Article 121(1A): A Barrier to Religious Freedom in Malaysia?

Muhammad Syed

  1. Introduction

 

Most would agree Malaysia is not anIslamic state. The mere description would be an affront to religious freedom enshrined in the Federal Constitution. However, a more relevant issue concerns the expansive position of Islam in political and legal discourse. Of growing concern is the status of the Syariah (Islamic) court. Is it of equal standing to the civil court?

 

To provide a holistic answer to the question, this article has been separated into three parts. The first explores the foundations of the Constitution, in particular, the role of Islam within the constitutional framework. The second part proceeds to explain the mechanics of the legal pluralistic system Malaysia has adopted. The final section captures the Federal Court’s struggle to determine the position of the Syariah Court, concluding that the landmark decision of Indira Gandhi v. Patmanathana/l Krishnan has laid this issue to dormancy, though not to rest. Debating the position of Islam strikes at the core of this ongoing struggle of judicialising religion, much of which is intertwined with politics. The civil courts must honour the values entrenched in the Federal Constitution and uphold the constitutional supremacy Malaysia was founded upon.

 

  1. Historical Foundations of     the Malaysian Constitution

 

When negotiations for Malayan independence began in the 1950s, the drafting of theConstitution attracted fierce debate. The Reid Commission, a select committee of constitutional experts drawn from the Commonwealth nations, were tasked withdrawing up the Constitution, taking into account the demands of various stakeholders, namely the political parties and the Malay Rulers[1]. At the forefront of their priorities was to ease race relations, with religion a peripheral issue[2].Given the shifting demographics during the early twentieth century, with theChinese and Indian communities comprising nearly half of the total population of British Malaya, race-related anxiety was rampant. This, coupled with a view of Malayan indolence and poverty perpetuated by local politicians[3],contributed to a general hysteria among the Malay community. How could their status be formally preserved in a newly independent Malaya?

 

The solution that the Reid Commission arrived at were safeguards enshrined within theConstitution to protect the ‘special position of the Malays’[4]. A notable consequence of this provision was the legal construction of what it means to be ‘Malay’. In fact, a colonial-era definition had already been written for the purposes of the Malay Reservations Act 1913, defining a Malayas ‘a person belonging to any Malayan race who habitually speaks ... anyMalayan language and professes the Moslem religion’ (Voules 1921: 506). The1913 Act reserved land for traditional agricultural pursuits pioneered by the Malays, perhaps as an effort to reassure their economic position. However, Tamir Moustafa casts doubt on this view, postulating that the Act only paid lip service to the preservation of Malay interests[5].The reality was far more dubious. Motivations for such a definition, he argues, was to “limit the expansion of ethnic Chinese business interests, bar Malays from rubber production, and preserve adequate food supplies in the colony”. Itwas used as a tool to maintain colonial rule in British Malaya. Given the historical use of such a definition, the view that to be Malay is to be Muslim was simply carried forward and entrenched in the Constitution[6].In a country that is hyperconscious of race, the marriage of race and religion meant that the politicisation of the latter was inevitable.

 

This context provides a strong foundation for a discussion of Article 3(1), the first clause of which submits that ‘Islam is the religion of the Federation’. As theConstitution holds that the foremost characteristic of being ‘Malay’ is to adhere to the Islamic faith, this elucidates the significance of Article 3.Protecting the sanctity and position of Islam was an extension of preservingMalay interests. As a result, support for Article 3(1) was unsurprisingly voiced by the United Malay National Organisation (UMNO). After successfully bargaining with other members in the Alliance coalition, the Malaysian Chinese Association (MCA) and Malaysian Indian Commission (MIC), the three dominant political forces submitted a memorandum to the Reid Commission lending fervent support to the inclusion of Article 3(1)[7].While it seems counterintuitive for MCA and MIC to have endorsed an official religion, they were willing to make such concessions on two grounds. Firstly, their decision was made in response to UMNO’s agreement to expand citizenship for non-Muslims. And secondly, the consensus was that Article 3(1) would be interpreted conservatively so that the rights of “non-Muslim nationals professing and practising their own religions”[8]shall not be impinged. Therefore, a full reading of Article 3(1) states that“Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” Indeed, even the leader of UMNO and firstPrime Minister of Malaysia Tunku Abdul Rahman went to great lengths to clarify that Article 3(1) did not make Malaya an Islamic state[9].His vision for the country was one rooted in secularism.

 

It is unequivocal that upon examining the primary documents and debates, the intentions of the constitutional drafters was “not to create a Muslim theocracy”[10].The Reid Commission, the Alliance and Malay rulers were united in affirming the secular basis of the state, albeit for different reasons. This remained the status quo following Independence as former Chief Justices Tun Mohamed Suffian Hashim and Tan Sri Mohamed Salleh Abbas ensured Article 3(1) was narrowly interpreted, reiterating that Islam was made the official religion primarily for ceremonial purposes[11].

