A week ago Port Dickson MP Anwar Ibrahim mooted Zakat reforms saying the non-Muslims should also be included as Zakat recipients. He said this at the International Seminar on Islamic Zakat, Wakaf and Philantrophy in Selangor.
His statement incurred the wrath of the Sultan of Selangor who, through a statement issued, said that Zakat (tithe) can only be distributed to eight categories of the needy that include the hardcore poor asnaf, poor asnaf, and mu’allaf who are Muslims.
Asnaf is defined as a party that does not own any property and whose work cannot meet the demands for basic needs and therefore is eligible to receive Zakat aid collected from Muslims. A mu’allaf is an individual who are non-Muslims who have the hope of converting to Islam or those new to Islam whose faith still needs to be supported or reinforced.
Based on the above-definitions, the Sultan added that Zakat can only be given to a non-Muslim mu’allaf based on the principles of asnaf Mu’allafati Qulubuhum (those whose heart has accepted Islam). This principle is based on the Quran where Allah SWT said, “Zakat expenditures are only for the poor and for the needy and for those employed to collect (Zakat) and for bringing hearts together (for Islam) and for freeing captives (or slaves) and for those in debt and for the cause of Allah and for the (stranded) traveller – an obligation (imposed) by Allah. And Allah is Knowing and Wise.” (Quran 9:60).
Both the Mufti of Perlis and Pulau Pinang have made a statement supporting this. In a television interview the Mufti of Perlis said that Perlis had issued a fatwa to enable non-Muslims to receive tithes under the concept of asnaf Mu’allafati Qulubuhum in 2017.
“This means that Perlis follows the sunnah of Prophet Muhammad p.b.u.h not only to help (the non-Muslim asnaf) but also to hopefully embrace Islam,” said the Mufti. He added that the decision of the fatwa rests on the Ulil Amri (leader – the Raja of Perlis).
The Mufti of Pulau Pinang said that non-Muslims who are poverty stricken can obtain assistance from other governmental resourcees such as the Welfare Department. Distributions should only go to non-Muslims if collections exceed what was needed for Muslim recipients.
He said that according to the Quran, Zakat could be extended to non-Muslims with the purpose of making them to favour Islam, to encourage them to help Muslims against the latter’s enemies, or for them to sympathise with Muslims. This was because the contributions come solely from Muslims who pY the tithe as a religious obligation.
Malaysia, being a country that has Islam as its religion as prescribed in the Federal Constitution holds to the doctrines of Imam Shafie who in his book Al-Umm said the following:
“The Mu’allaf (those whose heart have received Islam) are those who have accepted Islam. Zakat is not given to the musyrik to entice them to Islam. If there are those who say that during the Battle of Hunayn the Prophet had distributed collections to the Musyriks, those are the distribution from fai (spoils of war) or from his own property. Not from Zakat collection.” (Al-Umm, 2/388. Beirut: Dar Ihya al-Turath al-‘Arabi).
As mentioned in the above paragraph, the religion of Malaysia is Islam. The Ruler of the states that have a Ruler as Head of State, is the Head of the religion of Islam. In states where there is no Ruler, the Yang di-Pertuan Agong is the Head of the religion of Islam. Matters of the religion of Islam come under the purview of Their Majesties. It is a pity that a seasoned politician such as Anwar Ibrahim does not know his position when mooting such reform.
In the words of the Sultan of Selangor: do not take advantage of and use the affairs of the religion of Islam to gain popularity or win the hearts of certain parties.
Malays love to idolise the wrong people. We name roads and university buildings after people like Burhanuddin Al-Helmy, Ishak Haji Muhammad, Ibrahim Yaakob, Ahmad Boestaman who once fought for the unification of Malaya and Indonesia under the Indonesia Raya political concept where the former comes under Indonesian rule from Batavia, rid of its feudal system.
On 3 March 1946, five Sultans from five Malay states in East Sumatera, along with thousands of their family members were brutally murdered by supporters of the Communist Party of Indonesia as well as Sumateran Malays who fell for their anti-royalist propaganda. The pogrom did not only end the Malay Sultanate governments of East Sumatera, but also the customs and traditions of the Sumateran Malays.
Those whose name had the prefix Tengku, Wan or Raja were immediately executed, while the Malay population had to assume Javanese or Batak names to avoid persecution. At least two generations of Sumateran Malays had to hide their real identity after the pogrom. It was in essence an ethnic cleansing, and was done under the battle cry “Daulat Rakyat.”
I often wonder if the same is being done here in Malaysia, the sowing of hatred towards the royal institutions in order to remove the very protection of the Malay and Bumiputera rights as well as the sanctity and status of Islam as the religion of the Federation?
Once, there was deep respect for the Rulers. Malaysia Incorporated changed all that. Money was power and that came from those with political power. Political interference in the constitutional powers of the Rulers eroded further whatever was left of that respect.
There is a revival of love and respect for the royal institution, now that things are going bad and election promises reneged upon. But people are still confused by the roles that the Rulers have in this democratic system of ours. Many people think that the Rulers institutions should be dissolved as they do not have any tangible role to play. The truth is far from it. Whatever executive powers that the government has, the fount of that power is the Yang di-Pertuan Agong.
The roles of the Rulers were watered down from the beginning – in our school text books. It does not augur well for a government to be seen as playing a second fiddle to the Rulers. Hence, nationalism was injected into our history text books and the Rulers’ role in our “independence” was only as a signee party to the Federation of Malaya Agreement, 1957. Nothing more. In the end, the Rulers are now “living extravagantly on taxpayers’ money.”
Therefore, it is of no surprise that the Rulers and members of the Royal institutions have their set of haters spawned by this lack of understanding. And when Her Majesty the Raja Permaisuri Agong recently retweeted a known UMNO cybertrooper’s post about the incident at the University of Malaya’s convocation ceremony, she was immediately condemned by the haters.
