One of the biggest battles the Malaysian judiciary is facing is accusations that the institution is prejudicial against Islam.
These accusations came out strong recently when the highest court made a landmark decision declaring the 2021 amendments to laws that broaden sharia powers in the state of Kelantan as unconstitutional.
It was a case where the apex Federal Court on Feb 9 supported a legal challenge by lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha Tengku Abdul Rahman, to annul 16 provisions of Islamic criminal laws enacted by Kelantan.
The state is governed by the Muslim-Malay political bloc, Perikatan Nasional (National Alliance). The Malaysian Islamic Party (known by its Malay acronym PAS) is the main party in this bloc and it has led Kelantan since 1990.
“It’s a black Friday for the syariah court,” said PAS’ secretary-general Takiyuddin Hassan, who himself is a lawyer. He added that it was a “dark day in history for Muslims in the country”.
His party has been pushing for broader jurisdiction for sharia law, including the implementation of harsh penalties for crimes under hudud, the penal laws of Islam, and this verdict is seen as a setback.
It could trigger a string of petitions to challenge the legality of sharia laws in other states.
PAS derives its political strength by presenting alternative legal, political, social, and cultural models to conservatives who see the present systems in Malaysia as un-Islamic. A challenge to any of their models is regarded as an affront to their religion, and it does not matter if the “challengers” are also Muslims.
The party finds it hard to accept limits to the states’ power in enacting laws. The Federal Constitution says that states have the power to enact laws that touch on offenses against the precepts of Islam. However, laws on civil and criminal matters and procedures, and the administration of justice, come under federal jurisdiction.
In 2021, the Kelantan state assembly overstepped its limits when it passed amendments to its sharia laws. The 16 that were invalidated in the Feb 9 ruling included those related to gambling, incest, destroying a place of worship, sodomy, and sexual harassment, all of which are covered by federal laws.
“They [state legislatures] cannot make any laws they like,” said Chief Justice of Malaysia Tengku Maimun Tuan Mat, in reading out the case judgment. She holds the highest position in the country’s judicial system and led the nine-member panel of judges.
“The present case, contrary to erroneous and politically fueled suggestions, has absolutely nothing to do with undermining the religion of Islam,” she said.
This is not the first time she has talked about politicians trying to undermine the legal process in cases involving Islam.
In her address at the Opening of the Legal Year 2024 on Jan 15, she said, “The comments by certain irresponsible parties are targeted at painting the picture that the Judiciary has an agenda or motives to eradicate Islam in this country, or an agenda to remove the Islamic legal system in Malaysia.”
This is the judiciary trying hard to keep its reputation intact.
It has been an uphill task for the judiciary over the last 36 years. Its reputation and public confidence plunged in 1987-88 after a series of events involving Umno that led to the executive’s interference in the judiciary and ended with the sacking of the top three judges in the country.
This was followed by the curtailing of the judiciary’s power to strike down legislation and review executive decisions when a constitutional amendment was made in 1988. The judiciary became the weakest of the three branches of the government.
Then came a constitutional amendment, also in 1988, that created the duality in the Malaysian legal system. The jurisdiction of civil courts over Islamic law was removed to pave the way for a parallel system of sharia courts. Before this, sharia courts were subordinate to civil courts.
Then Prime Minister Mahathir Mohammed who pushed for this amendment said it was needed because of the “dissatisfaction among the Islamic community” due to the civil court’s ability “to change or cancel a decision made by the sharia court”.
His then deputy said the “amendment is in line with the government’s aspiration of raising the position and sovereignty of our sharia courts”.
Today, PAS is leading the crusade to raise the position of sharia courts and their laws, driven by the goal of setting up an Islamic state in Malaysia.
This is where civil law is regarded as a major deterrent and civil courts as the conduits. The relentless attacks on the judiciary will continue unless politicians accept the fact that Malaysia is not a theocracy.
Racial or religious superiority in the legal system should never be condoned.
*The views expressed in this article are those of the author and do not necessarily reflect the official editorial position of UCA News.
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