Freedom of Religion in Malaysia - Scope of Islamic Law in Malaysia

Scope of Islamic Law in Malaysia

The nation maintains two parallel justice systems in the country (see: Courts of Malaysia). One is the secular justice system based upon laws gazetted by Parliament. The other is sharia (syariah, Islamic law). Ostensibly Syariah Courts only have jurisdiction over persons who declare themselves to be Muslims. Consequently, this results in non-Muslims not having legal standing in Syariah Courts.

Where decisions of the syariah court affect a non-Muslim, he or she can seek recourse in the secular courts which, in theory, overrule the syariah courts as the Syariah courts are limited in their jurisdiction by Article 121 of the Federal constitution. In 2006 a judge ruled that Article 121 limited the federal courts from ruling on matters ruled on by the Syariah court when it touches Islamic matters. This was seen as a misinterpretation of the article by some, and the case is under appeal in the court of appeals.

The rules of sharia are set by the various sultans of the states. Historically a sultan had absolute authority over the state. Prior to independence, Tunku Abdul Rahman managed to convince the sultans to cede some states' powers to the federal government. One of the terms of this agreement is that the sultans still are the ultimate authority of Islamic law in their respective states. The same arrangement was long held even during British colonial rule.

Constitutionally, one of the four tests for being Malay in Malaysia is that one must be a Muslim. Therefore, all Malays are considered to fall under Islamic law. The rationale for this is that Islam is considered intrinsic to Malay ethnic identity which culturally and historically under Sultan rule who is a Muslim.

On September 29, 2001, the then Prime Minister, Tun Dr. Mahathir bin Mohamad declared that the country was an Islamic state (negara Islam). The opposition leader at the time, Lim Kit Siang, is now actively seeking support to declare Mahathir's move as unconstitutional by repeatedly clarifying that Malaysia is a secular state with Islam as its official religion as enshrined in the Constitution. However, the coalition government headed by Mahathir at the time held more than two-thirds of the seats in parliament. A two-thirds majority vote in Parliament is required for constitutional amendments in Malaysia.