Article 3(1) of the Federal Constitution provides as follows:

‘3(1)   Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.’

Article 3 raises the question: What is the nature of Malaysia’s Constitution, secular or theocratic? This question can be approached from three dimensions: historical, political, and legal. The historical dimension is settled. The political dimension continues to be negotiated notwithstanding history. The legal dimension temds to take its colour from the political dimension. They will therefore be considered in that order.

The Historical Dimension

The Historical Dimension was settled in Joseph M Fernando’s illuminating paper titled, The Position of Islam in the Constitution of Malaysia [Joseph M. Fernando (2006), Journal of Southeast Asian Studies, 37, pp 249 -266].

He was motivated to consider Article 3(1) FC because of the considerable debate about the provision. He noticed that most ‘scholarly work on the issue, however, has been based on information derived from a reading of the published material available on the Constitution … None of the existing works have examined adequately the primary Constitutional documents to ascertain the intension of the framers. … This article seeks to fill this gap by examining these primary documents to provide a clearer picture of the intentions of the framers. For a proper understanding of Constitutional provisions, a study of the primary documents is essential.’

The section titled with the heading, The intentions of the framers of the Constitution, is illuminating:

The primary documents indicate clearly that the Working Party, in providing for Islam to be made the religion of the Federation by the insertion of Article 3(1), had intended the state to be secular. The UMNO and Alliance leaders ad no intention of creating a theocratic or quasi-theocratic state. Article 3(1), the Alliance leaders assured the Colonial Office, would not encroach on the civil and political liberties of the non-Muslims or the freedom of worship. The intentions of these leaders are clear at each stage of the deliberations. …

… Tunku Abdul Rahman’s clarification in the Working Party meeting that ‘the whole Constitution was framed on the basis that the Federation would be a secular State, is perhaps the clearest indication of the intentions of the framers. The new provision did not intend to alter the secular nature of the state. Justice Abdul Hamid’s reference to the provision being ‘innocuous’ was an apt description of the intentions of the Alliance. It was largely intended to have symbolic and ceremonial significance and not cause any disability to any quarters

Joseph M. Fernando (2006), The Position of Islam in the Constitution of Malaysia, Journal of Southeast Asian Studies, 37, pp 249 -266, ag pages 265 – 266.

The historical dimension is crucial because it is the context in which the Federal Constitution is interpreted. It is impossible to appreciate and interpret it without understanding how it came about and the compromises, assurances, and understandings that lay beneath the provision. Article 3(1) is one such provision.

The Political Dimension

On 29.9.2001, Dr Mahathir Mohamed declared Malaysia an Islamic state at the Gerakan National 39^th delegates’ conference with the consensus of the other Barisan Nasional component parties as follows:

‘UMNO wishes to state loudly that Malaysia is an Islamic country. This is based on the opinion of ulamaks who had clarified what constituted as Islamic country. If Malaysia is not an Islamic country because it does not implement the hudud, then there are no Islamic countries in the world.’

‘If UMNO says that Malaysia is an Islamic country, it is because it is an Islamic country non-Muslims have specific rights. This is in line with the teachings of Islam. There is no compulsion in Islam. And Islam does not like chaos that may come about if Islamic laws are enforced on non-Muslims.’

Tommy Thomas, Is Malaysia an Islamic State? [2006] 4 MLJ xv; R. Sivaperegasam P. Rajanthiran, DAP’s Opposition of Malaysia as an Islamic State (Political Managements and Policies in Malaysia), Institute of Tun Dr Mahathir Mohamad’s Thoughts, (UUM), pages 371 – 391.

Nik Aziz, spiritual leader of the Malaysian Islamic Party (PAS) and the Kelantan Chief Minister at the time retorted to the declaration as follows:

‘You can talk all you want. You can declare a piece of wood to be gold, or a wheelbarrow as a Mercedez, but in reality, nothing has changed.’

‘For us, an Islamic country is one which is governed according to the tenets of the Quran and Hadith (sayings of Prophet Muhammad). Malaysia is a secular State. If the present Malaysia is already an Islamic state, then what do you call the state ruled by Prophet Muhammad and his friends?’

Supra

The following can be surmised from their statements:

Firstly, Dr Mahathir Mohamad announced it as president of UMNO, a political party, and not as Prime Minister. However, the difference then was semantic.

