IN 2011, Islamic authorities raided a church suspected of proselytising to Muslims. In 2012, it was Borders and ZI Publications (ZIP), over Irshad Manji’s book Allah, Liberty and Love. These institutions are non-Muslim entities. Yet, because Islam or Muslims were somehow involved, this seemed to give licence to religious authorities to enter non-Muslim premises, conduct searches, confiscate items, carry out interviews and charge individuals.
It would seem that over the past years, the powers of the Islamic religious authorities have inexorably expanded. At the same time, non-Muslims and non-Muslim organisations, including the civil court, are often told they cannot intervene in matters pertaining to Islam.
But does the law give Islamic authorities an automatic say the moment Islam or Muslims are involved? Does only the syariah court have jurisdiction over Islamic matters?
Islam and syariah courts
To answer this question, let’s look at the Federal Constitution, the supreme law of the land, and judgements by the Federal Court, the highest court of the land.
The constitution tells us that not all matters relating to Islam fall under the syariah court’s jurisdiction. The constitution gives states the power to make laws on Islamic law, and personal and family law of persons professing the religion of Islam. The constitution’s ninth schedule spells out what this means by listing out matters such as succession, marriage, divorce and zakat. States also have the power to set up syariah courts to adjudicate on these laws.
But the constitution doesn’t give syariah courts exclusive jurisdiction over all Islamic matters. It only gives syariah courts powers to determine those matters spelt out in the ninth schedule, which states have legislated upon.
This was made clear in the 2007 Federal Court decision of Abdul Kahar Ahmad v Kerajaan Negeri Selangor. The Federal Court was petitioned to declare several state enactments pertaining to Islamic law invalid for being unconstitutional. The Majlis Agama Islam Selangor objected, stating this was a question for the Syariah Court, not the Federal Court.
Tun Abdul Hamid Mohamad, who was Chief Justice then, firmly rejected this. He said that nowhere in the constitution did it state that interpreting the constitution was something within the syariah courts’ jurisdiction. Conversely, the constitution does give the Federal Court exclusive power to determine whether any law is invalid, including laws pertaining to Islam.
The Majlis Agama had cited Article 121(1A), which states that civil courts will not have jurisdiction over matters within the syariah court’s jurisdiction. The Chief Justice said yes, that was correct. But if the syariah court didn’t have jurisdiction in the first place, as was the case in Abdul Kahar Ahmad v Kerajaan Negeri Selangor, then that article could not apply. Article 121(1A) was never meant to oust the civil court’s jurisdiction in existing areas in favour of the syariah court.
The next point to consider is that just because something is deemed un-Islamic doesn’t automatically make it illegal. The constitution stipulates that the state needs to make a law calling something an offence against Islamic precepts before it can be deemed illegal. And that offence needs to be within the state’s powers under the ninth schedule.
Hence, the state, for example, cannot make laws that stipulate that stealing or murder is an offence under Islamic precepts. Undoubtedly, stealing and murder are sinful in Islam and other major religions. But under our constitution, such crimes are for Parliament to legislate, not the states. This is why both Barisan Nasional and Pakatan Rakyat politicians keep insisting that implementing hudud law would be unconstitutional.
Similarly, even though a Sisters in Islam-published book infringed Jabatan Kemajuan Islam Malaysia (Jakim) guidelines, that didn’t make it illegal. And that also didn’t mean the Home Ministry could ban the book, Muslim Women and the Challenges of Islamic Extremism, for being prejudicial to public order. Indeed, this was the High Court’s decision on 25 Jan 2010, which was upheld by the Court of Appeal on 27 July 2012.
The High Court lifted the ban despite Jakim’s view that the book should be prohibited because it would “confuse” Muslims, particularly Muslim women. Jakim is, of course, entitled to its view and perfectly entitled to discourage Muslims from reading the book. But our constitution doesn’t require the government to follow Jakim’s lead and make the book illegal. If the government wants to declare something illegal, it still needs to base it on established laws and procedures, not solely on the fact that it is deemed “confusing” or un-Islamic by one body.
Syariah offences and non-Muslims
Even if religious authorities deem that a syariah enactment has been broken, they cannot act against non-Muslims. The Federal Constitution couldn’t be clearer on this. States may enact laws to set up syariah courts
which shall have jurisdiction only over persons professing the religion of Islam.
