The Federation of Malaya Constitutional Commission (1956-1957) apparently had a nagging question for the Perikatan or the Alliance in Sept 1956. The Alliance came before the commission for a hearing and submission of its memorandum on the Merdeka Constitution.

In private, the commission had expressed concern over the contradiction between the Alliance declaration that Malaya would be a secular state and the provision for Islam to be the official religion of the Federation. The commission had intended to seek a clarification on the matter. However the question did not get to be asked in the brevity of the hearing which lasted for a little more than two hours.

If this information is new to most of us, it may be because it is.

The information is however, not technically new. It was buried in the Public Records Office in Kew, England. Most of the official constitutional documents of the Reid Commission including minutes of their meetings, correspondence, oral evidence and memoranda were classified information until recently. This included the papers of Sir Ivor Jennings, a constitutional law expert and member of the commission. Jennings was responsible for the drafting of the final draft constitution.

It was by chance that I picked up the book, The Making of the Malayan Constitution by Joseph M Fernando (2002) at the University of Malaya's Pekanbuku. The book is based on his doctoral thesis to the University of London in 1995. I did wonder then, if any of the newly acquired information painstakingly penned by the author has made any impact on the teaching of constitutional law or political history in the local universities.

Fernando writes that Jennings in his private notes on the commission's report felt that the religion of a minority, (the Malays forming less than half the population at that time), or even a majority should not be formally established. Jennings entertained this view for the same reason he disliked the establishment of the Church of England, "I do not think Islam needs the power of the state to support it".

Rulers' request

The commission did not include Islam as the official religion of the Federation in the final draft. It cited the request of the rulers to retain religion as a state matter. The rulers in their representations via the rulers' counsel said that the Alliance request would infringe upon their position as the head of Islam in their respective states.

The commission had also considered the views of other communities which did not support the creation of an official religion in the constitution. These were representations from the Eurasian Union, the Malayan Tamils Association and the Straits Chinese British Association of Melaka. It also received a confidential letter from the secretary of state stressing the need to ensure that the constitution guaranteed the freedom of religion.

When I first taught Malaysian constitutional law under the tutelage of some of the more respected constitutional law teachers in the land, including the late Ahmad Ibrahim, much ado is made of the note of dissent by Justice Abdul Hamid. Justice Abdul Hamid hails from Pakistan and is a member of the commission. His note of dissent was controversial as it was appended like a minority report to the Reid Report instead of having his comments included in the body of the report.

The main crux of Abdul Hamid's note of dissent was the special position of the Malays and Islam as the official religion of the Federation.

Abdul Hamid supported the Alliance request for the inclusion of Islam as the official religion. He wrote this note after the final points to the draft constitution were agreed to. He had earlier agreed to the non-inclusion of an official religion clause. He did not however make a note of this prior agreement in his note of dissent.

There were speculations as to why he changed his mind in Rome where the commission had its last meeting on the draft. Fernando offers several insights from his research and reading of the materials available. Among others there was speculation that Abdul Hamid was in private communication with Onn Jaafar then leader of Party Negara who allegedly insisted on the point. Party Negara did not submit a memorandum although the commission approached Onn Jaafar on the same.

At some point in the book, Fernando mentioned that Hamid and Justice Malik of India had a heated exchange on the Kashmir dispute when the commission met in Rome and thenceforth, refused to talk to one another. The issue of Kashmir remains a sensitive issue for South Asians. I can vouch for the fact that even today, human rights meetings can quickly turn ugly with the Kashmir dispute with South Asians.

Distinct positions

But seriously, Abdul Hamid had based his support for an official religion on the fact that at least 15 countries had similar provisions in their constitutions. He did not however, draw the distinction that these countries were more homogenous than multi-cultural Malaya.

Fernando notes that the Alliance (Umno, MIC, MCA) and opposition Malay-based parties like Party Negara and the Pan Malayan Islamic Party (PMIP) shared the same view on Islam as the official religion.

What piqued my curiousity in revisiting this point is the distinction that may be made between the position of the rulers and the political parties in the context of an emerging independent state in relation to Islam.

The rulers wanted Islam to remain a state matter. This was acceded to under the Merdeka Constitution where Islam remains a primary matter in the state legislative list and the ruler remains the head of Islam in his own state. The Merdeka constitution made provisions for an Islamic legal system and state Islamic courts.

The Reid Report noted that "There is nothing in the draft constitution to affect the continuance of the present position in the states with regard to recognition of Islam or to prevent the recognition of Islam in the Federation by legislators or otherwise in any respect which does not prejudice the civil rights of individual non-Muslims".

In the party discussions on contentious issues of the special position of the Malays, language and citizenship, Islam is hardly debated. Islam is largely perceived as an identity of the Malays and is related to the issue of the special position of the Malays. What received serious debates and horse- trading is related to review of Malay privileges, the use of Chinese and Tamil in the legislatures and citizenship.

Uniformalising influence

Nasr (2001), is of the view that Islam was brought into the nationalist discourse before independence as a "uniformalising influence". He explains that the Japanese occupation changed the face of Malayan politics. The British were routed. The end of the occupation saw a vacuum in national leadership. The Malays looked towards the Kaum Muda "young Turks" (which included reformist Islamists) for leadership and guidance.

