Constitutional Law - Islam As The Religion Of The Federation

Since the era of Malacca, Islam has been practice and become the norms of the Malays. The importance of the position of Islam can be seen in the Johore Constitution 1895 and Terengganu Constitution 1911 which states that Religion of the State is Islam.

Reid Commission
1. Reid Commission did not recommended initially, but it was the alliance through White Paper proposed the idea of Article 3(1) of Federal Constitution now. Ruler initially refected.
2. Abd Hamid J commented : the provision will not cause hardship or harm to anyone because not less than 15 countries have such provision.
The Commission recommended Article 3(1) of Federal Constitution and maintain the special privilege of the Rulers. It also states that although Islam is Religion of Federation.
2. But it will maintain secular nature of the state rights of non Muslim protected. But failed to define what is secular state.
Secular state : State don’t participate in religious matter.

Islam Religion of the Federation – Article 3(1) of Federal Constitution
Islam is the religion of Federation but other religion may be practiced in peace and harmony in any part of Federation.
All states except Malacca, Penang and Sarawak – Islam as religion of the state.
Whether Islamic Law is the law of Federation – please refer to the case of :-
- Wong Ah Fook v State of Johore
- Anchom bte Lampong v PP
- Prof LA Sheridan (1988) 2 MLJ
- Che Omar b. Che Soh v PP

Freedom of Religion
1. Article 11 of Federal Constitution – every person has the right to profess and practice his religion subject to clause 4 on propagate (state may make provision)
However above freedom subject to general law relating to public order, public health and moral - Article 11(5) of Federal Constitution. Halimatussaadiah v PSC
2. Article 8(2) of Federal Constitution – no discrimination on the ground of religion subject to Article 153 of Federal Constitution etc in appointment to office/employment under a public authority etc.
3. Article 12 of Federal Constitution – no discrimination on the ground of religion in the administration of education and administration of student (Article 12(2)). Federal and state may provide fund to maintain administration of Islamic institution and other religion also may do so.

Administration of Islam in the State (9th Schedule List 11 State List)
1. Ruler as Head of the Religion of Islam in State – Article 3(2) of Federal Constitution
In every state except state without Rulers, the Rulers are Head of Religion Islam. Subject to state constitution, their power/privileges as Head of Religion are unaffected /unimpaired. But whether they act as legislator or Executive?
2. 8th Schedule S.1(2)(d) of Federal Constitution provides discretionary powers to Ruler in performing function as Head of Religion.
3. Majlis Agama Islam of State will aid and advise the ruler regarding Religion of State. His prerogative to appoint Mufti. Although Syariah Court had separate from Majlis but Independence of Judiciary is doubted. At Federal level it will be coordinated by National Council for Islamic Affairs.
4. YDPA as head of Religion for Malacca, Penang, Sabah and Sarawak – Article 3(3)
It is presumed YDPA has the discretionary powers in performing his duty e\as Head of Religion. Like Rulers.
5. YDPA Head of Religion for Federal Territory K.L and Labuan – Article 3(5)
Parliament may make law in regulating Islamic affairs and a council to advise YDPA on Islam.

* Please refer to the case of Mamat b. Daud v Govt of Malaysia
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