The Syariah Criminal Offences (Federal Territories) Act 1997, enacted under the ninth schedule, is equally clear. Article 1(2) states that the act shall
apply only … to persons professing the religion of Islam.
Other state enactments establishing syariah criminal offences have similar provisions.
Yet, we now see Islamic authorities questioning non-Muslims and even summoning them to their offices for further interrogation. This is what the Selangor Islamic Religious Department (Jais) did over the Manji book ban.
According to publisher ZI Publications (ZIP), after the raid on ZIP’s office, between 20 and 30 Jais officers raided its printing company, which is predominantly run by non-Muslims. Jais officers asked to go through the printers’ office documents and demanded that a senior staff, a non-Muslim, go to the Jais office for questioning. In early August, Jais continued to harass non-Muslims by summoning two non-Muslim ZIP employees for questioning at the Jais office.
Merdeka
Then there are articles 5 to 12 of the constitution, which protect citizens’ fundamental liberties. They protect, among others, citizens’ right to life, right to a fair trial and the right to be treated equally before the law regardless of religion, race or gender. Nothing in the constitution says that syariah criminal offences enacted by the states may depart from these fundamental liberties.
So, when legislating syariah offences, state assemblies should bear in mind that the offences must abide by these constitutional provisions, which were put in place at independence, to ensure that Muslim citizens’ fundamental liberties are respected.
Clearly, Malaysia is not as Islamic as we could be, according to some. If it were, there wouldn’t be so much to debate about on the Islamic state aspirations of PAS or Umno. But our founding leaders conceived of a Malaya and Malaysia that was secular, in which Islam is acknowledged as the federation’s religion, but with clear demarcations of what can be legislated and when exactly citizens can be affected by Islamic laws.
Increasingly, it seems that those in power want a state where religious authorities and syariah courts can intervene the moment an Islamic matter or a Muslim is involved. But that’s not the state our Muslim and non-Muslim founding leaders agreed to, as the constitution reveals.
And unless our constitution is changed, religious authorities have no business unilaterally expanding their scope of powers. 
Ding Jo-Ann is disquieted by the prosecution of Borders’ Muslim store manager Nik Raina Nik Abdul Aziz by the Federal Territories Islamic Department.
Adam says
The Islamic authorities, like most other authorities, would like to exert their control and influence over those within their jurisdiction. But they are doing it the incorrect way. Instead of creating a conducive atmosphere for their adherents and a good impression for non-Muslims, they are utilising fear, threats and intimidation to achieve control. These tactics do not work that well in these modern times.
They should take a course in sales and marketing and learn how to market and sell a product effectively. Good sales people will not use threats and intimidation to sell. Neither should they condemn other products in order to sell theirs. You have to present your product in such an interesting manner that people willingly buy it and will continue buying and using it, not buy it once and leave it aside.
The problem in this sad situation is monopoly. When you have a monopoly in anything, one tends to set the rules and enforce them without considering the feelings of others. Break the monopoly and most of the problems will vanish overnight.
In this case, allow complete freedom of religion and the Islamic authorities will immediately turn into the most caring, considerate and compassionate of all. Muslims would be happy and the non-Muslims would queue up to join. It is a good thought indeed.
But for now, they will be running in circles, trying hard to keep their adherents in and fending off criticisms from others. They will constantly be in catch 22. If only they take the cue from the Islamic Renaissance Front.
Meanwhile, state Laws cannot override federal laws. Otherwise, there will be mayhem and miscarriage of justice for many.
Gopal Raj Kumar says
Isn’t that what authority, control and influence is about? And when you say Islamic and Muslim what do you mean by it? Shia, Sunni, Alawite, Hashemite, Ahamdi, Ismailia? You have to be more specific than to make blanket assumptions like Ding does.
Adam says
Jo-Ann has written from the Malaysian perspective with all, if not most cases taken from what the Islamic authorities in Malaysia have done or have been doing. So, in Malaysia, the only acceptable sect of Islam has to be Sunni Islam and that too must be of a particular branch which I understand is Al Sunnah Wal Jamaah. All other sects are considered non-halal. So, that is what we are talking about if you want to be specific.
Gopal Raj Kumar says
“Conversely, the constitution does give the Federal Court exclusive power to determine whether any law is invalid, including laws pertaining to Islam”.
This statement is a false proposition and without any legal or constitutional foundation or merit.
