ISLAM AND THE MALAYSIAN

CONSTITUTION: THEORY AND

REALITY
Emeritus Professor Datuk Dr.
Shad Saleem Faruqi
Tunku Abdul Rahman Professor of Law
University of Malaya

ISEAS, Singapore, 24 Feb., 2017/27Jamadilawal 1438

1
 INTRODUCTION

All Constitutions are sui generis – a class by

themselves. They reflect the values and
vulnerabilities, the demands and dreams of
a nation.
They reflect the past as well as a vision of
the future.

2
Everywhere in the world Constitutions
grow and change – formally and
informally, legally and extra-legally.
The Malaysian Constitution is no
exception. It is undergoing significant
transformation – both legally and extra-
legally in many areas including the
position of Islam in the socio-legal set-up.
This presentation will examine –

1.The “original scheme” of things in relation to the

place of Islam in the Federal Constitution.
2.The evolution of the Constitution through:
 laws enacted in the name of the shariah;
 judicial interpretations of the Constitution; and
 administrative actions of civil and shariah
authorities.

4
 THE 1957
CONSTITUTIONAL SCHEME
The “document of destiny” that was
launched in 1957 (and modified in 1963 and
about 55 times afterwards) bore the
following hallmark features:

Constitutional supremacy: Malaya (later

Malaysia) adopted the notion of supremacy
of the Constitution – Articles 4(1) & 162(6).
5
 The drafters of the document of destiny
did not accept:
the historical scheme of absolute
monarchy,
the British system of parliamentary
sovereignty, and
the aspiration of some Muslims of
supremacy of the shariah.
Judicial review: To preserve
constitutional supremacy, the principle of
judicial review was adopted i.e. the
power of the superior courts to review
federal and state legislation on the
touchstone of constitutionality – Articles
4(4), 162(6) and 128(2).

7
Limited parliament: Our Constitution rejects
parliamentary supremacy and imposes explicit
constitutional limitations on the legislative
powers of the federal parliament and the state
legislatures: Ah Thian v Govt of Malaysia (1976).

Limited executive: Like our “limited parliament”,

the executive also is not supreme. It is a
controlled executive under the law.

8
Federal-state division of powers: The
Constitution provides for a federal-state
division of powers in the legislative,
executive, judicial and financial fields.

The Constitution contains five Legislative

Lists in Schedule 9:

9
i. The Federal List
ii. The State List
iii. The Supplementary State List for Sabah &
Sarawak
iv. The Concurrent List, and
v. The Supplementary Concurrent List for
Sabah & Sarawak.

10
Power over Islam shared between centre
& the states: The Legislative Lists
demarcate the powers of the federal and
state legislatures over Islam.
25 topics of Islamic family law plus a power
over those residual Islamic offences (which
are not covered by federal law) are in State
hands: Sch 9 List II Para 1

11
 Fundamental rights: The Constitution includes many
guaranteed fundamental rights for all persons – Articles
5-13. Questions have now arisen whether Muslims are
entitled to any fundamental rights against the shariah
authorities.
Islam: “Islam is the religion of the federation but other
religions may be practised in peace and harmony” –
Article 3(1).
o In the original Reid draft no provision for Islam as the
religion of the Federation was included in the Federal
Constitution due to the wishes of the Malay Rulers to
leave Islam as a subject matter of the 9+2 states.

12
o Islam was therefore left to be promoted and
regulated by State authorities. However, due to
protests from the Malays, Article 3(1) was
inserted but along with Article 3(4).
o Article 3(4) says that “Nothing in this Article
derogates from any other provision of this
Constitution”. The meaning of Art. 3(4) is that
the declaration about Islam as “the religion of
the Federation” does not override any other
constitutional article .
13
The decision in Che Omar Che Soh (1988)
followed Article 3(4). In this case a drug
law was challenged as unconstitutional
because it was un-Islamic. The court held
that a law which is valid under the
Constitution cannot be set aside simply
because it is un-Islamic. The shariah is
NOT the litmus test of validity.
o As a consequence of adopting Islam as
the religion of the federation, it is
permissible to promote Islamic education,
establish Islamic institutions and incur
expenditure for Islamic purposes.
o Shariah courts exist under state law. Since
1988 they are independent of the civil
courts in matters within their (exclusive)
jurisdiction: Article 121(1A).

