Challenging Syariah Laws: The Jurisdictional Conflict
- The civil and Syariah courts
- The case of Abdul Kahar Ahmad
- The Federal Court decision
- Dissent in Islam
The civil and Syariah courts
While the framers of the Federal Constitution enshrined Islam as Malaysia’s official religion under article 3(1), the right to practise religions other than Islam is guaranteed. Structurally, there are two forums to adjudicate on matters of religion: the civil court and the Syariah court. For Muslims only, the Syariah court deals with personal, family and Islamic law questions such as succession, marriage, divorce, maintenance, adoption, and guardianship. It also hears criminal cases for offences against Islam. Unlike the civil court, the Syariah court is not vested with inherent judicial power. Instead, it is a creature of statute enacted under state law. The Syariah court does not enjoy the same status as the civil court, and its powers are limited. If state law does not confer jurisdiction on the Syariah court to deal with a particular matter, the court is precluded from dealing with it (Ng Wan Chan).
In any event, the Syariah courts cannot interpret the Constitution or declare that a law is unconstitutional. Only the civil courts can. In Abdul Kahar Ahmad, the Selangor Islamic Religious Council (also known as “Majlis Agama Islam Selangor” or MAIS) attempted to re-cast this legal position by relying on the jurisdictional dichotomy of the courts.
The case of Abdul Kahar Ahmad
Abdul Kahar was charged in the Selangor Syariah High Court for committing five religious offences under Selangor’s state law: the Syariah Criminal Offences (Selangor) Enactment No. 9 of 1995. He was accused of spreading false Islamic doctrine, declaring himself a Malay prophet, ridiculing the practices of Islam, defying the Mufti’s orders and disseminating opinions contrary to Islamic law. Asserting freedom of belief, he applied directly to the Federal Court to declare the respective Syariah provisions under which he was charged unconstitutional. Invoking the Federal Court’s jurisdiction, the case was filed pursuant to articles 4(3) and 128(1) of the Constitution. Under this special procedure, the Federal Court is empowered to declare state law unconstitutional on the ground that the state had no power to make the impugned law.
Abdul Kahar’s legal team asserted that state legislatures were only empowered to create Syariah offences that were against the “precepts” of Islam. The alleged crimes of Abdul Kahar were not against the precepts of the religion and, therefore, unsanctioned by the Constitution. If the argument succeeded, the impugned laws would be declared invalid. The Selangor state legislature did not have the power to pass the laws, and none of the offences can be enforced. Abdul Kahar’s charges will automatically fall.
Before the substantive hearing of the case, MAIS intervened. It sought an order for the Syariah High Court first to decide whether the offences were against Islamic precepts. Then the Federal Court can decide whether the impugned laws were void or not. In support of its argument, MAIS cited article 121(1A) of the Constitution, which states that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”. Because only the Syariah courts can determine Islamic law and doctrine matters, the Federal Court cannot venture into deciding the precepts controversy, so the argument went. MAIS was, in effect, seeking to remove Abdul Kahar’s case from the Federal Court to dilute the civil court’s jurisdiction to hear a constitutional challenge. Had the case been remitted to the Syariah High Court, it would have been difficult for Abdul Kahar to defend himself by raising his right to freedom of thought, conscience, and belief. No Syariah law entertains the right. Further, adjudication of constitutional and human rights arguments is beyond the remit of the Syariah courts’ powers.
The Federal Court decision
The essential question to be answered in Abdul Kahar Ahmad was this: Which court had the exclusive jurisdiction to decide whether an Islamic state law was constitutionally valid under the Constitution – the civil Federal Court or the Syariah High Court?
The question was answered in three ways. First, the Federal Court held that matters concerning the interpretation of the Federal Constitution or any federal or state law fall within the jurisdiction of the Federal Court, not the Syariah courts. Latifah Mat Zin was cited in reference. Second, for the Syariah courts to have jurisdiction over a matter, the law must confer it by express words:
 That is not the case here. Nowhere in the Constitution is there a provision that the determination of Islamic Law for the purpose of interpreting the Federal Constitution is a matter for the State Legislature to make law to grant such jurisdiction to the Syariah Court. Hence, there is no such provision in the State Enactments to grant such jurisdiction to Syariah Courts. In fact, it cannot be done.
The ascertainment of Islamic law for federal law is a federal matter, and the states do not have the power to legislate on the same.
Third, article 121(1A) does not oust the Federal Court’s jurisdiction in matters that rightly belong to it. The provision is only intended to avoid overlapping jurisdictions and clarifies the position that where the Syariah courts have jurisdiction over a matter, the civil courts cannot interfere (Latifah Mat Zin; Mohamed Habibullah Mahmood). The Abdul Kahar Ahmad constitutional challenge falls on the side of the civil Federal Court, which has exclusive jurisdiction under article 128 of the Constitution. Article 121(1A) does not apply in such a circumstance.
The Federal Court upheld its own jurisdiction in the face of a legal challenge testing the constitutionality of a state Syariah law. It affirmed the correct position that the Syariah courts’ jurisdiction cannot be derived by implication. In ascertaining Islamic law to interpret the constitutionality of a law, the Syariah courts’ jurisdiction is ousted in favour of the civil courts. It remains the case even when state Syariah laws are inconsistent with, and challenged for violating, the fundamental liberties in Part II of the Constitution.
Dissent in Islam
For now, Abdul Kahar Ahmad has settled the question on the forum appropriate for similar legal challenges. However, the Islamic religious authorities have made it clear time and again that they would brook no dissent in their attempts to maintain discipline within the religion. They consider litigation challenging Syariah laws in the secular courts as a threat to the “sanctity” of Islam. As such, the courts will not see the last of the arguments using the Syariah exclusivity provision in article 121(1A) to diminish a litigant’s right to seek constitutional redress. More worryingly, some quarters are hastening the legislative re-writing of the Constitution to push back on the civil courts’ jurisdiction. They want to have Syariah laws play a more significant role in public and private life and, accordingly, to expand the Syariah courts’ jurisdiction. Should this happen, it will increase the array of laws and regulations policing Muslims in all facets of their everyday lives. Without human rights safeguards available to Muslims in the Syariah courts, there is a real fear that not only will their constitutionally guaranteed liberties be eroded gradually, but that critical thinking within the religion will continue to fall into decline.
* The law stated is as of 4 July 2021