The Federal Court has certain original or consultative jurisdiction outlined in Articles 128 and 130 of the Constitution and other jurisdiction as may be conferred under Federal law (Article 121(2)).
None of the conventional non Islamic courts has jurisdiction in respect of any matter that falls within the jurisdiction of the Sharia (Islamic law) Court.
The limits placed on the judiciary following the crisis of 1988 were to a large extent inevitable.
The conventions of the Westminster Constitution upon which the Malaysian Constitutional is based has three fundamental underlying principles:
a) The supremacy of parliament
b) The rule of law
c) The separation of powers.
The US Constitution allows for its Supreme Court to usurp the role of parliament (or its legislative arm) to review and to strike down legislation as being invalid or unconstitutional (Marbury v Madison (1803)). That same power is not vested in any court Malaysia or in England. Therein lies the manifestation of the doctrine of the separation of powers in the English and Malaysian sense and the flaw in the arguments raised in this article in applyinga very narrow and ill considered approach to understanding and interpreting the Federal Constitution of Malaysia.
Ding Jo-Ann says
Thank you for your comment. I’m afraid that your statement is inaccurate. It is precisely Article 128(1) of the Federal Constitution that gives the Federal Court exclusive jurisdiction to determine the validity of laws. It states as follows:
128. (1) The Federal Court shall, to the exclusion of any other
court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction—
(a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws […]
The decision of the Federal Court in the Abdul Kahar Ahmad case was that the validity of state enactments pertaining to Islamic law, which were under consideration in that case, should be decided by the Federal Court, not the Syariah Court.
Gopal Raj Kumar says
Jo Ann what you do is to read the constitutional articles and its provisions in isolation and not in conjunction with the philosophical, historical and political background at its source.
That is a fatal flaw as it appears to be the very flaw that gave rise to the poor drafting of the revisions (or amendments) made to the Malaysian constitution over the years.
Putting the flaws in drafting aside I draw your atetention once more to the position that unlike the US constitution no court in Malaysia has the right to make law.There was no Marbury v Madison in Malaysia’s history to deny Parliament its legislative authority and its supremacy over the courts.
If your reading of the section 128 (1) is to be upheld, then the courts have the right to strike down or to make law and that is therefore not the prerogative of not parliament.
If one reads sub paragraph 128 (1) (a) which provides “any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws […]” it is clear that this particular paragraph is a grammatical nonsense and gives no power to the Federal Court.
The words used in the beginning of 128 (1) certainly gives the impression the Federal Court is given some exclusivity over something but it does not say what.
Now tell me exactly what law has Parliament no authority, power or right to make? And what is meant by “Parliament” and by the word “Legislature” used here? States too have parliaments. Where lies the difference?
The supremacy of Parliament as the singular and only law making body empowered to do so by the federal constitution is more than a convention. If what you suggest is correcct then it is described in a very esoteric fashion in the language used.
Ding Jo-Ann says
Thank you again for your comment. Again, I’m afraid it is inaccurate. You seem to be under the mistaken impression that Parliament is supreme and you are likening the Malaysian legal system to that in the UK where there is no formal written constitution.
Unlike in the UK, in Malaysia, the constitution is supreme, not Parliament. Therefore, any laws made by Parliament or the state legislatures which go beyond what the constitution empowers them to do are invalid. The body that the constitution has empowered to declare those laws invalid is the Federal Court as stated quite clearly in Article 128(1).
Gopal Raj Kumar says
As long as Parliament has the capacity and the authority to alter laws and to regulate the lives of its citizens it remains sovereign which translates to supreme.
And sovereignty is supremacy. Government has power which includes changing the the Constitution.That makes parliament where the power of government resides supreme.
Parliamentary supremacy does not require the simplicity of statements like “this is the supreme law of the land”.
A constitution is not in fact a law but a set of principles that govern the relationship between the various arms of government and their interaction with their subjects.
As for the Constitution not being the like the UK constitution, your statement in this regard is ill informed.
Malaysia’s constitution was framed along the structure of the UK Constitution.The conventions, the separation of powers and the rule of law where not expressly spelt out nonetheless is a part of its structure. Have to be a bit more analytical.There is not sufficient space here to cite the authorities.
The UK Constitution is not unwritten. It is partly written, partly convention but yes not codified.The Act of Union 1707, Magna Carta, the Bill of Rights,the Great Reform Act, more recently the Representation of People Act and the European Communites Act.There are more.