It was unfortunate for Her Majesty to have retweeted that person’s post, but I can understand why. It was driven by her displeasure of the act by the graduate, choosing such an occasion to display an absence of decorum. What if it was the Sultan of Perak who was there to present graduates with their scroll? Her Majesty undid her retweet later.
The Raja Permaisuri Agong is not the first of the first line member of the royal institutions to have suffered attacks both on and off social media. Almarhum Sultan Azlan Shah of Perak, the Sultan of Johor, and the Sultan of Terengganu were criticised for choosing a Menteri Besar for their respective state by people who do not understand the constitution. Since when is the choosing of a Menteri Besar the prerogative of a winning party or Prime Minister? Where in any constitution does it say that? By convention? By convention is not a rule of law. That is not binding at all.
The Sultan of Selangor was criticised for protecting the sanctity of Islam, with some calling the state’s Syariah criminal enactment unconstitutional. It is the duty and absolute right of the Sultan of Selangor to protect the sanctity of Islam in his state; the same goes for the other Rulers as well. And the state Syariah criminal enactment that was passed by members of the state assembly remains a law of the state until proven unconstitutional by a constitutional court. Has there been any challenge?
I have mentioned in several of my previous writings that this land has always been Islamic by nature and this was reinforced by two British judges in the landmark case of Ramah binti Ta’at v Laton binti Malim Sutan 6 FMSLR (1927).
For the past few years I have seen many attacks made on the Rulers as well as on Islam and the special rights and privileges of the Malays and the Bumiputeras. Many non-Malay Bumiputeras fail to understand that they stand to lose a lot too if these attacks prevail.
Being the constitutional protectors of both Islam and the special rights and privileges of the Malays and Bumiputeras, the protection for the Rulers, for obvious reasons, must be removed first. Hence, we have seen the attempts to introduce the National Unity Consultative Commission Bill in 2015, ICERD and the Rome Statute. Times are dangerous in Malaysia for Islam, the Malays and Bumiputeras.
The reason for the UM graduate’s outburst on stage was his claim that the Vice-Chancellor of the university is a racist for attending the recent Malay Unity Congress and for delivering a speech then. A quick read of his speech text revealed nothing racist. But if the graduate still thinks it is, why stop there? Why not demonstrate in front of the Prime Minister’s office or residence for delivering a speech there as well? Why be selective?
And what has the Malay Unity Congress achieved? Absolutely nothing. Even the Prime Minister seems powerless to tell the graduate to go fly kites with his demands and to stop being such a rude person. The PM also seems powerless and reluctant to summon and reprimand the CEO of Media Prima for giving airtime to the said graduate.
That is why I used to tell my Muslim friends before the last general elections – politicians and governments come and go, so never rely on them to protect your rights and the special constitutional status of Islam in this country. And do not ever think that the politicians are bigger in status than the Rulers. The politicians only want to cling on to power. For that, they will make compromises and are willing to compromise their beliefs.
Imam al-Ghazali in his book, al-Iqtisad fil I’tiqad, challenged the idea that Muslims can perfect their individual actions and morals without a state that governs by Islam.
“The Deen and the Sultan are twins,” he wrote. “the Deen is the foundation and the Sultan is the guardian. That which has no foundation is doomed, and that which has no guardian will perish.”
And that is why there seems to be an attempt to undermine and eventually remove the guardian, so that the foundation can be permanently removed. So, what is it that we want? A nation where we live by the Federal Constitution as our paramount law so we can continue our evolution, or, believe in ‘Rakyat Hakim Negara’ where it becomes a revolution?
MALAYSIANS are not accustomed to seeing a Yang di-Pertuan Agong and a Raja Permaisuri Agong that they can relate to.
Remove the pomp and regalia, you see a CEO who holds work discussions at a mamak joint over teh tarik, and a mother who stops at stalls to buy kuih, just like ordinary parents would do on a daily basis.
To say that Malaysians have gone all gaga over this Royal couple is an understatement. The ability to interact, especially with the Queen, on social media is totally unprecedented.
In some ways, being able to tweet to your Queen like you would speak to your mother is good, but some tend to forget that there are lines drawn in such engagement. They mean well, but tend to forget mannerism.
Of course, the royal institution also has its band of haters – people who think that the royal institution does not have a place in modern democracy.
They call the royal families the untouchables, the unelected, the ones whom we pay for their lifestyle. All these remarks have been made thinking that the Malaysian democracy is a true democracy in every sense, where the Malay Rulers are nothing but overpaid rubber stamps.
They are anything but rubber stamps.
The Yang di-Pertuan Agong is the Supreme Head and executive authority of the Federation.
In other words, he is the fount of authority in Malaysia. As the Ruler of a State, he also represents the other eight Malay Rulers who have elected him to the office of the Yang di-Pertuan Agong.
Prior to 1 February 1948, save for the rulers of Terengganu and Johor which governed in council with the Sultan as head, the rulers were all absolute monarchs.
The British were here in agreement with the respective state Ruler to assist the latter in making the administration of their respective state more efficient.
The Rulers delegated their administrative authority, except in the affairs of the religion of Islam and Malay customs, to the British Residents who were in the Rulers’ payroll.
These residents were answerable not to the Queen of England, but to the sovereign ruler of whichever Malay state they were transferred to.
Come February 1 1948, these Malay states were all federated – with central control, but with some internal autonomy.
The Malay states still retained their sovereignty.
A popular belief is that we were colonised and were therefore not sovereign states, but the court case brought by one Jenny Mighell against the Sultan of Johor in 1894 brought forth an 1885 Treaty with the Crown of England and a letter each from the Colonial Office and Queen Victoria herself to confirm Johor’s status as a sovereign nation.
When the Sultan of Johor sent Dato’ Mohd Seth bin Mohd Said as his representative to the Merdeka discussions in London, the latter was given an instruction to disagree with Malaya being given independence.
