BREAKING NEWS . . . Politics of Islam in Malaya isn’t for Sabah, S’wak . . .

Islamic State, tanah Melayu Narrative, misnomers based on ‘collective amnesia’ in Malaya.

Malaysia secular nation-state founded on rule of law.

It was a shockwave statement by a Deputy Minister in Putrajaya in recent days on pending law about the propagation of religion in Malaysia. It came like a bolt from the blue and set the social media ablaze in Sabah, and Sarawak, in particular.

The proposed law involves the syariah court which can’t interfere in non-Muslim affairs, civil matters and criminal law. The Attorney General, under Article 145(3), has no jurisdiction in the syariah court, Native Court and court martial proceedings.

The politics of religion in Malaya isn’t for Sabah and S’wak, on the other side of the South China Sea in Borneo.

There’s no religion in the Borneo Territories under the Malaysia Agreement 1963 (MA63) and constitutional documents on Malaysia including Batu Sumpah (Oath Stone), a constitutional document in stone in Keningau, Sabah. These, read together with the Federal Constitution, forms the unwritten/uncodified Malaysia Constitution for the Borneo Territories.

Borneo not in Federation . . .

Unlike the sultanates and former British settlements in Malaya, Sabah and S’wak are not in the Federation defined in Article 160(2) in the Federal Constitution. The Borneo Territories are organised but unincorporated in the Federation and control their own Immigration although the Dept remains Federal. Article 160(2) interprets and Defines all terms in the Constitution.

It’s unclear, given so much noise in gov’t and the media, on whether non-Muslim in M’sia would be prohibited by law from propagating their religion among the people, no matter what their creed, or only among Muslim, on whether Muslim are prohibited from propagating non-Muslim religions, or whether non-Muslim are prohibited from any form of propagation.

Law ceases to exist, as if there’s no law, and if it exists, ceases to exist as if it never existed, if it’s not gazetted, there’s no enforcement date in the gazette, isn’t enforced, cannot be enforced, is widely flouted, is bad law, or is inferior law null and void to the extent of its inconsistency with superior law i.e. the Federal Constitution. Article 11 (Freedom of Religion) Article 3 (Religion of the Federation) and Article 12 (Rights in Respect of Education) refer in this case.

Gazette isn’t law . . .

A gazette isn’t law but merely a gov’t announcement. It can’t be challenged in the court of law. The court of law is only about law.

However, the process of gazetting can be challenged by judicial review since it may be in violation of the gov’t’s own procedures, existing laws and the spirit of the law inherent in the Constitution.

Generally, unlike in England, the court in M’sia does not go into the merits of judicial review Applications. The court first considers whether the gov’t has complied with its own procedures. If there was compliance, the judicial review Application would be dismissed. The merits of the Application are not considered. Thereby, the court allegedly avoids the spirit of the law.

Again, unlike in England, the court in allegedly avoiding the spirit of the law, does not consider whether gov’t procedures are unfair. It’s rare that the gov’t loses judicial reviews. Parliament has been virtually looking the other way on this phenomenon in the judiciary which appears to have degenerated into another gov’t dept, like Parliament, in violation of the Doctrine of Separation of Powers.

Origin of Syariah court . . .

The syariah court, as state court in the sultanates, are based on a little known amendment in the Federal Constitution under Article 76A. The amendment, without mentioning syariah or syariah court, facilitates the state assembly to empower the syariah court. It’s not a court of law but Tribunal, on personal and family matters and religious observances of Muslim. The Article makes no mention that the sultan is the spiritual head of the local ummah (faithful).

Conference of Rulers . . .

It can be argued that the sultan, being the spiritual head of the local ummah, should preside over the syariah court. It’s not known whether the pre-Council Meeting of the sultans, which precedes the Conference of Rulers by 24 hours, ever deliberated on the matter during all its years in existence. Article 38 covers the Conference of Rulers. After the British left, the sultan also became head of state as the Governors in the non-sultanates.

The British re-established the 1897 Conference of Rulers on 31 Aug 1948 to help regulate the mostly immigrant Muslim communities in Malaya. The Negrito, the first people in Malaya, came 40K years ago from the mountains in Kerala, southwest India. Negrito are one of the Orang Asli (indigenous) groups.

In India, a necessary digression for this Opinion piece, the law forbids missionary groups — read Christian — converting anyone away from their religion. However, the Constitution still enshrines freedom of conscience. Everyone is free to practise their religion or move, but only on their own accord, to another religion. In short, there must be no compulsion, directly or indirectly.

State law . . .

State law in India since Wed 25 Nov 2020 also prohibits conversion to another religion — read Islam — to marry but inter-faith marriages are allowed provided there’s no conversion, presumably to Islam and Christianity, allegedly perceived as “threats” in a 85 per cent Hindu majority India. The Church doesn’t demand that non-Christian convert to Christianity before marrying Christian.

There’s lacuna (gap) in M’sia on freedom of conscience. The Indian law, being from the Commonwealth, provides Advisory Opinion in court for M’sia. It has all the principles in law in accordance with the Constitution.

