Sharia versus Shariatisation in Malaysia: Which One Will Triumph?

On 9 February 2024, the Federal Court of Malaysia ruled that 16 sharia-related laws enacted in the state of Kelantan were unconstitutional. The state is run by the opposition Islamic party Parti Islam SeMalaysia (PAS). Many hoped that this landmark decision would put an end to the decades-long debate about the position of sharia laws in Malaysia. Eight out of nine judges on the federal court panel led by Chief Justice Tengku Maimun Tuan Mat assented to the judgment. Yet, PAS leaders framed the decision as a “dark day” for Muslims in the country, and several rallies were staged in protest. But PAS’ assertion is incorrect; sharia is broader than a set of laws. Its behaviour, nevertheless, only underscores its decades long “shariatisation” struggle.

Malaysia’s constitution recognises Islam as the religion of the federation. Malaysia’s judiciary adopts a dual legal system that separates civil and sharia courts. To better understand the reactions to the judgment, Malaysians should understand the sociological underpinnings of the debate rather than the theological or legal ones. Here they must distinguish between sharia, sharia laws and shariatisation.

Sharia essentially refers to broad principles such as justice, equality, and human rights. It is the holistic moral framework based on the Quran and Prophet Muhammad’s teachings. Sharia laws are the specific legal rules derived by Islamic scholars of the past, some of which are clearly stated in the Quran (hudud). The progressives argue that modern laws and punishments — such as fines, imprisonment, rehabilitative treatment, and compensation — may align with sharia principles and can apply to religious or non-religious offences. By contrast, conservatives interpret the punishments for offences spelt out in the Quran as fixed and immutable. These include hudud punishments such as stoning, caning, and amputation, which form only part of the larger sharia framework.

Shariatisation refers to the politicisation of the whole legal debate. Since the 1980s, several Muslim groups, including PAS, have pushed for more Islamic enactments, building new Islamic institutions and expanding the role of the sharia courts. Inspired by the 1979 Iranian revolution, and the rise of Salafi-Wahhabism in Saudi Arabia and the Gulf States, PAS championed for an Islamic state, a sharia criminal code, and leadership of the ulama in Malaysia. In 1990, the PAS government in Kelantan sought to introduce a sharia criminal code. The federal government led by Mahathir Mohamad and the United Malays National Organisation (UMNO) rejected the move, citing it as unconstitutional. PAS tried to introduce the criminal code in Terengganu in 2002 but failed for the same reason. Instead, the federal government allowed the expansion and building of new Islamic institutions to out-Islamise PAS. These included the Malaysian Department of Islamic Development (JAKIM) and the Malaysian Institute of Islamic Understanding (IKIM).

In 2017, the Najib Razak-led UMNO government allowed PAS to table a bill to amend Act 355 in Parliament to empower the sharia courts. Some read this as a compromise between UMNO and PAS, though others regarded this a political step by PAS to reach its more significant objective of implementing the sharia criminal code. The tabling of the amendment bill to Act 355 did not proceed further. In 2019, however, the PAS government in Kelantan passed the Kelantan Shariah Criminal Code (I) Enactment 2019. This led to the debate whether the federal government and not the state, should make laws about specific crimes through Parliament.

Shariatisation refers to the politicisation of the whole legal debate. Since the 1980s, several Muslim groups, including PAS, have pushed for more Islamic enactments, building new Islamic institutions and expanding the role of the sharia courts.

A mother and daughter duo challenged the constitutionality of the matter, and it was heard in the country’s highest court. During the course of a year and a half, the duo had to live with allegations of challenging the sanctity of Islam and death threats. The Chief Justice had to intervene, saying there was no intention to undermine Islam or the sharia court in this case, as the petition only asked whether the Kelantan State Assembly has the power to make certain laws.

With the growing strength of PAS in the Malaysian political landscape, this case has become an easy target for the party to accuse the current Anwar Ibrahim-led government of undermining the sharia criminal laws in all states. This idea of Islam and the sharia court being threatened was emphasised throughout the hearing of the case. After the court’s majority decision was read, PAS Secretary-General Takiyuddin Hassan called it a “Black Friday” for sharia law. The court had invalidated 16 of the 18 provisions in the Kelantan Shariah Criminal Code of 2019.

The current government has to bear the burden of the blame for allowing the case to proceed, with little acknowledgement that this legal challenge was filed in 2022, when Perikatan Nasional was in power. In fact, the Anwar-led government has formed a special committee to give the sharia court more power while the case was progressing in court with the possibility of the afore-mentioned amendments to Act 355 to be tabled in Parliament soon. Nevertheless, due to the difficulty of laymen to understand the technical aspects of the case, Anwar is accused of being undermined by the secularist Democratic Action Party (DAP), its partner in the Unity Government.

This decision only adds to PAS’ narrative that the government is undermining the sharia court, and the monarchy, as the custodians of Islam and Malay culture in Malaysia, may also be brought into the debate to “defend Islam’s sanctity”. PAS will continue to press the people to vote for Muslims in Parliament, as that seems to be the only way to implement sharia law as they understand it or defend the Constitution. Their success, however, will depend on whether the Muslim electorate has the appetite for shariatisation and associated sharia laws, despite other pressing social and economic problems within the country.

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