The Malaysian Concord (Part 1) – The Sanctity of Islam

Islam is the religion of the Federation of Malaysia as enshrined in its Constitution after being agreed upon by all those party to her establishment (Photo credit: Azirull Amin Aripin/Getty Images)

HRH Sultan Sharafuddin Idris Shah is known to be a private person and rarely voices out.  The only times that he would voice out is when matters pertaining to the Constitution is touched upon, and yesterday was one of those times.

He said that the act of a certain group questioning the sanctity of Islam, the special rights of the Bumiputeras, the national language, and the function and position of the Malay Rulers enshrined in the Federal Constitution need to be immediately addressed and curbed.

I have come across such people, and unfortunately, many are young Malays.  They do not seem to understand that the social contract made between the various races of Malaya prior to 31stAugust, 1957 and Malaysia prior to 9thJuly 1963 are now part of the Federal Constitution.

Nor do they know the parties who signed both agreements for the independence of Malaya, and the formation of Malaysia, and understand why those agreements were made.  I put a partial blame on the education system where we were taught that we were all colonised by Britain when that is not true, except during the Malayan Union period.

Although Islam had been preached in the Malay Archipelago, Indo-China and China as early as the seventh century, it is largely held that Islam arrived in the Malay peninsula in the 12thcentury.  Syariah laws such as the Batu Bersurat of Terengganu, Hukum Kanun Melaka, Undang-Undang 99 Perak became the laws of the land.

In 1908, Richard James Wilkinson, a British colonial administrator who, with the backing of Sultan Idris I, was responsible for the establishment of the Malay College in Kuala Kangsar, and who was also a scholar of Malay and history, wrote on the status of Islamic law in the Malay states:

There can no doubt that Moslem law would have ended up becoming the law of Malaya had not British law stepped in to check it.” (William R. Roff, Patterns of Islamization in Malaysia, 1890s-1990s: Exemplars, Institutions and Vectors, Journal of Islamic Studies Vol. 9, Is. 2 (1998), 210-228, at 211).

This was reinforced by two British judges in the landmark case of Ramah binti Ta’at v Laton binti Malim Sutan 6 FMSLR (1927).

It is due to these facts that the sanctity of Islam was retained in the Federation of Malaya Agreement of 1948, and was introduced into the Federation of Malaya Constitution of 1957.

The English law was only introduced to Pulau Pinang as it was the original British colony.  It was on 25thMarch, 1807 that a Charter of Justice was granted by the Crown establishing a Court of Judicature in Pulau Pinang, with jurisdiction and powers of the Superior Courts in England. This was then introduced to Melaka and Singapore when they became part of the Straits Settlements under British rule.

Only with the arrival of the British residents in the Malay states in the last quarter of the 19thcentury was the English law introduced there in the form of Orders, Regulations and Ordnances, save for the laws and regulations affecting the Malay customs and the administration of Islam.  These laws provided for the administration of justice, the law of contract, sale of goods, bills of exchange, company law, criminal law and procedure, the law of evidence, land law, labour law, and the regulation of many matters of public interest.

The Civil Law Enactment, 1937 (No.3 of 1937, FMS) introduced the whole body of the common law of England and of equity of minor modifications.  It provided always that the common law and rules of equity are “subject to such qualifications as local circumstances render necessary”.  Local laws and custom were made applicable.

Islam was made the religion of the Federation of Malaya.  Although Lord Reid felt it was unnecessary to have such a provision as the Sultans would be the Head of Islam in their states, it was added to the draft of the Federal Constitution at the suggestion of Justice Hakim Halim bin Abdul Hamid of Pakistan, who was a member of the Reid Commission, because he said the suggestion by the Alliance party that represented the people of Malaya to have that proviso added was inoccuous.

Sir Donald Charles MacGillivray personally felt that such a provision would be advantageous because the Yang DiPertuan Agong could at the same time become the head of the faith in the Settlements of Penang and Malacca (CO 1030/524 (10), MacGillivray to Secretary of State, 25 February 1957; See also CO 1030/524 (18), MacGillivray to Secretary of State, 21 March 1957).

This accord was reached between those who were party to the discussion – the Malay Rulers, the British who administered the Rulers’ sovereign states on their behalf, and the multiracial government chosen by the people in 1955 to represent them.

There is even a separation of jurisdiction when it comes to the position of Islam in the Federal Constitution.

The Syariah Law comes under the purview of the respective Rulers, and the Attorney-General of Malaysia, under Article 145(3) does not have the jurisdiction over proceedings before a Syariah court, a native court of a court-martial.

