Seminar: Malaysia: Islamisation, the Constitution and the Road Ahead
About the Seminar
The original scheme of Malaysia’s Federal Constitution was to provide for constitutional supremacy in Article 4(1). Islam was given an exalted position in Article 3(1) by declaring it to be the official religion of the Federation. However it was also provided in Article 3(4) that nothing in Article 3(1) derogates from any other provision of the Constitution. This meant that despite Islam’s special position, the shariah was not the litmus test of validity for any laws.
The Constitution divided powers over Islamic law between Federal and State authorities. The States were not given a monopoly over the whole field of Islamic law. The Constitution assigned legislative and administrative powers to the States on only some residual, enumerated areas of Islamic law, mostly of Islamic family law. Shariah courts exercised jurisdiction only in areas permitted by the supreme Constitution. However since the 80s the States are enacting legislation in areas which are outside their jurisdiction. The federal government is a silent spectator. The courts are reluctant to strike down unconstitutional laws by the States. A constitutional amendment bars civil courts from interfering in any matter within the jurisdiction of the shariah courts.
The Constitution expressly forbade the subjection of non-Muslims to the jurisdiction of shariah authorities. But in the milieu of increasing “Islamisation”, some shariah authorities are emboldened to break free of this limitation. The superior, civil courts are increasingly reluctant to review the actions of shariah authorities or the constitutionality of laws made in the name of Islam. The imposition of power by the ecclesiastical authorities of one religion over the adherents of another religion is tearing society apart. Conflicts between civil and shariah courts over jurisdictional issues is leaving helpless people with no remedies. Inter-communal relations are frayed.
A silent rewriting of the Constitution is taking place. Article 3 (on Islam) and List II of the 9th Schedule (on state powers over Islam) have overridden constitutional supremacy, the chapter on fundamental rights and the federal-state division of powers. We seem to be heading towards a “one country two systems” model.
On another plane, the country is also moving steadily towards more and more religious authoritarianism in the disguise of Islamisation. The imposition of a very conservative, rigid, literal interpretation of the shariah is having an adverse impact on Muslim intellectuals. There are attempts to impose thought-control. Muslims cannot have a discourse on Islam without the written authority of a tauliah. Muslims cannot criticise a fatwa, and if they do that is a criminal offence! Electoral democracy is being undermined because unelected religious bureaucrats are issuing binding fatwas having the force of law. The fatwas are backed by criminal sanctions against anyone who challenges them. The Arabisation and Salafisation of Malay society is in progress.
Malaysia’s system of constitutional supremacy, electoral democracy, rule of law and separation of powers is under stress. At the political level, moderation, accommodation and inter-communal cooperation are under siege.
About the Speaker
Emeritus Professor Datuk Dr Shad Saleem Faruqi is the holder of the Tunku Abdul Rahman Chair in law at the University of Malaya, Kuala Lumpur. He is an Emeritus Professor at Universiti Teknologi MARA, Shah Alam and an Adjunct Professor at Universiti Sultan Zainal Abidin, Terengganu. He is also an Adjunct Professor at the University of New England, Australia. He has authored books in various fields including Media Law; Islam, Democracy and Development; and on Malaysia’s Federal Constitution. He is a columnist with Malaysia’s leading English daily, The Star.