The Syariah Court: Its Position Under The Malaysian Legal System

It has been said that Islamic law and the civil law exist as parallel systems in Malaysia. The proposition, while attractive, is grossly inaccurate in law. As it stands today, the administration of Islamic law is confined to personal law for Muslims and the Syariah court is subordinate to the courts established by the Federal Constitution and under federal law, as this article will show.

The Syariah court has in recent years become a prominent subject in public discussion, not least of all with the constitutional provision that "Islam is the religion of the Federation".1

It is vital that the history of how religion came to be inserted in the Federal Constitution be first examined, objectively and dispassionately, given that the subject is fraught with difficulty.

Federation of Malaya

The Federal Constitution has its roots in the Federation of Malaya Agreement 1948 ("the FMA 1948") which established a federation known as the Federation of Malaya or Persekutuan Tanah Melayu comprising the nine Malay states2 and the Settlements3 of Penang and Malacca.4 It was envisaged that the Federation, while remaining under British rule for the time being, would progress towards eventual self-government.5

Historically, British rule in the Malay States eschewed interference with the powers of the Malay Rulers on matters relating to Islam and Malay customs. This position was maintained in the FMA 1948,6 with a proviso that federal legislation could be made for enabling the courts to ascertain Islamic law or Malay customs concerning matters brought before them for adjudication.7

As for legislation, each Malay State had the power to pass laws on Islam and Malay customs to the extent not repugnant to any law passed by the legislative council of the Federation.8 This distribution of legislative powers between the Federation and the Malay States remains unchanged to this day. Islam as the religion of the Federation was to come later.

The Reid Commission

In 1956, as one of the final steps taken in the direction of self-government for the Federation, an independent commission headed by Lord Reid9 was appointed by the British Crown and the Conference of Rulers to make recommendations for a constitution for an independent Federation of Malaya.

The draft constitution and the report submitted by the Reid Commission was passed with amendments and approved by the Federal Legislative Council in July 1957.

In the course of the deliberations of the Reid Commission, the then-dominant political party called the Alliance submitted a proposal that Islam be made the official religion.10

The Reid Commission decided to not make any provision for an official religion, preferring to maintain the status quo by retaining religion as a State matter11 as they were concerned over the apparent contradiction between the Alliance declaration that Malaya would be a secular state and the proposed provision for Islam to be the official religion of the Federation.12

This omission led to the formation of a Working Party comprising representatives of the British Government, the Malay Rulers and the Alliance coalition to review the Reid Report.13 Tunku Abdul Rahman argued strongly for an article declaring Islam as the official religion of the Federation.14 The component parties in the Alliance agreed that the proposed provisions should include two provisos — first, that it would not affect the position of the Rulers as head of religion in their respective States, and second, that the practice and propagation of other religions in the Federation would be assured under the Constitution.15

Justice Sheik Abdul Hamid, the member of the Reid Commission from Pakistan who initially agreed with the other members to omit any provision for an official religion in the draft constitution, later proposed in his Notes of Dissent that the Alliance proposal be adopted as it was "innocuous", pointing out that at least 15 other countries had similar provisions in their constitutions.16

The Federation of Malaya government, in a White Paper published in 1957, explaining the changes to the recommendations of the Reid Commission, stated:

"There has been included in the proposed Federation Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practise his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion."17

In the event, an express provision was made in Article 3(1), the terms of which have remained unchanged since:

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

The Malay States and the Settlements comprised in the Federation of Malaya became independent as from 31 August 1957 by virtue of the Federation of Malaya Agreement 1957, given force of law by the Federal Constitution Ordinance 1957.18

That the Federation was to be a secular nation was reiterated by Tunku Abdul Rahman in a speech before the legislative council:

"I would like to make it clear that this country is not an Islamic state as it is generally understood, we merely provided that Islam shall be the official religion of the State."19

Malaysia

Prior to the formation of Malaysia, a commission of inquiry chaired by Lord Cobbold20 was appointed to ascertain the views of the people of North Borneo and Sarawak, and upon assessment of those views, to make recommendations on the inclusion of North Borneo and Sarawak in the proposed Federation of Malaysia and issued a report in 1962.21 Although the British member of the Cobbold Commission recommended that the Federal provision on religion should not be extended to Borneo territories which have a non-Muslim majority, the Malayan members recommended22 otherwise:

"... we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardises freedom of religion in the Federation, which in effect would be secular."

In 1963, the Federal Constitution was amended upon the admission of Singapore and the North Borneo states of Sabah and Sarawak to the Federation.23

Article 3 of the Federal Constitution remained unchanged.

Public and private aspects of Islam in Malaysia

In 1988, a full bench of five in the Supreme Court (as the Federal Court was then known) had occasion to consider Article 3 in an appeal against a mandatory death sentence for drug trafficking and possession of firearms. It was contended on behalf of the accused that Islam being the religion of the Federation, as declared in the Federal Constitution, and the Federal Constitution being the supreme law of the Federation, the imposition of the death penalty was unconstitutional, being contrary to Islamic injunction.24

Although the Supreme Court acknowledged that Islam was not just a mere collection of dogmas and rituals but a complete way of life covering all fields of human activities, be they private or public, legal, political, economic, social, cultural, moral or judicial,25 it held that this was not the meaning intended by the framers of the Constitution. So far as Islam was concerned, the result of the development of law by the British in Malaya had the effect of turning...