Legislation and Regulation of Islamic Law in Malaysia

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By Intisar Rabb*

This essay examines recent developments in Malaysia that spotlight sharīʿa (Malay: syariah), or Islamic law, in both its federal laws and in some state criminal laws and policies. Rather than a single upward arc of sharīʿa in each sphere, arguably, these developments show crisscrossing arcs. They show contrast between state and federal laws seeking to simultaneously expand and regulate aspects of sharīʿa’s authority and reach, on the one hand, and government regulation and judicial decisions that simultaneously accommodate and constrain the same, on the other. To say that there is no single upward arc is to say that these recent developments do not simply expand the legislation and adjudication in way that makes sharīʿa dominate law and society in Malaysia.  To say that there are myriad crisscrossing arcs is to say that some developments operate to expand the reach of sharīʿa in legislation and criminal law enforcement, for example, while other developments reveal debates about the same or operate to constrain it in adjudication and politics.

The new federal and state laws regulating Islamic law, as well as a major court case assessing the constitutionality of state Islamic criminal law, have sparked considerable debate. Debates range from alternating support and opposition among ordinary Malay citizens and the popular press to Malaysian constitutional law scholars, state-appointed muftis, and other Islamic law-trained experts in local universities and madrasas. Debates also percolate in the national parliament, among state government leaders, and in the court. Amid the debates, it is notable that, in both federal and state contexts, the appeal of sharīʿa seems to be largely a popular and populist one.[1]

Ultimately, legislators will vote on the laws and courts will assess their constitutionality. Malaysian high court judges are charged with balancing between the Malaysian Constitution’s twin goals of accommodating a federalist structure for sharīʿa in the states and reserving the powers of the federal government and the national parliament.[2] In the states, local sultans are heads of both the state and Islam locally, which confers on them authority over exclusive matters of Islamic law. In the federal government, the King and national legislature have authority over Islam and lawmaking, respectively and in cooperation over criminal law and other federal legislation.[3] As new laws emerge on or expand the ambit of sharīʿa, the courts assess their constitutionality and mediate between state and federal authority.

This essay examines sharīʿa in Malaysia, with a focus on three recent and highly charged developments in federal and state legislation and regulation governing sharīʿa generally and Islamic criminal law specifically: (1) proposed federal legislation that would expand the role and authority of muftis over issues of Islamic law-as-state law (the so-called Mufti Bill of 2024); (2) a 2024 federal court case that invalidated major portions of the 1985 Islamic Criminal Code of the State of Kelantan (as amended in 1993 and 2019)—with implications for an additional nine sharīʿa-based state criminal codes in Malaysia; and (3) recent Islamic criminal law enforcement for minor offenses, using public caning for the crime of illicit male-female relations (khalwat: intimate proximity by an unmarried couple), in the State of Terengganu. In what follows, this essay addresses each in turn in Parts I, II, and III, respectively. For anyone wishing to start with an overview of Malaysia’s system, Part II offers such an overview, sketching the Malaysian system of Islamic constitutionalism, the Malaysian system of Islamic criminal law, and the Malaysian judicial structure that mediates between the two in the course of examining the recent 2024 case. A “resource roundup” follows in an Appendix, providing references to relevant primary and secondary sources that provide further reading with the aim of helping readers better situate the country’s constitutional law, federal law, and state law on the scope of sharīʿa and Islamic criminal law in Malaysia.

I.     The Federal Mufti Bill of 2024

The Malaysian governing party proposed the federal Mufti Bill of 2024 (the “Mufti Bill” or “Bill”) as a way to further define and regulate the reach of sharīʿa.[4] First introduced in summer 2024 by the Minister of Religious Affairs, Datuk Dr. Mohd Na’im Mokhtar, the Bill reportedly was conceived by the prior government’s plan to comprehensively address the scope of sharīʿa in Malaysian federal law (that is, in the federal territories including Kuala Lumpur, Labuan, and occasionally Putrajaya).[5] The Mufti Bill has received strong support and forceful opposition perhaps in equal measure—with some seeing it as a “crucial step forward” in balancing between state and Islamic law, and others wary of unchecked power, constitutional rights-infringements, or human-rights violations that they see as often inherent in sharīʿa-based laws.[6] The Mufti Bill was “tabled” for a first reading in parliament in July 2024—a necessary step toward a vote and passage.[7] The Mufti Bill is expected to be scheduled for a second reading in the next parliamentary session, beginning in February 2025.[8]