Secondly, he consulted ulamaks about what an Islamic state is instead of constitutional scholars or lawyers about the Federal Constitution. That is like a mole asking a duck about a boat. Ulamaks lack awareness, understanding or expertise about the Federal Constitution. They are experts only in religion, not constitutional language and legal structures.

The cart was put before the horse. Ultimately, the final arbiter of what the Constitution means is the task of the judiciary, no one else. Prime Minister’s are not automatically competent by virtue of their position as had of the Executive to tell others what the Constitution is about.

Thirdly, he fails to explain why the ulamaks think Malaysia is an Islamic state. He fails to explain who are these ulamaks and the nature of their views. It is sad and disappointing how such facile statements can be used to justify a sea-change policy.

Fourthly, Dr Mahathir Mohamad says Malaysia is an Islamic country because non-Muslims are given ‘specific rights’, and this is in line with Islamic teachings. However, Nik Aziz, took a different view. For him, whether a country is Islamic is based on the country’s laws being founded on the Quran and Hadith. Between the two of them, Nik Aziz has a more nuanced grasp of the Constitution compared Dr Mahathir’s facile view.

Fifthly, Nik Aziz sees through Dr Mahathir Mohamad’s disingenuous declaration, which does not change anything systemically.

Finally, as late as 2001, Nik Aziz confirmed that Malaysia is secular because the Federal Constitution is not subject to the Quran and Hadith.

Since then, the position developed to ‘Malaysia is not an entirely secular state.’ Anwar Ibrahim claimed Malaysia does not have a laïcité secularism, i.e., where there is a separation between state and religion. He is quoted as saying, ‘The state has its secular elements. But religious values must be embedded (in the system). That is our standing. Once you start declaring Malaysia as a secular state, then people will say, what about Islam as the religion of the Federation? What about the Islamic department, and how do you reconcile that with the sultan being the head of religion in the state?’

Regrettably, his statement is at best ignorant of the historical underpinnings of the Federal Constitution and the law about it, at worst, he turns a legal question into a political one and asks the wrong questions. All of those questions he posed would be answered by an informed view of our history and the makings of the Constitution in 1957 and renegotiated in 1963. Religion is a state matter. The Federal Government was not meant to have control over religion. It still doesn’t at a national level; only over the Federal Territories.

From the Political Dimension, the question about the nature of Malaysia’s constitution has moved from the starting point of Malaysia being a secular state to Mahathir’s 2001 declaration that it is an Islamic state to Anwar’s 2023 declaration that Malaysia is ‘not an entirely secular state.’

The Legal Dimension

The Legal Dimension is the arena where the tensions arising from the pull of Historical Dimension and bluster of the Political Dimension are expected to be resolved by the Courts. In the Legal Dimension, we can appreciate how the discussions and narratives in the Political Dimension has an influence on legal and constitutional interpretation. As Fernando’s article summarised, that understanding of Article 3(1) – it was supposed to be read as secular – was the common understanding of that provision. That was cogently expressed in the Supreme Court decision of Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55.

In Che Omar bin Che Soh, the court considered the meaning of the ‘Islam’ or ‘Islamic religion’ in Article 3(1) FC. Tun Salleh Abas LP, who delivered the court’s judgment, interpreted the FC in light of its historical underpinnings, principally the position of Islam within the administration of the state before 1957. The crucial part is quoted below:

The first point to consider here is the meaning which could be given to the expression ‘Islam’ or ‘Islamic religion’ in Article 3 of the Constitution. If the religion of Islam in the context means only such acts as relate to rituals and ceremonies, the argument has no basis whatsoever. On the other hand, if the religion of Islam or Islam itself is an all-embracing concept, it is normally understood, which consists not only the ritualistic aspect but also a comprehensive system of life, including its jurisprudence and moral standard, then the submission has a great implication in that every law as to be tested according to this yardstick.
…

The question here is this: Was this the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century.
…
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.
…
However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.

Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, Tun Salleh Abas LP sitting with Wan Suleiman, George Seah, Hashim Yeop A. Sani & Syed Agil Barakbah, SCJJ

To summarise Che Omar bin Che Soh:

Firstly, ‘Islam’ in Article 3 refers to its rituals and ceremonies. It does not refer to ‘Islam’ as a ‘comprehensive system of life including its jurisprudence and moral standard’. No provision in the FC invalidates any written law for being against Islamic injunctions. ‘Islam’ has a restricted meaning. It does not envisage Malaysia theocratic. The rest of the FC articulates its democratic foundations.