 

But when debates around national identity are reinvigorated, and religion is weaponised as a tool for political power, calls to reinterpret Article 3(1) become rife[12].Should religion have a greater influence on the state? To what extent is there currently a separation between religion and state? The pertinence of such questions is closely related to the expansive position of the Sharia (Islamic)courts.

 

  1. The     Civil and Sharia Divide

 

During the decolonisation period, new countries emerging in the Middle East and South-EastAsia welcomed legal pluralism as a way to reconcile their colonial past and ethnic, religious and cultural context. Malaysia was no exception. The common law was inherited from British rule and continued to serve as the bedrock of the law.Concurrently, Syariah law was incorporated as a subset into the legal structure.

 

The constitutional drafters established clear parameters so that the dual legal systems could run in tandem. The key differences between the structure of both courts are drawn in Table 1 according to the Federal Constitution 1957, prior to any amendments that were subsequently made.

 

Civil Courts

Apply to all irrespective of Religion

Endorses and follows theEnglish common law

Grants general jurisdiction on matters of public and private law

Their judicial power is vested from Article 121(1) of the Constitution where the decisions of any inferior courts, including the Sharia court, can be subject to review

Sharia Courts

Applies  only to ‘persons professing the religion of Islam’

Adheres to Islamic values and ideologies

Jurisdiction is expressly detailed in Item 1, List II of the Ninth Schedule in the Federal Constitution.These subject matters mainly concern ‘Islamic law and personal and family law ’between Muslims, including but not limited to marriage, divorce and testate.

Their power and legitimacyis derived from the State Legislature which specify the jurisdiction of theSharia courts. In this way, they can be seen as ‘state courts established todeal with Islamic law’[13]which the civil courts can supervise

When describing the Malaysian judicial system, Joshua Neoh turns to Barry Hooker’s distinction between ‘dominant’ and ‘servient’ legal systems[14].A ‘dominant’ system enjoys legal superiority while a ‘servient’ legal system is subject to constraints outlined by the dominant system. Employing Hooker’s taxonomy[15],the civil courts were jurisdictionally dominant on two fronts: they had jurisdiction over significantly more subject-matter (ratio materiae) and occupied a supervisory role over the Syariah courts. The strict confines in which the Sharia court could operate within meant that jurisdictional overlap was rare.

 

However, this workable arrangement dramatically shifted following a constitutional amendment of Article 121. Against the backdrop of a constitutional crisis[16],the newly added Article 121(1A) held that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” Motivations for supporting the ouster clause among academics and legal professionals were grounded in defending the sovereignty of the Syariah courts[17].These concerns came in spite of the fact that an average of only two cases regarding Islamic matters were heard before the High Court prior to the amendment[18].Nonetheless, traction for an ouster clause gained momentum within Islamic legal circles until it was finally introduced in 1988. Speaking in Parliament, PrimeMinister Mahathir Mohammed lamented the “dissatisfaction among the Islamic community” due to the civil court’s ability “to change or cancel a decision made by the shariah court”[19].This sentiment was more alarmingly echoed by Deputy Prime Minister Abdul Ghafarbin Baba, claiming that the “amendment is in line with the government’s aspiration of raising the position and sovereignty of our shariah courts”[20].Though the amendment was passed with a strong majority, Tamir Moustafa is quick to note the political context in which Article 121(1A) became law[21].Leading opposition leaders, including Lim Kit Siang and Karpal Singh (both of whom were avid critics of Mahathir), were detained under the Internal SecurityAct following Operation Lalang[22].The absence of proper parliamentary debates regarding the ouster encapsulates the political precarity of the period.

 

  1. Is     Article 121(1A) a successful ouster?

 

A post-1988Malaysia has seen a trend in cases containing jurisdictional complexities.Central to the debate is the purported elevated status of the Syariah courts.Does Article 121(1A) successfully oust the High Court and assert the equal status of the Syariah court? Nowhere are these issues more vividly illustrated than in cases of apostasy and child custody.

 

Lina Joy, aMuslim-born woman in a Malay family, was originally Azalina binti Jailani. Atsome point in her adult life, she converted to Christianity. As she intended to marry a Christian man, she applied to the National Registration Department(NRD) to change the official religion on her identity card since interfaith marriages between Muslims and non-Muslims are forbidden in Malaysia. Multiple applications were put forward to no avail because the Department would only remove “Islam” if she received a certificate of apostasy from the Syariah court. Under Syariah law, conversion out of Islam is criminalised, with those charged with the offence facing fines, imprisonments, and even corporal punishments. As Joshua Neoh astutely points out, it is ludicrous that the ‘actof application is effectively self-incriminating’[23].

