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
