Malaysia’s top court strikes out a dozen Islamic laws; conservatives aghast

These laws included provisions criminalising sodomy, incest, gambling, sexual harassment, and desecration of places of worship

Malaysia’s top court on Friday, February 9, declared over a dozen Islamic laws enacted by the state of Kelantan as unconstitutional, in a landmark case, Reuters reported.

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The decision by the nine-member Federal Court bench could have significant implications for similar sharia laws across the Muslim-majority country.

In Malaysia’s dual-track legal system, Islamic criminal and family laws operate alongside secular laws. While Islamic laws are passed by state legislatures, secular laws are enacted by Malaysia’s parliament.

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Chief Justice Tengku Maimun Tuan Mat, delivering the majority judgement in an 8-1 decision, declared 16 laws in Kelantan’s sharia criminal code “void and invalid.” These laws included provisions criminalising sodomy, incest, gambling, sexual harassment, and desecration of places of worship.

Justice Tengku Maimun stated that Kelantan had overstepped its authority in enacting these laws, as they fell under the purview of 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.

Kelantan, governed by Parti Islam Se-Malaysia (PAS), advocates for a stricter interpretation of Islamic law. PAS has gained popularity in recent years amid growing Islamic conservatism among Malaysia’s majority ethnic Malay Muslims, posing a challenge to Prime Minister Anwar Ibrahim’s multi-ethnic ruling coalition.

The constitutional challenge was initiated by a Kelantanese lawyer and her daughter against laws covering sharia offenses passed by the state legislature in 2021.

The ruling sparked protests among some conservative Muslim groups, with about 1,000 demonstrators gathering outside the court complex in Putrajaya. They prayed and chanted “Allahu Akbar” as the judgement was delivered.

However, Justice Tengku Maimun clarified that the case did not question Islam’s position in the country but focused solely on whether the Kelantan legislature had exceeded its powers.

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

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, stating that the state would consult with its royal ruler, Sultan Muhammad V, on the decision and any further matters concerning Islamic law.

Nine of Malaysia’s 13 states are led by monarchs who serve as the custodians of Islam.

Speaking with Reuters, Nik Ahmad Kamal Nik Mahmod, a law professor at Malaysia’s Taylor’s University, suggested that Friday’s decision could trigger a “domino effect,” leading to challenges against sharia laws in other states.

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