Legal Pluralism In Malaysia: Navigating The Civil And Shariah Systems – Analysis

By Shad Saleem Faruqi

Malaysia’s legal system exhibits a complex relationship between the Constitution and the Shariah.[1] To better understand the legal situation, some background on legal pluralism and constitutional fundamentals on the position of Islam and Islamic law within the Constitution is needed.

Malaysia’s dazzling religious, racial and cultural diversity and its history as a British colony with 171 years of coexistence between a secular common law and the Islamic Shariah have left a legacy of legal pluralism. Multiple systems of laws and courts have been strengthened by the constitutional recognition in 1957 of Islam as the religion of the Federation, the existence of parallel civil and Shariah court systems that operate separately, the dual family law system for Muslims and non-Muslims, and the rich indigenous systems of laws for the people of Sabah and Sarawak.

The Supreme Constitution also stipulates a federal-state division of legislative, executive, and judicial powers under its “Legislative Lists”.[2] It provides for three types of laws administered by three types of court-hierarchies.

• First, civil and criminal laws of a secular nature for the whole range of governance. These are enacted by a democratically elected federal parliament and the 13 state assemblies;
• Second, personal and family laws based on the Shariah, enacted for Muslims by the 13 state assemblies and the federal parliament (for the federal territories), with the Shariah courts also enforcing Malay custom (adat) in areas permitted by State Enactments;
• Third, native law for the native courts of Sabah and Sarawak. A large part of native law is codified, although some rules rest on custom, usage and judicial recognition.[3]

Jurisdictional conflicts between the various systems of laws have seen a shift in recent decades. Until the 1980s, such conflicts were resolved mostly in favour of the superior civil courts. However, with growing Islamization and expanding powers of the Shariah courts since the 1980s, the competition between the various systems has become evenly matched and judicial decisions can go either way.[4] This continues to be an area of intense contestation demanding constitutional literacy and conceptual clarity.

This Perspective outlines the position of Islam in the Constitution and the applicability of the Shariah courts, particularly in respect of criminal offences which recent cases have addressed. This is followed by a discussion of issues centred on Article 121 and 121A: the clash between the Muslim population’s constitutionally guaranteed human rights and the restrictions imposed by the Shariah; the disputed personal status of those who have allegedly converted to another faith; inter-religious relations; and jurisdictional disputes between civil and Shariah courts over issues like apostasy and religious freedom. This Perspective concludes by offering some recommendations for navigating these controversies.

ISLAM WITHIN THE CONSTITUTION

Constitutional supremacy: The Constitution is the supreme law of the land, and any law passed after Merdeka Day which is inconsistent with the Constitution is invalid to the extent of the inconsistency.[5]

Islam’s constitutional position: Though the Constitution is supreme, Islam has an exalted position in innumerable ways.

• Article 3(1) declares that “Islam is the religion of the Federation but other religions may be practised in peace and harmony…”.
• The federal monarch (the Yang di-Pertuan Agong) and the nine Malay Rulers must belong to the Islamic faith and are designated as the head of the religion of Islam in their territories.[6]
• The 13 state assemblies are permitted to enact Muslim personal and family laws on 26 enumerated topics.[7] The Assemblies also have a limited power to punish offences against the “precepts of Islam”.[8]
• Shariah courts exist at both the federal and state levels and have wide civil and some residual criminal jurisdiction.
• Since the constitutional amendment of 1988, Shariah courts are independent of the civil courts in matters within Shariah court jurisdiction.[9]
• It is lawful for the Federation or a state to establish or maintain Islamic institutions or provide instruction in the religion of Islam to Muslims.[10] Taxpayers’ money can be used for these purposes.
• Persons professing the religion of Islam are compulsorily subject to Islamic education and Islamic laws in enumerated areas.[11]
• Being a Muslim is an essential attribute of Malay status which carries with it a special position under Article 153. A ‘Malay’ is defined in Article 160(2) by reference to four characteristics. Being a Muslim is one of them.
• On the other side of the fence, though Islam has an exalted position as the religion of the Federation, Article 3(4) mandates that “Nothing in this Article derogates from any other provision of this Constitution”. One implication of Article 3(4) is that the Shariah is not the litmus test of the validity of enacted laws. The Constitution is. Thus, a drug trafficking law enacted under the anti-subversion provision of Article 149, cannot be invalidated just because it violates Islamic principles of criminal law and due process.[12]
• Like all laws, state legislation on Islam is subject to judicial review,[13] on the ground of unconstitutionality. The Shariah courts and the Shariah establishment are not exempt from judicial review in the higher civil courts. Plaintiffs are able to petition against state legislation deemed to be unconstitutional, with the Federal Court as the final arbiter.[14]
• As long as the Constitution is supreme, Malaysia cannot be regarded as a theocratic state.
• In Article 160(2), the term ‘law’ is defined to include (i) written law, (ii) common law, and (iii) custom to the extent recognised. Religion, ethics and morality do not qualify as ‘law’ unless posited into law by the federal or state assemblies or the courts.

