What is a ‘state’ in this new federation, after our 1963 federal constitution? I believe there is some lack of clarity and therefore the so-called ‘state’ can be variously interpreted both as the Malay states of the federation of the peninsula and the Borneo states of Sabah and Sarawak.
In some provisions, it appears to only refer to the 11 constituent states of the older Federation of the Malay states, and yet in others it specifically refers to Sarawak and Sabah as the original four partners of the newer Federation of Malaysia; inclusive of Malaya, Singapore, Sabah and Sarawak.
Which is which and why is it not so clearly defined? Conceptually, it would not be difficult to understand the differences by using the concept of, ‘units of analysis’. For example, Malaysia, the nation-state recognised by the United Nations, is the largest group within what we call ‘home or our nation-state’. We are but one of the ‘Bangsa-Bangsa Bersatu’.
If we then use ‘set theory’ from mathematics and define this largest group as the set; then, all other smaller groups are sub-sets of the big set. Therefore for example, the states of Malaya are sub-sets of peninsular Malaya. Both Sabah and Sarawak are sub-sets of the whole set of Malaysia even as peninsular Malaya is only one sub-set.
Singapore was an equal sub-set of Malaysia before it became independent. But the states of the peninsula are situated at a different unit of analysis than the three constituent states of the whole of Malaysia. They are only sub-sets of one of the sub-sets; therefore they are only sub-sub sets of the large set we call Malaysia.
Our multi-layered federalism
The constitution speaks of itself as the supreme law of the federation. That is legal language to define the supreme law of this nation-state; or of the original full set of Malaysia.
Now then, we can ask, is then the concept of God not part and parcel of the same federation? Of course it is but in terms of laws of the land, that reality of God is not a nationally and legally defined reality in terms of everyday operations in our public life. Such a God does not have material and legal existence, in terms of the laws of the land. We therefore cannot do wrong things in ‘God’s Name!’
That is what then-Lord President Salleh Abas meant when he ruled in the Che Omar Che Soh case:
that the term ‘Islam’ or ‘Islamic religion’ in Article 3 of the federal constitution in the context means only such acts as relate to rituals and ceremonies;
Whose rituals and ceremonies? Of course, they refer to those of the Muslims. Was he not a Muslim himself when he said that? Of course he was, but that is not the point here. He was sworn to uphold the federal constitution, and he did just that.
He was simply using logic and reason to argue that when the drafters of the constitution used the term, ‘the religion of the federation’, they did not plan to make this an Islamic state but really to define the use of Islamic rituals for formal ceremonies. For practical reasons we simply need to use one form of prayer, and therefore we use the one which belonged also to the Rulers of Malaya.
Our ‘Allah’ problem
What then is our problem today with the use of the term ‘Allah’ by non-Muslims, and specifically Christians? Were not the state-enacted law designed and intended to be a bylaw enactment for application only upon Muslims of the sub-sub-states of the peninsula, and only as decreed by those with respective sultans?
Is this not now being extended, really by the backdoor vide Article 121(1A) into a new constitutional rule that now applies to all parties in the full and original set of the Federation of Malaysia? Is this not a violation of the basic spirit of the Malaysia Agreement of 1963?
Worse still, now the ‘Islamic system of jurisprudence’ is blindly, or maybe ‘faithfully’, extending to include non-Muslims and their way of life, and their practice of their faiths. Was this ever intended by the original drafters of the Federation of Malaysia constitution of the 1963 document?
Return to the spirit of 1963 constitution
In the spirit of the 1963 constitution, there is a hierarchy of three units of analysis in our thinking about laws and by laws of the federation. There is the supreme law of the federation; which applies to all of the three component states of Malaysia.
Then there are certain exception clauses which define and accord special privileges to those of the sub-sets of the three components; whether we call it immigration matters, or religion matters, or royalty matters, or even culture matters. These cannot be applied across the board and needs to be limited to the sub-sets defined in those provisions. Neither can these be cross-applied across the specified jurisdictions; if we want to maintain and uphold the integrity of the original set.
Finally, there are very precise and specific leeway’s given to each state of the peninsula to define and conduct their religious laws in ways specified by the head of religion for the state, which is the specific and respective sultan.
Again, these cannot be generalised by ‘national fatwas’ into ‘rules or opinions’ that apply to all of the federation. For example, the ‘Shiite’ issue fits into this category; and cannot be generalised for police enforcement. It is simply illegal for the police to take action on a non-existent legal or criminal act.
Selangor exco’s ruling on ‘Allah’ word usage
The Sun of April 15 carried a headline, not carried by other mainstream media, that it is, ‘All right to use ‘Allah’’ It referenced non-Muslims in Selangor and especially those who helped give the state government their two-thirds majority. The same state government wrongly asked the Bible Society of Malaysia to seek the attorney-general’s ruling to release the same Bibles for the same ‘abuse of the constitution’ by the Appeal Court of Malaysia.
Now they have found the wisdom for that matter. I wonder where then now sit the sultan’s edict about the same matter?
Emotional and irrational outbursts not premised upon the supreme law of the federation will not be any good for the continued blessing of this nation-state we call home.
Our good friend and mentor on ‘Constitutionalism in Malaysia’ is now gone, but even more so then, we will see more of us who have rise up to defend and argue for the same secular supreme law of this Federation of Malaysia. May Karpal’s soul and spirit rest in peace knowing that many of us are lined up behind his leadership on this specific matter.
