The Separation of Religion and State
In a significant ruling, Malaysia’s highest court has declared 16 Islamic laws in Kelantan, a northeastern state, unconstitutional, potentially reshaping the country’s legal landscape. Among the invalidated provisions are statutes covering various offenses such as destroying places of worship (Section 11), sodomy (Section 14), necrophiliac sexual intercourse (Section 16), bestiality (Section 17), and sexual harassment (Section 31). The court’s decision rested on the assertion that the state lacked the authority to enact Islamic laws on these matters, as they fall under the jurisdiction of Malaysian federal law.
Malaysia operates under a dual-track legal system where both secular laws and Shariah, based on Islamic scriptures such as the Quran and the hadith, govern personal and family affairs for Muslims. While ethnic Malays who are predominantly Muslim form the majority of Malaysia’s population, sizable Chinese and Indian minorities also contribute to its diverse demographics.
The case, initiated in 2022, was brought forward by two Muslim women from Kelantan, a state with a predominantly Muslim population of 97%. Governed by the conservative Pan-Malaysian Islamic Party (PAS) since 1990, Kelantan’s legal framework has been a focal point for discussions on Islamic governance in Malaysia.
Background
The Kelantan Syariah Criminal Offences Enactment 2019, enacted by the state of Kelantan to replace a version from 1985, outlines Islamic law criminal offences applicable within the state. Alongside, the Syariah Criminal Code (II) Enactment introduced in 1993, known as the hudud enactment, was approved by royal authority in 2015 but lacks legal effect. The reason is that the prescribed punishments exceed the limits set by Act 355, which provides the legal framework for Syariah Courts to adjudicate Islamic principle offences and matters involving Muslims, constrained by the Federal Constitution’s Ninth Schedule.
This 2019 enactment significantly regulates and criminalises various aspects of personal life, often infringing on constitutional rights and international norms. It empowers the state to regulate diverse aspects such as identity, body, belief, behaviour, and relationships, impacting not only offenders but also healthcare and service providers. The law introduces 31 new areas of criminality that infringe federally protected rights, including the public exposure of “aurat,” gender changes, consumption of intoxicants, parental disobedience, and transactions contrary to Islamic law.
Part 3 of the enactment, focusing on takzir offences, penalises self-expression, bodily autonomy, indecent acts and speech, consensual sexual relationships, and familial dynamics. It disproportionately impacts vulnerable populations like children, LGBTQ+ individuals, and those with diverse gender identities, imposing harsh penalties.
The enactment raises potential legal and constitutional challenges due to many provisions overlapping with federal laws and conflicting with the Federal List. It allows for judicial caning and other degrading punishments against children and women, contravening international norms. Shariah courts have been granted extensive discretionary powers to impose additional penalties beyond fines, imprisonment, and caning, such as community service, property forfeiture, compensation, and cohabitation orders.
Furthermore, certain sections of the enactment are vague and overly broad, creating legal uncertainty and potentially suppressing freedom of thought, belief, and expression. This includes provisions concerning sorcery, distortion of Islamic teachings, and disrespectful behaviours towards laws.
Legal Implications on a multi-ethnic country
According to a report launched by Sisters in Islam (SIS), Legal Dignity, and Justice for Sisters (JFS) on the Kelantan Syariah Criminal Offences Enactment 2019, it found that the enactment has been particularly harsh on women, especially those who are unmarried, entrepreneurs in the beauty and cosmetics industry, human rights defenders, sex workers, and LGBTQ+ women. The enactment criminalises behaviours such as indecent acts or speech, the exposure of “aurat” (parts of the body that Islamic teaching requires to be covered), acts labelled as “lesbianism” (musahaqah), non-cisgender expressions deemed as “changing gender or posing as the opposite sex,” and even disobedience to parents.
In Islam, “aurat” typically refers to the region between the navel and the knees for men, and for women, all but the face and palms must be covered. However, the report criticises the enactment for contravening Malaysia’s obligations under the United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It was noted that the CEDAW committee expressed concerns in 2018 about the Shariah legal system’s gaps in protecting women from discrimination and how Malaysia is falling short on Sustainable Development Goals related to gender equality and women’s rights.
The enactment also has specific provisions for children, offering exemptions for those “who have not reached the age of puberty,” though it does not specify this age, unlike the civil Penal Code. This makes children particularly vulnerable under this law, with several sections disproportionately affecting them, including those that criminalise exposing the aurat, pregnancy out of wedlock, and various forms of familial disobedience.
LGBTQ+ individuals face new prohibitions under two sections that outlaw so-called “changes of gender” and impose criminal penalties on trans men, masculine persons, and other gender-diverse individuals. This impacts the availability of trans-specific healthcare and protections against discrimination and violence.
Human rights groups report facing additional obstacles in carrying out their work due to sections of the enactment that criminalise various forms of support and advocacy. This includes sections that penalise distorting Islamic teachings, insulting laws, and even breaking the peace.
Businesses and service providers are also negatively impacted, particularly those in the fashion industry and those dealing with public display and decency standards. For instance, a section that criminalises exposing aurat in public affects how fashion is displayed and regulated, even impacting how undergarments can be shown on television.
