BETWEEN TWO SHORES

• Citation: (2020) 32 SAcLJ 414
• Published date: 01 December 2020
• Date: 01 December 2020
• Author: Shad Saleem FARUQI1 LLB, LLM (Aligarh Muslim University), PhD (International Islamic University Malaysia); Holder of the Tun Hussein Onn Chair, International Studies at the Institute of Strategic and International Studies (ISIS) Malaysia; Member, Malaysian Judicial Appointments Commission; Emeritus Professor of Law, Universiti Teknologi MARA, Shah Alam.

Courts, the Constitution and the Shariah

This article examines the occasional conflicts that occur in Malaysian courts between constitutional supremacy and the popular notion of the supremacy of Islam. It discusses the doctrine of constitutional primacy and the position of Islam and Shariah authorities under the Federal Constitution. It notes the wide gap between constitutional theory and judicial practice that has developed since the 1990s and surveys the civil courts' attitude towards the validity of many controversial laws enacted in the name of the Shariah. Some recommendations to restore the 1957/1963 scheme of constitutional supremacy are also proposed.

I. Introduction

1 Malaysia's legal and political system is based on a supreme Constitution,2 a federal-state division of powers,3 a parliamentary system of government,4 a constitutional monarchy,5 and Islam as “the religion of the Federation”.6

2 In the last three decades, an engaging debate has raged about whether Malaysia is a secular or a theocratic, Islamic state.7 Is the

Federal Constitution8 the foundation of Malaysia's legal edifice or is the Shariah the country's supreme law? In this debate, there is a “problem of semantics”9 as well as of “hermeneutics”10 – that is, a disagreement about how words or “spoken utterances” are understood differently by different people in accordance with their own linguistic construction or historical context.

3 To most non-Muslims, the term “secular state” implies that the State is governed by laws derived from human institutions and authorities. From a strictly legal point of view, these laws are supreme and their enactment, amendment or repeal in accordance with the felt necessities of the times is in human hands. Malaysia qualifies as a secular state because Art 4(1) of the Federal Constitution proclaims that “this Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”. In furtherance of the “secular state” argument, one can submit that if by an “Islamic state” it is meant that the Shariah is the highest law of the land and the litmus test of the validity of all other laws and actions, then the Malaysian Federation is clearly not an Islamic state. In Che Omar bin Che Soh v Public Prosecutor11 (“Che Omar”), the constitutionality of a drug law was challenged on the ground that as Islam is the religion of the Federation, all laws must honour Islamic fundamentals. The impugned law contained a number of un-Islamic features including a presumption of guilt and a mandatory death sentence for an offence not punishable with death in Islamic criminal law. The Supreme Court upheld the validity of the impugned provisions as they were permissible under the Constitution's Art 149 which deals with subversion. The court also held that the provision in Art 3(1) for Islam as the religion of the Federation was mostly ceremonial and did not make the Shariah the litmus test of the validity of laws.

4 However, if the notion of a “secular state” implies that there is a separation between the State and religion and the State does not identify with any particular religion and religion is a private sector affair, and people are not compelled to live by and learn any religious doctrine,12 then clearly Malaysia is not a secular state – at least not for the 62% or so

of the Muslim population that is compulsorily subject to the Shariah in 25 or so areas enumerated in the Ninth Schedule, List II, Item 1.

5 If – as some Malaysian Muslims mistakenly hold – by an Islamic or Muslim state it is meant that Islam is the official religion of the State, or that Muslims constitute the majority of the population, or that Muslims are in control of the Government, then Malaysia may qualify for the description of an Islamic or Muslim state.13 Much depends on the subjective definition one adopts. Besides the problem of semantics and hermeneutics, the discussion is coloured by the adoption of a dichotomous, “either/or”, secular or Islamic approach. In life, as in law, things are often somewhere in between.

6 The purpose of this article is to discuss the implications of “constitutional supremacy” in Malaysia's legal system; examine the constitutional position of Islam and Shariah authorities; note the wide gap between theory and reality that has developed since the 1990s; and survey the civil courts' attitude towards laws enacted in the name of the Shariah.14 Are some laws enacted to regulate Islamic affairs consistent with or in conflict with the supreme Constitution? Some recommendations to restore the original scheme of things will also be made.

II. Constitutional position of Islam

A. Islam's exalted position

7 Article 3(1) of the Federal Constitution gives Islam an exalted position by making it “the religion of the Federation”. The words “Islam”, “Shariah” or “Islamic law” are mentioned at least 24 times in the Federal Constitution.15 No other religion is mentioned by name though under

Art 3(1) all other religions are allowed to be practised in peace and harmony.