Detractors of the royal institution regarded this as the Johor family wanting to remain as a colony of England instead of being independent as a single nation under the Federation of Malaya.
The truth is, Johor was independent at the time as other states were, had its own civil service, courts and postal service. Used to efficient governance headed by British advisers, the Sultan of Johor did not want a Malaya governed by Malayans who, in the view of the Sultan, do not possess any idea of how a nation should be governed.
The 1948 Federation of Malaya had a Federation of Malaya Legislative Council with the High Commissioner as its Chief of Executive; three ex-officio members namely the Chief Secretary, the Finance Secretary and the Attorney-General; 11 State and Settlement members consisting of the President of the Council of each of the Malay states and an elected member of the council from Melaka and Pulau Pinang; and 45 official (including the Chief Ministers) and unofficial members.
This council was made via the Federation of Malaya Agreement of 1948 by Sir Edward Gent on behalf of the Malay Rulers, and only for the Malay Rulers and their Successors.
This again, is proof that the Malay Rulers were sovereign and not subjects of any colonial power.
Fast forward to 1957, the final agreement was reached for the Malay Rulers to transfer the delegation of some of their executive powers from the British administrators to the representatives chosen by the people in the 1955 elections.
The Malay Rulers had preferred a hybrid government that would have consisted of elected representatives as well as representatives appointed by them made up of professionals who could help run the country in the case where elected representatives do not meet the expected mark.
In hindsight, that would have saved us all a lot of trouble now.
The office of a Yang di-Pertuan Agong, representing the other eight Malay Rulers, was created by the Federal Constitution.
In this constitution it also states that the Yang di-Pertuan Agong has the right to choose from the Lower House, an elected representative whom to the opinion of His Majesty, holds the confidence in the House, to become the Prime Minister.
This Prime Minister shall then advise His Majesty on whom to pick as members of His Majesty’s Cabinet.
Likewise, the Sultan or Raja of the respective states has the right to choose an elected representative from the Dewan whom to the opinion of His Majesty, holds the confidence of the Dewan, to become the Menteri Besar. This Menteri Besar shall then advise His Majesty on whom to pick as His Majesty’s Executive Councillors.
If the Yang di-Pertuan Agong, or the Sultan or Raja, feel that none hold the confidence of the House or Dewan, Their Majesties can not appoint anyone until a candidate that enjoys the confidence of the elected representatives is found; but this has to be done within 120 days after the dissolution of the Parliament and states assembly.
It is not for anyone to force Their Majesties to choose.
Having said that, there was no business whatsoever for Umno members to hold a demonstration in front of the Terengganu palace, for Pakatan supporters to roll on the roads leading to the Perak palace, or for the Prime Minister to say that the Sultan of Johor has no say in choosing a Menteri Besar.
The Prime Minister is the CEO of the country, answering to the Yang di-Pertuan Agong who is the Executive Chairman.
And what do the Malay Rulers receive for them to agree to being in this Federation and to allow the people to choose amongst them representatives who will be administering the Malay Rulers’ government? The emoluments stated in the Istana Negara (Royal Allowances) Act, 1982 and the various states’ enactment for royal provisions.
The constitution of the Malay states was made by the Malay Rulers and with the State Legislative Council. The Federal Constitution was made by the Federal Legislative Council. The Federal Constitution made the Yang di-Pertuan Agong, the Prime Minister, the Cabinet, the Acts, us Malaysians.
Take the Federal Constitution away and dissolve Malaysia, you will not have a Yang di-Pertuan Agong, no Prime Minister, nothing. However, the Malay states will still exist with the Sultans as the supreme executive authority of those states.
And they are above the respective states constitution because they made the state constitution.
That is why they are the unelected, the untouchables as some say.
And no, you do not feed them.
You are merely paying them in exchange for your right to vote in the people in your judgment would be the better ones to administer the government by the people, for Their Majesties.
When Jasliza Jamil met with an unfortunate accident on her way to work in Putrajaya last month, the last person she would expect to stop and lend a helping hand was Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah, the Yang DiPertuan Agong himself. The King was on his way to attend a pre-Cabinet meeting with Prime Minister Tun Dr Mahathir Mohamad.
That was not the first time that His Majesty had acted in such manner. Even during his tenure as the Tengku Mahkota of Pahang he had stopped at accident scenes countless times, offering his assistance not just there and then, but to the extent of following up with the victims asking how they were recovering and at times even paying for the treatment received!
The above is the Pahang way – where putting the importance of the people first is the order of the day.
Many do not realise the other story behind that chance meeting with Jasliza Jamil.
His Majesty was on his way to Putrajaya for his pre-Cabinet meeting with the Prime Minister. This scheduled weekly meeting is where the Prime Minister briefs the King on the administration of the country and seeks the King’s advice on very important matters. The Prime Minister, after all, administers the country and heads His Majesty’s government.
But these meetings have always been held, by convention, at the Istana Negara. However, nothing is conventional when it comes to the House of Pahang. Recognising the urgency of matters, the King saw fit to go to the Prime Minister instead to expedite the process of running the government.
This is again a norm in Pahang where His Majesty, then as the Prince Regent, would meet the Menteri Besar instead of the other way around to get matters out of the way.
Just before the accident in Putrajaya happened, the social media circle was abuzz with excitement when the King was shown queuing up and ordering at a Kentucky Fried Chicken outlet in Temerloh.
To many, it was a scene that is totally out of the ordinary. But to the people of Pahang, it was perfectly normal to see Al-Sultan Abdullah and family eat at either KFC or McDonald’s just like any other family.
Behind the bubbly character of the beautiful Raja Permaisuri Agong is the loving and dutiful wife, mother and Queen.
Not many know that Her Majesty cooks for the King daily, give away one or two days. Her Majesty was trained in cooking by her late father, Almarhum Al- Mutawakkil Alallah Sultan Iskandar Al-Haj who once told her, “Azizah, if you don’t know how to cook, how can you tell the cook that their cooking is not right?”
