Malaysia’s Court System Struggles With the Rise of State-Level Theocracy

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Malaysia’s Court System Struggles With the Rise of State-Level Theocracy

A recent Federal Court ruling has highlighted the tension between the Federal Constitution and Sharia laws passed by conservative state legislatures.

Malaysia’s Court System Struggles With the Rise of State-Level Theocracy

Members of the Pan-Malaysian Islamic Party wait outside the Palace of Justice, background, as they await the Federal Court’s decision on Kelantan state’s sharia law criminal enactment, in Putrajaya, Malaysia Friday, Feb. 9, 2024.

Credit: AP Photo

Earlier this month, Malaysia’s apex court delivered a landmark ruling in the case of Nik Elin, invalidating 16 provisions of Kelantan state’s Sharia criminal law as unconstitutional. Malaysia operates under a dual-legal system, with both civil and Sharia laws. This pivotal ruling sets a clear precedent, prohibiting state legislatures from enacting Sharia criminal laws, such as those addressing broad moral crimes like vices, sodomy, and intoxication, that infringe upon the domain of federal laws, including the Penal Code.

This ruling follows a similar precedent from the Iki Putra case of February 2021, in which the High Court annulled Selangor state’s anti-sodomy Sharia law.

These high-profile cases were chaired by Tengku Maimun Tuan Mat, Malaysia’s first female chief justice. She also presided over the case of former Prime Minister Najib Razak’s involvement in the 1MDB corruption scandal. These cases were all highly politicized and presented stiff tests of judicial independence. In the Nik Elin and Iki Putra cases, the decisions reinforced the country’s mandate of federalism by holding state lawmakers accountable for enacting laws that contravene constitutional limits under the guise of religion.

However, these rulings have been followed by significant backlash, notably from right-wing factions, and have spurred a push for more theocratic influence in Malaysia.

Facing Political Backlash

Since the decision in the Nik Elin case was handed down, the opposition coalition Perikatan Nasional (PN), which includes Malaysia’s Islamist Party PAS, together with a national Malay-Muslim NGO alliance, has launched fervent online campaigns and rallies, portraying the verdict as an attack on Islam and the Malay-Muslim community (ummah).

PAS Secretary-General Takiyuddin Hassan condemned the judgment as a “Black Friday,” foreseeing its far-reaching effects beyond Kelantan. Mohd Zai Mustafa, the head of the Sekretariat Pertahankan Syariah, which represents over a thousand Muslim NGOs, alleged that the Malay-Muslim government and judges have “buried” Sharia law. PAS youth Member of Parliament, Wan Ahmad Fayhsal, escalated the issue, alleging an attempt to secularize Muslim life and calling for “jihad” against perceived threats.

Hadi Awang, the party’s president, previously rebuked Prime Minister Anwar Ibrahim’s government in Parliament for its failure to protect Sharia, indirectly questioning the apex court judges’ involvement in Sharia matters. Sanusi Md Nor, a Kedah state PAS leader, attributed this perceived threat to “liberal Islam,” a claim with anti-Western overtones.

Additionally, Abdul Hakim Othman, spokesperson for Hizbut Tahrir Malaysia – a group banned in some Malaysian states including Selangor, Negeri Sembilan and Sabah, as well as in Indonesia and the United Kingdom – called for stricter Sharia laws, such as Hudud (fixed punishment) and Qisas (retributive punishment), to replace all non-divine criminal laws in Malaysia. Hizbut Tahrir’s ideology rejects democracy and advocates for a caliphate-style of governance.

This response is not just a political maneuver by right-wing politicians, but also intensifies feelings of victimization within the Malay-Muslim community and undermines trust in the Malaysian judiciary. The prevailing perception is that the civil legal system is “hostile” toward the Sharia legal system, strengthening the calls for asserting Sharia’s dominance.

The chief justice has publicly reassured the people about the judiciary’s independence and affirmed the unthreatened status of the Sharia system. The Sultan of Selangor has also urged the public to respect the court’s decision and criticized Takiyuddin’s “Black Friday” remark. Moreover, civil groups like Sisters in Islam and G25 have countered right-wing aggression as a dangerous reaction. While these responses might temporarily ease tensions, right-wing factions will no doubt persist in exploiting this narrative.

