The Malaysian Syariah Courts: A Critical Primer | Part One

To understand the Malaysian Syariah courts, it is necessary first to understand the Malaysian legal system. This is because the Syariah court does not define the Malaysian legal system; instead the Syariah courts are only relevant over an exclusive and very limited area within that legal system.

In this part, I will discuss the position of Islam in the Federal Constitution. Then, I will locate the Syariah court within our constitutional framework. I will conclude with a comparative consideration of the Syariah courts and the superior courts, comprised of the High Court, Court of Appeal and Federal Court. What follows is my over-a-teh-tarik version without nuance; this is not intended to be an academic essay. The purpose of this essay is to lend clarity on this subject as I understand it for the general public’s consumption.

The Position of Islam in the Federal Constitution

Islam’s role in the Federal Constitution needs to be addressed because its the reason syariah courts exist.

The first thing to be said about the Federal Constitution is that it is the supreme law of Malaysia; it is not the Al-Quran or the Sunnah of Prophet Muhammad. All laws, policies, forms and scope of government and their relationships find their source from the Federal Constitution. It is the grundnorm of the Malaysian legal system:

This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution, is to the extent of that inconsistency, be void.

Article 4(1) of the Federal Constitution

If a law, policy or act is against the Federal Constitution, it will be struck down. If the Federal Government or the State Government does something the Federal Constitution does not allow them to do, it will be struck down. In short, anything that goes against the Federal Constitution is illegal and will be rejected. But anything that goes against the Al-Quran or the Sunnah is not necessarily illegal. In fact, is perfectly acceptable for something to be prohibited by Islam but legal according to the Federal Constitution.

An example of this is the Tenth Schedule, Part III, item 1 of the Federal Constitution. One of the sources of revenue assigned to States are ‘Revenue from toddy shops.’ That means States are authorized to receive revenue from toddy shops. Toddy is a palm wine, it contains alcohol as all proper wines do. An Islamic constitution would not have such a provision because it relates to the sale of something haram (prohibited). But here we have it entrenched in the Federal Constitution. I have my friend, Aston Paiva, to thank for this excellent example.

The validity of all laws in Malaysia – whether created by the State Government or the Federal Government – are measured against the Federal Constitution, not the Al-Quran or the Sunnah. This is because our Federal Constitution is democratic, not theocratic. That is why the Rule of Law is embedded in the Federal Constitution, and not the supremacy of Muslim clerics. More on this later. That is why there are provisions about Parliamentary and State elections, instead of provisions installing Muslim clerics into political and public positions of government.

Despite this, an argument ventilated and that has surprisingly, not surprisingly found traction in the Malaysian courts in the last decade or so is that the Federal Constitution is Islamic in orientation because of the first portion of Article 3(1) of the Federal Constitution and the idea that effect has to be given to it. The entirety of Article 3(1) reads as follows:

Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.

With respect that argument is difficult to accept for several reasons.

Firstly, let us consider the first part of that provision: Islam is the religion of the Federation. That phrase is actually meaningless. I did not realise this on my own. I was made aware of it when I was discussing the provision with Justice Mohd Azmi, a former Supreme Court judge, during a break in our arbitration hearing in my first year of practice. Somehow we ended up discussing the rising Islamisation in Malaysia. It was then he drew my attention to that phrase in Article 3(1) and said to me something that has never left me: “The Federation is a legal concept. How can a legal concept profess or possess a religion? I don’t understand what that phrase is supposed to legally mean,” he said to my astonishment.

Second, and recently, that phrase has often been taken out of context and given far greater emphasis than was ever intended by the Reid Commission, the commission that was tasked with drafting the Federal Constitution. Those that seek to ventilate and establish that Malaysia has an Islamic constitution or prioritizes Islam will not refer to the Reid Commission because it is inconvenient to do so. Or if they do, they will do so in passing.

If you want a thorough historical description and analysis, I cannot recommend highly enough The Position of Islam in the Constitution of Malaysia by Joseph M. Fernando, Journal of Southeast Asian Studies, 37(2), pp 249 – 266, June 2006. It is well written, fascinating and revelatory. You will learn, know and understand far more about Malaysian constitutional history than many politicians, activists, and even legal practitioners. Much of what I discuss after this is drawn from this article.

Why is the Reid Commission Report inconvenient to their argument? Because it details, amongst others, the contests, concerns, challenges, and agreements made in including that phrase in the Federal Constitution.