Who are the muftis of Malaysia and what do they do? Muftis are scholars of Islamic law who are appointed to government agencies for the administration of Islamic law in both the federal territories and the states. Historically, fatwās are typically non-binding legal opinions, often “used interchangeably with legal reasoning” given by “a learned scholar of sharīʿa over an issue in which a response has been solicited.”[9] Fatwās are issued by a muftīs who are appointed by the King in consultation with an Islamic Religious Council (majlis)—comprised partly of government civil servants, partly of scholars of Islamic studies and/or law.[10] This same system operates in the states, where each state monarch appoints a local mufti and members of an Islamic Religious Council in their respective states, except that the Council for the federal territories recommends muftis for five states without a local monarch.[11] In coordination with their respective Islamic Religious Councils, muftis in both federal and state jurisdiction provide advice to the national or local monarchs and legislatures on matters of Islamic law relevant to state law; supervise Islamic education and answer ad hoc questions about Islamic law from laypeople seeking to maintain the requirements of their chosen level of religious adherence; and determine how to perform common rites of marriage, burials, alms-tax payments, the start of Ramadan fasting, and the like.[12]

Muftis and the regulation of sharīʿa in Malaysia are not themselves new. Well prior to a rash of laws enacted to govern the scope and authority of fatwās about forty years ago, local authorities enjoyed fatwā-making power that assumed the status of law in most states.[13] Under current Malaysian laws, mainly enacted in the 1990s and amended in the decades since, state and federal laws create processes for issuing official fatwās that assume the status of law and require approval by the monarch and state (or federal) executive council to be published as law in the gazettes, without a requirement for parliamentary debate and approval. In both federal and state jurisdictions then, fatwās issued pursuant to these statutory processes assume the status of law for local residents (either in the states or the federal territories), except for matters of personal matters of practice and belief.[14] These laws accordingly require sharīʿa courts in their respective state and federal territories to recognize and adjudicate questions involving fatwās. Such adjudication could include matters ranging from civil law divorce settlements and inheritance disputes to matters of criminal law.[15]

Beginning with new Islamic criminal law legislation first passed in the 1980s and 1990s, Malaysian federal and state statutes started to impose criminal penalties for violations of duly passed fatwās, among other provisions. Penalties may include fines or imprisonment of up to three years depending on the type and severity of offense.[16] For example, the Administration of Islamic Law (Federal Territories) Act of 1993 provides guidelines for the process of issuing fatwās.[17] And the Criminal Offenses (Federal Territories) Act of 1997 elaborates those processes and imposes penalties for any Muslim who “gives, propagates, or disseminates any opinion contrary to any fatwā” in force.[18] State laws follow a similar structure of detailing processes for issuing fatwās and creating criminal penalties for their violation.[19]

How would the proposed Mufti Bill change current Malaysian laws, and why does it raise such ire in some circles and find support in others?[20] The proposed Mufti Bill does not appear to alter the role of state muftis unless their fatwās touched on federal law.[21] Rather, the new Mufti Bill would alter the role of the mufti in the federal territories in three important ways:

First, the Mufti Bill builds on existing processes for issuing fatwās, and details new personnel and procedures. It renames the Islamic Legal Consultative Committee (art. 37 of the existing law) the Fatwa Committee, modifies its composition,[22] and elaborates its functions to include the following: discuss novel questions of Islamic law, issue fatwās on related issue at the request of the King, a mufti, or “any person;” draft official fatwās; and perform other such related tasks necessary to “perform its function effectively.”[23] Part IV of the Bill outlines more detailed processes for issuing fatwās, including those affecting the national interest. Critics argue that the national interest-based fatwās leave open the question whether such fatwās, if not published in the gazettes, carry the authority of state law—raising the specter of unconstitutional legislation and religious overreach, that may render the law subject to constitutional legal challenges.[24]

Second, the Mufti Bill further defines the qualifications for muftis to include mainstream Sunnī scholars of Islamic law, and limits interpretation to the ambit of that Sunnī legal, theological, and Sufi-spiritual traditions.[25] That is, Article 3(2) specifies that a qualified mufti, in addition to being a Malaysian citizen and having expertise in Islamic law, must adhere to the Ahli Sunah Waljamaa—using the classical phrase in Arabic Ahl al-Sunna waʾl-Jamāʿa that refers specifically to Sunnī Muslims as people of the Prophet’s “tradition and larger community.” [26] Article 16 details guidance for issuing fatwās—limiting them to the majority opinion (qaul muktamad; Ar. qawl muʿtamad) of the Shāfiʿī school; or to that of one of the other Sunnī schools if necessary to avoid outcomes “repugnant to the public interest;” and otherwise relying on recognized means of Islamic legal reasoning (ijtihād), again, if necessary to avoid outcomes that are “repugnant to the public interest.”[27] New elements of the Bill define the theological and spiritual traditions that make up mainstream Sunnī tradition, and further define the process for fatwā-issuance, including the sequence and content of sources to be consulted and relied upon. Critics see the specificity as a potential flag for intrusions of sharīʿa into state law inasmuch as other provision obscure the legal status of fatwās that have not been gazetted (namely: it is silent on whether Muslims may still diverge from fatwās that are contrary to their personal beliefs).[28]