This is not the first instance in which the passage of state laws has been found to violate the federal constitution. For instance, two PAS-governed states, Kelantan in 1993 and in 2015, and Terengganu in 2002, passed a range of Hudud and Qisas laws, imposing death punishments for moral crimes like apostasy, sodomy, and adultery. All these directly contradicted the constitution and were in any case unenforceable.

These instances underscore a calculated effort, particularly by PAS representatives, who constitute the majority in the state legislatures of these states, to push for laws steeped in rigid Islamist ideology under the guise of religion, without much opposition, even from the then Barisan Nasional-led federal government.

No Positive Equilibrium

In the wake of the Nik Elin and Iki Putra cases, Mohd Na’im bin Mokhtar, the minister for religious affairs in Anwar’s Pakatan Harapan (PH)-led government, has committed to “empowering” the Sharia court system. He has proposed an upgrade to Sharia enforcement department in each state, giving them greater power to conduct investigations and make arrests. He, along with other religious bureaucrats like muftis and PH-aligned Muslim NGOs such as the Malaysian Islamic Youth Movement, supports granting more authority to the Sharia system.

Over the decades, the Malaysian government, under both BN and the newer PH coalitions, has carefully avoided direct confrontation with the religious establishment. This approach aims politically to neutralize the hardline influence of Islam, particularly from PAS, while garnering support from Malay-Muslim voters and religious elites.

This strategy involves consistently expanding the annual budget for Islamic affairs at the federal level, which totals RM1.9 billion ($397 million) in 2024. In contrast, the Ministry of Unity, despite its critical role, received only RM635.82 million ($133 million). Even the ethnic Chinese-dominated Democratic Action Party (DAP)-led government in Penang has adopted this strategy. The strategy also increases the influence of religious bodies across various policy domains, from security to media, often imposing hegemonic and sectarian sanctions on non-Sunnis, the LGBT community, and critical Muslims.

However, this strategy has backfired, as seen in PAS’s electoral gains in the 2022 general election and 2023 state elections. A 2023 survey revealed that a significant proportion of Muslim youth favor replacing the country’s constitution with the Quran – a result of the successful importation and localization of political Islam from the Middle East.

Any direct challenge to the Sharia system would now likely face strong backlash from both elites and Malay-Muslim voters. Therefore, it is foreseeable that Anwar’s government will also seek to appease these influential groups further by proposing to grant more power to the Sharia legal system. This could involve amending the highly controversial federal 355 bill (RUU355) to increase the sentencing power of Sharia courts or through constitutional amendments to empower state legislatures in Sharia matters. Any of these measures would deepen theocratic influence in Malaysia and increase the state’s power to enforce contentious moral crimes,

Reassessing Moral Crime Enforcement

The Malaysian government must thoroughly reassess its approach to Sharia moral policing, despite the resistance it may face, due to the environment it has fostered for extremism.

Despite having an estimated 781 Sharia legal provisions and gazetted fatwas in Malaysia that restrict religious freedom, such as anti-blasphemy laws, there is a concerning trend of moral vigilantism by private citizens. This trend exploits state-sanctioned “virtue promotion and vice prevention,” known in Arabic as amar makruf nahi munkar.

Moral vigilante groups like Skuad Badar in the Sungai Petani district and those involved in incidents in Petaling Jaya in 2021 and Puchong in 2022 have resorted to extra-legal measures, using coercion and violence against perceived moral offenders, including non-Muslims.

In the Petaling Jaya incident mentioned above, a group of FoodPanda drivers assaulted a young boy, reported as possibly mentally challenged, for allegedly making blasphemous comments about the Islamic faith. Despite police apprehending both the drivers and the boy, certain Malay-Muslim NGOs, including the Alliance of Islamic Defenders Organizations, and PAS leader Sanusi Md Nor, praised the drivers for their bold defense of Islam, disregarding the actual crime they committed and its broader psychosocial and divisive impact.

Rights and faith-based groups, along with legal practitioners, have underscored the danger of creeping theocracy potentially creating the conditions for the growth of extremism. Despite the aforementioned imposition of a stringent regime of moral policing laws across the country, extremist actors continue to stoke public distrust against state institutions for perceived inefficacy in addressing moral crimes.

The Malaysian government must heed these concerns and risks by exploring and implementing non-punitive solutions to social issues. Simply intensifying Sharia punishments for moral crimes would send mixed messages to the public and fail to effectively address the underlying problems of intolerance and extremism in Malaysia’s ethnically and religiously diverse society.