There’s also lacuna on syariah in M’sia.

The Indian Supreme Court, in refusing to outlaw syariah on Mon 7 July 2014, ruled that syariah was not law or force of law but based on a person’s willingness to accept it. It would be unconstitutional, cautioned the court, to impose syariah on anyone.

The Indian Parliament, taking its cue from a Petition filed in 2017 by Muslim women in the Supreme Court, outlawed triple talak instant divorces in Islam on Tues 30 July 2019. Earlier, the Supreme Court warned that the “Muslim” headcover, used to enforce triple talak, cannot be forced on anyone.

Islam based on concept of sin . . .

Islam isn’t law but based on the concept of sin (dosa) and merit (pahala). That apparently necessitates the list of dos and don’ts . . . halal (permitted), haram (prohibited) and harus (neither permitted nor prohibited).

Under the rule of law, sin isn’t prohibited in secular nation-states unless it can be criminalised by law, pahala remains confined to “duty of care” which does not apply by law to everyone. For example, a lifeguard on duty at the beach or swimming pool has “duty of care” to prevent anyone drowning.

Islam was created by the 3rd Caliph Uthman, as a form of identity for Arab, when according to history he codified the Quran from 600K sacred Christian texts in the Aramaic language and from other sources.

Mohd, based on multiple characters, was mentioned in the Quran according to Arab and Islamic history, since it was felt that a religion must have a Prophet. The exploits of many characters, according to Arab and Islamic history, find expression in Mohd as a great law giver like Moses, for example.

Ten Commandments . . .

Moses or no Moses, the Ten Commandments unlike syariah have force of law, being based on customary practices.

Moses claimed, according to tradition, that God spoke to him from behind a burning bush. Moses came down from the mountain with two stone tablets with the Ten Commandments. He claimed that God gave the two tablets to him. Moses, in a fit of rage according to tradition, broke the tablets which were placed, broken, in the Ark of the Convenant.

A religion, being based on a belief system, may be about the differentiated consciousness, trapped in space and time in the gross human body, seeking certainties in the comfort zone.

Consider the following self-evident truths in law and history:

Islamic State, tanah Melayu Narrative, misnomers based on ‘collective amnesia’ in Malaya . . .

Malaysia secular nation-state founded on rule of law . . .

The above two thesis statements, self-explanatory, make up the headline and subheadline in this Opinion piece. They can be explained further.

Gov’t reserves . . .

The British gazetted gov’t reserves on Orang Asli (indigenous people in Malaya) land. These were referred to as Malay reservation land (tanah Melayu). Gov’t reserves are untitled land. Such land can be degazetted for public purposes or returned to the Orang Asli.

Unlike the Orang Asal (original people, indigenous) in the Borneo Territories, i.e. Sabah and S’wak, and the Orang Asli in Malaya, Malay don’t have NCR (native customary rights) land under Adat, viz. customary practices which have force of law.

Adat is the 1st Law in International Law, based on international customary practices. It’s about human rights.

Briefly, an Islamic State is one where the Quran is the Constitution and God the head of state. God would be represented by a spiritual head advising the gov’t as in Iran, for example.

The syariah (path of God), hadiths (sayings of Prophet Mohd), fatwa (religious opinion), and Sirat (Mohd’s biography) form the foundation of Islamic jurisprudence and legal system.

An Islamic State is the “antithesis” of the rule of law, the basis of a secular Constitution as in Malaysia. According to jurisprudence, God isn’t a source in law. Law and force of law must have source to have jurisdiction, authority and power.

Legitimacy . . .

The rule of law calls for freedom of conscience; free speech, free assembly, free association; free press and the right of reply; respect for human rights and international law; free and fair multiparty elections observed by the international community, consent of the governed, legitimacy of gov’t, and recognition of a gov’t by the UN and member states, both on a bilateral and multilateral basis.

All these criteria are missing in Afghanistan, for example, where the Taliban seized the gov’t in Kabul by force on Sun 15 Aug under the guise of an Islamic Emirate. The Taliban failed to participate in multiparty elections under its banner, having been outlawed by the UN as a terrorist movement. Google “criminal mindset” to understand the Taliban better as a threat to the global security framework.

Work in progress . . .

Islamic jurisprudence begs to disagree with secular jurisprudence.

In Islamic jurisprudence, God exists and has always existed and reportedly created Man. God, in Islamic jurisprudence, is the source in law. If Islam and syariah had claimed that they were based on customary practices, they would have force of law in secular jurisprudence. There may be a work in progress shift on this in Saudi Arabia to comply with secular jurisprudence.

Likewise, to digress a little, it’s said that Beijing has been working on adopting a new Constitution based on the rule of law.

Creation not science . . .

In science, it’s unscientific to say that God exists. There’s no proof. Again, in science, it’s equally unscientific to say that God does not exist. There’s no proof.

Secular jurisprudence, taking its cue from science and philosophy as well, holds that God could not have created Man as there was no need by the laws of science. Man, according to philosophy, created God through religion. Then, Man claims through religion without proof that God said this and said that and declared law for Man.

