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By Aston Paiva, who is a lawyer in the firm Bon Advocates in Kuala Lumpur. He specializes in administrative and constitutional law particularly in disputes involving religious freedom, freedom of expression, and equality and non-discrimination. His writings on issues affecting democracy, governance and human rights in Malaysia can be found in print and online.

“Some religious fanatics talk of bringing in a Muslim system of government, but the many Muslim countries of the world themselves practise a wide variety of governmental systems, and it is unrealistic to imagine that a system of government suitable for conditions in the desert five or six centuries ago would be suitable for a country with daily rain, with rivers, grass and trees and of whose population some 45% are non-Muslim.”

Tun Mohamed Suffian Lord President, “Parliamentary System versus Presidential System – The Malaysian Experience” [1979] 2 MLJ lii at lxv

Brief History of Malaysia

Malaysia is a Federation comprising thirteen (13) states (Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Trengganu) and three (3) federal territories (Kuala Lumpur, Labuan and Putrajaya).

Historically, Malaysia’s ethnic Malays and other indigenous populations lived in village societies and believed in animism. Animism was overlaid by Hinduism and later subsumed by Islam in 15^thcentury Malacca.

Before the coming of the British in the 18^th century, the Sultans in each state were the heads of the religion of Islam and the political leaders in their states, which were Islamic; the Sultans were Muslims, their subjects were Muslims and the law applicable in the states was Muslim law. Under such law, the Sultan was regarded as God’s representative on earth. He was entrusted with the power to run the country in accordance with Islamic law[2].

When the British came, they imposed a system of indirect rule on the states with Sultans through a series of treaties. In some states, a Council of State was set up to advice the Sultan. In other states, the Rulers accepted the office of a British Resident who had exclusive authority over the administration of the state. These states were effectively protectorates. This period also saw an influx of workers to Malaya (as Malaysia was then known) from China and India.  The migrants brought with them their religions and belief systems; Buddhism, Christianity, Confucianism, Hinduism, Sikhism and Taoism.

Thus, under British rule, the Sultans ceased to be regarded as God’s representative on earth and were considered a sovereign within his territory. By ascribing sovereignty to a human, the divine source of legal validity is severed and the British turned the system into a secular institution. Thus all laws, including Muslim Law, had to receive its validity through a secular fiat[3] i.e. enacting by a secular authority, which in post-Merdeka Malaysia could comprise of elected representatives of different ethnicities and religious affiliation.

In 1956, a Constitutional Conference was held in London where an agreement was reached with the British Government that full self-government and independence should be proclaimed by August 1957. A commission known as the Reid Commission[4] was appointed to make recommendations for a suitable constitution for the nation. These recommendations formed the basis of the Federal Constitution and the Federation of Malaya gained independence on 31^st August 1957.

The states of Sabah and Sarawak gained independence in 1963 with the formation of the Federation of Malaysia. Malaysia consisted of the then Federation of Malaya, Sabah, Sarawak and Singapore. Singapore left the Federation of Malaysia in 1965.

At 2010, the demographics of Malaysia is estimated[5] as follows:-

50. Ethnicity: Malay 50.1%, Chinese 22.6%, indigenous 11.8%, Indian 6.7%, other 0.7%, non-citizens 8.2%;

61. Religion: Muslim 61.3%, Buddhist 19.8%, Christian 9.2%, Hindu 6.3%, Confucianism, Taoism, other traditional Chinese religions 1.3%, other 0.4%, none 0.8%, unspecified 1%.

The Malaysian Federal Constitution

The Federal Constitution (“the Constitution”) establishes the following features in Malaysia[6]:-

1. A federation[7];
2. A constitutional monarchy[8];
3. A parliamentary democracy[9];
4. Islam as the religion of the federation[10], but it does not establish Malaysia as a theocracy[11] and expressly guarantees freedom of religion[12];
5. Provides for the  rule of law[13]; and
6. An independent judiciary[14].

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