The Kaum Muda had before this been excluded from the religious bureaucracies during colonialism. The ulama who were inducted into state religious administrations cooperated with the sultans to limit the powers and influence of the orthodox reformists, who grew in prominence in the late nineteenth century as a result of the greater contact with the Arab heartland of Islam.

The Kaum Muda reformists in Umno, Party Negara, PMIP and Party Rakyat, in time served as leaders in the emerging Malay nationalist movement that evolved outside of the British system. These Islamic leaders provided the use of Islam in mass politics. At the end of the Japanese occupation and in the absence of a widely shared sense of nation in lieu of allegiance to states and sultans, Islam became an indispensable component of Malay identity and nationalism.

It is possible from these insights to construe that "Islam as religion of the Federation", is a rallying point of Malay nationalism. If this is a possible reading of that history, it is also possible to surmise that the character of the Federation as secular (as opposed to the states of the Federation), remains intact. Islam as an identity of the Malays as confirmed under Art 160 of the constitution merely reiterates that point of identity.

In other words, Islam as religion of the Federation does not necessarily mean that the Federation is an Islamic state or that Islam is privileged at the cost of equal citizenship and religious freedom of non-Muslims.

Post-colonial state

On independence day, Malaya remains structurally a post-colonial nation state. Islam as religion of the Federation is arguably confined at independence as an identity of the Malays and the unifying factor of Malay nationalism. It has been included in the Independence Constitution of 1957 as a component or in recognition of the "special position of the Malays".

Islam is a traditional element and a special feature of the Federal constitution. Islam continues to be part of the state structure in the new Federation as part of state rights and powers and prerogatives of the rulers. Islam is not limited to rituals and ceremonies.

After reading Nasr, it did dawn upon me that the burst of academic writings on Islam, Islamic law etc. came with the Islamisation agenda of the 80s. These are post-independence writings, more than two decades after 1957. I have shared Nasr's views of Umno's political Islam elsewhere.

The late Ahmad Ibrahim, with due respect to him, had occasion to write (1987) that: "As Islam is the religion of the Federation the Shariah as based on the Quran and Sunnah must be enforced in the Federation and it should be provided that any law which is inconsistent with the Holy Quran and the Sunnah shall be void to the extent of such inconsistency...as Islam is the religion of the Federation surely the fundamental principles of the laws should be based in Malaysia, not on the English Common Law but on the Shariah."

It is with the utmost respect to his dear memory that I say that his point is debatable. This was not the premise of discussion of the rulers, the political parties and the Malayan public with the commission.

Former Lord President Salleh Abas wrote (1986) that the Malays "practise only one religion: Islam". This may not be even correct from an anthropological standpoint as Malays have been Hindus before the advent of Islam in the region.

He also offers a controversial view on the nature of Islamic belief of the Muslims in Malaysia:

"Muslims in this country belong to the Sunni Sect which recognises only the teachings of four specified schools of thought and regards other schools of thought as being contrary to the true Islamic religion. It is with a view to confining the practice of Islamic religion in this country within the teachings of the Sunni Sect that State Legislative Assemblies and Parliament, in respect of the Federal Territory, are empowered to pass laws to protect Muslims from being exposed to heretical religious doctrines, be they of Islamic or non- Islamic origin and irrespective of whether the propagators are Muslims or non- Muslims".

It is not my intention to isolate these two writers for comment. The writings are examples. I do think that these views reflect the genre of writings in the Islamisation period of the last 20 years.

The "rightful place of Islam" is still a matter of debate. What is not contentious is the place of Islam in the state constitutions. Whether Islam should move into the realm of federal law or be the standard upon which all our public laws are measured against, is a matter to be brought back to the drawing board. This does not in any way mean that our civil courts are not in a position to accept principles of Islamic law where it might be useful and where it is found to be relevant on a case to case basis, but not in any case where it affects equality (non-discrimination) and religious freedom of non-Muslims.

My thoughts on the matters raised are new to me and its presentation here may not be well formed. I had stumbled as it were, on it while working on a larger work. I have expressed them here as an invitation to revisit certain premises in the light of new information and insights of political theory, history and reformation. There may be a different narration of Islam in our multicultural society. I hope this concern would be viewed in a spirit of openness and inquiry.

Notes:

Talal Asad (2003), Formations of the Secular: Christianity, Islam, Modernity (Stanford Calif: Standford University Press) writes that 'secular' is not the privatisation of religion. The deprivatisation of religion is possible in a 'secular' society. Whether religious deprivatisation threatens modernity or not depends on how religion becomes public. If it furthers the construction of civil society or promotes debate around liberal values, then political religion is entirely consistent with modernity. If it undermines civil society, or individual liberties, then political religion is a rebellion against modernity and universal values (page 182). Asad is Distinguished Professor of Anthropology at the Graduate Centre of the City of New York.

Nasr (2001) Islamic Leviathan: Islam and the Making of State Power (New York: Oxford University Press)

Ahmad Ibrahim, (1987) The Constitution's Special Features. Paper presented at the Conference on the Malaysian Constitution after 30 years. Law Faculty, University of Malaya.

Salleh Abas, Traditional Elements of the Malaysian Constitution, in Trindade et.al eds., (1986) The Constitution of Malaysia: Further Perspectives and Developments (Petaling Jaya: Fajar Bakti).