IN 2011, Islamic authorities raided a church suspected of proselytising to Muslims. In 2012, it was Borders and ZI Publications (ZIP), over Irshad Manji’s book Allah, Liberty and Love. These institutions are non-Muslim entities. Yet, because Islam or Muslims were somehow involved, this seemed to give licence to religious authorities to enter non-Muslim premises, conduct searches, confiscate items, carry out interviews and charge individuals.
It would seem that over the past years, the powers of the Islamic religious authorities have inexorably expanded. At the same time, non-Muslims and non-Muslim organisations, including the civil court, are often told they cannot intervene in matters pertaining to Islam.
But does the law give Islamic authorities an automatic say the moment Islam or Muslims are involved? Does only the syariah court have jurisdiction over Islamic matters?
Islam and syariah courts
To answer this question, let’s look at the Federal Constitution, the supreme law of the land, and judgements by the Federal Court, the highest court of the land.
The constitution tells us that not all matters relating to Islam fall under the syariah court’s jurisdiction. The constitution gives states the power to make laws on Islamic law, and personal and family law of persons professing the religion of Islam. The constitution’s ninth schedule spells out what this means by listing out matters such as succession, marriage, divorce and zakat. States also have the power to set up syariah courts to adjudicate on these laws.
But the constitution doesn’t give syariah courts exclusive jurisdiction over all Islamic matters. It only gives syariah courts powers to determine those matters spelt out in the ninth schedule, which states have legislated upon.
This was made clear in the 2007 Federal Court decision of Abdul Kahar Ahmad v Kerajaan Negeri Selangor. The Federal Court was petitioned to declare several state enactments pertaining to Islamic law invalid for being unconstitutional. The Majlis Agama Islam Selangor objected, stating this was a question for the Syariah Court, not the Federal Court.
Tun Abdul Hamid Mohamad, who was Chief Justice then, firmly rejected this. He said that nowhere in the constitution did it state that interpreting the constitution was something within the syariah courts’ jurisdiction. Conversely, the constitution does give the Federal Court exclusive power to determine whether any law is invalid, including laws pertaining to Islam.
The Majlis Agama had cited Article 121(1A), which states that civil courts will not have jurisdiction over matters within the syariah court’s jurisdiction. The Chief Justice said yes, that was correct. But if the syariah court didn’t have jurisdiction in the first place, as was the case in Abdul Kahar Ahmad v Kerajaan Negeri Selangor, then that article could not apply. Article 121(1A) was never meant to oust the civil court’s jurisdiction in existing areas in favour of the syariah court.
The next point to consider is that just because something is deemed un-Islamic doesn’t automatically make it illegal. The constitution stipulates that the state needs to make a law calling something an offence against Islamic precepts before it can be deemed illegal. And that offence needs to be within the state’s powers under the ninth schedule.
Hence, the state, for example, cannot make laws that stipulate that stealing or murder is an offence under Islamic precepts. Undoubtedly, stealing and murder are sinful in Islam and other major religions. But under our constitution, such crimes are for Parliament to legislate, not the states. This is why both Barisan Nasional and Pakatan Rakyat politicians keep insisting that implementing hudud law would be unconstitutional.
Similarly, even though a Sisters in Islam-published book infringed Jabatan Kemajuan Islam Malaysia (Jakim) guidelines, that didn’t make it illegal. And that also didn’t mean the Home Ministry could ban the book, Muslim Women and the Challenges of Islamic Extremism, for being prejudicial to public order. Indeed, this was the High Court’s decision on 25 Jan 2010, which was upheld by the Court of Appeal on 27 July 2012.
The High Court lifted the ban despite Jakim’s view that the book should be prohibited because it would “confuse” Muslims, particularly Muslim women. Jakim is, of course, entitled to its view and perfectly entitled to discourage Muslims from reading the book. But our constitution doesn’t require the government to follow Jakim’s lead and make the book illegal. If the government wants to declare something illegal, it still needs to base it on established laws and procedures, not solely on the fact that it is deemed “confusing” or un-Islamic by one body.
Syariah offences and non-Muslims
Even if religious authorities deem that a syariah enactment has been broken, they cannot act against non-Muslims. The Federal Constitution couldn’t be clearer on this. States may enact laws to set up syariah courts
which shall have jurisdiction only over persons professing the religion of Islam.
The Syariah Criminal Offences (Federal Territories) Act 1997, enacted under the ninth schedule, is equally clear. Article 1(2) states that the act shall
apply only … to persons professing the religion of Islam.
Other state enactments establishing syariah criminal offences have similar provisions.
Yet, we now see Islamic authorities questioning non-Muslims and even summoning them to their offices for further interrogation. This is what the Selangor Islamic Religious Department (Jais) did over the Manji book ban.
According to publisher ZI Publications (ZIP), after the raid on ZIP’s office, between 20 and 30 Jais officers raided its printing company, which is predominantly run by non-Muslims. Jais officers asked to go through the printers’ office documents and demanded that a senior staff, a non-Muslim, go to the Jais office for questioning. In early August, Jais continued to harass non-Muslims by summoning two non-Muslim ZIP employees for questioning at the Jais office.
Then there are articles 5 to 12 of the constitution, which protect citizens’ fundamental liberties. They protect, among others, citizens’ right to life, right to a fair trial and the right to be treated equally before the law regardless of religion, race or gender. Nothing in the constitution says that syariah criminal offences enacted by the states may depart from these fundamental liberties.
So, when legislating syariah offences, state assemblies should bear in mind that the offences must abide by these constitutional provisions, which were put in place at independence, to ensure that Muslim citizens’ fundamental liberties are respected.
Clearly, Malaysia is not as Islamic as we could be, according to some. If it were, there wouldn’t be so much to debate about on the Islamic state aspirations of PAS or Umno. But our founding leaders conceived of a Malaya and Malaysia that was secular, in which Islam is acknowledged as the federation’s religion, but with clear demarcations of what can be legislated and when exactly citizens can be affected by Islamic laws.
Increasingly, it seems that those in power want a state where religious authorities and syariah courts can intervene the moment an Islamic matter or a Muslim is involved. But that’s not the state our Muslim and non-Muslim founding leaders agreed to, as the constitution reveals.
And unless our constitution is changed, religious authorities have no business unilaterally expanding their scope of powers.