Almarhum Sultan Iskandar also urged Her Majesty to learn how to cook the various Pahang recipes before she got married to Al-Sultan Abdullah. Last year, Her Majesty launched two recipe books showcasing Pahang food and desserts.
Her Majesty is often seen during floods cooking for flood victims. I was fortunate enough to witness how she cooked for thousands of flood victims in Pahang every single day at different locations for up to two weeks and more, every single meal time.
Upon arrival at any of the flood evacuation centres Her Majesty would announce to the aid workers in the makeshift cookhouse, “Assalamualaikum Pakcik-Pakcik, Makcik-Makcik, Abang-Abang, Kakak-Kakak, boleh berhenti buat kerja. Biar saya yang masak!”
She would get down to work immediately to feed the hundreds at the centre, then get her children to serve the flood victims. None of those in Her Majesty’s entourage were allowed to eat any of the food cooked.
“Ini rakyat punya,” she would say. She would ask her children to go around the dining area to make sure that everyone had eaten before saying goodbye to everyone and head for the next centre.
When Almarhum Sultan Haji Ahmad Shah Al-Musta’in Billah passed away, it was Her Majesty who took charge of the funeral arrangements as the King was away in England to attend the graduation of their daughter.
Everyone could see the dutiful and loyal wife and daughter-in-law tirelessly pacing the floors of both the Istana Negara and Istana Abu Bakar ensuring that everything was in order, and at the same time guests were taken care of. And many cried seeing both their Majesties hug and console each other upon the arrival of His Majesty the Yang DiPertuan Agong at Istana Abu Bakar.
The loving wife, finally in the arms of her pillar of strength; the loving husband seeking comfort and solace from his pillar of strength.
Getting the Insights
The events above were captured by the Istana Negara public relations team that is embedded inside the King’s entourage.
Although most royal households now have a form or two of social media accounts, they are mostly dry and too formal in their presentation.
The Istana Negara social media accounts give an insight into the daily functions of both the Yang DiPertuan Agong and the Raja Permaisuri Agong. Although formal in nature, it is more relaxed in its approach that brings the rakyat into the events themselves.
The Facebook page ‘Friends of Istana Negara’ supports the official Istana Negara social media accounts by relaying the events while ‘House of Pahang’ which is found on Facebook, Instagram, Twitter and YouTube gives an insight into the lighter side of the Pahang royal household.
One of the events covered in the latter that had Netizens awestruck was during the barbecue dinner hosted by the King and Queen during the recent Conference of Rulers where all the Rulers, queued and took their own food! For the first time people were able to see the other side of the members of the royal families and those who expected to see their Majesties being served at the table received a huge surprise.
Transparency seems to be the order of the day. Both the Yang DiPertuan Agong and the Raja Permaisuri Agong are very open even when talking about personal matters.
We are accustomed to editorials written about the Sultans and previous Yang DiPertuan Agongs in the newspapers. This time, we get to read and hear it from their Majesties themselves.
His Majesty spoke to members of the press about his wishes for the people, and how the press then and now have helped shape his character, while Her Majesty spoke about her feelings at being appointed the nation’s First Lady and shared childhood jokes with the press.
In an age where socioeconomic gains are seen as a result of political works, the Rulers Institution is gradually losing its relevance. Intended misinformation and watering-down of the important roles the Rulers Institution play in ensuring a check-and-balance in Malaysia’s own mould of democracy and as protector of the people have contributed to the youth asking the relevance of the Rulers Institution in this new millennium.
The misbehaviour of those not directly in lines of succession have undoubtedly smeared the image of the royal households and have brought about much disrespect just because the name of those in question still bear the title Tengku or Raja. Of course, they are human, but they also carry the responsibility of preserving the name and image of the institution they belong to.
This is perhaps the reason both their Majesties have embraced social media and see the importance of ‘letting the people see the insides of the Istana’ as only transparency, without any erosion to the dignity of the Institution, is the way for the rakyat to see that the institution of the Yang DiPertuan Agong is the people’s institution, and not merely a rubber stamp for the government that is supposed to work for His Majesty. This is the mould the people have been waiting for.
And Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah ibni Almarhum Sultan Haji Ahmad Shah Al-Musta’in Billah is the benchmark for all future yang DiPertuan Agong to follow. DAULAT TUANKU.
Almost a year ago, voters voted for change and hailed the dawn of a new era. They kicked out the Barisan Nasional administration for a coalition that promised them better life quality, better pay, freedom of speech among others.
A month later, the Minister of Education announced that public universities could organise debates and forums “like in other renowned universities around the world” (Menteri: IPTA kini boleh anjur debat, forum – Malaysiakini, 6 June 2018).
This prompted an academician, Dr Khoo Ying Hooi, to pen his feelings saying that the newfound freedom of speech is needed to create a new narrative that academicians do not only teach in universities but have a bigger responsibility, that is to contribute to society (Suara hati ahli akademik yang kini bebas selepas berdekad dirantai – The Malaysian Insight, 9 June 2018).
Just six days to a year of taking over the administration, the same Minister of Education wants the four academicians who presented their views to the Rulers Council to resign from their post (Maszlee: Academics must take responsibility for executive summary on Rome Statute).
He was alluding to the fact that they should not continue to hold their post due to alleged lack of integrity.
The four are Professor Datuk Dr Rahmat Mohamad, Associate Professor Dr Shamrahayu Ab Aziz, Dr Fareed Mohd Hassan and Hisham Hanapi. The four were summoned by the Yang DiPertuan Agong to present their views of the Rome Statute to the Rulers Council. The four were opposed to the Statute and cited their reasons.
The Rulers Council also summoned Professor Shad Saleem Faruqi and Attorney-General Tommy Thomas to present their views and reasons for their support of the Statute.