The Report shows that that phrase, Islam is the religion of the Federation, was objected to by the Rulers themselves. They were concerned that saying so would place the regulation of Islam with the Federal Government thereby reducing their positions as the head of the Islamic religion for their respective States. In short, it would remove a significant domain of power because other significant State functions were under British control by then. It records the Pakistani member of the Commission, Justice Abdul Hamid, who argued for the inclusion of the phrase described that portion as ‘innocuous’ in that it would not encroach upon the Rulers position as head of Islam for their States.

It reflected the concerns of the majority of the Working Party members of the commission about that phrase because they ‘were concerned about the contradiction between the secular state and an official religion and the implications if such a provision were to be misinterpreted.‘ In that respect, it is impressive how far sighted the commission members were because the misinterpretation they were concerned about has already happened.

A compromise was reached over that phrase and it was to have the effect that was summarized as follows:

The Alliance representatives said that they wished a statement to be inserted in the Constitution to the effect that although the States should be secular the official religion would be the Islam religion. They said that if the Federation government decided to set up a Department of Religious Affairs, it would be for liaison purposes only. The High Commissioner pointed out that there was at present no Head of the Faith in the two Settlements and suggested that it would be convenient if the Yang di-Pertuan Besar [later termed ‘Yang di-Pertuan Agong’] could be the Head of the Faith in the new States of Penang and Malacca. It was agreed that an acceptable solution might be to include a statement in the Federal constitution that Islam should be the official religion of the Federation with the Yang di-Pertuan Besar as the Head of the Religion for the Federation as a whole but without any derogation from the position of each of the individual Rulers as Heads of the Religion in their respective States and without affecting the implementation of the recommendation that the Muslim religion should be included as an item in the State list. It was agreed that the Alliance representatives would draft an article on these lines and thereafter discuss the draft with the Rulers’ representatives.

First Meeting of Working Party, 22 February 1957, CO941/85

The Report shows that the ‘MCA and MIC representatives in the Working Party did not raise any objections to the insertion of the new article, despite concerns expressed by many non-Muslim organisations, as they were assured by their UMNO colleagues that it was intended to have symbolic significance rather than practical effect, and that the civil and political rights of the non-Muslims would not be impaired.’

Finally, to address the Working Party’s concerns that the provision on religion being misinterpreted, Tunku Abdul Rahman (the Chief Minister in the minutes below) assured the Working Party as follows:

“It was thought that the proposed new Article 2A might be misinterpreted. The Chief Minister said however that the whole Constitution was framed on the basis that the Federation would be a secular State. He referred in particular to the Amended Article 11 and he thought that it would be clear that the Federation would be a secular State.”

Minutes of 19th Meeting of the Working Party, 17 April 1957, CO 941/87

Article 2A refers to the present Article 3, and the Amended Article 11 refers to the present Article 11 of the Federal Constitution. So Tunku Abdul Rahman saw the presence of Article 11 of the Federal Constitution as proof that Malaya was a secular state. That makes sense because Article 11(1) reads as follows:

Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.

This is the only fundamental liberty that cannot be denied or curtailed even during an emergency, as we are now. This fundamental liberty is every person of any religion. All quotes above are taken from Joseph Fernando’s article.

When Article 3 is considered in its entirety especially within its historical context and legal expression it does not suggest the supremacy of Islam over other religions. What it does acknowledge is that whilst Islam is the majority religion of Malaysia, there are other religions that are practiced too and they should be left to exist in peace and harmony. Peace means the absence of conflict. The constitution uses the word harmony, not tolerance. Harmony suggests a thoughtful and cooperative coexistence. It follows that Islam should not be used to disrupt the peaceful and harmonious practice of other religions in Malaysia and vice versa. In fact, Article 3(1) as it remains encourages each and every one of us to create an environment of peace and harmony to practice our respective religions, whether it is Islam, Christianity, Hinduism, Taoism, etc.

It is a trite interpretation principle (be it statutory or constitutional) that a provision must be considered holistically and in relation to other provisions in the statute or constitution. To consider only the first portion of Article 3(1) (“1PA3(1)”) and give it greater significance in ignorance of the latter portion is not only an incorrect way of reading that provision; it violates basic principles of constitutional interpretation; ignores constitutional history; and above all, it is dishonest. It is not an interpretation in the public’s interest, and could be cynically said to serve political interests.

Third, Article 3(1) cannot be read in isolation from the other provisions of that Article. There are four other provisions but the only one relevant for purposes of this essay is Article 3(4) of the Federal Constitution, which reads as follows:

Nothing in this Article derogates from any other provision of this Constitution.

This is a provision conveniently overlooked when insisting IPA3(1) demonstrates the Federal Constitution is Islamic or prioritises Islamic beliefs over other religions. This willful blindness is necessary because this provision flatly denies the argument that the Federal Constitution is Islamic or prioritises Islamic principles, systems, etc.

