Court Victory Disturbs Malaysia’s Balancing Act on Islamic Law
“Syariah is seen as God’s law, so even a so-called liberal or moderate Muslim cannot question it. You can debate how or when you get there, but you can never reject the substance of it.”
(Foreign Policy) – Would Wan Ahmad Fayhsal Wan Ahmad Kamal, an up-and-coming Malaysian parliamentarian, be happy to see a woman stoned if she were convicted of adultery? “Well, I would not be happy to see it, but it is God’s law and as a politician I am mandated to see His law implemented,” He told me. For now, such a day seems far away in Malaysia.
Syariah courts, which implement codes passed by state assemblies based on their interpretations of Islam’s sharia law, play an integral but also carefully circumscribed role in Malaysia’s legal system. In recent years, Islamist parties and groups in Malaysia that have long cherished the hope of expanding the scope of syariah courts have grown in strength. However, attempts to expand these courts’ jurisdiction have run into legal opposition.
On Feb. 9, the Federal Court, Malaysia’s highest judicial body, ruled on a case brought forward by two Malay Muslim women, Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman. The women alleged that various syariah provisions passed by the Kelantan State Legislative Assembly, where the Islamist Parti Islam Se-Malaysia (PAS) and its ally control 43 seats, had violated Malaysia’s constitution by claiming jurisdiction over matters that, in fact, fell under the remit of federal law.
The court sided with them. In a ruling penned by the chief justice, Tengku Maimun Tuan Mat, a headscarf-wearing Malay woman, the court decided in favor of the defendants, striking down provisions covering sodomy, necrophilia, incest, gambling, sexual harassment, giving false evidence, use of false measures, and desecrating places of worship. Two provisions regarding adoption and words capable of breaking peace remained standing. The only dissent was by a judge who felt the claimants didn’t have standing to bring the case, since they had not been harmed by the laws.
Politics and policy in Malaysia have always been an ethnic balancing act. Currently, Islam is practiced by about 64 percent of the population, mostly ethnic Malays, while the Chinese and Indian minorities and others follow a variety of faiths from Buddhism to Christianity.
The role of syariah courts in Malaysia is central to this balancing act. On the one hand, with jurisdiction over matters of family law and personal faith, the scope and nature of many syariah codes can seem shocking to non-Malaysians. All Muslims are subject to their jurisdiction with no opt-out, since these codes ban Muslims from converting to another religion. Corporal punishment can be applied with strokes of the cane—though this is also common in Malaysian civil law. Malay women have complained that family and divorce courts are biased against them.
On the other hand, as the Nik Elin case reaffirms, numerous offenses do not fall within their remit. The severity of the punishments they can hand out is a maximum of three years in jail, 5,000 ringgit (about $1,050) in fines, and six strokes of a cane. No matter how certain scholars might interpret the Quran, so-called hudud punishments like stoning adulterers, executing apostates, and crucifying highway robbers are off the table.
The plaintiffs, the court, and Prime Minister Anwar Ibrahim have been at pains to argue the case and ruling only concerned a dry jurisdictional issue. Certain classes of offense fall under the authority of the federal government and the court found that the Kelantan assembly had overstepped its boundaries legislating on crimes not under its authority. This would have been the case whether the laws passed were civil or syariah. “[T]he issue before us is irrelevant with regards to the position of Islam or the Syariah Court in this country,” the court ruling read.
Nonetheless, backlash has been ferocious. Nik Elin and Tengku Yasmin, members of an aristocratic Kelantanese family and both qualified lawyers, have received abuse and death threats. A government minister belonging to the Democratic Action Party (DAP), a multiracial party that in practice mostly represents non-Muslim Chinese voters, who suggested non-Muslim legal experts should be included in any review of syariah’s role in Malaysia, had notes scattered outside his mother’s house warning him not to “challenge Islam.”
Nik Elin, responding to written questions from Foreign Policy, said that while she was surprised by the intensity of the backlash, “I was not caught completely off guard though as I knew that certain parties would paint the petition as a matter of religion, or, specifically, Islamic doctrine. This is a deliberate mischaracterization, but it earns them the most political points. Religion sells in Malaysia.”