If the government is truly serious about respecting freedom of speech and expression, then it should also respect dissenting views. Furthermore, the four academicians, like Professor Shad Saleem Faruqi and the A-G, were summoned by the Rulers. They did not just appear in front of the Rulers at their own time, whims and fancies. It was an order.
It just happens so that the views of the four managed to convince the Rulers Council that the Rome Statute is not good for the nation while Shad Saleem Faruqi and the A-G failed to convince their Majesties otherwise.
Therefore, in the name of integrity, shouldn’t Shad Saleem Faruqi and the A-G resign too?
AS we all know, Prime Minister Tun Dr Mahathir Mohamad had announced on April 5, 2019 Malaysia’s intention to withdraw from ratifying the Rome Statute of the International Criminal Court.
However, just a week ago Foreign Minister Saifuddin Abdullah said that it is only a dead end for ICERD, but not for the Rome Statute (Jalan mati buat ICERD tapi bukan Statut Rome, kata Saifuddin – Free Malaysia Today, 23 April 2019).
Parliamentary Opposition Leader Ismail Sabri Yaakob hit out at the Foreign Minister the very next day. In a blog post, Ismail asked if the Foreign Minister still wants the Rome Statute ratified and what is the Pakatan Harapan government’s agenda? (Menteri Luar Masih Mahukan Statut Rom Diratifikasikan. Apa Agenda PH? – dsismailsabri.com, 24 April 2019).
What I find most interesting among all the points that were brought up by the Opposition Leader are the date when the statute comes into force for Malaysia, and the period of withdrawal from ratification.
Paragraph 1 of Article 126 of the Rome Statute states that the Statute shall come into force on the first day of the month after the 60th day following the ratification. For Malaysia, that date falls on June 1, 2019.
Paragraph 1 of Article 127 states that a State Party may, by written notification, withdraw from the Statute. The withdrawal shall take effect ONE YEAR after the date of receipt of the notification.
What the above means is that come June 1, 2019, Malaysia becomes a State Party. Any withdrawal following that date will only take effect ONE YEAR AFTER the receipt of the written notification. Until the withdrawal comes into effect, Malaysia is obliged to honour the Rome Statute.
Enter Article 7 Paragraph 1
At a glance, the ICC does not cause a nation’s sovereignty to diminish. Unlike the International Human Rights Law, the International Criminal Law does not directly impact national constitutional arrangements.
However, according to an expert in International Criminal Law, Rupert Elderkin, when International Criminal Law comes into play, it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power (Elderkin, R. (2015). The impact of international criminal law and the ICC on national constitutional arrangements. Global Constitutionalism, 4(2), pp. 227-253).
The Attorney-General can argue that the Yang DiPertuan Agong will not be affected if Malaysia decides to declare war against another nation. Maybe not so. That is the least of my worries. It is Article 7 (Crimes Against Humanity) that I am more concerned about.
This Article deals with any act when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack that includes persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender, or crimes of apartheid.
Persecution means the intentional and severe deprivation of fundamental rights contrary to international law, while the crime of apartheid is explained as an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups.
I can name several Articles in the Federal Constitution, and the numerous policies aimed at protecting the special rights of the Malays and Bumiputera, as well as the special position of Islam, that are already against Article 7 of the Rome Statute.
The Malay Rulers act as a shield in their respective states for protecting the religion of Islam. If a Sultan refuses to appoint a state assemblyman whom he thinks has the majority support of the Dewan, as the Menteri Besar, on grounds that the latter is not a Muslim, then the Sultan is already acting in direct contravention of Article 7.
In the case of HRH The Sultan of Selangor and the issue of the use of “Allah” in Bibles five years ago, although the State’s religious affairs department acted in accordance with a state enactment that was made under the state’s constitution, that, too, would have contravened Article 7 of the Rome Statute.
It is immaterial whether or not the State’s constitution or enactments contravene the Federal Constitution. It can only be so when a Constitutional Court deems it to be.
Can the Agong and Malay Rulers be prosecuted?
But will the Yang DiPertuan Agong and the Malay Rulers still be protected from prosecution by the ICC? Or, can they be prosecuted by the ICC?
The Malay Rulers know of the policies and Articles that give Islam its status as the religion of the Federation; that give special status to the Malays and Bumiputeras over others; that makes Malay the national language – all of which come under their protection.
One can argue that since the Malay Rulers are constitutional in form, they cannot be held responsible, as argued by the Attorney-General saying that the Agong cannot declare war and is therefore not accountable. However, the Eighth Schedule of the Federal Constitution clearly states their executive powers.
Although the Latin phrase actus reus non facit reum nisi mens sit rea is the common law test for criminal liability meaning the act is not culpable unless the mind is guilty, it also means that a crime can be committed not only through one’s intention, but also through the knowledge that one’s action or inaction would contribute the same.
In Prosecutor vs Tihomir Blaškić (ICC Appeals Chamber, 29 July 2004), the ICC Appeals Chamber held that “the person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.”
In other words, there is no legal requirement of an ideology, plan or policy to articulate the mens rea applicable to crimes against humanity. In this context, the Malay Rulers can be found culpable to promoting and enforcing policies and plans that oppress targeted race or religion, while holding the supremacy of one race or religion.
In the words of Catherine Gegout, and Associate Professor in International Relations, Faculty of Social Sciences at the University of Nottingham,
“The ICC can prosecute any individual anywhere in the world, but for suspected criminals who are citizens of a state which has not ratified the ICC Statute, a United Nations Security Council (UNSC) resolution is necessary.” (Gegout, C. (2013). The International Criminal Court: limits, potential and conditions for the promotion of justice and peace. Third World Quarterly, Volume 34, 2013, Issue 5, pp. 800-818).
How effective can ICC prosecute will depend on how cooperative a State Party is. If the government, as the executive branch of a State Party, decides to cooperate with the ICC and have a Malay Ruler tried by the ICC, then It could.