Secondly, Malaysian law is governed by secular law, not Islamic law. Until the legal system is changed through legislation, the courts can do little about it. It is not for the superior courts to declare Malaysia Islamic. It is not a matter of constitutional interpretation but constitutional amendment.

Thirdly, the Constitution must be read to align with its historical underpinnings. It cannot be read in isolation, and certainly not through religious lens.

However, the substance of Che Omar bin Che Soh has been whittled away over a series of cases, culminating in a series of decisions that saw the rise of a ‘dual legal system’ notion in Malaysia. From a firm assertion of secularism of the Malaysian constitution and laws in 1988, we have, in 2024, 36 years later, arrived at an apologetic stance instead, as exemplified in the following quote:

[87] What we can explain from the foregoing is this. The general legal system in Malaysia leans more towards secularity without being purely secular.  What this means is that the source of our law is not purely from divine or Islamic law and the reason why we are not a purely secular State is because limited allowance has been made in the FC for the legislation and application of Islamic law.  In this sense, we are a unique nation with a mixed or dual secular and Islamic law legal systems that are meant to operate independently of each other.

Nik Elin Zurina binti Nik Abdul Rahman & 1 Or v Government of Kelantan (Federal Court Application No. BKA – 2 – 05/2022(D), per Tengku Maimun binti Tuan Mat CJ, paragraphs [87]. The CJ had hinted at this approach in Iki Putra Mubarak v Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 465, FC, paragraph [65]

Pronouncements such as these about the nature of Malaysia’s constitution appears to reflect the shine from the mirrors from the Political Dimension instead of precedent. To claim a limited allowance to provide for Islamic personal and family law in itself renders the Federal Constitution ‘not a purely secular State’ is a sleight of hand that can only be reached by a forgetting or willful blindness about the reason why Article 121(1A) was introduced, Article 3’s history, as researched and concluded by Fernando and confirmed by Che Omar bin Che Soh and a desire to appease political and a segment of the public sentiment regarding the primacy of matters Islamic. This is potentially an instance of how the Political Dimension has a bearing on the attitudes towards the Constitution.

It is, therefore, useful at this juncture to recall the purpose of Article 121(1A). The amendment came into force on 10.6.1988.

Professor Ahmad Ibrahim, a prime mover of the inclusion of the provision, explained that an important effect of the provision was to ‘avoid for the future any conflict between the decisions of the Syariah Courts and the Civil Courts which had occurred in a number of cases before, For example, Myriam v Ariff …’ [Professor Ahmad Ibrahim, The Amendment of article 121 of the Federal Constitution: Its effect on the Administration of Islamic Law [1989] 2 MLJ xvii]

The case of Myriam v Ariff [1971] 1 MLJ 265 concerned the custody of two Muslim infants. At the Syariah court, the mother and father agreed for the father to have custody. A consent order was entered. The mother later filed a claim for custody in the High Court, claiming custody, but the consent order was also entered into due to her not being properly advised at the time.

Justice Abdul Hamid ordered a different arrangement concerning custody and visitation rights, notwithstanding custody orders for Muslim children being exclusively in the Syariah court’s jurisdiction. Article 121(1A) was to avoid situations such as these.

Professor Ahmad Ibrahim’s explanation has received widespread judicial acknowledgement, endorsement and embellishment. Consequently, Article 121(1A) was held not to exclude the civil court’s jurisdiction to review decisions of the Syariah court. It does not confer judicial power or jurisdiction to interpret the FC on the Syariah courts. It does not constitute a blanket exclusion of the jurisdiction of civil courts whenever a matter relating to Islamic law arises. The inherent judicial power of civil courts concerning judicial review and questions of constitutional or statutory interpretation is not and cannot be removed by the insertion of cl. (1A).

In summary, Article 121(1A) was introduced to prohibit the High Court from making orders over Muslim personal and family law and inheritance. Those were within the exclusive jurisdiction of the Syariah court.

The position of Syariah courts is similar to the Sessions Courts and the Magistrates’ Courts, which the Constitution calls legally ‘inferior courts’, as opposed to ‘superior courts’ comprising the High Court, Court of Appeal and Federal Court, which are provided for directly in the Constitution. Inferior courts are constituted by way of an enactment or an Act. Article 121(1A) does not remove the superior court’s powers of judicial review and statutory or constitutional interpretation.