This separation of jurisdiction is also present as provided by Article 121(1A) where both the High Court of Malaya and High Court of Sabah and Sarawak do not have any jurisdiction over Syariah matters.  Therefore, any claim that the Syariah law infringes on the rights of the non-Muslims is fallacious.

The Malaysia Solidarity Consultative Committee chaired by North Borneo’s (later Sabah) Donald Stephens (later Tun Fuad Stephens) stated in its memorandum dated 3rdSeptember 1962 that the acceptance of Islam as the religion of the to-be-formed Federation of Malaysia would not endanger religious freedom within Malaysia nor will it make the country less secular (Malaysia Solidarity Consultative Committee Memorandum on Malaysia, 3 Sep 1962, p.p 120).

And that is how Islam became the religion of Malaysia.

(This article was first published by The Mole)

Farewell Great Briton

At the mention of the phrase Britannia Rules The Waves my mind pictures Margaret Thatcher and the cover of the Newsweek magazine depicting the aircraft carrier HMS Hermes steaming south to liberate the Falkland Islands and the island of South Georgia, invaded by Argentinian forces.

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I first knew of Margaret Thatcher when I was 13, so much fanfare was made of her appointment as Britain’s first female Prime Minister. I remember inside a London cab from Heathrow airport on Christmas day of 1980 my father asking the cab driver, “So how’s the Iron Lady?”

The Maggie I remember has always been one tough and no nonsense person. She was nicknamed The Iron Lady by a Soviet journalist when she became leader of the Conservative party. Both in her domestic as well as her foreign policy she was firm and nothing short of that, never to change her mind once a decision has been made.

“To those waiting with bated breath for that favorite media catchphrase, the U-turn, I have only one thing to say: ‘You turn if you want to. The lady’s not for turning,'” she once told delegates at a Tory conference.

If there is a difference between the meaning of the words “leader” and “leading”, both would define her. Despite violent objections and reservations within her own camp, Maggie ordered for the Royal Navy task force to assemble and steam south to liberate the Falklands this month 31 years ago, and the leader lead her nation to war and victory. It was therefore difficult for me to not to compare the leadership of Margaret Thatcher and what we had when we faced the armed insurgents from Sulu, as history is riddled with many failed leadership as a result of perilous indecisiveness. Maggie not only grabbed the bull by its horns and saw that liberating the two-thousand odd inhabitants of the Falklands as being the right thing to do, but most importantly she recognised that it was her responsibility as the leader of the United Kingdom to see the mission through.

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When I returned to England in 1983 to further my studies, my respect for her waned at the onset of the infamous Miners’ Strike that came about in March of 1984 as a result of the Conservative government’s decision to close inefficient coal mines in northern England, Scotland and Wales at the cost of over 20,000 jobs. Almost every day our Economics class would see a debate on this subject. Scenes of mounted police charging at picket lines virtually every day clouded my thoughts, and being a young adult and having a dislike for Dr Mahathir, I myself became somewhat anti-establishment. The British economy was hit so bad that the Pound was only at RM2.50 or thereabouts in 1984.

It was at this juncture that my views on politics changed when I had a discourse on this matter with one Adam Bachek, then a police officer who was reading law at the University of Buckingham who said, “It is always easy to make popular promises and become a popular leader, but no democratically-elected good leader would make an unpopular decision if it isn’t good for the nation.”

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As with other Empires that had existed before the British, the great Margaret Thatcher was fell not by the voters, but by people in the Conservative party that she led. It started off with the dissenting move by long-time lieutenant, Michael Heseltine, over the Westland affair, and ended with her resignation over the Community Charge (also known as the Poll Tax); but she went down as a true fighter, fighting.

A true fighter to the end, after suffering from countless bouts of stroke beginning in 2002, the Iron Lady was never seen attending public functions in a wheelchair. True to her character, she walked aided as she left her private home for the last time to take up residence in the Ritz Hotel as she found it getting increasingly difficult to walk up and down the stairs at home.

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As the international media show an image of her on a recent visit to 10 Downing Street, waving at pressmen while she wore blue as in the picture above by Alan Davidson, I cannot help but remember the image of her waving outside the same door 34 years ago, also in blue and thought to myself, “Her presence there surely have made 10 Downing Street great again.”

And as a part of me struggles to understand visiting a Thatcher-less Great Britain again next month for the first time in 33 years, I remember what she told naysayers after winning the Falklands War:

“We knew what we had to do and we went about it and did it. Great Britain is great again.”

Farewell, Margaret Thatcher. Farewell, Great Briton.

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