KUALA LUMPUR, Jan 22 — The currently expanded purview of Islamic law in Malaysia should be re-evaluated following a crucial Court of Appeal decision reaffirming the limits of Shariah law to only familial matters, observers and groups have said.
Lauding the appellate court’s written findings that expressly stated the secularity of Malaysia’s legal system based on the Federal Constitution, Muslim women’s group Sisters in Islam urged authorities to suspend Shariah criminal laws that exceed the stated restriction.
“This is indeed a landmark decision and echoes Sisters in Islam calls to review the Syariah Criminal Offences law given the many unconstitutional provisions that violates fundamental liberties as guaranteed under the Constitution,” Ratna Osman, the executive director of SIS said.
Individual states currently have Shariah enactments that cover criminal offences under Islam such as drinking alcohol, preaching without a permit or non-performance of Friday prayers by men, and more. Such offences are punishable with a fine or jail time.
In its written judgment on a high-profile transgender case, the Court of Appeal said that that the Federal Constitution restricts Islamic legislation to marriage, divorce and inheritance, based on the Supreme Court’s ruling in the landmark 1988 Che Omar Che Soh case.
Former de facto law minister Datuk Zaid Ibrahim lauded the “clear thinking” judges for the decision and said that it took “lots of courage from Muslim judges to pronounce the appropriate place of Islamic law under the Constitution.”
He noted however, such decision has already been made decades ago but today’s ruling is an affirmation to that.
“If our judges had been willing to make the correct pronouncement of the law, the country would have been spared the uncertainty and confusion which 20 years of ambivalence has generated,” he said.
Syarie lawyer Akbardin Abdul Kader also agreed that the Federal Constitution limits Islamic law to familial issues, saying that the restricted jurisdiction has always been “clearly defined.”
“The state legislature has to pass enactments and laws according to these only,” Akbardin added.
Although there is no nationwide Islamic legislation in Malaysia, individual states have their own variations of basic Islamic laws founded on the Shafi’i school of jurisprudence.
Similarly, founder of Aura Merdeka Tariq Ismail said although there are questions about the overlap between the civil and Shariah courts, the Federal Constitution must always take precedence.
Aura Merdeka is the online non-governmental group that started the ‘Iam#26’ petition aimed at championing open discourse about Islamic laws among Malaysians.
The three-judge panel of Malaysia’s second-highest court led by Justice Datuk Mohd Hishamudin Yunus cited former Lord President Tun Salleh Abas, who had ruled that the framers of the Federal Constitution had confined the word “Islam” in Article 3 — which says that Islam is the religion of the Federation — to the areas of marriage, divorce and inheritance law, based on the history of Islamic legislation in Malaya during British colonial times.
“In short, the Supreme Court takes the position that it was the intention of the framers of our Federal Constitution that the word ‘Islam’ in Art. 3(1) be given a restrictive meaning,” Hishamudin said in the appellate court’s full judgment released on January 2 in the case of three Muslim transwomen fighting a cross-dressing ban under Negri Sembilan Shariah law.
The Court of Appeal ruled last November in favour of three Muslim transgenders who were convicted of cross-dressing under Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992 that punishes Muslim men who wear women’s attire with a fine not exceeding RM1,000, or jail of not more than six months, or both.
The appellate court also struck down Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992 as unconstitutional and void, noting that the state law provision contravened a slew of fundamental liberties, which were personal liberty, equality, freedom of movement and freedom of expression.