So, what is the government’s intention?
If there is something that may affect the status of Islam as the religion of the Federation, the special privileges of the Malays and Bumiputera, the National Language, and the status and functions of the Malay Rulers, it is imperative that the government bring it to the Malay Rulers to be deliberated.
By going quietly and ratifying the Rome Statute without first bringing the matter to the attention of the Malay Rulers is an act that contravenes the Federal Constitution. The Malay Rulers have every right to be consulted, to warn and to encourage. The cabinet members all took an oath to serve in His Majesty’s government, a Malaysian government; not a political party’s government.
So, what was the intention of ratifying the Statute? To take Myanmar to the ICC? China for the mistreatment of the Uighurs
Most importantly – June 1, 2019 is getting nearer each day. Why has the government not sent the formal letter to the Secretary-General of the UN to notify of Malaysia’s intention to withdraw from ratifying the Statute? How difficult can drafting a letter be? Does it need more than 25 days to draft one?
Or is the announcement by the Prime Minister 26 days ago a form of strategic withdrawal that will only see a letter sent days, weeks, months or years after June 1, 2019 that will see Malaysia bounded for another year after?
I do not think that we have seen the end of the volleys fired at each other between the Tunku Mahkota of Johor (TMJ) and the Government. Although I disagree with the TMJ whenever he writes about anti-federalism, I agree with his stand to protect the Federal Constitution. He may not have the protection from the law as he is not the Head of State, but his courage and determination to go at loggerheads with the Government on this matter deserves support.
According to Barisan Nasional Member of Parliament Annuar Musa, the recent Rulers Council meeting saw the Attorney-General Tommy Thomas and Foreign Minister Saifuddin Abdullah summoned by His Majesties to explain on the clandestine ratification of the Rome Statute.
His Majesties also summoned Emeritus Professor Shad Saleem Faruqi, a Professor of Law in the University of Law, who is a proponent of the Rome Statute. Also summoned were four academicians opposed to the statute: Law and Constitution lecturers Professor Datuk Dr Rahmat Mohamad, Associate Professor Dr Shamrahayu Ab Aziz, Dr Fareed Mohd Hassan and Hisham Hanapi.
Only after listening to all above did the Rulers Council leave it to the Yang DiPertuan Agong, who represents the Rulers Council, to take the matter with the Prime Minister. The Rulers Council could have there and then issued a statement to show their displeasure at the manner their Government had acted in matters that could have an impact on the rights and position of Islam as the religion of the Federation, the Malay Rulers, the privileges of the the Malays and Bumiputeras, and the National Language.
This is not the first time that Saifuddin has gotten himself in hot soup. When he was a Minister in Najib Razak’s administration, he came up with a National Unity Bill when that was not the term given to him as Chairman of the National Unity Consultative Council. As a result, Najib Razak and the Attorney-General then were summoned to the same meeting four years ago and received a telling or two.
Mahathir was very obviously furious as seen in the video of a press conference made after announcing Malaysia’s pulling out of the Rome Statute, and unnecessarily alarmed the people with words like coup-d’etat to justify the Government’s about turn.
What he, and his supporters seem to have forgotten is that he is the Prime Minister of His Majesty’s government. It was the agreement signed between their Majesties with the ruling coalition in 1957 to transfer the administrative powers vested in the British advisors by their Majesties from the former, to the government that was elected by the people.
This was true then, true when the British were still here, and still true now that although the Rulers had divested much of their independence, they remain sovereign; and independence is not equal to sovereignty.
As a principle of international law, sovereignty denotes, in its purest form, the concept of a ‘supreme authority’ be it an individual or a collective unit and implied power to exercise independence both internationally and domestically.
And Professor Datuk Dr Ramlah Adam rightfully pointed out that the powers of the Malay royalty are now included in the Federal Constitution. They (the Rulers Council) should have been consulted first, as accorded by the Constitution, before the government took unilateral decisions to introduce and ratify ICERD and the Rome Statute.
Other than having the rights to be consulted, to encourage and to warn in daily administrative matters, the Malay Rulers also have the duty to protect the sanctity of Islam as the religion of the Federation and the states they reign over, the special privileges of the Malays and Bumiputeras, the special position of the Malay language as the National language.
These are the rights enshrined in the Federal Constitution, and any attempt to introduce anything that has any effect on the above, will need the agreement of the Rulers Council. Any deviation from that is against the Federal Constitution and the spirit in which it was made and agreed to by our forefathers with all the parties involved.
And I saw an online comment by a non-Malay netizen asking what have the Malay Rulers done that have benefitted the people? After the post-World War 2 racial clashes that saw the birth of the First Emergency, the British based on a priori saw the need to resettle the Chinese in camps while between 20,000 and 50,000 be sent back to China.
The plan moved at a snail’s pace due to the objections by many, and with the total withdrawal of the Kuomintang to Formosa, the repatriation of the Chinese came to a halt in September 1949 when the Communist Party of China closed off all ports and beaches. Only 6,000 Chinese from Malaya were sent back (Anthony Short, 1975 pp 178-201). The rest were settled in new villages to curb them from supplying the Communist Party of Malaya with food and other essentials.
Most of them had never had any form of allegiance to Malaya, its Rulers and government. Therefore, in granting citizenship to them they were required to give allegiance to the Rulers and the Federation.
That is the price you have to pay to become the citizens of this nation.
The same goes to all the Members of Parliament and members of the government cabinet: you have all taken an oath of allegiance to the Yang DiPertuan Agong, who represents the other eight Malay Rulers. State executive councillors and elected representatives have also taken the oath of allegiance to their respective Ruler. You are all administering the governments of the Federation and its states on behalf of the Malay Rulers, therefore it is totally unbecoming for you to act as though they are equals.
