Written by: Victoria Soh
Source: https://commons.wikimedia.org/wiki/File:KualaLumpurCourtsComplex-Malaysia-20080509-cropped.jpg
Islamic, or Sharia law (‘Syariah’ in Malay) is one of the most controversial legal systems in existence. Despite being outlawed in some Western nations, it continues to be practiced in 15 modern-day Muslim countries across the Middle East and Asia, to varying extents. Sharia has a wider reach than we think-it is even present in some Western liberal democracies such as the UK! Malaysia is often described to have a ‘dual’ legal system,[1] implementing both Sharia law and secular civil law. This article will explore how the Malaysian legal system operates despite the purported tension between these two systems.
Introduction to Sharia and hudud
‘Sharia’ itself broadly refers to ‘the Muslim way of life’, aiming to guide Muslims towards living according to Allah’s wishes. Such practices include fasting, praying and contributing to charity, and largely concern a Muslim’s day-to-day life. Indeed, it is not so different from the sacred laws or religious standards imposed by the Jewish halakhah, or Catholic teachings. Sharia law is mainly derived from the Holy Quran, Al-Hadith (teachings of the Prophet), Sunnah (his physical deeds), and Ijma (consensus of his followers). Being derived from religious sources, Sharia clearly was not conceived with democracy. Indeed, it arose well before the popularization of democracy, and is a relic of ancient Islamic customs.
Sensationalist headlines often mistakenly equate Sharia law to hudud-infamously extreme punishments of serious crimes that include whipping, stoning for adultery and amputating hands for theft. While huddud is indeed a component of Sharia law, it is only a small component and is only implementable in Islamic states. Furthermore, some Islamic organisations argue that the high burden of proof and many safeguards in hudud mitigate the severity of the punishments, as they are rarely implemented.[2] Nonetheless, concerns have been expressed by the UN and human rights groups regarding such practices. Following Brunei’s introduction of a Sharia-based penal code in 2019, the UN has condemned death by stoning which they stipulate “torture or other cruel, inhuman or degrading treatment or punishment (which) is clearly prohibited".[3]
The Malaysian System
Unlike Saudi Arabia which effectively equates Sharia law to national law, Malaysia only partially implements the system. Sharia law in Malaysia applies only to areas of personal and family law, such as marriage and custody-and only to Muslims, accounting for 61.3% of the population in Malaysia. [4] Article 121 (1A) of Malaysia’s constitution[5] gives exclusive jurisdiction to the Syariah Courts in the administration of Islamic laws, despite their status as inferior courts. However, despite having Islam as its official religion, Malaysia is not strictly an Islamic state as it allows multiple religions to be practiced within it. Most Malaysian law is secular civil law derived from the British common law system and basic parliamentary legislation, in line with democracy. Often, English legislation and case law still apply, as legacies of colonialism that remain in many former British colonies.
Slightly more controversial is the Sharia penal code in Malaysia. Its jurisdiction is confined to indecent dressing, apostasy, and violation of the ‘pillars of Islam’, which includes not attending Friday prayers, or fasting during Ramadan. Punishments include imprisonment of up to three years, a $5,000 fine, or a maximum of six strokes of the cane.[6] Hence, the extent of criminal jurisdiction given to Sharia Courts is limited, and the sentences are nowhere as graphic as hudud punishments. Nevertheless, the focus here should be on the commitment Muslims have made to their religious practices, and not the degree of punishment. Malaysia’s Sharia penal code exemplifies the extent to which Malaysian Muslims are required to adhere to their religious customs and is emblematic of Malaysia’s overall conservativeness as a nation.
Conflict between Sharia and Civil law?
The most intuitive effect of the ‘duality’ in Malaysia’s legal system is the conflict between Civil and Sharia law. An example of this would be a non-Muslim entering a dispute with a Muslim in the areas covered by Sharia law in Malaysia. The infamous Indira Ghandi case[7] provides a perfect example: a Hindu mother whose husband converted himself and their children to Islam and took them away from her. This resulted in an initial clash between the Civil and Sharia systems, with the Ipoh High Court giving Indira full custody of their children while the Sharia courts granted it to her now ex-husband. Clash in rulings aside, this case set a more crucial precedent: if a party is non-Muslim, the Sharia courts would have no jurisdiction, despite the case matter falling within its 26 permitted areas of authority.[8] The Federal Court highlighted that this was in the interest of preserving a non-Muslims’ right to a fair trial, as they lack the locus standi (a right to appear) before Sharia courts, and would be unable to defend themselves. Hence, a court case can be brought under Sharia law only when both parties are Muslim and where the matter contended falls under the 26 areas of a Sharia court’s jurisdiction.
