The position/application of Islamic Law in Malaysia

The position of Islam in Malaysia is stipulated under A.3(1) of FC, which provides
that "Islam is the religion of the Federation; but other religions may be practised in peace and
harmony in any part of the Federation." In fact, even though A.3(1) of FC states that Islam is
the religion of the Federation, at the same time A.3(4) of FC limits it, provides that: Nothing
in this Article derogates from any other provision of this Constitution.

Although Islam is the religion of the Federation, there is no head of the Muslim religion
for the whole of the Federation. A. 3(2) of FC states that in every state, other than states not
having a Ruler, the position of the Ruler as head of Islam in his state and all rights, privileges,
prerogatives, and powers enjoyed by him as head of Islam are unaffected. In states without a
Ruler, i.e. Melaka, Penang, Sabah and Sarawak, Federal Territories of Kuala Lumpur, Labuan
and Putrajaya, the head of Islam is the YDPA who also remains head of religion in his own
state.

Even though Islam is adopted as the official religion of the Federation, Malaysia is not
an Islamic state. Clarification was made by the Former PM Tunku Abdul Rahman in the
Federal Legislative Council that Islam as a religion of federation does not convert Malaysia
into an Islamic State. This is because Article 3 merely declares that Islam is the official religion
of the Federation and not declaring the federation as an Islamic state.

In Che Omar bin Che Soh v PP, it was argued that the death penalty was unislamic and
therefore contrary to A.3 of FC. However, the court rejected the argument and held that
although the Islam is the official religion of the Federation, it is not the basic law of the land
and imposes no limits on the power of Parliament to legislate it. Hence, this indicated that
Malaysia is not a full-fledged Islamic country as we just adopt Islam as official religion.

In Teoh Eng Huat v Kadhi of Pasir Mas, Kelantan & Anor, the issue was whether a
person below the age of 18 had legal capacity to choose her own religion in exercise of her
constitutional right. The Supreme Court having looking at the drafting history of the Federal
Constitution held that the constitution was drafted on the basis that although Islam is the
religion of the federation, the federation is a secular state. As such, the right of religious practice
of an infant shall be exercised by the guardian on her behalf until she becomes major.

Also, in Meor Atiqulrahman bin Ishak & Ors v Fatimah binti Sihi & Ors, Federal Court
held that the school did not contravene the constitutional provisions on freedom of religion
when it prohibited the pupils from wearing the turban to school. It further opined that not
everything the Prophet did that is legally binding or religiously binding on Muslims.

Besides that, the position of Islamic law in Malaysia can be observed under A.11(1) of
FC, which provides that every person has the right to profess and practice his religion and,
subject to Clause (4), to propagate it. However, the right of non-Muslim to profess, practice
and propagate their religions is not an absolute. According to A.11(4) of FC, it provides that
State law and in respect of the Federal territories of Kuala Lumpur, Labuan and Putrajaya,
federal law may control or restrict the propagation of any religious doctrine or belief among
persons professing the religion of Islam. Thus, propagation of any religion amongst Muslim is
restricted in order to ensure the supremacy of Islam in Federation.

In addition, according to FC, the power to administer Islamic law is primarily under the
jurisdiction of the states, which refers to the Ninth Schedule, List II- item 1 of the State List
of FC. In the case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan dan lain-lain, the
Federal Court stated that since apostasy relates to Islamic law, and Islamic law is one of the
matters in Item 1 of State List under Ninth Schedule to the FC, apostasy clearly falls within the
jurisdiction of Syariah Court.

As administration of Islamic law is vested on the states, separate legislations could be

found according to each states on various aspect of Islamic law. Each state shall have their
Administration of Islamic Law Enactment or Act to govern the Majlis Agama Islam
(responsible for all matters concerning the Islamic religion enforcement), Mufti (responsible
to determine Islamic Law) and Syariah Courts (responsible for the administration of justice).