B. Implications of Art 3(1)

8 As a consequence of Art 3(1), the Government adopts legal, social, administrative, educational and economic policies and programmes to promote the religion of Islam. Islamic institutions are established. There are probably a hundred or so such institutions nationwide like the 14 Shariah Court hierarchies in the 13 states and the federal territories; and institutions like the International Islamic University Malaysia, Institute of Islamic Understanding Malaysia (“IKIM”), Tabung Haji, Islamic Bank, Department of Islamic Development Malaysia (“JAKIM”) and Malaysian Islamic Strategic Research Institute. Unlike in secular states like the US, taxpayers' money is used to support Islamic activities including vigorous efforts to convert orang-asli, natives and other non-Muslims to Islam. In Budget 2018, federal Islamic authorities were allocated RM1.03bn as follows:16

(a) JAKIM: RM810.890m.17

(b) Department of Federal Territory Islamic Affairs (“JAWI”): RM119.6m.

(c) Majlis Islam Wilayah Persekutuan: RM21m.

(d) TV Al-Hijrah: RM15.74m.

(e) Department of Waqaf, Zakat and Hajj: RM15.176m.

(f) Yayasan Dakwa: RM15m.

(g) IKIM: RM14.8m.

(h) Office of the Mufti: RM6.7m.

(i) Muslim Welfare Organisation Malaysia: RM5.49m.

(j) Wasatiyyah Institute Malaysia: RM4.56m.

(k) Others: RM845,300.

9 Compulsory instruction is given in Islamic religion to Muslims at all educational levels.18 Consider, for example, the case of the father who unsuccessfully tried to get his daughter exempted from Islamic religious education.19

10 From time to time, policies of Islamisation and Islam hadhari have been adopted.

C. Head of State and Head of Religion are the same person

11 Under Art 3(5), the Yang di-Pertuan Agong is the head of Islam in seven states. An Islamic Council can be established to advise him.20 The Sultans are the heads of Islam in their regions. Secular states do not generally combine the office of the Head of State with the Head of Religion.

D. Islamic personal laws are allowed

12 The Federal Constitution permits State Assemblies to create Islamic laws in a limited number of areas and to set up Shariah Courts to administer these laws.21

E. Muslims are compulsorily subject to the Shariah

13 All persons who profess the religion of Islam are compulsorily subject to the Shariah in 25 or so areas assigned to the State Assemblies in the Ninth Schedule, List II, Item 1. These “personal and family law” matters are broadly classifiable as follows:

(a) betrothal, marriage, divorce, dower, maintenance and guardianship;

(b) adoption, legitimacy and guardianship;

(c) property matters including succession, testate and intestate, gifts, partitions and non-charitable trusts, wakafs, charitable and religious trusts, and appointment of trustees;

(d) Malay custom;

(e) zakat, fitrah and baitulmal;

(f) mosques;

(g) constitution, organisation and procedure of Shariah Courts;

(h) determination of matters of Islamic law and doctrine; and

(i) creation and punishment of offences against the precepts of Islam, and, under Art 11(4), control or restriction of propagation of any religious doctrine amongst Muslims.

14 No option is allowed to Muslims to opt out of Islamic laws in these designated areas, mostly of personal laws. However, in other areas like contract, tort, banking, sale of goods, hire-purchase, commerce and trusts under the Trustees Act 1949,22 Muslims are subject to civil laws. In some fields like trusts, bank loans and other banking transactions, they have an option to choose between Shariah laws and civil provisions.

F. Non-Muslims not subject to the Shariah

15 No non-Muslim can be subjected to the jurisdiction of the Shariah Courts.23

G. Shariah Courts exist under state laws

16 These courts are mentioned in the Federal Constitution, but their structure, organisation and powers are legislated by state legislation.

H. Civil courts cannot interfere with Shariah Courts

17 The Shariah Courts are courts of limited jurisdiction and are not superior or equal to the civil High Court.24 Nevertheless, Art 121(1A)

provides that civil courts cannot interfere with Shariah Courts in matters within Shariah Court jurisdiction.25

I. Preaching to Muslims can be regulated

18 Freedom of religion under Art 11(1) includes the right to profess, practise and preach one's religion. However, as part of the “negotiated settlement” between the Malays and the non-Malays, Art 11(4) permits the states to restrict the preaching of any religious doctrine to Muslims – whether the preaching is done by non-Muslims or unauthorised Muslims.

J. Islam in State Constitutions

19 All states other than Sarawak adopt Islam as the state religion.26

K. Some fundamental rights are explicitly subjected to Islamic law exceptions

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