Federal-state division of powers: The powers of the federal parliament and the state assemblies are enumerated in the Legislative Lists in Schedule 9. The 13 states do not have a monopoly over the entire field of Islamic law. Thus, crime is in federal hands even though there is much Islamic jurisprudence about crime, punishment, evidence and criminal procedure.[15] Likewise, contract, commercial transactions, banking, employment and environment are outside state jurisdiction even though these areas are richly covered by Islamic principles. State jurisdiction on Islam is limited to two areas: (i) 26 or so enumerated topics, mostly of Muslim personal law enumerated in List II, and (ii) offences against the precepts of Islam.

APPLICABILITY OF THE SHARIAH

Due to a lack of constitutional literacy, there are some widespread but mistaken beliefs about the applicability of Shariah in Malaysia’s hybrid, partly secular, partly religious constitutional system.

First, there is no understanding that due to a secular definition of the concept of ‘law’ in Article 160(2), religious rules are not automatically part of Malaysia’s legal system unless posited into law by parliament or the state assemblies.

Second, the Shariah applies only in the enumerated areas of Schedule 9, List II. The popular belief that the entire, varied and rich field of the Shariah falls within the legislative competence of the state assemblies is an exaggeration. The state assemblies have no power to adopt Islamic laws in areas assigned to the federal parliament.

Third, even the aspects of the Shariah assigned to the states may be subject to some constitutional regulation. For example, the power of the states to impose criminal penalties in relation to Shariah offences is subject to the limits assigned by the federal parliament’s Syariah Courts (Criminal Jurisdiction) Act 1965 permitting the maximum penalties of three years’ jail, six strokes of the cane and five thousand Ringgit fine.

POWER TO CREATE AND PUNISH ISLAMIC OFFENCES

The power to create and punish Islamic offences is subject to the following restrictions:

First, criminal law is largely in federal hands.[16] However, the states can punish one type of Islamic offences – “offences against the precepts of Islam”.[17] What these words mean is nowhere defined in the Constitution. In the case of Nik Elin Zurina[18], the Federal Court held that the words refer to offences that are purely religious in nature and do not extend to ordinary criminal law and procedure.

Second, Shariah courts have jurisdiction only over persons professing the religion of Islam.

Third, crimes punishable in Syariah courts must not relate to any matter in the Federal List.[19]

Fourth, crimes punishable in Syariah courts must not relate to any matter covered by federal law.[20] This means that any offence already dealt with by federal law at the inception of the Constitution is outside the jurisdiction of the state assembly and the Shariah courts. Offences like treason, corruption and murder are all outside the jurisdiction of the Shariah courts.[21]

Fifth, the “jurisdiction of the Shariah courts” in respect of offences must be conferred by federal law.[22] The derivative law – the Syariah Courts (Criminal Jurisdiction) Act 1965 – provides that the Shariah courts may try offences punishable with three years jail, RM 5,000 fine and six strokes of the cane. In comparative terms, this penal power is lower than the power of the civil Magistrates. Clearly, the intention in 1965 was to allow Syariah courts to try only minor Islamic offences like failing to say Friday prayers and not observing the fast during the month of Ramadan. Despite this, states like Kelantan and Terengganu, controlled by the Islamic political party PAS, legislate crimes outside their jurisdiction and impose penalties of death, amputation and life imprisonment outside the authority of the 1965 Act.[23]

Due to widespread political support for “Islamisation”, most of these unconstitutional laws remain unchallenged, both by citizens and the federal government, at least until lately.[24]

ARTICLE 121(1A) AND JUDICIAL ATTITUDES

Due to the increasing Islamisation of Malay society, and the popular call for an Islamic state, the Constitution was amended in 1988 to insert an Article 121(1A) that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”. This amendment was meant to confer on Shariah courts operational independence in matters within their jurisdiction. However, some State Assemblies interpret Article 121(1A) expansively as if all fetters under the Constitution have been lifted. Some state assemblies empower their Shariah courts with powers that the assemblies themselves do not possess![25]