What of the conflict between civil and Sharia rulings per se? This relates to the status of Sharia courts in Malaysia, relative to their civil counterparts. The judge in Dato’ Kader Shah[9] clarified that in the event of such conflict, “the proceedings before the High Court(s)…must take precedence over the Syariah Courts” due to their status as superior courts. This brings a Sharia court’s subordinate status into discussion: Article 121 (1A) of Malaysia’s Constitution[10] provides that civil courts have “no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”. This implies that Sharia courts have sole jurisdiction over the 26 areas, and hence substantial dominance over civil courts in these areas. Nonetheless, the Federal Court ruled in the Indira Ghandi case[11] that the Article was intended to avoid conflict between the civil and Sharia courts and was not an expression of any inherent dominance of Sharia law. Further, once an issue involves interpretation of the law or any constitutional issues, civil courts resume dominance. This is because Sharia law has no jurisdiction over such constitutional issues, regardless of any overlapping elements in Sharia cases. In addition, in the Borders case,[12] it is revealed that the enforcement of Sharia law may be barred by procedural barriers in civil law. In this case, the actions of JAWI (Federal Islamic Department) officers who seized publications “contrary to Islamic law” were declared unlawful, as they had acted without a prohibition order on the books that had to be issued by the Minister of Home Affairs. Evidently, the substantial limits on a Sharia court’s power has proved to be very inconvenient to its functioning-perhaps this is the inherent disadvantage of a ‘dual’ legal system like Malaysia’s.
However, from another perspective, this system does not appear to be ‘dual’ after all! If the Sharia court only has jurisdiction over the areas that have been expressly conferred by State law, there should not be situations where both civil and Sharia courts have jurisdiction over the same matter. If this is true, then both are but components of the same legal system, and not two differing ones. This is looking at the Malaysian system as a fusion of Civil and Sharia law, as opposed to two conflicting systems. All previous conflict between civil and Sharia law would just be due to a lack of clear boundaries drawn between the two. While the answer to this may merely be a matter of perspective and legal theory, it is significant in highlighting the precision and comprehensiveness with which two differing legal systems must be integrated.
Conclusion: A Free and Fair System?
Perhaps what is most valuable about the existence of both Sharia and civil law in Malaysia is that they reflect the cultural values and mindsets within the country. As a diverse country with three main races and multiple religions practiced within it, tolerance and respect must predominate homogeneity to preserve Malaysia’s identity as a melting pot of cultures. The significant limits on Sharia law, notably its application only to Muslims, acknowledge the overarching respect for an individual’s cultural and religious background. However, this is not without limits-some may still see the compulsory imposition of Sharia law on Muslims as a violation of their freedom to practice Islam to the extent they choose to. In short, the system has respect for an individual’s religious identity, so long as he fits within strictly defined, established categories of those identities. Does this system contradict its own principles? Perhaps. Malaysia has yet to turn tolerance into acceptance and celebration-not just of categories of individuals, but of each unique individual themselves.
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
[1]Rosli Dahlan and Fawza Faudzi, 'The Syariah Court: Its Position Under The Malaysian Legal System' [2016] Lee Hishammuddin Allen & Gledhill
<https://www.mondaq.com/trials-appeals-compensation/472794/the-syariah-court-its-position-under-the-malaysian-legal-system> accessed 2 July 2020.
[2] The BBC, 'What is Sharia and how is it applied?' (BBC World News, 7 May 2014) <https://www.bbc.com/news/world-27307249> accessed 29 June 2020.
[3] The United Nations, 'UN Concerned at Broad Application of Death Penalty in Brunei’s Revised Penal Code' (UN News, 11 April 2014) <https://news.un.org/en/story/2014/04/465902> accessed 28 June 2020.
[4] Taburan Penduduk dan Ciri-ciri Asas Demografi". Jabatan Perangkaan Malaysia. p. 82.
[5] Federal Constitution of Malaysia as at 1 November 2010.
[6] Syariah Criminal Offences (Federal Territories) Act 1997.
[7] Indira Gandhi Mutho v Jabatan Agama Islam [2018] 3 CLJ 145.
[8] Dahlan (n 1).
[9] Datin Fauziah Haron v Dato’ Kadar Shah Bin Tun Sulaiman [2008] 4 CLJ 504.
[10] Federal Constitution (n 4).
[11] Indira (n 6).
[12]Berjaya Books v Jabatan Agama Islam [2014] 1 MLJ 138 (HC).