Written by Joshua Wu
Photo by Middle East Institute
On 7th September 2019, the Selangor Islamic Religious Department (JAIS) conducted a raid at a centre in Gombak and arrested 23 individuals for investigation under Shariah law for opposing the fatwa on the practice of Shi’ism. This is not a new matter as JAIS and other Islamic religious authorities have conducted similar raids in the past.
Suhakam Commissioner, and former Court of Appeal judge, Datuk Seri Mohd Hishamudin Md Yunus, was recently reported as having said that Article 3 of the Federal Constitution, which establishes Islam as the religion of the Federation, does not specify a denomination or school of jurisprudence. This would be a correct observation as Article 3 of the Federal Constitution merely states the following:
“(1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
(2) In every State other than States not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State in the manner and to the extent acknowledged and declared by the Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observance or ceremonies with respect to which the Conference of Rulers has agreed that they should extend to the Federation as a whole each of the other Rulers shall in his capacity of Head of the religion of Islam authorize the Yang di-pertuan Agong to represent him.
(3) The Constitution of the States of Malacca, Penang, Sabah and Sarawak shall each make provision for conferring on the Yang di-Pertuan Agong shall be Head of the religion of Islam in that State.
(4) Nothing in this Article derogates from any other provision of this Constitution.
(5) Notwithstanding anything in this Constitution the Yang di-Pertuan Agong shall be the Head of the religion of Islam in the Federal Territories of Kuala Lumpur and Labuan; and for this purpose Parliament may by law make provisions for regulating Islamic religious affairs and for constituting a Council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam.”
However, as lawyer Aidil Khalid pointed out, the Supreme Court in Mustak Ahmed bin Dato’ Haji Abdul Rahim Gulam Rasool Shaik v Abdul Wahid bin Dato’ Haji Abdul Rahim Gulam Rasool Shaik & Ors  2 MLJ 449 [Mustak Ahmed] has held that, “as enshrined in our Constitution, the official religion Malaysia is the Islam of the Shafie sect from the school of Ahli Sunnah Wal Jamaah (Sunnis).”
Though the Federal Constitution does not in and of itself define or elaborate on the term “Islam,” it would appear that the highest court of the land has developed jurisprudence on this matter and therefore “Islam” refers to Sunnism. It is worth noting at the outset that there are incidental remarks (obiter dicta) by High Court judges to the effect of recognising Shi’ism as an Islamic school of jurisprudence.
For example, Hamid Sultan JC (as he then was) in Yong Fuat Meng v Chin Yoon Kew  5 MLJ 226 said that, “To understand and appreciate Islamic jurisprudence one needs to have some knowledge in respect of the two main juristic schools of jurisprudence in Islam. They are the sunni school and the shia school.”
Further, Suriyadi J (as he then was) in Arab-Malaysian Merchant Bank Bhd v Silver Concept Sdn Bhd  5 MLJ 210 held that, “In light of the existence of the branches of Sunni and Shia worldwide, with the former comprising no less than four Mazhabs/sects, what is, and what is not approved by the religion of Islam in relation to the banking business have occasioned the raising of many thorny questions.”
However, the above remarks were not made in the context of judicial interpretation vis-à-vis Article 3 of the Federal Constitution and thus should not be taken as providing an interpretation of the term “Islam” which is contrary to Mustak Ahmed.
Notwithstanding the above, I would like to explore the logical conclusion of the interpretation put forth in Mustak Ahmed (supra). My proposition is as follows:
“If Shi’ism does not fall within the definition of “Islam,” per Article 3 of the Federal Constitution, Islamic religious authorities do not have authority over Shi’ites.”
List II of the Ninth Schedule to the Federal Constitution contains a list of items under the purview of the State Legislative Assemblies. Those items include “Islamic law and personal and family law of persons professing the religion of Islam” and the “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.”
Reading List II of the Ninth Schedule together with the interpretation of “Islam” in Mustak Ahmad (supra), the inescapable conclusion is that the State Legislative Assemblies – which pass laws creating and empowering state religious authorities – only have jurisdiction over Sunnis.
As for the Federal Territories, Article 3(5) of the Federal Constitution (cited above) provides that “Parliament may by law make provisions for regulating Islamic religious affairs and for constituting a Council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam.” Read together with Mustak Ahmad (supra), it is also an unavoidable deduction that the Federal Territories Islamic Religious Department only has jurisdiction over Sunnis.
You cannot have your cake and eat it. Shi’ism either:
i) falls under the definition of “Islam” in Article 3 of the Federal Constitution and thus Shi’ites are under the purview of Islamic religious authorities; or
ii) does not fall under the definition of “Islam” in Article 3 of the Federal Constitution and thus Shi’ites are not under the purview of Islamic religious authorities.
If it is the former, it is contrary to narrow the interpretation of “Islam” advocated in Mustak Ahmed (supra). If it is the latter, Shi’ism “may be practised in peace and harmony in any part of the Federation” and have “the right to profess and practise his religion and, subject to Clause (4), to propagate it.”
The argument above can be made with regard to Ahmadiyyahs thoughts in the case of Ahmaddiyahs, the High Court has ruled that JAIS has no authority over the former by virtue of a “fatwa gazetted by the state in 2001 that this group was considered as apostates.” The matter is currently on appeal. It remains to be seen whether, in the absence of such a gazetted fatwa, Ahmaddiyahs would still be subject to JAIS’ authority.
