Will Anwar’s ‘unity government’ end secularism through a ‘stealthy' Constitutional change?

Bounding along the road towards an Islamic state

The Federal Court’s recent decision to nullify 16 of 18 provisions of Kelantan’s Syariah Criminal Enactment (2019) has opened up an opportunity for the ‘unity government’. This has led to the call for a committee to examine the harmonisation of Syariah law with civil law, and look for a remedy.

The Federal Court decision has set a precedent for the states in setting the limits of state legislature power in enacting Syariah criminal laws. The ruling also sets precedence of federal criminal code over Syariah codes, which are a state matter, considering Islam is a state matter.

Consequently, the harmonisation committee may recommend potential changes to the Constitution to enable Syariah and civil laws to stand side by side. This would alter the boundaries between federal and state powers over Islam related issues within the Constitution.

The harmonization of Syariah and civil laws follows calls by  the religious affairs minister Na’im Mokhtar to harmonize laws, in order the position of Islam is elevated as the religion of the Federation, by dignifying Syariah law to its rightful sovereign position. Na’im reiterated this faced many challenges. However, with Anwar Ibrahim’s super majority in the Dewan Rakyat, changing the Constitution will now be much easier.

There have long been calls to modify Article 121 (1.a.) of the Constitution, which prevents civil courts having jurisdiction over matters that qualify for the Syariah court, i.e., a Muslim is involved. Some academics have called Article 121 (1.a.), which was an amendment made in 1988 to the original constitution, a restriction upon freedom of religion.

The Federal court decision has reaffirmed that Syariah Courts, by way of state legislatures have exceeded their powers, beyond the present constitution. Its certainly not likely Article 121 (1.a) will be restored to its original words, “… the judicial power of the Federation shall be vested in” the High Court.

Its more likely in today’s political environment that Syariah law may be brought to exist as equal alongside civil law. If such will be the case, then Malaysia’s legal system will carry two parallel systems. This will create a new precedent that Islamic law will be equal to civil laws in Malaysia. This will gravely weaken the power of the Dewan Rakyat to legislate over legal matters in the future.

At the recent “The Malaysian Contours of Federal Constitution: Negotiating between the scared and the secular”, Siti Kassim warned that Malaysia is moving further away from secularism. Anwar’s ‘unity government’ now has the opportunity to do so.  

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