As in the words of Tengku Amer Nasser Ibrahim, the adopted son of the 16th Yang DiPertuan Agong, posted to his Instagram story:
“Tadbir” must be accompanied by “Adab”, only then will the outcome be just.
So, stop toying around with the Malay Rulers, the sanctity of Islam, the privileges of the Malays and Bumiputeras, and the special position of the Malay language as the National language.
This article follows a previous one on the Malay and Bumiputera special rights.
A couple of days ago it was made known to the public that the street names in a certain suburb of Shah Alam were changed to Chinese characters, in contravention of Sections 2 and 9 of the National Language Act, 1963/67.
Yesterday, HRH The Sultan of Selangor decreed that the street names be taken down and replaced by ones in the Malay language, which is the National Language.
I mentioned in a previous post that a national language is a tool to unite the peoples of Malaysia.
It was the intention of our forefathers in the quest for independence to have ONE language to unite all, and that is the Malay language with a Romanised written form, so that the non-Malays could learn the Malay language rapidly (Tunku Abdul Rahman, The Road to Independence, 1984: pp.112-114).
I gather that those were the reasons His Royal Highness issued the decree mentioned above – in line with one of the functions of the Malay Rulers: to care for the people’s welfare. Therefore, if there is any issue that may cause tension, the Malay Rulers will step in to remind the people to respect each other and to respect the laws.
What I find disgusting in this episode is that the local government, or local council, allowed for the street name change to happen, forgetting that every instrument of the government is acting on His Majesty’s Service.
Not too long ago, all government envelopes had URUSAN SERI PADUKA BAGINDA stamped at the top; that was until someone who was not fond of the Rulers changed that to URUSAN KERAJAAN.
Essentially, all government branches, including the Federal cabinet as well as the state executive councillors, are acting on behalf of the Yang DiPertuan Agong and Sultan (in the case of states).
They are not independent of the Rulers – which is why they are sworn in before the Agong or the Sultan.
The Malay Rulers have divested much of their independence now as they did before during the period of British administration.
However, both they and their state remain sovereign. Independence is not equal to sovereignty.
The British were here through the various treaties signed with the respective Malay Rulers. Save for the Japanese occupation, Malayan Union period, Pulau Pinang, Melaka and for a while, Pangkor, the Dindings and Larut, Peninsular Malaysia was never under British colonial rule.
There were three test cases to determine the sovereignty of the Rulers and the state they ruled:
The infamousMighell v The Sultan of Johore(1894) where it was ruled that, although the Sultan by treaty had bound himself not to exercise some rights of a sovereign ruler, this did not deprive him of his character as an independent sovereign;
InDuff Development Company Limited v The Government of Kelantan (1924), the House of Lords similarly upheld the sovereignty of Kelantan and its Ruler was not intended to be qualified by the terms of the treaty.
In Pahang Consolidated Company Limited v State of Pahang (1933), the Privy Council summarised the constitutional position in Pahang as follows: subject to the limitations which the Sultan had from time to time imposed upon himself, he remained ‘an absolute ruler in whom resides all legislative and executive power.’ (See, 1894; Q.B 1924; A.C and M.L.J).
The British were in the Malay states to assist the Malay Rulers in the administration and management of their respective states, and were under the Rulers’ payroll.
The only matters that they could not touch were the states’ Islamic affairs and Malay customs.
Sir Frederick Lugard wrote of the British Residents:
“From the first to last the theoretical independence of the states was the governing factor in the system evolved in Malaya. The so-called ‘Resident’ was in fact a Regent, practically uncontrolled by the Governor or Whitehall, governing his ‘independent’ state by direct, personal rule, with or without the co-operation of the native ruler.”(Sir F.D Lugard, The Dual Mandate in British Tropical Africa, London, 1926: pp.130-1, vid. pp.8-10).
One such Resident was of course James Wheeler Woodford Birch who, in the words of Sir Richard Olaf Winstedt,“dashed into Perak’s Augean Stables like an angry Victorian schoolmaster, confident that it could all be cleaned up with a little firmness and decision.”(Winstedt, History of Perak, JMBRAS, xii, 1).
Birch’s monumental tactlessness, especially over the regulation of taxes, drove all the Sultan’s Chiefs into frantic opposition which resulted in his assassination in 1875.
Other than the occasional odd behaviour by some Residents, the Malay Rulers and their state remained sovereign and ‘independent’. In an answer to Colonel Josiah Wedgwood (Labour – Newcastle-under-Lyme) about the control over the states of Malaya, Sir Phillip Cunliffe-Lister (Conservative – Hendon), Secretary of State for the Colonies replied:
“There is no question at all of altering in any degree, even by a comma, the Treaties which bind us, and which are charters of the agreements with the Rulers both of the Federated and the Unfederated Malay States.”(British Parliament Hansard, Commons Sitting, Class II, HC Deb 14 July 1933 vol 280 cc 1429).
With the Independence of Malaya, all the administrative powers handed down by the Malay Rulers to the Federal and State Councils was passed to the government that was chosen by the people of Malaya in the 1955 elections.
The Federal cabinet administer the government of the Yang DiPertuan Agong, who was elected by the Malay Rulers to represent Their Highnesses at Federal level, while the Menteri Besar and state executive councillors administer the state for the Sultans.
The Malay Rulers, as owners of this land, continue to enjoy their position with their income regulated by the respective laws, and receive advice from the Menteris Besar (or in the case of the Yang DiPertuan Agong, the Prime Minister).
This is evident in Article 181(1) of the Federal Constitution which states:
“Subject to the provisions of this Constitution,”the“sovereignty, prerogatives, powers and jurisdiction of the Rulers…as hitherto had and enjoyed shall remain unaffected.”
The same was noted by Mark R Gillen of the Faculty of Law, University of Victoria (Gillen 1994:7).