 

The constitutional challenge of the Department’s requirement eventually reached theFederal Court in Lina Joy v. Majlis Agama Islam[24].Faced with the question of whether a certificate of apostasy from the Syariah Court was in fact needed, the 2-1 majority dismissed Joy’s appeal holding that permission from the Islamic court was necessary. Of particular salience was the absence of apostasy in List II, Schedule Nine of the Constitution. From a literal interpretation of the Constitution, matters of apostasy fell outside the remit of the Syariah Court. The majority held otherwise though, insisting that because the Syariah courts are granted jurisdiction to adjudicate on matters concerning conversions into Islam, “it is also implied required to have jurisdiction on matters of being an apostate”. As apostasy was held by the highest appellate court to rightly lie within the jurisdiction of the Syariah Court, Article 121(A) was drawn upon to justify that ‘the civil courts cannot interfere in this matter’, serving as a successful ouster.

 

The majority judgment was met with a forceful dissent by Justice Richard Malanjum, the only non-Muslim judge to serve in the case. Responding to the majority’s recourse toArticle 121(1A) as a means of removing the civil court’s jurisdiction, the dissent recognised that ‘apostasy involves complex questions of constitutional importance especially when some States in Malaysia have enacted legislations to criminalize it.’ The civil superior courts ‘are not required to abdicate their constitutional function’ the moment Article 121(A) is cited[25].After all, it is under their jurisdiction to determine questions pertaining to fundamental rights enshrined in the Constitution.

 

He also addressed the implied jurisdiction approach adopted by the majority, arguing that ‘jurisdiction must be express’ as far as possible for curtailment or violation of fundamental freedoms. Implied jurisdiction ‘must be limited to those matters that are incidental to a power already conferred or matters that are necessary for the performance of a legal grant’[26].Yvonne Tew is correct to point out that apostasy falls in neither of these categories[27].This departure from the majority’s endorsement of Soon Singh is markedly important in distinguishing between allowing jurisdiction to the Syariah Court for conversion into Islam and conversion out of Islam. It is only the former process that expressly falls under the purview of the Syariah Court.

 

The majority judgment answered the question of whether Article 121(1A) was a successful ouster in the affirmative. But eleven years later, a mother in pursuit of custody over her kids revisited this issue that was thought to have been laid down to rest. The chapter of this saga, as we shall see in Indira Gandhi v.Patmanathan a/l Krishnan[28],was yet to be closed.

 

In 2009, IndiraGandhi, a Hindu mother, discovered that her three children had been converted to Islam without her knowledge. Her husband, a recent convert himself, had initiated the conversion. His new religious status as a Muslim made available the option to seek custody over the children from the Syariah court which he successfully obtained. Responding to the custody orders in the civil courts,Indira Gandhi challenged the conversion of her children and petitioned toreceive custody of them. When her case finally reached the Federal Court in2018, the stage was set for a clarification of the wider debates around Article121(1A) and the relationship between the civil and Syariah courts. Two areas of the decision merit particular attention.

 

First, theFederal Court set a pertinent reminder that the Syariah Courts are creatures of the State Legislature. Subject matters which fall within their jurisdiction must be expressly written in State legislation; otherwise, the Syariah courts could be excluded from deciding on issues pertaining within List II, Schedule Nine of the Federal Constitution[29]. In reinstating the scope of their jurisdiction, the Court turned Justice Malanjum’s dissenting opinion in Lina Joy into authority, dispelling the ‘implied jurisdiction’ approach which was formerly embraced.

 

Second, the substantive effect of Article 121(1A) was extensively addressed, effectively nullifying the constitutional amendment. The court was explicit in assertingthat Article 121(1A) does not serve as a complete ouster ‘nor does it confer judicial power on the Syariah Courts’, lending their endorsement to AndrewHarding’s understanding of the amendment which maintains ‘the primacy of thecivil courts’[30].They did not shy away from critiquing the approach adopted previously in LinaJoy and Soon Singh as ‘unduly simplistic’, calling for a revised interpretation of Article 121(1A). Matters of conversion, though related toIslamic law which lies within the expertise of the Syariah Court, does not necessarily mean that exclusive jurisdiction should be granted to them. To embrace such views is to ‘ignore the broader constitutional context in whichArticle 121(1A) is framed’.[31]Most crucially, if a matter ‘involves constitutional issues’, the civil courts should not decline to hear it on the basis that Article 121(1A) has been evoked.[32]

 

After a protracted legal battle that lasted close to a decade, the Federal Court unanimously held to declare the children’s certificates of conversion void.Their decision was a welcomed development for Malaysian constitutional law, one that reinstated the constitutional role which the civil courts occupy as the superior court of the land. The efficacy of Article 121(1A) as a complete ouster was undermined, affirming that the jurisdiction of the civil courts cannot be so easily curtailed. Yvonne Tew commends the Court’s willingness to assert judicial power in such a manner in the highly fraught area of religious authority’, but her views are tempered with skepticism[33].She cautions that the Court ultimately ‘framed its decision on ‘the more prosaic questions of the legality and constitutionality of administrative action’ of the certificates being issued without the consent of both parents.When it came to explicitly asserting authority over apostasy’, the Court shied away[34].While the decision was a step towards upholding the rule of law and constitutional supremacy, the extent to which it should be celebrated can be questioned.