15
o Muslims are compulsorily subjected to
syariah laws in many areas, including
family law and morality.
o Preaching to Muslims may be regulated by
state laws: Article 11(4).
o Concept of a ‘Malay’: In Article 160(2),
four characteristics are attributed to a
“Malay”. Islam is one of the defining
features of a “Malay”.
16
o Malay adat: Along with Islam, Malay adat
was given clear recognition by the
Constitution.
o Most “shariah laws” are a fascinating
mixture of Shafie law, local fiqh plus Malay
adat. In case of conflict between the
religious provision and adat, the latter
prevails, at least in Negeri Sembilan’s
family law.
17
Lack of a uniform syariah law: Because each
state has independent jurisdiction, we have 14
separate “syariah laws”, conflicting approaches
to similar issues and the problem of no
reciprocal enforcement.

A uniform syariah law by the federal parliament

is legally possible under Art. 76 but it will require
the consent of all state legislatures plus the
consent of the Conference of Rulers.
 IS MALAYSIA A SECULAR STATE?

o The issue is one of semantics and cannot

be answered in a “yes” or “no”. Much
depends on the subjective or arbitrary
meaning one assigns to the terms
“Islamic” and “secular”.

19
o If the Merdeka Constitution is examined,
the picture that emerges is mixed.
o We avoided ideological purity and walked
the middle path. We have some theocratic
but many secular features, among them
the following:

20
oHistorical documents indicate that the
state was meant to be non-theocratic and
secular.
oCase law: Che Omar Che Soh v PP [1988]
2 MLJ 55. Islam is the religion of the
federation but not the basic law of the land.
(Note that Che Omar has been generally
ignored in later cases like Lina Joy).

21
o Ainan v Syed Abu Bakar [1939] MLJ 209 –
The Evidence Act applies to the exclusion
of Islamic law.
o Adat is entwined with Islamic law. In some
states like Negeri Sembilan adat displaces
the Syariah in family law matters.
o Article 4(1) and Article 162(6) affirm
constitutional supremacy.
22
o Definition of “law” in Article 160(2) is
quite secular. Syariah per se is not part of
the definition of law
o Article 3(4) on Islam as the religion of the
Federation clearly states that nothing in
this Article derogates from any other
provision of the constitution.

23
o Higher status of civil authorities: The
Yang di-Pertuan Agong, Sultans,
Governors, Prime Ministers, MBs/CMs,
Chief Justices and other superior court
judges, IGP, Chief of Armed Forces, the
KSN etc are not in any way subordinate to
the shariah authorities (unlike in Iran).

24
Citizenship & high posts: Islam is not a
prerequisite for citizenship or for high
posts (except for the YDPA and Sultans).
Limited power of Islamic courts: The
jurisdiction of the Shariah courts does not
cover the whole field of Islamic law but is
limited by Sch.9 List II Para 1 to 25 or so
topics. That is why states that enacted
hudud laws have not enforced them.
25
 ISLAMIC FEATURES IN THE
CONSTITUTION

oArticle 3(1) – Islam is the religion of the

federation. Islam is mentioned 25 times in
the Federal Constitution. Secularism is not
mentioned even once. American style
secularism is, obviously, rejected.
oAll State Constitutions except Sarawak
contain a provision on Islam as the state
religion.
26

o.
State power to enact Islamic laws:
Schedule 9 List II Para 1 authorises the
States to enact Islamic laws on 24+1
enumerated topics (mostly of personal
law) .
Federal power to enact Islamic laws:
Sch 9 List I Para 4(k) authorises the
federal parliament to enact Islamic laws
for the Federal Territories.
27
o Syariah courts exist and have mandatory
jurisdiction over Muslims in 25 specified
areas.
o Mandatory application of shariah: A
Muslim cannot opt out of Shariah law in
prescribed areas. However, in other areas
like trust, contract, loans, insurance,
banking, he retains a choice.

