ON Feb 9, 2024, the Federal Court in the Nik Elin and Tengku Yasmin case ruled that 16 provisions of the Kelantan Syariah Criminal Code Enactment 2019 were unconstitutional on the ground that they were trespasses on the Federal List in Schedule 9 of the Federal Constitution.
The erudite decision was a strong affirmation of the fundamental principles of constitutional supremacy and our apex law’s clear demarcation of federal-state legislative power in the Ninth Schedule’s Federal and State Lists.
In a ruling supported by eight out of nine judges, the court courageously performed its power and duty of judicial review about whether the Kelantan legislature had gone beyond its constitutional authorisation.
Those with constitutional literacy are applauding the decision. But many politicians and religious extremists are condemning it as an attack on the position of Islam, a weakening of the legislative autonomy of the states, and an emasculation of the powers of the syariah courts.
This article will be confined to rebutting the allegation that Islam’s exalted position in the Constitution of 1957 and 1963 has been undermined by this judicial decision.
Article 3(1) of the Federal Constitution gives Islam a special position by making it “the religion of the Federation”. The words “Islam”, “Syariah” or “Islamic law” are mentioned at least 24 times in the Federal Constitution. No other religion is mentioned by name, although under Article 3(1) all other religions are allowed to be practised in peace and harmony.
As a consequence of Article 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 Minister for Religious Affairs in the PM’s Department; 14 syariah court hierarchies in the 13 states and the federal territories; institutions like the International Islamic University Malaysia, Institute of Islamic Understanding Malaysia (Ikim), Tabung Haji, Bank Islam, Department of Islamic Development Malaysia (Jakim), and Malaysian Islamic Strategic Research Institute (Iksim).
Unlike in secular states like the United States of America, taxpayers’ money is used to support Islamic activities, including vigorous state efforts to promote Islam to non-Muslims. In our annual budget, federal Islamic authorities are allocated nearly RM1.09bil.
Under Article 12(2), it shall be lawful for the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur such expenditure as may be necessary for the purpose.
Under Article 12(2), compulsory instruction in Islam is given to Muslims at all educational levels. See the case of the father who unsuccessfully tried to get his daughter exempted from Islamic religious education (Noorliyana Yasira Mohd Noor vs Education Minister, 2007).
From time to time, policies of Islamisation and Islam hadhari have been adopted. Under Article 3(5), the Yang di-Pertuan Agong is the head of Islam in seven states. An Islamic Council can be established to advise him. The Sultans are the heads of Islam in their regions. Secular states do not generally combine the office of the Head of State with that of the Head of Religion.
The Federal Constitution in List II of Schedule 9 permits state legislative assemblies to create Islamic laws in about 25 enumerated areas (mostly of personal law) and to set up syariah courts to administer these laws. However, no non-Muslim can be subjected to the jurisdiction of the syariah courts (Schedule 9, List II, Item 1).
It is also notable that not all matters of Islam are in state hands. A very large number of areas (like theft, robbery, rape, murder, incest, unlawful sexual intercourse, contracts, commerce, and banking) in which there is a rich diversity of Islamic jurisprudence are allocated to the federal Parliament.
This was the crux of the dispute in the Nik Elin case.
All persons who profess the religion of Islam are compulsorily subject to the syariah in 25 or so areas assigned to the state legislative assemblies in Schedule 9 List II, Item 1. These are mostly “personal and family law” matters.
No option is allowed for Muslims to opt out of Islamic laws in these designated areas. However, in other areas like contract, tort, banking, sale of goods, hire purchase, commerce and trusts under the Trustees Act 1949 (Act 208), Muslims are subject to civil laws. In some fields, like trusts, bank loans and other banking transactions, they have the option of choosing between syariah laws and civil provisions.
Syariah courts exist under state laws. These courts are mentioned in the Federal Constitution, but their structure, organisation and powers are legislated by state laws but subject to limits provided in federal law.
Article 121(1A) provides that civil courts cannot interfere with syariah courts in matters within the latter’s jurisdiction. However, if the syariah courts or syariah officials violate the supreme Constitution, or exceed their jurisdiction, the civil courts can review the legality of their actions.
Freedom of religion under Article 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, Article 11(4) permits states to restrict the preaching of any religious doctrine to Muslims – whether the preaching is done by non-Muslims or unauthorised Muslims.
All states other than Sarawak adopt Islam as the state religion.
Some fundamental rights are explicitly subjected to Islamic law exceptions. First, equality before the law in Article 8 is subject to an exception on the ground of personal laws.
Second, Article 11 on freedom of religion is subject to the rule against proselytisation of Muslims in Article 11(4).
All nine “Malay state constitutions” require the chief minister (MB) to be a Muslim unless the Sultan permits an exception. This discriminatory state provision is possibly saved by Article 8(5)(e).
In Article 160(2), the concept of a Malay is not based on race but is intertwined with the religion of Islam, Malay custom and Malay language.
Despite the above Islamic features, the provision for Islam in Article 3(1) does not convert Malaysia into a theocratic, Islamic state. One notes that in 48 or so countries around the world, the adoption of an official religion does not necessarily convert the state into a theocracy.
Of the 23 Muslim, 16 Christian, seven Buddhist, one Hindu and one Jewish nation that adopt an official religion, most do not describe themselves as a theocratic state.
In 1957 and 1963, Malaysia was, and remains today, a Muslim nation but not a theocratic Islamic state.
For example, in the United Kingdom, there is a Church of England of which the monarch is the head, yet the UK does not describe itself as a theocratic, Christian state.
The position in Malaysia is that we have a constitutional state with a plural and hybrid legal system that recognises juridical/legal diversity. The legal system is a rich blend of many sources, among them:
> The supreme Federal Constitution;
> State constitutions that must comply with some “essential provisions” outlined in the Federal Constitution’s Schedule Eight;
> Enacted federal laws, both primary and secondary;
> Enacted state laws, both primary and secondary;
> Judicial precedents of Malaysian courts;
> English common law under the Civil Law Act 1956 (Act 67);
> Syariah provisions in 25 areas that are enumerated in Schedule 9 List II, Item 1;
> Malay custom; and
> Customs of the natives of Sabah and Sarawak.
These multiple sources enrich Malaysia’s legal landscape. However, in the last few decades, the importance of Islam in the affairs of the state has grown. Islam has become an important factor in law, politics, economics and education.
Most institutions of the state, including the federal judiciary, Parliament, civil service, police and public universities, have become co-opted to swim in the tide of Islamisation.
Coming back to the Nik Elin case, the issue before the Federal Court had nothing to do with the position of Islam or the syariah courts in the country.
In the majority decision, the Chief Justice said that if the pith and substance of the law provision enacted by the state legal authority were items that were already within the Federal List, the state legal authority has no power to enact the said law.
This was always the constitutional position, but it was violated by Kelantan and many other states.
The Nik Elin decision has blown the whistle on these violators of our supreme law.
Shad Saleem Faruqi is a Tunku Abdul Rahman professor at Universiti Malaya.
The views expressed here are the writer’s own.
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