The Malaysian Constitution and Its Identity Crisis: Secular or Theocratic?

The Malaysian Constitution and Its Identity Crisis: Secular or Theocratic?

Malaysia has positioned herself as an invaluable partner to both the West and Islam. Politically, Malaysia sees herself as the ideal moderate Islamic State which has weathered stormy internal race-relations and has produced a multiracial civil society that effectively participates on the global platform. As the leader of the Organisation of Islamic Conference ('OIC') nations, Malaysia hopes to be a catalyst for influencing change in fundamentalist Islamic nations and organisations. By and large the West recognises that moderation in Islam has to come from within Islam and Malaysia qualifies as a role model. Central to these aspirations however is the unresolved question as to Malaysia's true constitutional identity. Is she a secular or theocratic State? Is she legally, socially and politically Islamic? This article explores these questions through an analysis of selected constitutional provisions and recent decisions of the civil courts which impinge on the freedom of religion. Central to the enquiry is the interpretation of art 121(]A) of the Federal Constitution vis-6-vis the status and powers of the civil courts in the context of religious choice. The analysis reveals an identity crisis within the Malaysian Constitution and by providing a Dworkinian theoretical framework, calls for judicial responsibility in solving that crisis.

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