Written by Michelle Lee Xi Foong, Intern at MCCHR
In 2022, Nik Elin Zurina and Tengku Yasmin challenged the enactment of 20 Islamic criminal law provisions by the Kelantan State Legislature. The case garnered media and public attention as it progressed through the court system. On February 9, 2024, the Federal Court of Malaysia (the Court) delivered an 8-1 decision, declaring 16 of the provisions invalid for exceeding the powers granted to state legislatures by the Federal Constitution. However, Section 13 which covers the selling or giving away child to non-Muslim or morally reprehensible Muslim, and Section 20 which covers female person posing as male, were deemed valid as they fell within the jurisdiction of the Kelantan State Legislature. The petitioners withdrew their challenge to Section 5 which covers false claims, and Section 37(1)(a) which covers the act of gambling, early in the process. Regarding the remaining Sections, the Court held that the Kelantan State Legislature had overstepped its powers by addressing issues falling under the Federal List such as sexual harassment, consuming intoxicants, and preparatory act of vice which are exclusively under the purview of the Federal Legislature.[1] The Court’s ruling focused on the superiority of the Federal Constitution, which imposes explicit constitutional limitations on State Legislatures, and the jurisdiction of the Federal Legislature.[2] The aftermath of the ruling sparked discussions on the dichotomy between civil courts and Shariah courts in Malaysia. As seen through social media platforms and public statements, some perceive the ruling as a threat to Islam’s position in the federation, while others view it as reinforcing the supremacy of the Federal Constitution as the nation’s fundamental law.[3] As a Political Science graduate, I find the latter argument more convincing as the Federal Constitution acknowledges Islam as the religion of the federation without prescribing specific religious teachings in its articles. The Court ruling merely clarifies the powers and boundaries of the Federal Legislature and State Legislatures. The Federal Constitution, established as the supreme law of the country, includes separate lists outlining matters under the jurisdiction of the Federal Legislature and State Legislatures. The Concurrent List outlines matters that overlap between the two
[1] Nik Elin Zurina binti Nik Abdul Rashid v Kerajaan Negeri Kelantan [2024], FC
[2] Dr. Shad Saleem Faruqi, “Shariah Laws, Civil Laws and the Federal Constitution,” in Breaking the Silence. Voices of Moderation, Marshall Cavendish Editions, (2016), p. 56-57.
[3] Kenneth Tee, “Nik Elin: Federal Court’s ruling in Kelantan Shariah criminal provisions a testament to Federal Constitution’s supremacy.” Malay Mail. 9 February 2024. https://www.malaymail.com/news/malaysia/2024/02/09/nik-elin-federal-courts-ruling-in-kelantan-shariah-criminal-provisions-a-testament-to-federal-constitutions-supremacy/117204.
jurisdictions. Although Article 74(1) and (2) says Parliament and State may make laws regarding matters in their respective lists and the Concurrent List, Article 77 clarifies that State Legislatures may make laws when the issue is not listed under the Federal List or purview of the Parliament of Malaysia to make laws concerning those issues. Further, Article 81(b) explicitly prevents States from exercising powers that would “impede or prejudice the…executive authority of the Federation.” This reflects the limited jurisdiction of State Legislatures relating to matters under the Concurrent List.