Third, the Bill introduces an “Islamic Religious Teaching Supervisory Committee” to supervise matters of religious education, and an “Akidah Consultant” to opine on matters of religious belief or, more literally, religious-theological doctrine.[29] Most concerning critics, the akidah consultant is tasked with encouraging Muslims thinking of leaving the faith to stay Muslim, providing reports and recommendations to sharīʿa courts on matters of religious doctrine, and other functions as directed by the mufti.[30] These provisions are “of particular concern” to civil rights groups because it seems to make redundant an existing Akidah Consultation Unit and seems to provide broad scope for the new akidah consultant who may, under the Bill, determine his own procedures for rendering advice and opinions. According to the legal-civil rights organization Sisters in Islam, these “vague yet vast provisions [generate] … high concern that such interventions risk violating Articles 5 and 8 of the Federal Constitution, which protect personal liberty and guarantee equality. This role will likely lead to coercion in personal matters of faith, infringing on the right to religious self-determination. Malaysia’s reputation as a diverse, multi-faith nation is at risk, and the bill threatens to plunge the country into a situation where religious conformity is mandated and enforced by law, thus stripping away the core tenets of personal freedom.”[31]

Abstracting out from the Bill’s new provisions and critiques, as noted, the Mufti Bill has more broadly received both support and opposition,[32] which many analysts suggest is a conundrum closely connected to and ultimately to be resolved by the new government led by current Prime Minister, Dr. Anwar Ibrahim—popular referred to as “Anwar”—following his recent remarkable political career and recent return to political leadership.[33] A young star in politics in his early years, Anwar ran out of political favor and became the one-time leader of the Reformasi movement in 1998 that he launched in the wake of his dismissal from the role of deputy to long-serving Prime Minister Mahathir Mohamad.[34] Not long after, Anwar’s wife, Dr. Wan Azizah Wan Ismail, formed the People’s Justice Party in 2003 at the height of the Reformasi movement;[35] and she later went on serve in several roles inside of the political mainstream, including as Deputy Prime Minister from 2018 to 2020.[36] Meanwhile, Anwar faced alternating prison stints and political successes.[37] Anwar himself finally returned to office in 2022—26 years after his initial dismissal.[38]  He now presides over the People’s Justice Party (a successor to the opposition National Justice Party, formed by his wife, and the socialist Malaysian People’s Party).[39] Anwar also presides over a national unity government (Malay: Kerajaan Perpaduan) that some project to last for the foreseeable future.[40] It is this coalition government, with both mainstream and reformist elements, that will mediate between the support and opposition for Mufti Bill as well as implement the law if passed.

On the side of support are religious figures, politicians, and members of the general public.[41] For example, several state muftis support the Mufti Bill.[42] Other proponents of the Mufti Bill argue that it will improve the consistency of Islamic rulings throughout Malaysia.[43] And the Mufti Bill seems to enjoy popularity among many Malay Muslims seeking a balance between religion and state law,[44] as well as those concerned with cultural-religious sensibilities that demand respect for Islam in the public sphere.[45] Finally, the Bill reportedly resonates with Malay citizens keen on realizing promises of a better economy,[46] as well as religion-regarding and religion-minoritarian groups interested in democratic good governance.[47]

On the side of opposition are also religious figures and Islamic law-scholars, constitutional law scholars and civil rights groups, and ordinary citizens as well. Prominent civil society groups and other Malay citizens fear that the Bill will confer unchecked Islamic legal authority on unelected officials, in ways open to abuse or threatening the interpretive autonomy of Islamic law scholars not under the federal Muftis’ purview.[48] Among legal scholars, the locus of the debate falls on the question whether the King, who is constitutionally empowered to govern Islamic affairs in the federal territories—which he accomplishes through the advice of the mufti,[49] may pass a bill that may impinge on parliamentary prerogatives and duties or that fails to pass through a parliamentary voting process. A related question is whether the Mufti Bill unconstitutionally grants muftis powers directly that the Constitution reserves exclusively to the King. On those grounds, muftis in several states oppose the Bill, along with some constitutional and government lawyers.[50] Those same lawyers worry that a federal mufti can potentially make any act an offense under the Syariah Criminal Offences Act of 1997[51]—a concern that touches on the second area of major developments in Islamic law in Malaysia last year: federal court adjudication about state Islamic criminal law (addressed next).