The report concludes with a call to the federal and state governments to review and reconsider the enactment, citing its redundancy, unconstitutional overlap with federal laws, and the unnecessary criminalization of a wide array of activities that should fall outside state jurisdiction. The concern is that such laws not only infringe upon constitutionally guaranteed freedoms but also represent a misallocation of resources.
The Constitutionality of the Kelantan Syariah Criminal Offences Enactment
The Federal Constitution of Malaysia establishes the foundational legal framework of the nation, serving as the supreme law under which all subsequent legislation must be evaluated. Since the inception of Malaysia’s independence on Merdeka Day, the Constitution has been the ultimate authority, dictating that any law contradicting its stipulations is void to the extent of its inconsistency. This principle ensures that all legislative actions within the country adhere to the Constitution’s mandates, preserving its integrity and supremacy.
Islam holds a significant position in Malaysia, as recognized by Article 3(1) of the Constitution, which designates Islam as the religion of the Federation. However, it is critical to acknowledge the importance of Article 3(4), which specifies that this recognition shall not impair the Constitution in any other respect. This clause serves as a safeguard, ensuring that the special position of Islam does not undermine the comprehensive legal and constitutional framework that protects the rights and freedoms of all Malaysians.
A notable manifestation of these constitutional principles occurred in a landmark ruling by the Federal Court in 2021 regarding Section 28 of the Selangor Syariah Criminal Offences Enactment. The court’s decision underscored the limited scope of authority that state governments possess in enacting Syariah-related laws. This judgement not only clarified the boundaries within which state legislation can operate but also prompted a deeper examination of the types of Syariah laws that can be enacted at the state level, ensuring they do not overstep the powers granted under the Constitution.
All state laws, including those governing Islamic matters, are required to comply with the Federal Constitution. This compliance is particularly pertinent regarding articles that uphold fundamental liberties and equality, ensuring that all state legislation respects these core values. The enactment of laws, such as the Kelantan Syariah Criminal Offences Enactment 2019, thus requires a thorough constitutionality assessment. This assessment must determine whether the laws align with the Federal State List — which outlines the specific legislative powers granted to states — and maintain adherence to relevant constitutional articles that protect civil liberties and ensure equal rights.
In summary, the Federal Constitution of Malaysia provides a robust framework that guides the legality and appropriateness of all laws within the country, including those related to Islamic jurisprudence. Through its provisions, the Constitution not only affirms the position of Islam within the national context but also safeguards the rights and freedoms of all citizens by requiring that all state and federal laws undergo rigorous scrutiny to ensure their alignment with constitutional principles
Public Reaction
The recent Federal Court decision in Malaysia has triggered significant reactions, particularly among conservative Muslim groups. These groups have voiced concerns that the judicial challenge might undermine the position of Islam and the authority of Syariah courts within the country. Amidst these tensions, security measures were notably heightened at the court complex in Putrajaya, Malaysia’s administrative capital. Approximately 1,000 demonstrators gathered outside, engaging in prayer and chants of “God is great” as the verdict was announced.
Justice Tengku Maimun clarified the scope of the court’s decision, stating that the case strictly concerned whether the Kelantan legislature had exceeded its constitutional powers, not the broader position of Islam in Malaysia. “Seen from this position, the issue of the civil court not upholding Islam or the Syariah courts does not arise,” she explained. This statement aims to underscore the legal focus of the court’s decision, separate from any religious implications.
Despite the court’s clarification, the ruling was met with disappointment from Kelantan state officials. Mohamed Fazli Hassan, a Kelantan government official, expressed the state’s intention to consult with Sultan Muhammad V, the royal ruler of Kelantan and a guardian of Islam in one of Malaysia’s nine monarch-led states, to discuss the decision and future matters pertaining to Islamic law.
The ruling could potentially set a precedent affecting Syariah laws across other states, suggested Nik Ahmad Kamal Nik Mahmod, a law professor at Taylor’s University in Malaysia. He predicted a “domino effect” where similar legal challenges might emerge in other regions.
Conclusion
In reflecting on the complexities and implications of the recent ruling on Islamic laws in Kelantan, it becomes evident that the intertwining of religion and politics can be fraught with challenges. The danger lies in the potential for constructive criticism of policies to morph into attacks on religious beliefs, undermining the principles of tolerance and pluralism that are foundational to Malaysia’s identity.
The concept of the separation of religion and state emerges as a crucial safeguard against such risks. By maintaining a clear distinction between religious doctrines and governmental affairs, Malaysia can ensure that policies are evaluated based on their merits rather than their alignment with particular religious ideologies. This separation not only protects individual liberties and freedoms but also fosters a more inclusive and equitable society where diverse beliefs are respected and valued.
Tunku Abdul Rahman’s steadfast assertion that Malaysia is a secular state, coupled with his vision of a nation where religious recognition coexists harmoniously with secular governance, reinforces the importance of upholding this principle. His legacy serves as a reminder that Malaysia’s strength lies in its ability to navigate the complexities of its diverse society while upholding the principles of democracy and individual liberty.
As Malaysia continues to evolve and address the intersection of religion and governance, it must remain vigilant in safeguarding the separation of religion and state. By doing so, Malaysia can uphold the values of inclusivity, tolerance, and respect for all its citizens, ensuring a brighter and more harmonious future for generations to come.
[Written By: Harshaal Medha Naidu, Edited By: Teoh Jin]