So let’s consider this provision carefully. To ‘derogate’ is to detract, deviate, lessen or reduce something. What that means is this: Whatever is in Article 3 does not affect, lessen, or negatively change any other provision in the Federal Constitution. Notwithstanding IPA3(1), Article 3 does not affect anything else in the machinery or machinations of government.

Article 3 was an area of contest of the various interests amongst the Reid Commission factions. On the one hand there was the Alliance and the Pakistani judge arguing for its inclusion, and on the other hand, we have the Rulers and the British that did not want it included for their own respective reasons. The Rulers were concerned because it meant the loss of their status as head of Islam in their States whereas the British were concerned the phrase would give rise to misinterpretation because the remit was Malaya would have a secular constitution.

So what is the role of Islam in the Federal Constitution? It has been argued that it was an arena of contest by the Rulers to prevent erosion of their status and position. To me, it is a site where the various concerns and opposing interests of those in the Reid Commission found an uneasy solution to those concerns and interests. Its compromise was an acknowledgment of the Islamic faith to the Malay identity, it was not an aspiration for Malaysia to be Islamized.

The Supreme Court in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 decided as much when it responded as follows to the argument that the death penalty was unconstitutional because it was contrary to Islam:

For example, the establishment of the of the Federated Malay States in 1895, with the subsequent establishment of the Council of States and other constitutional developments, further resulted in the weakening of the ruler’s plenary power to the such an extent that Islam in its public aspect had become nothing more than a mere appendix to the ruler’s sovereignty. Because of this, only laws relating to family and inheritance were left to be administered and even this was not considered by the court to have territorial application binding all persons irrespective of religion and race living in the state. The law was only applicable to Muslims as their personal law. Thus it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only (See M.B. hooker, Islamic Law in South-east Asia, 1984)

In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.

And

It is the contention of Mr. Ramdas Tikamdas that because Islam is the religion of the Federation, the law passed by Parliament must be imbued with Islamic and religious principles and Mr. Mura Rau, in addition to submitted that, because Syariah law is the existing law at the time of Merdeka, any law of general application in this country must conform to Syariah law. Needless to say that this submission, in our view, will be contrary to the constitutional and legal history of the Federation and also the Civil Law Act which provides for the reception of English common law in this country.’

This decision remains good law since 1988 and is also a great history read. The day this decision is overturned would be the start of a re-interpretation of the Federal Constitution into an Islamic one. The words will not change but how it is read will.

In fact, this re-interpretation has begun. An example in contrast to Che Omar Che Soh‘s outlook is Justice Apandi Ali’s speech which is representative of the unanimous bench in the Court of Appeal decision of Menteri Dalam Negeri & Ors v Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 8 CLJ 890 where his Lordship opines thus:

The article places the religion of Islam at par with the other basic structures of the Constitution, as it is the third in the order of precedence of the articles that were within the confines of Part I of the Constitution. It is pertinent to note that the Fundamental Liberties Articles were grouped together subsequently under Part II of the Constitution.

With all due respect, this is not interpretation, it is making it up as you go along. The judge recites Article 3(4) when he reproduces the entire provision, but steadfastly ignores it for the rest of his judgment. His reasoning on this constitutional is disposed of in six paragraphs the bulk of which is made up of quotes from textbooks. There is little nuance or regard to constitutional history or his consideration of Article 3 in its entirety. Che Omar Che Soh was not even cited in his judgment. This embarrassment of a decision was not allowed permission to appeal by the majority of the Federal Court.

The Judiciary and the Syariah Courts in the Federal Constitution

The Federal Constitution recognises three organs of government. There is Parliament; the organ that formulates and creates laws. The Parliament Speaker is the head of Parliament. There is the Judiciary; the organ that interprets laws. The Chief Justice heads the Judiciary. Finally, there is Executive; the organ that carries out the law. The Prime Minister heads the Executive. A dictator would usurp the tasks of all three organs. That they are divided shows a separation of powers which is proof the Rule of Law is inherent to the Federal Constitution. There does not need to be a label as some think that states ‘This constitution is rule of law compliant.’ for the rule of law to apply.

Theoretically, these three organs of government are supposed to be independent of each other. They are supposed to be the check and balance to each other’s powers and jurisdiction. In Malaysia, regrettably, those strictures of independence are difficult in an environment when power has over the years coalesced and concentrated itself in the Executive, specifically the Prime Minister’s Office. But that is a discussion for another day.