A concern for many critics of the decision was the mention of secularism in the majority judgement. By defining the Federal Constitution as leaning “in favor of secularity,” the Court emphasized the distinction between civil and Islamic laws,[1] as well as between the federal and state legislatures and their respective jurisdictions.[2] This, however, does not imply the weakening or elimination of Shariah courts or the eradication of religion from the government or society. Article 3 of the Federal Constitution grounds this argument. Article 3(1) explicitly designates Islam as the religion of the Federation, while Article 3(4) firmly declares that the said Article does not “derogate from any other provisions.” The Court’s decision to nullify state provisions that encroached upon the Federal Legislature’s jurisdiction is rooted in the Constitution – the same document which safeguards Islam as the religion of the Federation. Critics who argue that upholding one portion of the Federal Constitution leads to the derogation of other provisions are suggesting that articles of the Federal Constitution are unequal. This argument is contrary to Article 3(4). As I attend talks about this case and read netizens’ social media postings, many are alarmed at the mention of secularism in the judgement as they view secularism as a threat to religion and/or morality in the country. While secularism is often defined as the separation of church (religion) and state, secularism is contextual. The relevance of secularism depends on context, meaning this principle correctly takes on varying forms in different contexts. Secularism is not a stance that is against religion in the way atheists or agnostics believe – it does not necessitate changing of personal beliefs or habits. [3] In Malaysia, secularism does not appear in its purest form. However, no state practices this pure secularism anyway. Even in Europe and the United States, the
[4] Nik Elin Zurina binti Nik Abdul Rashid v Kerajaan Negeri Kelantan [2024], FC at 42
[5] Nik Elin Zurina binti Nik Abdul Rashid v Kerajaan Negeri Kelantan [2024], FC at 41-42
[6] BILGRAMI, AKEEL. “Secularism: Its Content and Context.” Economic and Political Weekly 47, no. 4 (2012): 89–90. http://www.jstor.org/stable/41419770.
separation of religion and state is manifested in varying ways not reflecting what one would define as pure secularism.[1]
I personally find arguments using secularism as a precursor to the demise of religion and morality within society ignorant of the various models of secularism that exist. France is an example of absolute secularism but moderate secularism exists as well.[2] Looking at the American model, secularism is interpreted as exclusion of religion; a strict separation. However, this exclusion is contrary with secularism since it asks for religion or religious reasons to be removed from liberal-democratic politics, denying people from acting in line with their beliefs. Even in Europe, most countries follow neither the French nor the American models of secularism.[3] In Malaysia, we reject this American-style of secularism as well.
The position of Islam is safeguarded in the Federal Constitution. The jurisdiction of Shariah courts is clearly outlined in the Federal Constitution as well. The declaration of Islam as the religion of the federation further allows for the establishment of institutions, expansion, and education frameworks based on Islam. In Malaysia, all state constitutions, except for Sarawak, declare Islam as the religion of the state.[4] Secularism, as practiced in Malaysia, does not preclude the government from deciding on moral issues. It does not imply a complete absence of moral values, societal values, or religious influence. As of 2023, surveys conducted in Malaysia showed that only 2 percent of Malaysians identify themselves as not holding religious beliefs.[5] I am inclined to think that the other 98 percent professing a religious belief is reflective of a society that would reject the exclusion of religion or morality from their country’s government and laws. Since secularism is varied and arguably dependent on context, the ruling in Nik Elin Zurina and Tengku Yasmin’s case should not be used to imply a loss of religiosity or morality in Malaysia.
[7] Mohamad, Maznah. “The Ascendance of Bureaucratic Islam and the Secularization of the Sharia in Malaysia.” Pacific Affairs 83, no. 3 (2010): 505–511. http://www.jstor.org/stable/25766412.
[8] O’Brien, Peter. “Secularism.” In The Muslim Question in Europe: Political Controversies and Public Philosophies, 144. Temple University Press, 2016. http://www.jstor.org/stable/j.ctt1kft8dx.8.
[9] BHARGAVA, RAJEEV. “Reimagining Secularism: Respect, Domination and Principled Distance.” Economic and Political Weekly 48, no. 50 (2013): 79–92. http://www.jstor.org/stable/24479049.
[10] Dr. Shad Saleem Faruqi, “Shariah Laws, Civil Laws and the Federal Constitution,” in Breaking the Silence. Voices of Moderation, p.65.
[11] “Buddhism, Islam and Religious Pluralism in South and Southeast Asia. 1. Religious landscape and change.” Pew Research Center, Washington, D.C. (12 September 2023) https://www.pewresearch.org/religion/2023/09/12/religious-landscape-and-change/.