‘Secular Malaysia’ claims based on wrong court precedent, ex-top judge argues

(Malay Mail Online) – Former Lord President Tun Salleh Abbas’ 1988 court ruling may have set a wrong precedent that led to the country being labelled secular, retired Chief Justice Tun Hamid Mohamad argued today.

Hamid said the 1988 case of Che Omar bin Che Soh v the Public Prosecutor at the then-Supreme Court — often touted by proponents of secularism to refer to Malaysia’s non-Islamic nationhood — must be examined in the context in which it was made.

“We have to know the context of which this was said,” Hamid stressed, saying that the ruling back then was based on the argument against the death penalty for a drug case.

In his judgment, Salleh had summarised: “…We have to set aside our 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.”

Hamid was among several panellists who spoke at the University Kebangsaan Malaysia (UKM) forum titled “Hudud in Malaysia: Opportunities, challenges and obstacles”.

Other panellists present argued that the Federal Constitution should not be used to reject the rollout of hudud as it was never secular to begin with.

They believe that a secularist reading of Malaysia’s highest law was flawed, and that it was impossible to separate Islamic practices when talking about governance on a national level.

International Islamic University of Malaysia (UIAM) law lecturer Dr Shamrahayu Abd Aziz said that the federal constitution has never rejected religion, and that it was never stated within any of the laws that it was secular in nature.

“Islam is the religion of the federation, and its basis is the Quran and Sunnah. The constitution does not reject this.

“Nowhere does it state that the country is secular, just that the constitution is the highest law of the land,” she told over 500 attendees here.

Shamrahayu pointed out that many opponents of Islamic Shariah law have often used Malaysia’s first prime minister Tunku Abdul Rahman’s past remarks as a basis to justify a secular Malaysia.

“Was Tunku Abdul Rahman accurate? When was this country secular? The earlier law of the Malay peninsula was in Johor which was Islamic.

“This land has never been separated from Islam, therefore I doubt statements proclaiming this country as secular,” she said.

The late prime minister had referred to Malaysia as a secular state, and not an Islamic one, on a number of separate occasions.

His first recorded statement was in Parliament on May 1, 1958: “I would like to make it clear that this country is not an Islamic state as it is generally understood; we merely provided that Islam shall be the official religion of the State.”

The law academic then went saying that the reading of the constitution was a matter of interpretation, and that if people wanted to view it from a secular perspective, then a secular reading would be found.

“If they want to secularise it, why can’t we Islamise it?

“The YBs in Parliament, when they debate and pass a law, do they separate themselves from their faith? The Muslim representatives? I don’t think so,” she added.

PAS has said it delay tabling two private members’ bills needed to pave way for the enforcement of hudud in Kelantan, to allow a proposed bi-partisan committee to study the implementation of the Islamic penal code.

Legal experts insist that hudud cannot be implemented in Malaysia as it would be unconstitutional. They also pointed to complexities in enforcing a law in which non-Muslims could not be compelled to appear.