Malaysia’s top court strikes out some Islamic laws in landmark case

Muslim women hold placards as they stand in protest outside the Palace of Justice on the day the country’s federal court delivers verdict in a constitutional case challenging the legality of some Islamic laws in Kelantan state, in Putrajaya, Malaysia, on February 9, 2024. REUTERS/Hasnoor Hussain

KUALA LUMPUR — Malaysia’s top court on Friday declared unconstitutional more than a dozen Islamic laws enacted by the state of Kelantan, in a landmark decision that could affect similar sharia laws in other parts of the Muslim-majority country.

Malaysia has a dual-track legal system with Islamic criminal and family laws applicable to Muslims running alongside secular laws. Islamic laws are enacted by state legislatures while secular laws are passed by Malaysia’s parliament.

A nine-member Federal Court bench, in an 8-1 decision, declared 16 laws in Kelantan’s sharia criminal code “void and invalid,” including provisions criminalizing sodomy, incest, gambling, sexual harassment, and the desecration of places of worship.

Chief Justice Tengku Maimun Tuan Mat, who delivered the majority judgement, said the northeastern state had no authority to enact the laws, as the subject matter was covered under parliament’s law-making powers.

“The essence of those provisions are matters under the federal list, which only parliament has the power to make,” she said.

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Kelantan, which lies just south of Thailand in Malaysia’s north, is governed by Parti Islam Se-Malaysia (PAS) which has advocated for a stricter interpretation of Islamic law.

PAS has seen increased popularity in recent years amid growing Islamic conservatism among Malaysia’s majority ethnic Malay Muslims, and is seen as a challenge for Prime Minister Anwar Ibrahim’s multi-ethnic ruling coalition. PAS holds more seats in parliament than any other party.

The constitutional challenge was filed by a Kelantanese lawyer and her daughter against laws covering sharia offences that were passed by the state and came into force in 2021.

The case has sparked uproar among some conservative Muslim groups, who fear the challenge could undermine Islam or the sharia courts in Malaysia.

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Security was tight around the court complex in Malaysia’s administrative capital, Putrajaya, as about 1,000 demonstrators gathered outside to protest the case. They prayed and chanted “God is great” as the judgement was delivered.

Justice Tengku Maimun said the case did not have anything to do with the position of Islam in the country, only on whether the Kelantan legislature had acted beyond its powers.

“Seen from this position, the issue of the civil court not upholding Islam or the sharia courts does not arise,” she said.

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After the judgement, Religious Affairs Minister Mohd Na’im Mokhtar said in a statement the government’s Islamic authorities would take immediate steps to strengthen sharia courts, adding that the Islamic judiciary remained protected under the federal constitution.

Kelantan government official Mohamed Fazli Hassan expressed disappointment with the ruling, saying the state would consult with its royal ruler, Sultan Muhammad V, on the decision and further matters of Islamic law. Nine of Malaysia’s 13 states are headed by monarchs who act as the guardians of Islam.

Nik Ahmad Kamal Nik Mahmod, a law professor at Malaysia-based Taylor’s University, said Friday’s decision could have a “domino effect” with sharia laws in other states likely to see similar challenges.

“There is a need to rewind and reconsider the existing states’ jurisdiction on Islamic law,” he said, adding that Malaysia’s constitution should be amended to avoid conflicts between sharia and civil laws.