The opposition coalition Perikatan Nasional (PN) has played a big role in mobilizing opposition to the ruling. While PN is formally led by the Malay nationalist Parti Pribumi Bersatu Malaysia (PPBM), the PAS is a bigger part of the coalition—with 43 MPs to PPBM’s 25. And while Malay nationalists and Islamists have in the past feuded, they also overlap in their voters and identity politics.
To be Malay—and receive various legally enshrined privileges, from scholarships to access to government contracts—you have to be Muslim. And, as PPBM aligns with PAS, its MPs are increasingly adopting positions and rhetoric similar to those of PAS. “There’s no divide between [PPBM] and PAS on this issue,” said Wan Ahmad, who studied at King’s College London and once called PAS supporters “stupid” on X, formerly Twitter.
For some, this current mobilization seems like another sign of a wider political agenda of slow Islamization of the state. “Article 4 talks about the Federal Constitution being the highest law of the land,” said Syahredzan Johan, a Malay Muslim MP for the DAP. “But they [opposition politicians] are going to try and say you also need to talk about Article 3, which talks about Islam being the religion of the federation; therefore, any laws must not be against Islam. This sort of argument is starting to seep through.”
For certain sections of the Malay nationalist and religious right, any limits placed on Malay and Islamic dominance chafe, and the new ruling has been an opportunity to mobilize. As early as last year, PAS-aligned media published an article calling the case a “tombstone” for syariah in Malaysia. And on March 6, the Kelantan assembly unanimously passed a motion calling for the reinstatement of the struck-down provisions. Even the two opposition legislators supported it, one explaining, “We want to go to heaven.”
While the ruling may be narrowly jurisdictional, the religious dimensions of the case are hard to escape. Although the court ruling opened by arguing the case did not bear upon the status of Islam or syariah in Malaysia, it followed this with Quranic exegesis distinguishing between laws where punishments are set by Allah, and takzir punishments that are at the discretion of political leaders. Given the limits placed on syariah courts in Malaysia, all punishments they dole out are takzir, so striking down Kelantan’s laws violates no religious principle.
Nik Elin echoed these arguments and suggested that the ruling, in fact, represents “an opportunity to harmonize the civil courts with the syariah courts” and even enhance syariah courts by making them more “progressive” on various aspects of family law. She gave the example that, currently, a Malay man might engage in polygamy without the knowledge or consent of his first wife by filing a marriage application to another woman in a state with less stringent laws.
Critics, however, aren’t buying it. “What Nik Elin has done is open Pandora’s box,” Wan Ahmad said. “The case sets a precedent, so we expect others to mount similar challenges, and this will mean that the status of syariah will become a political issue.” Many have pointed out that this latest ruling has come just a few years after a similar one finding syariah provisions in Selangor unconstitutional on similar grounds.
Syahredzan is more skeptical, arguing few people had the time, resources, or expertise to pursue similar cases. But he admitted there’s no denying Nik Elin and Tengku Yasmin’s case does have wider implications. “She’s [Nik Elin] trying to prove a point. That’s the whole point of her strategic litigation in order to move the needle.”
The tricky bit, according to Shahril Hamdan, the former information chief of the United Malays National Organization (UMNO), is that it is hard to make arguments about the limitations on the scope of syariah as a Muslim or to Muslim voters. “Syariah is seen as God’s law, so even a so-called liberal or moderate Muslim cannot question it. You can debate how or when you get there, but you can never reject the substance of it.”
Shahril, who has a Chinese mother and studied in the U.K. at the University of Manchester and London School of Economics, said that practicalities mean he would not actively seek to make syariah and hudud punishments the supreme law of the land in Malaysia. “But if you ask me to say I reject syariah qua syariah, I would not do it.”
But figures like Shahril no longer play the central role in politics they once did, following the collapse of the once-dominant UMNO party. UMNO is now a junior coalition partner in the government, and most Malay votes go to PPBM or PAS. “When I was in UMNO, I could say that I was part of a moderate wing that made concessions but ultimately kept the harder-line fringes in check,” Shahril said. “Now I think we’re seeing the same process that we’ve seen in right-wing parties all over the world; these voices are being displaced and such parties risk being taken over by populists who play up ethnonationalist issues.”