It’s science that the gross human body isn’t “us”.

The gross human body is something “we” inherited as two cells which went on to gather the energy of the sun through Mother Nature on Earth.

It will return to Mother Earth when its time runs out.

When the gross human body returns to Mother Earth, there’s no longer any differentiation in consciousness. We know from science which has probed the mind going into coma, that the consciousness exists as spirit which defies description.

There’s only the undifferentiated consciousness — i.e. it “sees’ everything according to subject matter experts — after the gross human body returns to Mother Earth.

Mind permeates whole body . . .

It’s science that the mind isn’t in the brain only but permeates the whole human body, powered by electricity like in the case of robots run by Artificial Intelligence. The mind, consciousness, and the universe are one and the same, according to spiritualists, mystics and yogis.

Memories and emotions cease to exist, unless stored by the universe, and played back like a video on the “other side”. That may be part of belief systems found in religion which promote the idea of judgment day.

Article 3, a standalone Clause in the Federal Constitution, states that Islam is the religion of the Federation. There’s no official — i.e. gov’t — or national (no other religion recognised) religion in Article 3. The Federal gov’t has no religion. Islam, the religion of the Federation under Article 3, is in fact the religion of the sultans in Malaya. In law, where it reads religion of the Federation, it can be read as religion of the sultans.

The sultans were recognised by the British as the spiritual head of the local ummah (faithful).

Definition of Malay . . .

They also preside over Malay culture, customs and traditions as enshrined in the 1st Prong of the Definition of Malay in Article 160(2) of the Federal Constitution.

The 1st Prong implies Malay as a race of Muslim, habitually speaking the Malay language, and practising Malay culture, customs and traditions. The 3rd Caliph Uthman said Islam was a form of identity for Arab. Therein lies the contradictions in law. Arab in history came before Malay.

In the 2nd Prong, “clarified” by case law, Malay is a form of identity based on Islam and being born or domiciled as Muslim and/or convert in S’pore or Malaya by Merdeka, 31 Aug 1957. The descendants are Malay provided they remain Muslim.

Today, according to linguists, when someone speaks the Malay language, five to seven words in a sentence of ten words are Sanskrit, the language used in Hindu temples in mantra, prayer, song, poetry, dance, worship, literature, ancient books of knowledge and philosophy.

The rest of the ten words in the sentence are an old Khmer dialect, Tamil, Pali, English, and words from local languages and dialects.

Lingua franca . . .

The Malay language wasn’t originated by any race, according to linguists, but by Hindu and Buddhist from southeast India, as lingua franca for the Archipelago. It was used for trade, missionary work, education and administration. The Malay language has only 20K words.

By 2050, it has been estimated by linguists, that Bahasa M’sia would probably comprise 50 per cent English, 30 per cent Sanskrit, 10 per cent Tamil and Pali, and 10 per cent old Khmer dialect and local languages and dialects. Bahasa M’sia, as it stands, has 40K words.

English is 50 per cent Latin, 30 per cent French, 10 per cent Greek, and 10 per cent Germanic dialects and other languages and dialects.

There’s case law in Malaya that the Definition of Malay in Article 160(2) isn’t race but anthropology. The Constitution is colour-blind, the law doesn’t get into DNA or geographical origin.

Palm Oil (Malaysia) Sdn Bhd v. Che Mariah Mohd Tahir (Trading as Delta Mec Enterprise) [1994] 3 CLJ 638 is case law on the Definition of Malay in Article 160(2).

Case law on Malay . . .

If it’s anthropology, Islam which came to the Archipelago from a place far away, from Gujerat in western India, would not be mentioned in the Definition.

Clearly, the said case law does not stand.

Anthropology in the Archipelago covers paganism and animism, an ancient form of Hinduism, and Buddhism, an Indic religion.

It cannot be said to cover the Abrahamic religions viz. Judaism, Christianity and Islam as well.

According to the 2010 National Census, Malay form 50.4 per cent of the population in Malaysia.

In the 2020 National Census, delayed by the pandemic, the Malay have been classified under the Bumiputera (sons of the soil) political label along with other Muslim including convert, Orang Asal (indigenous people in Borneo) and Orang Asli (indigenous people in Malaya).

Malay number unknown . . .

The Malay number in the population remains unknown. There’s no “ethnic” breakdown in the figures.

It’s said the National Registration Dept (NRD) has since dropped Malay from the chip on the national identity card, MyKad, but retains Islam on the front. This allows Muslim nationwide including allegedly illegal immigrants, who habitually speak the Malay language, to consider themselves Malay to feed public perception on the phenomenon. In that case, the Definition of Malay in Article 160(2) may be redundant in law and renders the tanah Melayu theory non-existent.

In law, there may be constitutional issues with the Malay Definition in the Constitution.

Joe Fernandez

+60168012984 (whatsApp before calling)

NOTE: Longtime Borneo watcher Joe Fernandez keeps a keen eye on M’sia as a legal scholar (jurist).

He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express.

My links . . .

Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

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