28
o Islamic education is mandatory for
Muslims at all levels: Article 12(2).
o Mosques and Islamic institutions can
be established using tax payers’ money.
o Article 121(1A) – Shariah courts are
independent of civil courts in areas assigned to
shariah courts by the law.
o Preaching to Muslims can be regulated: Article
11(4)
29
o Islamic criminal law applies to Muslims in
a narrow, residual area left untouched by
federal law: Schedule 9 List II Para 1.
o Posts of State MBs and State
Secretaries in 9 “Malay States” are
reserved for Muslims.
o Concept of a “Malay” is linked with Islam.
o Islamic institutions abound.
30
o Islamic practices and symbolism have
become mainstream.
o Islamic economy is promoted vigorously.
o Policy of Islamisation is in full swing. The
“Islamic state” argument, first launched in
2001 is now mainstream.
o National TV devotes minimum14 hours a
week to Islamic programmes.
31
Nevertheless, in the overall constitutional
scheme, we are neither a full-fledged Islamic
nor a secular state. We are a “constitutional”
state. We have legal pluralism.
Our Constitution is not ideologically pure. It
walks the middle path. The “Islamic state” is
aspirational, not a constitutional reality.
But the movement towards more
Islamisation is gathering steam.
32
 THEORY VERSUS REALITY
Since the 90s there has been tremendous
assertiveness by the shariah establishment.

Article 3(1) on Islam is trumping Article 4(1)

on constitutional supremacy: Despite the
existence of Article 3(4), a “reality check”
indicates that according to a critical mass of
Muslim opinion, Article 3(1) on Islam has
become the central provision of the Constitution.
Many Malay civil judges have adopted this view.

33
o Islam vs Fundamental Rights: The entire
chapter on fundamental rights is being
read subject to Article 3(1). Specifically,
freedom of religion of Muslims as well as
non-Muslims is being subjected to Article
3. Refer e.g. to the recent Herald decision
(on use of the word Allah). Under the
court’s decision, Article 10 (on free
speech) and Article 11 (on freedom of
religion) are subjected to Article 3.

34
State legislative power vs fundamental
rights: Under Sch 9 List II Para 1, the
States have the power to legislate on
permitted areas of Islam. Often they do so
in derogation of the fundamental rights of
Muslims and non- Muslims in Articles 5 -
13. For example:
•

35
• restricting the right to speech and expression
(banning of books; preventing foreign Muslim
scholars from coming to the country;
requirement of a tauliah; cross-dressing; and
criminalising the questioning of fatwas; .

o Proponents of the syariah are banning non-

Muslims from using 30-35 Arabic/Malay words
without linking the usage to either public order
and national security in Art. 10(2) or the ban on
proselytization in Art. 11(4).

36
• interference with the right to property (attempts
to control Muslim trusts)
• violating the right to gender equality (ratu cantik,
cross dressing, discriminative practices against
women shariah judges), and
• interfering with the right to religion (apostasy,
use of Kalimah Allah, seizure of Bibles, raids on
Churches and Hindu temples)
• Seizure of dead bodies on suspicion that the
deceased was a Muslim.

37
o State power to punish Islamic crimes:
Schedule 9, List II gives power to State
Assemblies to create and punish offences
against the precepts of Islam.
o Under this provision, state laws are being
enacted to arrest Muslim apostates, detain them
and try forcibly to rehabilitate them.
o Issues of freedom of religion in Article 11 are
not being addressed by the courts.
o Neither is the issue being noted that prisons
and rehab centres must be under federal power.

38
In a Negeri Sembilan case - Fathul Bari
Mat Jahya (2012) the requirement of a
tauliah was challenged as beyond the
powers of the state because a tauliah is
not part of the precepts of Islam. The
Federal Court interprted the words
precepts of Islam so broadly as to include
all matters of shariah, law and morality
including control of deviationist teachings.
39
 Moral policing is on the increase e.g. ban on
girls taking part in ratu cantik contests;
prosecution of male cross-dressers; vigorous
enforcement of laws against khalwat, zina,
gambling and drinking.
 Punishment of “deviationist thinking”:
Muslims are subject to increasingly severe
regulation on issues like giving a ceramah
without authority (tauliah), apostasy by Muslims,
banning of books about Islam (Sis Forum case),
prevention of foreign Muslim scholars from
addressing local Muslims.
Victimisation of Muslims with differing
views: There are fatwas against liberalism
and pluralism.
Some Muslim lawyers are refused renewal
of certificates to practice in syariah courts.
Former Mufti of Perlis Dr Asri was charged
for giving a ceramah without a tauliah.
Kassim Ahmad has been prosecuted.
41
In one case (of Nik Raina Nik Abdul Aziz)
a Muslim store manager has been
prosecuted and persecuted for working at
the Borders bookstore that sold a book
disapproved by JAWI (but not legally
banned at the material time). JAWI has
defied the High Court, the Court of Appeal
and the Syariah High Court in continuing
its harassment of Nik Raina .
42
 SYARIAH AUTHORITIES &
NON-MUSLIMS
o There is an explicit provision in Schedule 9
List II that shariah courts have jurisdiction
only over persons professing the religion
of Islam.
o Yet, many shariah courts are dissolving
non-Muslim marriages if one party
converts to Islam. Shariah courts are
issuing custody orders that affect non-
Muslims.