Article 121(1A) does not create a separate independent legal system; it merely carves out jurisdiction over Muslim personal and family law and inheritance from the superior courts’ immediate purview. Immediate, in the sense of hearing or conducting a trial regarding a dispute. It does not remove the superior courts’ supervisory purview, i.e., by way of judicial review or constitutional challenges against enactments or Acts. There are Federal Court authorities for all these propositions.

Nothing can remove or restrict judicial review because it is not simply an inherent power of the court but a core tenet of the rule of law, which is inextricably linked to the notion of constitutional supremacy in a democratic government. It is a fundamental aspect of checks and balances. It is the vehicle through which the judicial branch of Government can perform its constitutional function vis-à-vis the other branches.

That previous understanding of Article 121(1A) has been undergoing a transformation. There is a current of recent High Court and Court of Appeal authorities[1] and obiter dicta[2] from the Federal Court that suggests the following to be now the position:

Firstly, Malaysia has a ‘mixed or dual secular and Islamic law legal systems that are meant to operate independently of each other’. It, therefore, has two separate legal systems: the Syariah and civil courts. Syariah courts are, therefore, courts of competent jurisdiction and coordinate jurisdiction because ‘the Syariah courts are not inferior tribunals subject to judicial review pursuant to Order 53 ROC 2012…’

Secondly, and following that, the civil courts cannot judicially review Syariah court orders pursuant to Order 53 Rules of Court 2012. Syariah court orders are immune from a High Court review even if they are illegal, procedurally improper, irrational or disproportionate. [3] This means the civil courts have elevated the Syariah courts to be its equal despite the distinction created by the Federal Constitution between them.

This development reached its penultimate stage in the Court of Appeal decisions of A v Mahkamah Rayuan Syariah Wilayah Persekutuan & 3 Ors (Court of Appeal Civil Appeal No. W-01(IM)-427-06/2022) (‘A’s Case’) decided on 28.8.2023 and Abdul Kahar bin Ahmad and 13 Ors v Jabatan Agama Islam Selangor & 5 Ors (Court of Appeal Civil Appeal No. WA – 25 – 375 – 12/2020) decided on 30.8.2023 (‘Abdul Kahar 2020’). In both decisions, the Court of Appeal in quick succession affirmed the High Courts’ decision to dismiss the applicants’ leave application for judicial review against a Syariah court’s order because it had no jurisdiction to do so.

It remains to be seen whether the Federal Court will directly address the issue and authoritatively pronounce Malaysia as a ‘mixed or dual secular and Islamic law legal systems that are meant to operate independently of each other’, whatever that is supposed to be, or whether we just have one legal system as we always did – based on a constitutional democracy. It is hoped the advise by Tun Salleh Abas in Che Omar bin Che Soh will be remembered.

A tragedy will happen if the latter comes to pass because such an interpretation amounts to an amendment to the Federal Constitution, which is the sole right of Parliament.

[1] Majlis Agama Islam Selangor v Dahlia Dhaima Abdullah & Another Appeal [2023] 2 CLJ 513, CA, A v Mahkamah Rayuan Syariah Wilayah Persekutuan & 3 Ors (Court of Appeal Civil Appeal No. W-01(IM)-427-06/2022), paragraph [13], A v Mahkamah Rayuan Syariah Wilayah Persekutuan & 3 Ors (Court of Appeal Civil Appeal No. W-01(IM)-427-06/2022), paragraph [13], Abdul Kahar bin Ahmad and 13 Ors v Jabatan Agama Islam Selangor & 5 Ors (Court of Appeal Civil Appeal No. WA – 25 – 375 – 12/2020) decided on 30.8.2023, paragraph [22], Kaliammal Sinnasamy v. Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors [2011] 2 CLJ 165 CA, per Abdul Wahab Patail, paragraphs [12] and [13].

[2] Iki Putra Mubarak v Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 465, FC, per Azahar Mohamed CJ (Malaya), paragraph [90], per Tengku Maimun Tuan Mat, paragraphs [65]

[3] Adam Lee v Mahkamah Rayuan Syariah Wilayah Persekutuan (Kuala Lumpur High Court Judicial Review No. WA – 25 – 78 – 02/2022) dated 11.12.2023, HC, per Wan Ahmad Farid bin Wan Salleh, paragraphs [40] – [44]