The Position of Islam and Islamic Law within the Constitutional Framework
The Federation of Malaysia - comprising 13 states and 3 federal territories - formally endorses the principles of a democratic constitutional state, namely democracy, checks and balances, fundamental rights and liberties and the rule of law.
But the Malaysian constitution also departs in several regards from the current constitutional models of Western liberalism, in particular with its specific integration of religious (Islamic) law.Although the Constitution drawn up at independence in 1957 was inspired by the Western (British) liberal constitutional model, it also opts for what some authors have, for the Indian case, called a ‘communitarian-liberal’ democracy,[788] [789] [790] [791] which not only provides for individual rights and safeguards, but also for legal pluralism and group-based quotas in education and public employment. The constitution decrees Islam to be the state religion, but at least until the end of the 90s no additional significance to this stipulation was given; lawyers, judges and politicians have repeatedly underlined that this is an innocent stipulation that only relates to the religious character of state ceremonies?5 Malaysia also has no provision that the Syariah is a source of law. On the contrary, article 160 of the Constitution, which includes a definition of ‘law’, does not refer to Islamic law at all. However the constitution grants the state the power to draw up Islamic legislation and to set up Islamic courts.
As Hamayotsu so aptly summarised: “the question of the official position of Islam was a source of debate at independence [...] though the debate was settled relatively peacefully thanks to the British colonial policy of privileging Islam and Malay identity and due to weak Islamists demands at that time”?6 The negotiating partners at the time of the Constitution’s drafting wanted to preserve the status quo concerning the limited form of legal pluralism already practiced in Malaysia?7 As a matter of fact, historical developments in Malaysia have led to the existence of three systems of family law (and in a limited sense also penal and land law).
The Malaysian legal pluralism is rooted in a colonial legacy of co-existence of different normative or legal orders and a plural system of courts: one for non-Muslims, one for Muslims, and one for natives in Sabah and Sarawak. This legal pluralism is recognised by the constitution, as the constitution has brought Islamic and native (family) law and courts under the legislative powers of the thirteen member states in the Malaysian federation. The same applies to the organisation and procedure of the Islamic and native courts.[792] Constitutionally, Malaysian statutes (both secular and Islamic2[793]) cannot be reviewed exclusively in the light of Islamic principles.[794] In the Che Omar ruling of 1988, the federal court ruled that the Syariah was not the supreme law of the land. Indeed, Islamic law is subject to the supremacy of the Constitution and federal law.31 In theory, the supremacy of the Constitution means that religious law and religious legal practice are subject to the constitutionality test; they can in theory be reviewed according to constitutional principles, including the fundamental liberties provisions in the Articles 5-13 of the Constitution-[795] [796]Article 11 of the Constitution provides for the fundamental right to freedom of religion: “Every person has the right to profess and practice his religion and subject to clause 4, to propagate it.” This clause 4 allows the states to issue a ban on proselytising among Muslims: “state law [...] may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam”-33 Thus in principle, although the constitution declares that Islam is the religion of the state, people are free to belong to any religion of their choice. As we will see, however, serious threats to the freedom of religion can be identified today more than before. This is especially the case for the issue of conversion out of Islam and apos- tasy3[797] and for jurisdictional conflicts in the case of interreligious marriages. According to Peletz, disputes over the change of religion of Muslims and interfaith custody cases: i.e., “custody disputes over children born to non-Muslim couples that are complicated by one parent's embrace of Islam” (or disputes about “the proper burial of those who have allegedly undergone late-life conversion to another religion”) have in the last decades led to “highly controversial landmark decisions”[798] [799] For example, one of the most famous Malaysian court cases, LinaJoy v. Religious Council of the Federal Territories, concerned a woman who sought state recognition of her religious conversion,3(> in an almost decade-long procedure.[800] [801] Since the late 90s, in contrast to the past, an increasingly heated public and political debate can be observed in Malaysia centring around the question of whether or not Malaysia is an ‘Islamic’ state. Several eminent politicians, including some moderate UMNO-politicians, have declared that Malaysia is indeed an Islamic state. Although UMNO-leaders are championing a progressive and modern form of Islam (Islam Hadhari), many commentators point to the ascendancy of Islamist conservatives in Malaysia and the government’s continuing policy of institutionalising Islam and imposing more strict Islamic norms on the public sphere[802]4