Let us first consider the establishment of the Judiciary and then compare it to the syariah courts. The Judiciary’s existence is provided for in the Federal Constitution itself. The High Court, Court of Appeal and the Federal Court are all specifically provided for in the Federal Constitution. These are collectively known as the superior courts. This means the Judiciary along with Parliament and the Executive came into existence at the very moment of Malaysia’s birth. So long as the Federal Constitution exists, the Judiciary exists. Chapter IX, Articles 121 to 131A relate to the establishment, powers, jurisdiction and its judges.

Syariah courts do not share that privilege. They are a creature of statute and not will not automatically or necessarily exist. They have to be created by State Legislature or an Act of Parliament (for the Federal Territories). The State Legislature must pass a law to create the syariah courts, known as an ‘Enactment’. Parliament must pass a law to create them through an Act of Parliament. If no law is passed to create the syariah courts it will not exist.

The State’s power to create syariah courts is found in the Ninth Schedule, List II (also known as the “State List”), Item 1 of the Federal Constitution. That is why there are Administration of Islamic Law Enactments for each State and and Act for Wilayah Persekutuan – these are the laws that enable the syariah court’s existence. It is the same for Islamic laws as well. It has to be created by the State Legislature or an Act of Parliament. It can be amended and even repealed. The latter is politically impossible but legally possible. There is nothing sacred about Islamic law codified in Enactments and Acts of Parliament; they are simply an excellent example of Anglo-Islamic law.

Secondly, the syariah courts jurisdiction and powers are limited in three significant ways: who can appear, what it can decide over, and the power it has.

Firstly, all the parties that appear before it must be people that profess the religion of Islam. The syariah court has no jurisdiction over non-Muslims or non-natural people such as companies, societies, statutory bodies, and government departments because those entities are incapable of professing a religion. They cannot issue any orders against them.

Secondly, the syariah courts have jurisdiction only over Islamic matters provided for in item 1, State List. That jurisdiction is limited to only personal law, marriage, inheritance, and offences against the precepts of Islam as allowed by Federal Law. It does not, for example, include Islamic finance. Just because a matter relates to Islam does not necessarily make it a syariah court dispute.

Thirdly, the syariah courts are a court of limited jurisdiction. The scope of its jurisdiction and powers are limited by item 1, State List as well as the enactment or Act that creates them. In short, they are a court of exclusive but limited jurisdiction. It cannot order any government authorities, companies or non-Muslims to do anything. It has no power to do that.

The Judiciary however has no such fetters. Firstly, the High Court has default jurisdiction over all legal disputes unless specifically excluded by an Act of Parliament, or the Federal Constitution. Secondly, the High Court has jurisdiction to hear all matters except those reserved for the syariah courts. Thirdly, the superior courts are courts of far greater jurisdiction compared to the syariah courts. They are courts of theoretically unlimited jurisdiction. One example will suffice: only the superior courts can issue an order setting aside a government authority decision. The syariah courts have no such power.

Therefore, from the legal standpoint, the syariah courts are simply an inferior tribunal within the scheme of the constitutional framework. They are far from the equivalent of the superior courts i.e., the High Court, the Court of Appeal and the Federal Court. And I use the words inferior and superior from a legal perspective, not a political power perspective. The syariah courts were never meant to be the judicial organ of government. Article 3(1) has no relevance in so far as its jurisdiction is concerned.

The reason for the syariah courts exclusive and limited jurisdiction has everything to do with Malaysian history, the Malay rulers giving up power to the British, and the order of events instead of any present political cause. In terms of power and jurisdiction, the syariah courts are no different from the industrial court, the consumer claims tribunal, the tribunal for home buyer claims, and even the subordinate courts i.e., the Magistrates and the Sessions courts. All of these tribunals were created by statute and so limited to their respective jurisdictions, just like the syariah courts. All of them do not have unlimited and inherent jurisdiction the way the superior courts do.

Since the syariah court is an inferior tribunal that means it comes under the High Court’s supervisory jurisdiction. A syariah court decision can be judicially reviewed for its legal correctness. It is not a question of the syariah court not being ‘powerful’ or ‘humiliated’ when its decision is judicially reviewed by the High Court. To think that way demonstrates a profound ignorance of the Federal Constitution and the interpretations of it by the Federal Court. That is simply the law.

All I have written about the syariah courts is based on Federal Court authority. Most of it can be found in the Federal Court decisions of Latifah Md Zain v Rosmawati Sharibun & Anor [2007] 5 CLJ 253 and Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 3 CLJ 145.

In the next part, we will consider the syariah courts structure, jurisdiction and procedures.

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