Wherever that results in litigation, the judicial response is mixed. Due to the “political sensitivity” associated with all matters of Islam, some conservative-minded civil judges interpret Article 3(1) on Islam so broadly as to permit it to override fundamental liberties. This is despite the caution in Article 3(4) that nothing in Article 3(1) derogates from any provision of the Constitution. Some judges resolve a conflict between Schedule 9 (the Legislative Lists) and the chapter on fundamental liberties, in favour of the provision of the Schedule.[26] Some judges regard Article 121(1A) as a total exclusion of the civil courts’ power even if constitutional or jurisdictional issues are involved.[27]

On the other side, some liberal-minded judges insist that the judicial power to review the constitutionality of any action is part of the doctrine of separation of powers, and is a core feature of the “basic structure” of the Constitution that cannot be excluded. The independence of the Shariah courts under Art 121(1A) is only in respect of “any matter within the jurisdiction of the Syariah courts”. On constitutional or jurisdictional issues, the High Court’s review power is not, and cannot be, excluded.[28] For example, in PP v Mohd Noor Jaafar (2005)[29] a violation of section 5(1) of the Islamic Religious Schools (Malacca) Enactment 2002 was held not to relate to precepts of Islam and therefore not within the jurisdiction of the Shariah courts.

A look at some decided cases will indicate the diversity of judicial views.

Muslim apostasy cases: In the famous Lina Joy case[30] the Federal Court held that while the Plaintiff, a Muslim lady, had the constitutional right to choose her religion, the question of apostasy from Islam was within the exclusive jurisdiction of the Shariah court which alone has the power to issue a certificate of renunciation. A middle approach was offered in the recent case of Rosliza[31] that a distinction must be made between ‘never a Muslim’ and ‘no longer a Muslim’. Only cases of renunciation or ‘no longer a Muslim’ are the exclusive power of the Shariah court. 

Dissolution of marriages and status of children: In some cases, the rights of non-Muslims are affected by Shariah court decisions as when a non-Muslim marriage is dissolved due to the conversion of one spouse to Islam. In some such cases, infants are unilaterally converted to Islam. The custody of children is determined in ex parteproceedings.[32] However, in the celebrated Indira Gandhi Mutho case[33] the court held that for conversion, the consent of both parents must be obtained based on the Guardianship of Infants Act 1961, and section 2(95) of the 11^th Schedule of the Federal Constitution.[34] Regrettably, Indira has been undermined by a later Federal Court decision in Dhalia Dhaima.[35]

Attempt by a minor on reaching maturity to revert to his/her former religion: In Azmi,[36] it was decided that non-Muslim minors converted to Islam by their parents could seek reconversion to their previous faith at civil courts upon reaching adulthood. Azmi has however been overruled by the Federal Court in Dahlia Dhaima.[37] The Dahlia case has also undermined the Indira Gandhi ruling that the consent of both parents to a child’s conversion is needed.

Federal-state division of power on crimes: An illustrative case is Nik Elin Zurina Nik Rashid[38] in which 16 provisions of a Kelantan Enactment were successfully challenged as a trespass on the jurisdiction of the federal parliament. However, Nik Elin’s victoryin her home state does not invalidate similar unconstitutional laws in many other states. The assumption lingers that “Islam is a state matter” and as long as a matter is part of Islamic jurisprudence, state assemblies are entitled to legislate on it.

State legislation curtailing personal liberties:[39]There are painful questions about whether Article 3(1) on Islam permit state laws to violate the fundamental liberties of Muslims guaranteed by Articles 5-13. Does Schedule 9 (List II, Item 1) about the legislative power of the states trump the chapter on fundamental liberties? In Fathul Bari Mat Yahaya,[40] a Muslim was prosecuted because he preached his religion to co-religionists without obtaining a tauliah or letter of accreditation from the religious authorities. His submission that he was entitled to freedom of speech and religion was avoided and evaded by the civil courts. The court held that the law was valid as it sought to prevent deviationist teachings.

