Allah aroused controversy when it appeared in a Christian periodical and consequently became the

    49 Id., p. 180. 50 See for details of some church initiatives to promote Bahasa Malaysia, ibid., at p. 181. 51 Cf., Mohammad Hashim Kamali, Islamic Law in Malaysia: Issues and Developments, Kuala Lumpur: Ilmiah Publishers, 2000, pp.185-86.

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    subject of a court case, which was eventually dropped.52 It will be noted that Allah is the Arabic equivalent of God and the two words have historically been used synonymously. Belief in Divine Oneness (tawhid) which is an article of Islamic faith permeates a great deal of the dogma and practice of the religion. It also means that if there is one God, there is essentially one humanity, a belief that implies an innate sense of belonging for all members of the human fraternity. God therefore belongs to the whole of humanity and no sect or section of humanity may deny this sacred link to any one. It should be obvious then that Islam abhors any restriction on the remembrance of God (dhikr) and invocation of His illustrious name. This is the basic position of Islam. However, if Allah is used with the purpose to convert unsuspecting Muslims away from Islam, as occurred in some parts of Indonesia, which may well amount to distortion. If there are equivalent words in the Malay language, such as Tuhan but Allah is used instead for purposes of proselytisation, then Muslim authorities may well have a cause to take preventive action. But as the present writer wrote elsewhere, preventive action of this kind “should be confined only to manifest instances of abuse.”53 The basic position with regard to the use of Islamic words and phrases should thus be one of openness regardless of the religious denominations or persons using them. Barring instances of manifest abuse, there should in principle be no restriction on the legitimate uses of Islamic words and expressions. XII. The Islamic State Debate Members of the Islamic Party of Malaysia, PAS, have for decades stated their intention to set up an Islamic state in Malaysia and also to amend the constitution to that effect. They have backed up their statements by action, such as the introduction of state enactments on the proposed practice of Islamic penalties (hudud), restrictions on sale of alcohol and so forth in Kelantan and Terengganu. Non-Muslims have been apprehensive of such developments and made their position known to that effect. A former MP, Tan Chee Khoon, thus viewed PAS statements with circumspection and said: “I don’t think it will happen in our country, not during my lifetime, at least.”54 Lee Kim Sai, a former Acting MCA (Malaysian Chinese Association) President similarly stated: “our constitution, as our legal people tell us, will not allow it to happen,” adding that the Chinese community did not necessarily object to the Islamic revival in Malaysia if it did not involve a great deal of change. “But if it changes so many things and affects our business and our lives, we wouldn’t like it.”55 In October 2001, the then Prime Minister Mahathir declared that Malaysia was already an Islamic state, hence implicating that the kind of constitutional changes that PAS had

    52 The use of Allah aroused fresh controversy in 2008 when the Catholic Herald Weekly used it in contravention of an earlier government ban. The government consequently ordered withdrawal of its license, and the matter became the subject of court wrangling. The Catholic weekly eventually dropped the case after its license was restored. 53 This is the purport of the Islamic jurisprudential principle of sadd al-dhara’i‘ (blocking the means) when a lawful word or act is used in a way as to obtain an unlawful result. See Mohammad Hashim Kamali, “Of God’s many names and the use of ‘Allah’”, New Straits Times, Kuala Lumpur, March 10, 2009, p. 16. 54 Mutalib’s interview with Dr. Tan Chee Khoon in Hussin Mutalib, Islam in Malaysia: From Revivalism to Islamic State, Singapore: Singapore University press, 1993, p. 101. 55 Id., 102-103.

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    called for were not necessary. Then in mid-June 2002, Dr Mahathir reiterated that that Malaysia was “an Islamic fundamentalist state” because his Barisan Nasional government adhered to the fundamental teachings of Islam. These statements were essentially reactive. Lawrence Andrew, editor of the Catholic Herald thus wrote that “Dr Mahathir’s statement…is politically motivated, driven by the need to confront PAS. He is trying to win back votes lost in 1999 election.” 56 To quote Dr. Mahathir:

    Malaysia is an Islamic state. At the same time, and without contradiction, it is democratic, diverse, tolerant, peaceful, economically and politically stable, progressive and forward looking. There is no inherent contradiction between Islam and any of these achievements.57

    A meeting of Catholic archbishops and bishops in Johor issued a statement in July 2002 expressing “alarm and great concern” over Dr Mahathir’s statement, adding that it had encouraged the passing of the Shariah Criminal Offences (Hudud and Qisas] Bill” of Terengganu in the same year.58 Non-Muslims have asserted that Malaysia under its present constitution is a secular state and that religious freedom in Malaysia “has been continually threatened by calls for an Islamic state.”59 Chandra Muzaffar commented that non-Muslims should speak out on the issue “as it involved the fundamental human right of freedom of expression,” but advised against “projecting the secular state concept as Muslims were uneasy with the idea of secularism.”60 To declare Malaysia an Islamic state is not an easy prospect as it would require a two-thirds majority in parliament and the consent of Conference of Rulers and Governors of Sabah and Sarawak.61 The Islamic state call has, in any case, hardly gathered a credible momentum, and even the PAS leaders seem to have toned down their discourse on this subject in recent years. XIII. Islam and Pluralism Muslims have a track record of peaceful co-existence with other religious communities in their midst. Historical accounts of the Prophet Muhammad’s engagement with the Jews and Christians and recognition of their freedom of religion, rights and obligations are found in the renowned Constitution of Madinah and many of his sayings and hadiths on the subject. This pattern continued during the dynastic periods of the Umayyad, Abbasid, Ottoman, and Moghul empires where people of different religions, race and language lived as neighbours and compatriots. The overall picture is one of co-existence and