In the words of the late Sultan of Perak, Sultan Azlan Shah, former Lord President, it is:
“a mistake to think that the role of a King, like that of a President, is confined to what is laid down by the Constitution, His role far exceeds those constitutional provisions”(Azlan Shah 1986:89).
In 1867, Bagehot asserted in “The English Constitution” that the Constitution needed two parts: the dignified – to excite and preserve the reverence of the population’ and the other, the efficient – to ‘employ that homage in the work of government’.
The monarch was the prime example of dignity in this sense and the Prime Minister (Menteri Besar) and his cabinet (executive councillors) of efficiency.
Therefore, the monarch, while lacking executive power, had an important constitutional role.
HRH The Sultan of Selangor was correct in the exercise of his function when reminding the people to not touch on the matters that have been agreed upon and are already enshrined in the Constitution – the sanctity of Islam, the National Language, the Malay and Bumiputera special rights, and the position and function of the Malay Rulers.
Such action, had the Sultan not interjected, would be naïve and dangerous to the fabric of the society.
In the words of Sultan Nazrin Muizuddin Shah of Perak in July 2011:
“Rulers must use wisdom to calm situations, but they do not have a ‘magic lamp’ to keep unity, especially when the situation has become chaotic. “
IN part one (The Malaysian concord (Part 1) – the sanctity of Islam), I wrote about HRH The Sultan of Selangor’s displeasure of the challenge by a certain group against the sanctity of Islam, the National Language, the special rights of the Bumiputera, as well as the function and position of the Malay Rulers that are enshrined in the Federal Constitution.
I read the comments on the issue at the online page of a mainstream newspaper. What I saw was blatant ignorance on the part of the readers. This ignorance, if gone unchecked, will be dangerous to the future of this nation.
Many commentators mentioned that the Reid Commission had recommended for certain special privileges to be reviewed after 15 years, but was never done.
I need to put this record straight. In many of my writings, I mentioned that those party to the agreement of the independence of Malaya were the British government, the Malay Rulers, and the Alliance party as the government of the day.
Lord William Reid was tasked to form an independent commission to draft the new constitution for a post-independence Malaya.
The idea to have an independent, non-Malayan constitutional commission came from Tunku Abdul Rahman himself.
The Malay Rulers were for a commission that consist of local politicians, lawyers and other professionals, just as India and Burma (later Myanmar) had. Ghana, Pakistan and Ceylon (later Sri Lanka) opted for a mix of local and foreign constitutional experts.
Tunku felt that it was important to have a non-Malayan independent commission to draft the Malayan post-independence Constitution as it would be able to avoid local prejudices and perform its task with complete impartiality (PH/A/008/4, MCA Files, Memorandum by Tunku Abdul Rahman, 1 March 1955).
This he intimated to Sir Donald Charles MacGillivray, the last British High Commissioner in Malaya, and told the latter before leaving for the January 1956 Independence Conference in London that the commission should consist of legal experts with sufficient knowledge of constitutional developments in the Commonwealth (CO1030/132(3) MacGillivray to A.M. MacKintosh, Head of the Southeast Asia Department of the Colonial Office, 5 January 1956).
So again, I would like to reiterate that the function of the Reid Commission was only to draft the Constitution with input from all those party to the independence agreement, and make recommendations to those parties.
The Commission itself was never a party to the discussion, let alone of the agreement.
Going back to the issue of the national language, it was in the Alliance’s manifesto for the 1955 federal elections to have a national language to foster a common nationhood, with plans to upgrade the Malay language as the national language.
As safeguarding the interests and rights of the Malay and Chinese communities being the key features of its manifesto, protection for the languages of the other communities as well as their growth and development was also guaranteed.
The earlier version of the Alliance’s memorandum to the Reid Commission did state a 15-year time frame for the special position of the Malays and Malay as the national language.
However, in view of the radicals in both Umno and MCA at the time where the former questioned the principle of jus soli while the latter questioned the need for Malay special rights and a national language, an inter-communal constitutional bargain was made and was conveyed to the Reid Commission orally that the time-frame be omitted (PH/A/008/4, Memorandum by Tunku Abdul Rahman, 1 March 1955).
This was the version that was accepted not just by those within the Alliance, but also by the Malay Rulers as well as the British government.
Five years later, this same subject was brought forth to all who would be affected by the formation of the Federation of Malaysia.
The Malaysia Solidarity Consultative Committee chaired by North Borneo’s Donald Stephens in its memorandum stated the it accepted the view that the Federation of Malaysia should have a national language and placed no objection to the adoption of the National Language of the Federation of Malaya, Singapore and Brunei which is also the lingua franca of the region (Malaysia Solidarity Consultative Committee Memorandum, 3 February 1962: pp. 122).
Even the Cobbold Commission, a Commission of Enquiry set up to gauge the support of the people of North Borneo and Sarawak for the creation of the Federation of Malaysia noted in its report that its Chairman (Lord Cameron Fromanteel Cobbold) felt in view that Malay is the closest to a lingua franca in Borneo than any other language, no derogation from the Federal provision was necessary (Report of the Commission of Enquiry, North Borneo and Sarawak, 21 June 1962: pp. 54).
The Inter-Governmental Committee (a committee that consists of the Federation of Malaya, and Great Britain – looking after the interests of its colonies of North Borneo and Sarawak) reported that Malay should be the language of the Federation of Malaysia, but Article 152 of the proposed Federal Constitution (based on the Federal Constitution of Malaya) be modified in its application to the Borneo states so as to secure that the English language may be used in an official capacity for a period of ten years after Malaysia Day (Malaysia Report of the Inter-Governmental Committee, 1962: pp. 26).
A national language is an important tool for creating “national” consciousness.
Hindi is the national language of India, as Mandarin, Thai and Bahasa Indonesia are respectively in the China, Thailand and Indonesia.
It is difficult to understand why, after 61 years, are we still having this argument about what the national language should be.
What kind of national identity are we to have when we cannot even communicate with each other in one common language?
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.