[1] Moustafa T, ConstitutingReligion: Islam, Liberal Rights, and the Malaysian State (CambridgeUniversity Press 2018)

[2]  Harding A, The Keris, the Crescent and the BlindGoddess: The State, Islam and the Constitution in Malaysia (2002) 6Singapore Journal of International and Comparative Law

[3] For a discussion of the economic disparities withinMalaya pre-Independence, see Syed Hussein Alatas, The Myth of the Lazy Native:A Study of the Image of the Malays, Filipinos and Javanese from the 16th to the20th Century and Its Function in the Ideology of Colonial Capitalism (1977)

[4] Article 153, Federal Constitution

[5] Moustafa (n 1)

[6] Article 160, Federal Constitution

[7] Moustafa (n 2)

[8] Alliance Memorandum to the Reid ConstitutionalCommission, 27 Sept. 1956

[9]  FederalParliament, Parliamentary Hansard, 1958, HR (Malay.)

[10] Fernando, Joseph M. “The Position of Islam in theConstitution of Malaysia.” Journal ofSoutheast Asian Studies, vol. 37, no. 2, [Cambridge University Press,Department of History, National University of Singapore], 2006, pp. 249–66,http://www.jstor.org/stable/20072709.

[11] Muhamed Suffian Hashim, The Relationship betweenIslam and the State in Malaya, 1 Intisari 1, 8 (1962).

[12] Can refer to Yvonne Tew’s piece on expansiveinterpretations of Art 3(1)

[13] Tew, Yvonne, "The Malaysian Legal System: A Taleof Two Courts" (2011). Georgetown Law Faculty Publications and OtherWorks. 1922. https://scholarship.law.georgetown.edu/facpub/1922

[14]  Neoh, Joshua,Apostasy and Freedom of Religion in Malaysia (May 3, 2020). Joshua Neoh,‘Apostasy and Freedom of Religion in Malaysia’, in Paul Babie, Neville Rochowand Brett Scharffs (eds), Freedom of Religion or Belief: Creating theConstitutional Space for Fundamental Freedoms (Edward Elgar Press, 2020), 364

[15] Barry Hooker, Legal Pluralism: An Introduction toColonial and Neo-Colonial Laws 453–4 (1975)

[16] For a historical perspective of the politicalsituation, see ​​Andrew Harding, ‘The 1988 Constitutional Crisis in Malaysia’(1990) 39 ICLQ 57

[17] For a defence of Article 121(1A), see the works ofconstitutional scholar Ahmad Ibrahim, The Future of the Shariah and the ShariahCourts in Malaysia, 20 Journal of Malaysian and Comparative Law, 41 (1993);Ahmad Ibrahim, Islamic Law in Malaysia, 8 Journal of Malaysian and ComparativeLaw, 21 (1981)

[18] Moustafa (n 4)

[19] Minutes of the Dewan Rakyat, March 17, 1988, page1364.

[20] Minutes of the Dewan Negara, April 4, 1988, p. 43.

[21] Cite Tamir

[22] For an insight into the Government’s crackdown ondissidents, see Soong, K., 2018. Ops Lalang: The worst assault on M'sian civilsociety. [online] malaysiakini. Available at: <https://www.malaysiakini.com/news/399846>[Accessed 9 January 2022].

[23] Neoh, Joshua, Apostasy and Freedom of Religion inMalaysia (May 3, 2020). Joshua Neoh, ‘Apostasy and Freedom of Religion inMalaysia’, in Paul Babie, Neville Rochow and Brett Scharffs (eds), Freedom ofReligion or Belief: Creating the Constitutional Space for Fundamental Freedoms(Edward Elgar Press, 2020), 364

[24] Lina Joy v. Majlis Agama Islam Wilayah Persekutuan[2007] 4 Malayan L.J. 585 (F.C.)

[25] Id. at [65].

[26] Id. at [84].

[27] Tew, Yvonne, "The Malaysian Legal System: A Taleof Two Courts" (2011). Georgetown Law Faculty Publications and OtherWorks. 1922. https://scholarship.law.georgetown.edu/facpub/1922

[28] Indira Gandhi v. Patmanathan a/l Krishnan [2018] 1Malayan L.J. 545 (F.C.)

[29] Id. at [55].

[30] Id. at [86].

[31] Id. at [98].

[32] Id. at [99].

[33] Tew, Yvonne, Constitutional Statecraft in AsianCourts. Oxford University Press 2020

[34] Ibid.