Rights of non-Muslims: Many civil court decisions infringe the rights of non-Muslims. There was the unsuccessful application by a qualified non-Muslim lawyer to practise in the Shariah courts.[41] In another decision, the Christian-run newspaper Herald was forbidden by the Home Minister from using the word ‘Allah’ in its publications.[42] Note, however, the courageous decision in Jill Ireland (2021) which upheld a Sarawakian’s right to possess Bibles with the word Allah for her personal use.[43]

Public response to the Nik Elin decision: In response to liberal judicial decisions like in Indira Gandhi, Iki Putra and Nik Elin, voices are being heard that the Constitution must be amended to enhance the criminal law jurisdiction of the Shariah courts, with demonstrations being held outside the courts. Civil judges who are trying to limit the State Assemblies and the Shariah judiciary to their enumerated powers are being intimidated, also with demonstrations outside the courts. Speeches urging Muslims to protect Islam are made, and state assemblies pass resolutions to reenact any laws invalidated by the civil courts. There are cases of plaintiffs receiving death threats.[44]

Opinion polls indicate that in West Malaysia, “religious nationalism” is on the rise. There is popular support for making the Shariah the basic law of the land.[45] The federal government has, therefore, set up a Special Committee to empower the Shariah courts.[46] There is danger that such political expediency may facilitate the trumping of principle.

RECOMMENDATIONS

What can be done to douse the embers of controversy, reduce the overlap of powers between civil and Shariah courts, and maintain the generally harmonious relationship between Muslims and non-Muslims of Malaysia?

1. Maintain the supremacy of the Constitution

Despite the desire to appease the conservative sections of the Muslim electorate, there should be firm resolve to avoid any drastic amendments to the Constitution to accommodate extreme-right politicians. Any such drastic amendment would strain the federal government’s already difficult relationship with Sabah and Sarawak, especially on the issue of Islamisation and “Malayanisation” of Sabah and Sarawak.[47]

2. Advise States to take remedial action by amending their Enactments

The most appropriate solution is for the federal government to advise the State Assemblies to respect the Federal Constitution, accept the judicial censure of unconstitutional state laws and amend their Enactments to fall in line with the decisions in Iki Putra and Nik Elin. The States should not be given the message that blatantly unconstitutional actions by them can be rewarded with amendments to the Federal Constitution to validate their persistent illegalities and violations of the basic charter.

3. Parliament should amend its Syariah Courts (Criminal Jurisdiction) Act 1965

This 1965 federal law should be amended to achieve the following aims.

First, to enumerate, after thorough consultation with the States, a list of religious offences that would constitute “offences against the precepts of Islam” but which do not trespass on the Federal List. The advantage of this initiative will be that federal-state jurisdictional conflicts on matters of criminal law are minimised. In the matter of (the newly enumerated) “offences against the precepts of Islam”, there will be a uniformity of offences between all 14 State Enactments. The punishments will not show much variance from state to state.

Second, to enhance the criminal penalties (from three years’ jail, RM 5,000 fine and six strokes of the cane) to more severe penalties to give Shariah courts powers equivalent to that of Sessions Courts in matters of crime.

4. Exercise federal power to amend state laws

If some of the States do not comply with the decisions in Iki Putra and Nik Elin, and persist in violating the Federal List, the federal parliament is empowered by Article 71(3) to enforce compliance by means of a federal law. This will be politically controversial but legally effective.

5. Maintain the status quo of jurisdiction over crimes in federal hands

There is a proposal that the Constitution be amended to transfer the federal item on crimes to the Concurrent List so that both the federal and state legislatures can pass laws on the whole range of crimes. This proposal, if implemented will result in some deeply undesirable consequences:

• In each state there will be two different sets of criminal laws, one for Muslims, one for non-Muslims
• In each state there will be two different sets of punishments for the same crime
• With the Syariah Courts (Criminal Jurisdiction) Act 1965 losing force, some states may impose extreme penalties. There is evidence of this attempt in Kelantan and Terengganu.
• There will be constitutional issues of equality before the law under Article 8 if for the same crime, one defendant is a Muslim and the other a non-Muslim and they are prosecuted under different criminal laws.

Also, the placement of ‘crime’ in the Concurrent List may not appease the religious diehards because Article 75 is very explicit that in any case of inconsistency between a federal and a state law, the federal law shall prevail. This proposal is, therefore, not recommended.

In summing up, it is hoped that despite many intractable problems, the widening gulf between Muslims and non-Muslims on the above issues can be bridged by constitutional means at the negotiating table rather than on the streets. That would restore Malaysia’s earlier commendable reputation for inter-ethnic reconciliation, social stability and moderation.

For endnotes, please refer to the original pdf document.

• About the author: Emeritus Prof Datuk Dr Shad Saleem Faruqi is Visiting Senior Research Fellow at ISEAS –Yusof Ishal Institute, and formerly Holder of the Tunku Abdul Rahman Chair, Universiti Malaya, Kuala Lumpur.
• Source: This article was published by ISEAS –Yusof Ishal Institute