In Abdul Hakim @ Ramizu bin Othman & Ors v Menteri Dalam Negeri, Malaysia  12 MLJ 686 [Abdul Hakim], Azizah Nawawi J (as she then was) held that “… the practice of the ideologies of Hizbut Tahrir is not an integral practice of the religion of Islam and is therefore not protected by art 11(1) of the Federal Constitution. Based on the Fatwa issued by the State of Selangor on 17 September 2015, it is clearly established that practicing the ideologies of Hizbut Tahrir is contrary to the true teachings of Islam in accordance with Sunnah Wal Jama’ah, and amounts to deviant teaching and practices.”
Her Ladyship relied on Mamat bin Daud & Ors v Government of Malaysia  1 MLJ 119 and concluded that, “The protection [in Article 11(4) of the Federal Constitution] is not just against other religions but includes certain schools of thoughts and opinion within the Islamic Religion itself, such as the deviant ideologies and teachings of Hizbut Tahrir in the present case.”
What can be gleaned from Azizah Nawawi J’s decision is that Hizbut Tahrir falls under the “Islamic Religion” and thus Islamic religious authorities are able to act against Hizbut Tahrir adherents for their deviant ideologies and teachings. Though Her Ladyship did not express the above in the context of Article 3 of the Federal Constitution, it would be a reasonable assumption to make that in referring to the “Islamic Religion,” Her Ladyship would have equated it with “Islam” in Article 3.
If it is so, it would then appear that Her Ladyship’s broad interpretation of “Islam” runs contrary to the narrow interpretation in Mustak Ahmed. Should Azizah Nawawi J be correct and Mustak Ahmed be wrong, “Islam” in Article 3 of the Federal Constitution has to be defined, be it via authoritative judicial determination or constitutional amendment, to encompass “schools of thoughts and opinion within the Islamic Religion” yet at the same time affirming the “Shafie sect from the school of Ahli Sunnah Wal Jamaah” as being the correct interpretation of Islam.
1. Joshua Wu Kai-Ming, LL.B (Hons) London, CLP. Advocate & Solicitor of the High Court of Malaya.
2. “JAIS raids Shia Muslim event at Gombak, arrests 23”, Free Malaysia Today, 7 September 2019, 16 September 2019 <https://www.freemalaysiatoday.com/category/nation/2019/09/07/jais-raids-shia-muslim-event-at-gombak-arrests-23/>
3. For example, “More foreigners arrested in fresh raids on private Shia functions in Johor, Selangor”, Free Malaysia Today, 10 September 2019, 16 September 2019 <https://www.freemalaysiatoday.com/category/nation/2019/09/10/more-foreigners-arrested-in-fresh-raids-on-private-shia-functions-in-johor-selangor/>;
“200 Iraqi Shias released in Selangor after pressure from Baghdad”, Free Malaysia Today, 1 October 2017, 16 September 2019 <https://www.freemalaysiatoday.com/category/nation/2017/10/01/200-iraqi-shias-released-after-pressure-from-baghdad/>; and “Kelantan nabs Shia Muslims in Merdeka eve raid”, Free Malaysia Today, 31 August 2018, 16 September 2019 <https://www.freemalaysiatoday.com/category/nation/2018/08/31/kelantan-nabs-shia-muslims-in-merdeka-eve-raid/?fmt=1>
4. Jerry Choong, “Constitution does not specify Islam as exclusively Sunni and Shafie, Suhakam rep says”, Malay Mail, 12 September 2019, 16 September 2019 <https://www.malaymail.com/news/malaysia/2019/09/12/constitution-does-not-specify-islam-as-exclusively-sunni-and-shafie-suhakam/1789835>
5. PART I – THE STATES, RELIGION AND LAW OF THE FEDERATION” Common LII, 16 September 2019 <http://www.commonlii.org/my/legis/const/1957/1.html>
6. Aidil Khalid, Facebook, 13 September 2019, 16 September 2019, <https://m.facebook.com/story.php?story_fbid=10221485700152324&id=1245669741>
7. “NINTH SCHEDULE LEGISLATIVE LISTS”, Common LII, 16 September 2019 <http://www.commonlii.org/my/legis/const/1957/24.html>
8. For example, in Selangor, there is the Enakmen Pentadbiran Agama Islam (Negeri Selangor) 2003. In Johor, there is the Enakmen Pentadbiran Agama Islam (Negeri Johor) 2003.
9. Article 3(1) of the Federal Constitution
10. Article 11(1) of the Federal Constitution
11. “JAIS has no right to stop Ahmadiah Muslims, court rules”, Free Malaysia Today, 6 July 2018, 16 September 2019 <https://www.freemalaysiatoday.com/category/nation/2018/07/06/jais-has-no-right-to-stop-ahmadiah-muslims-court-rules/>. See also Maqsood Ahmad & Ors v Ketua Pegawai Penguatkuasa Agama & Ors  9 MLJ 596
12. Azril Anuar, “Jais can probe Ahmadis as their ICs state they are Muslims, court told”, Malay Mail, 10 May 2019, 16 September 2019 <https://www.malaymail.com/news/malaysia/2019/05/10/jais-can-probe-ahmadis-as-their-ics-state-they-are-muslims-court-told/1751591>
13. The Supreme Court held that, “The purpose of this restriction is to provide the states with the power to pass a law to protect the religion of Islam from being exposed to the influences of the tenets, precepts, and practices of other religions or even of certain schools of thoughts and opinion within the Islamic Religion itself.”