43
o Just as with shariah courts, shariah
administrative authorities have no
jurisdiction over non-Muslims. Only civil
authorities can act against non-Muslims. A
glaring departure from this rule occurred in
the JAIS raid against the Bible Society of
Malaysia; and raid on a Hindu temple to
stop a wedding.

44
There have been some cases of
interruption of non-Muslim funerals to
snatch dead bodies on the suspicion that
the deceased had before death converted
to Islam.
In one case in Selangor, a church was
raided on the suspicion that prosyletization
of Muslims was taking place.

45
The Herald case upheld the ban on use of
kalimah Allah in Christian materials. This
decision has aroused the anger of Sabah
and Sarawak Christians.
There are tensions over delays in granting
planning permissions for non-Muslim
places of worship and because of
relocation orders on religious places
(some constructed illegally).
46
There is intense competition between
Evangelical activities of Christian
missionaries and dakwa activities of
Muslim missionaries in orang asli areas
and in Sabah & Sarawak.
In Sabah & Sarawak shariah courts and
native courts have intense competition.

47
o Even though Shariah courts have no
jurisdiction over non-Muslims, many civil
judges are advising non-Muslims to
subject themselves to the Shariah courts.
When the non-Muslims refuse, they are
left with no legal remedy. In this area the
Constitution seems to have broken down.

48
 FEDERAL-STATE DIVISION OF
POWERS: CASE OF HUDUD LAWS
The hudud enactments of Kelantan and
Terrengganu: States are allowed to enact
Islamic criminal offences subject to the
following limitations:
i. They cannot exercise jurisdiction over non-
Muslims. Yet some Enactments permit shariah
courts to try consenting non-Muslims. It is
submitted that the consent of the non-Muslim
is irrelevant. Jurisdiction comes from law not
from acquiescence.
49
ii. State power over Islamic crimes does NOT
cover matters in the federal list or dealt with by
federal law.
iii. State power to punish Islamic crimes is
regulated by the federally enacted Syariah
Courts (Criminal Jurisdiction) Act 1965 which
imposes a limitation of 6 lashes, RM 5,000
fine and 3 years jail. Despite this limitation
some states are legislating stoning,
amputation, life imprisonment, 100 lashes etc.
50
o Despite constitutional and legal limitations,
some states are passing hudud laws on
such matters as theft, rape and murder.
o Others are punishing betting, lotteries,
gambling and homosexuality even though
these are federal offences.
o Penalties are being exceeded.

51
o Federal-state division of powers over
civil matters: In the original scheme of
things, Islamic law was shared between
federal and state authorities. However,
several civil matters under federal control
are being surrendered to shariah control.
Some examples are EPF and Islamic
banking. Companies are being required to
pay zakat contrary to the Companies Act.

52
o HIV testing of marrying couples is being
required by shariah authorities even
though health and communicable diseases
are in federal hands.
o It is clear that the constitutional scheme of
federal-state division of powers is not
being adhered to.

53
 INDEPENDENCE OF SYARIAH
COURTS
o Article 121(1A): In matters within their
jurisdiction, the shariah courts are independent
of the High Court. But on constitutional issues,
the civil courts have clear jurisdiction. In
practice, the High Courts, Court of Appeal and
Federal Court have (subject to some exceptions)
begun to act as if they are subordinate to the
Shariah Courts whenever there is the smallest
whiff of Islamic law or morality .
o.
54
o In many cases, non-Muslim women (whose
husbands converted to Islam and ran away with
the infant kids) have been refused jurisdiction by
the civil courts even though they have nowhere
else to go.
o In two rare instances when the civil courts
ordered the husband to return the kids, the
police force failed to enforce the civil order.