    56 Lawrence Andrew’s interview as quoted in Peter Riddel “Islamisation, Civil Society,” in Nathan and Kamali eds., Islam in Southeast Asia, p. 164. 57 New Straits Times, 16 May 2002. 58 As quoted in Riddel, “Islamisation, Civil Society,” in ibid., p. 183. 59 Ibid. p. 185. 60 Ibid. p. 185. 61 Cf. Shad Saleem Faruqi, “The Malaysian Constitution, the Islamic State and Hudud Laws,” in ed. K.S. Nathan and Mohammad Hashim Kamali, Islam in Southeast Asia: Political, Social and Strategic Challenges for the 21st Century, Singapore: Institute of Southeast Asian Studies, 2005, p. 270.

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    mutual respect, notwithstanding incidents and episodes to the contrary. Islam is also affirmative of diversity of thought and doctrine among its various schools and sects from the Shi‘ah and Sunni to the Hanafi, Shafie, Maliki and Hanbali schools that are prevalent throughout the Muslim world to this day. Numerous passages in the Qur’an can be quoted in support of religious diversity and pluralism. To quote a few:

    Say, we believe in God, and in that which has been revealed to us and in that which was revealed to Abraham, Ishmael, Isaac and Jacob and the tribes and in that which was given to Moses and Jesus and in that which was given to all the prophets from the Lord. We do not make any distinction between any of them and to Him do we submit. (2:136)

    On the essence of spirituality and faith, the Qur’an similarly advocates openness:

    Verily those who believe and those who are Jews, and the Sabeans and the Christians, all those who believe in God and the last day and do righteous deeds, they shall have their recompense with God. They shall not fear nor shall they sorrow. (2:62; also 5:69)

    And on freedom of religion:

    Let there be no compulsion in religion. (2:256) O you that reject faith: …unto you your religion and unto me mine. (109: 6) Whoever wishes to believe, let him believe, and whoever wishes to disbelieve, let him disbelieve. (18:29)

    The text also provides in an address to the Prophet Muhammad: If God had willed everyone on the face of the earth would have been believers. Are you then compelling the people to become believers? (10:99)

    Furthermore, ethnicity and language, national and tribal groupings are viewed as bases of identity and recognition, but not of superiority and privilege. Mankind’s unity of origin in Islam is the basis of people’s equality regardless of their racial and linguistic particularities. To quote the Qur’an:

    O mankind! Keep your duty to your Lord Who created you from a single soul and created its mate of the same [kind], and then created from them multitudes of men and women. (4:1)

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    O mankind! Behold, We have created you into nations and tribes so that you might come to know one another. Verily the most noble of you in the sight of God is the most righteous among you. (13:49) And among His signs, are the creation of the heavens and the earth and the diversity of your tongues and colours. Indeed there are signs in this for those who know. (30:22)

    Note that the address in these passages is to the whole of humankind, Muslim and non-Muslim alike. The Prophet Muhammad added his voice to say:

    O people! Your Creator is one, and you are all descendants of the same ancestor. There is no superiority of an Arab over a non-Arab, nor of the black over the red, except on the basis of righteous conduct.62

    Conclusion Non-Muslim minorities in Malaysia are obviously engaging in issues of concern to them and the quest also to find better solutions. There is evidently room for better communication and improvement of relations between the ethnic and religious strata of our society - as the experience of past decades has shown. The campaign for greater recognition of diversity and freedom of religion under the constitution is also a continuous engagement that can be further refined in line with the greater educational and cultural attainments of the populace. Prime Minister Najib Razak’s “1Malaysia” policy is a welcome endorsement of the desire on the part of Muslims and their leaders to work for social harmony. The main issues are not, perhaps, over legalities or constitutional finesse, but how the religious groups relate and interact with one another and become receptive to each others’ legitimate concerns. There is scope for improvement simply because polarization among the ethno- religious groups of Malaysia has widened over the years. Islam is, in principle, not a hindrance to diversity and pluralism - rather it takes a positive stance that people should appreciate their differences of language, custom and culture through mutual recognition in a quest for friendship and cooperation in good works. The government, religious leaders, and civil society all need to remain engaged and address issues of polarization in schools and universities, in public services, the corporate sector, in housing and residential patterns, and the society at large. END

    62 Extract from the Prophet’s Farewell Sermon, Ahmad Ib Hanbal, Musnad al-Iman Ahmad Ibn Hanbal, Beirut” Dar al-Fikr, n.d, vol.6, 570.