What’s more important is that constitutionally parliament can extend its life in a number of ways or end its own existence, and that of the constitution, a matter I will not expand on here.
The thrust of my argument is that the black and white statements contained in written documents are of themselves not absolute law incapable of interpretation.
When reading the constitution it always needs to be done contextually with a historical perspective and knowledge of its sources origins and the structure and spirit under which it came into existence.
Thank you for the opportunity to address the point. We may remain at variance on the subject but it is worth a robust discussion.
Marcus says
Jo-Ann is right.
“Now tell me exactly what law has Parliament no authority, power or right to make?”
Parliament has no power or authority to make any law that is UNCONSTITUTIONAL! (Article 4(1) – constitutional supremacy; Article 74 – law relating to a matter with respect to which Parliament has no power to make.
Hence, the court may still invalidate any primary legislation enacted by Parliament for unconstitutionality (Ah Thian v Government of Malaysia [1976] 2 MLJ 112).
The Federal Court (and only the Federal Court) may do this pursuant to its judicial review jurisdiction afforded by Article 128(1). Judicial review operates at two levels: (i) judicial review of primary legislation (for unconstitutionality); and (ii) judicial review of administrative acts (pursuant to valid legislation). It is the former that we are concerned about here.
Unlike what you claim, the principle of Marbury v Madison is recognised in Malaysia (Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 2 MLJ 257) (Federal Court of KL). The judiciary serves as the arbiter of what is “constitutional”. This also serves as a check against undue concentration of powers in the hands of Parliament, thus according with the Westminster separation of powers principle. In no way does this mean the judiciary is “usurping” the lawmaking powers of Parliament or making laws itself.
Jo-Ann has correctly pointed out that unlike in the UK, the Constitution, not Parliament, is supreme (Article 4). A fortiori, this means that the courts have a duty to invalidate any legislation passed by Parliament which is unconstitutional.
stewoolf says
The Islamic religious authorities are going to expand their grips in the near future, regardless what happens in GE 13, restrained only by the progressive middle-class Malay-Muslims. As the pro-Malay, pro-Bumi NEP-like policies are losing political support due to their ineffectiveness and abuse by the current regime, the Malay-Muslim masses are moving from the CAGE to the CAVE mentality. In a “cage”, food and protection from the weather are provided, in return for giving up of the dwellers’ freedom and civil liberties. One is promised “heaven” after an austere life style in a religious “cave”. Thus, the need for an expansive religious enforcement! So, to “hudud”, or not to “hudud”? The more worthwhile question is” what are the alternatives to CAGE and CAVE??
Gopal Raj Kumar says
Sorry I also meant to add that the decision in Abdul Kahar Ahmad is a conceptually flawed one for many reasons which I digress and will not spend too much space over.
That decision has as much jurisprudential impartiality and credibility as the Lau Bee Lan decision in the Malaysian Herald (or the Allah) matter. […]
I do however suport the drive to make people more aware of their constitutional rights. A bold and noble initiative. But thats like “Belling the Cat”. Who is it amongst you who will write a proper constitution or rewrite it in such a way as to have it understood by everyone, “especially judges and lawyers” who appear the “most vulnerable when it comes to understanding constitutional law and the constitution of Malaysia in particular”. ([law expert] on Malaysian TV).
JW Tan says
I could have a go if you like. It’s only a semi-facetious idea.
Constitutions should be (re-)written by representative assemblies, and some representatives need to be lay people as far as constitutional law is concerned. Otherwise how can it be said that the constitution is well understood and accepted?
Murdan Benny says
Only offices of Kadis should have existed. To join Muslim couples in marriage. We already have a constitution and legislation to handle the rest.
Allah said “marriage is my business” and these ulama are supposed to believe in Allah 100%. Do they ever ask for Allah’s permission when they tie Muslim couples in marriage. I do not think so.
Example (Contoh):
“YA ALLAH MOHON IZIN DARI MU UNTUK SENTIASA MENDAPAT KEREDHAAN, KEBERKATAN DAN KERAHMATAN MU TERHADAP PASANGAN INI — DENGAN INI, DAKU NIKAHKAN SIPULAN DAN SIPULAN DENGAN KESYUKURAN PADA MU YA ALLAH.”
Lalu dijawab:
“DAKU TERIMA JODOH KU INI DENGAN KESYUKURAN PADA MU YA ALLAH.”
It is no wonder most Muslims have gone astray….