55
 FATWAS
o In Islamic theory fatwas are juristic
opinions, not binding laws.
o But in Malaysia, State Enactments
authorise the state religious authorities to
formulate laws administratively by way of
fatwas (religious rulings). In legal terms a
fatwa under the authority of a State
Enactment will be regarded as a
subsidiary legislation.

56
o What is legally objectionable about these
fatwas is that
i. though they are internally debated by the
appointed officers, they are not subjected to
adequate consultation with affected interests.

57
ii. Some fatwas are ultra vires the
Constitution or in conflict with valid
federal laws e.g. the fatwa on ‘ratu cantik’
which was gender biased; the fatwa on
compulsory taking over of Muslim trusts
which violates Article 13; and the fatwa
on payment of zakat by companies which
violates the Companies Act.

58
iii. Criticism of all fatwas has been
criminalised. This is a violation of Article
10.

59
 CONCLUSION
 Islam is a mansion with many rooms.
Diversity is not unknown in Islam. Allah
SWT permits it.
Understandably, the Muslim community in
Malaysia is divided over such issues as
implementation of hudud, moral policing,
Kalimah Allah issue and some actions
(seen as oppressive) by non-Muslims and
Muslims alike. There are currents and
cross-currents
.
 Recently the MB of NS issued a “divorce first,
convert afterwards” policy.
 The Court of Appeal struck down a NS syariah
law that criminalises cross-dressing by Muslim
males on the ground that it oppresses those with
GID. The Federal Court overruled the CA.
 Perak issued a strong fatwa against IS.
 Different states have different laws on how to
deal with intending apostates.

61
o Looking at the Constitution, the original
constitutional scheme was to divide
powers over Islamic law between the
federal and state authorities. The States
were not given a monopoly over the entire
field of Islamic law.

62
o The Constitution assigned powers to the
States in only some enumerated areas,
mostly of Islamic family law. However
since the 80s the States are enacting
legislation in areas which are outside their
jurisdiction. The federal government is a
silent spectator. The courts are reluctant to
strike down ultra vires laws by the States.

63
o The Constitution expressly forbade the
subjection of non-Muslims to the
jurisdiction of syariah authorities.
Regrettably some shariah authorities are
emboldened to break free of this limitation.

64
o A silent rewriting of the constitution is taking
place.
o Article 3 and the 9th Schedule have overridden
constitutional supremacy, the chapter on
fundamental rights and the federal-state division
of powers.
o Muslims are divided about whether this is a
commendable or objectionable development.
There is ferment and foment.

65
 PERSONAL NOTE

Malaysia’s Constitution, with all its flaws,

was a master piece of compassion,
compromise and cross-cultural
understanding. It helped to preserve
peace in a dazzlingly diverse society.
Malaysians need to return to the spirit that
animated the forefathers of their
“document of destiny”.

66
The Constitution did much to preserve and
protect and promote Islam. There is no
need for any drastic changes.
To return to the exemplary tradition of
inter-communal tolerance, more inter-
cultural, inter-religious and inter-regional
dialogue is needed.

67
Muslims must see the diversity within
Islam as an asset and not a liability to be
ended at all cost.
Interpretations of the Shariah that are
tolerant, compassionate, progressive and
inclusive should not be suppressed as is
the effort of a section of the ummah.

68
The Shariah can be used to build walls
against or to construct bridges with the
rest of the world.
Muslims of Malaysia (and the rest of the
world) must emphasise Islam’s affinity with
Judaism and Christianity: Surah 29:46.
The prophets of Christianity and Judaism
are held in great veneration: 42:13; 2:136.
69
The divinely revealed religions stem from
the same source: 42:13; 41:43.
The Holy Qur’an permits religious
diversity: 2:113; 2:256; 5:2; 10:99; 11:118;
18:29; 109:6.
Cooperation and courtesy towards other
religions is recommended: 5:5; 6:108;
29:46.
70
Asabiyah (fanaticism) is condemned.
Moderation (wasatiyah) is commanded.
All Muslims should observe the spirit of
wasatiyah.
In the spirit of their religion (whatever that
religion be) and in the spirit of the
Malaysian Constitution, Malaysians should
strive sincerely to overcome the existing
stresses in their body politic.
71