Top 16 Islamic Laws that Malaysian Top Court Declared Unconstitutional and Why

Malaysia is a multiethnic and multireligious country in Southeast Asia, with a population of about 32 million, and a GDP of about $365 billion. Malaysia has a federal system of government, with 13 states and three federal territories. Malaysia also has a dual legal system, with civil laws enacted by the federal parliament and the state legislatures, and Islamic laws enacted by the state legislatures and applicable to Muslims, who make up about 60% of the population.

The relationship and the balance between the civil and the Islamic laws have been a source of debate and controversy in Malaysia, especially on issues such as family, morality, and human rights. The constitution of Malaysia, which is the supreme law of the land, provides for the freedom of religion, but also declares Islam as the religion of the federation, and grants the states the power to enact Islamic laws on certain matters.

Kelantan is a state in the northeast of Malaysia, which is governed by the Islamist party PAS, which advocates for the implementation of Islamic law or sharia in the country. In 2021, Kelantan passed a sharia criminal code, which contained 16 provisions that criminalized various acts, such as sodomy, incest, gambling, sexual harassment, and desecrating places of worship, and prescribed punishments, such as whipping, imprisonment, and fines.

Challenge

The sharia criminal code of Kelantan was challenged by a lawyer and her daughter, who filed a petition to the Federal Court, which is the highest court in Malaysia, to declare the 16 provisions as unconstitutional and invalid. The petitioners argued that the state of Kelantan had no power to enact the sharia criminal code, as the subject matter of the provisions fell under the federal list, which is the exclusive domain of the federal parliament. The petitioners also argued that the sharia criminal code violated the fundamental liberties and the basic structure of the constitution, such as the right to equality, the right to privacy, and the separation of powers.

The challenge was opposed by the state of Kelantan, which defended the sharia criminal code as a valid and necessary exercise of its power to enact Islamic laws on matters relating to the religion of Islam. The state of Kelantan also argued that the sharia criminal code did not infringe the constitution, as it only applied to Muslims, who were bound by their faith and conscience to obey the Islamic laws.

The challenge was also opposed by some conservative and religious groups, who staged protests and rallies outside the court, and who claimed that the challenge was an attack on the sovereignty and the supremacy of Islam in Malaysia. They also claimed that the challenge was a threat to the sharia legal system and the Islamic judiciary in Malaysia, and that it could undermine the harmony and the unity of the Muslim community.

Decision

On February 9, 2024, the Federal Court delivered its decision on the challenge, which was a landmark and historic ruling that could have significant implications and repercussions for the legal and the political landscape in Malaysia. The Federal Court, in an 8-1 majority decision, declared the 16 provisions of the sharia criminal code of Kelantan as unconstitutional and invalid, and granted the petitioners’ application for a declaration.

The Federal Court, in its judgment, held that the state of Kelantan had no power to enact the sharia criminal code, as the subject matter of the provisions was covered by the federal list, which only the federal parliament had the power to legislate on. The Federal Court also held that the sharia criminal code violated the constitution, as it infringed the fundamental liberties and the basic structure of the constitution, such as the right to equality, the right to privacy, and the separation of powers.

The Federal Court, in its judgment, also made some important and notable observations and recommendations, such as:

• The Federal Court observed that the constitution provided for the freedom of religion, but also recognized the special position of Islam as the religion of the federation, and that there was a need to balance and harmonize these two aspects of the constitution, and to respect and accommodate the diversity and the pluralism of the Malaysian society.
• The Federal Court recommended that the constitution should be amended to clarify and define the scope and the extent of the states’ power to enact Islamic laws, and to avoid and resolve any conflicts or overlaps between the civil and the Islamic laws, and between the federal and the state laws.
• The Federal Court also recommended that the federal parliament should enact a comprehensive and uniform sharia criminal code for the whole country, which would be consistent and compatible with the constitution, and which would apply to all Muslims, regardless of their state of residence.