G25 would like to respond to the various comments as well as criticisms that have been made in the media following the publication of its latest report titled “Administration of Matters Pertaining to Islam”.
The report was launched on Jan 11 at a ceremony at the Persatuan Alumni Universiti Malaya clubhouse building. It was well attended by individuals, civil society organisations, foreign missions including the UN and the media.
The launch was followed by a panel discussion by three speakers and was ably moderated by a G25 member who herself played a leading role in the completion of the report. The panel also heard comments and suggestions from the floor.
The report was written to address the main areas of concern relating to the administration of Islam in this country, particularly the lack of clarity in the laws and institutions that are embedded in public policy in the application of Islam.
In looking into these concerns, the researchers studied the historical background of the administration of Islam from the records, papers, discussions and consultations among the stakeholders, including the Malay rulers and political leaders, in the drafting of the constitution for independent Malaya (in particular, we refer to the Report of the Reid Commission, the Alliance Party Memorandum, and the Constitutional Proposals of the Working Party appointed by Their Highnesses the Malay Rulers, the British Government, and the Government of the Federation of Malaya).
Our researchers came to the same conclusion as other historians have said before – that our founding fathers had clearly intended that in making Islam the religion of the federation, this in no way makes religion the foundation of our laws and institutions.
Hence, the finding in the report is that Malaysia is a secular country, with the same system of governance structure as other democracies in the Commonwealth. Further, our founding prime minister Tunku Abdul Rahman gave an explicit assurance to the Malay rulers that although the Federal Constitution makes Islam the religion of the federation, this would not affect their power as head of religion in their respective states.
When Sabah and Sarawak joined Malaysia in 1963, they were assured by the Cobbold Commission that Islam would remain as a symbol of the nation and not as a basis of government. It was within this constitutional context that we arrived at our findings on apostasy and Jakim, the two topics which have drawn much criticism of G25 from religious officials and politicians, including ministers.
On apostasy, we wish to state categorically that G25 does not condone it nor do we encourage Muslims to leave Islam. On the contrary, we believe apostasy is a major sin in Islam and Muslims should remain faithful to the religion both in their private as well as their public life.
Those who wish to renounce Islam should be persuaded not to do so as it is one of the major sins in Islam. However, if they insist, and especially if they are recent converts, they should be given the right to do so as the constitution guarantees the freedom of worship not only to non-Muslims but to all Malaysians.
Other Muslim countries like Morocco do not make apostasy a criminal offence because their contextual interpretation of murtad (apostasy) is that it means treason. It was relevant to make it a punishable offence during the time of the Prophet pbuh as there were Muslims who became traitors by deserting to the enemy to fight against him and the Islamic nation state.
Thus, it was a matter of politics and not a religious doctrine. As apostasy cum treachery (as opposed to mere apostasy per se) was then treated as high treason, it was considered right to make it punishable by death. According to the Moroccan religious authorities, this justification no longer applies in modern times.
On Jakim, G25 does not advocate its abolition but as the Federal Constitution does not empower the Conference of Rulers (COR) to establish the National Council on Islamic Affairs (MKI), we advise that if the Malay rulers want the power to create the council and make Jakim its secretariat, they can do so by getting parliament to make an amendment to Article 38 so as to enhance the role of the COR in matters pertaining to the administration of Islam within the federation.
Currently, Article 38 is cautiously worded as to what the COR can do, suggesting to us that the framers of the constitution had the intention to confer on the COR a limited role as far as the administration of Islam within the federation is concerned, as the Malay rulers were given the assurance that Islam is a state matter. Hence, the only function conferred on the COR, as far as matters pertaining to Islam are concerned, is as per limb (b) of Article 38, Clause (2), namely, “agreeing or disagreeing to the extension of any religious acts, observances or ceremonies to the federation as a whole”.
Our legal experts therefore hold the view that Article 38 was expressly worded to meet the wishes of the Malay rulers not to give authority to the COR to establish a national body or department on Islam at the federal level. Furthermore, in light of the Malay rulers’ concerns about the implications of Article 38 on their prerogatives in their respective states, the constitutional drafters assured the rulers that if such a federal body were to be established, it would only be for liaison purposes.
In short, matters pertaining to Islam – that is, those matters that are explicitly spelled out in Schedule 9, List II of the Federal Constitution – are under the exclusive purview of the states, not a federal-level body or the federal government.
We would welcome the amendment to make Jakim constitutional. This federal department in the Prime Minister’s Department has a big budget, bigger than the budget of some ministries. It will be embarrassing and legally risky to the government if somebody questions the legality of allocating public funds to Jakim and brings up the matter to court for a ruling on the constitutional status of the department.
G25 believes that it is being constructive in pointing this out to the government.
We find it regrettable and unfortunate that some commentators, critics and the social media chose to highlight the findings of the study exclusively on the unconstitutionality of Jakim, and not linking it to the other aspects including the recommendation made for taking steps to render it constitutional.
The study drew a parallel with one of the matters under the State List – the matter of land. The Federal Constitution contains a provision, namely Article 91, establishing the National Land Council, although land is a state matter. And the Federal Constitution via Article 76 Clause (4) empowers Parliament to enact the National Land Code, which would allow federal intervention in matters of land, on grounds of achieving uniformity of land law and policy.
Likewise, here, G25 proposes that the Federal Constitution (with the agreement of the states, as Islam is a state matter) be amended to establish a body parallel to the National Land Council, to be called the National Islamic Council that will function in tandem with the functions of the Conference of Rulers on matters pertaining to Islam; with Jakim legally functioning within the framework of the National Islamic Council.
Also, if it deems necessary, Parliament could further invoke via Article 76, Clause (1)(b), to enact a law for the purpose of uniformity of laws pertaining to Islam in the states, as currently there is lack of uniformity in the laws of the states.
We welcome the various comments on the findings in the report as we believe that through dialogue and exchange of views, we can strengthen the administration of Islam in our country and make it a model for application in public policy in modern times.
G25 is a group of former civil servants.
The views expressed are those of the authors and do not necessarily reflect those of FMT.