II.   2024 Court Ruling on the Islamic Criminal Code of Kelantan (1982, as amended)

On February 9, 2024, Malaysia’s highest court, the Federal Court of Malaysia, declared unconstitutional several provisions of the State of Kelantan’s Islamic Criminal Code.[52]  The 8 –1 decision was authored by Chief Justice Tengku Maimun Tuan Mat on behalf of the majority.[53] Justice Abdul Rahman Sebli (the Chief Justice of Sabah and Sarawak) authored a separate dissenting opinion.[54] In response, Kelantan State legislators announced plans to issue new Islamic criminal law legislation.[55]

Globally, of approximately two dozen comprehensive Islamic criminal law codes that apply country wide or in select autonomous regions or federated states,[56] Malaysia’s States of Kelantan, Selangor, Terengganu are instances of the latter category: all three states initially adopted Islamic criminal codes, respectively, in 1985 as revised in 1993 and 2019 (Kelantan), 1995 (Selangor), and 2001 as revised in 2002 and 2022 (Terengganu).[57] The national Parliament also passed a similar code for Malaysia’s Federal Territories (covering Kuala Lumpur, Labuan, and Putrajaya) in 1997 as revised in 2006.[58] Most states have passed statutes specifying limited punishments for sharīʿa-based minor offenses.[59]

Where do Malaysia’s recent criminal laws and the court adjudication about it fit in global and local context, constitutionally and legislatively? This section provides an overview of Malaysia’s brand of Islamic constitutionalism, Kelantan’s version of Islamic criminal law legislation, and the federal judicial decision that assessed and ultimately rejected most of that law.

A.   Malaysian Islamic Constitutionalism: Federalist, Parliamentary, Islamic

Constitutionally, Malaysia is a federal parliamentary constitutional monarchy, with a long-standing Muslim identity. Islam first came to the region in the 10th century and spread throughout Southeast Asia—encompassing present-day Malaysia, Indonesia, and Singapore—between the 13th and 17th centuries through Arab and Indian merchants.[60] After periods of occupation by Portuguese forces, the Dutch—via the Dutch East India Company—and the British colonial authority called the “Resident,” the Federation of Malaya, comprising eleven states, attained independence in 1957 (to which three were added, and one seceded).[61] The Constitution of Malaysia—comprising the initial 11 states plus the additional two Borneo states—was ratified in 1957 (and most recently amended in 2007).[62]

Malaysia’s system of governance may be characterized as a system of “dominant Islamic constitutionalism” in a parliamentarian-federalist system.[63] It establishes Islam as the religion of state and makes the monarch-Sultan the head of state, parliament, and religion (except for jurisdiction over religion and Islamic law conferred on the states).[64] The Prime Minister heads the executive branch, Parliament issues laws in areas reserved for the federal government, and the judiciary maintains two parallel justice systems: civil/criminal courts that apply to the whole country, and state-level sharīʿa courts that apply only to Muslims.[65] Unusually, the Constitution defines “Malays” with respect to territoriality and as those who profess Islam as their religion.[66]

In allocating federal versus state powers over religion, the Malaysian Constitution makes the King the overall representative of Islam generally and in the federal territories;[67] and it confers jurisdiction over Islamic law primarily to states, represented by state leaders who are former sultans as the heads of Islam locally.[68] Further, it gives each state control over sharīʿa courts (called “Syariah Courts”)—including over criminal offenses that fall exclusively under sharīʿa as traditionally understood.[69] Exceptions to this general states’ rights province of Islamic law apply to the federal territories of Kuala Lumpur, Labuan, and Putrajaya—where Islamic law falls under the authority of the national legislature.[70]

In sum, Malaysia entails a dual-track legal system. Islamic criminal and family laws are applicable to Muslims alongside secular laws. Institutions that regulate and subsidize ritual rites and obligations are available to Muslims, and instruments and institutions of Islamic finance are available throughout the country.

B.    Malaysian Islamic Criminal Law: State Legislation

Islamic criminal law in the Malaysian State of Kelantan—a region known for its a strong attachment to its Islamic history and identity[71]—is not new. Kelantan’s Legislative Assembly initially passed an Islamic Criminal Code in 1985, then substantially revised it in 1993 and again in 2019.[72] The 2019 Code came into force in 2021.[73]

As revised, Kelantan’s 2019 Islamic Criminal Code contained over 68 sections, which was an increase of 33 sections from the 1993 amendments; and it criminalized a range of offenses that state lawmakers assumed fell within their state legislative powers over sharīʿa.[74] Some of the new offenses included fornication and adultery (zinā), same-sex sexual acts (liwat and musahaqah), incest, intoxicating drinks, sorcery, indecent acts, incest and sexual intercourse with a corpse or non-human.[75] The 2019 Code also incorporated the harsher penalties that the federal Syariah Courts (Criminal Offenses) Act of 1989 permitted—ranging from punishments of three years’ imprisonment, six lashes of the cane, and fines of 5000 RM.[76]

Islamic criminal law in Kelantan is also not unique. All but two of Malaysia’s states have enacted Islamic criminal codes—typically for minor offenses—in the 1990s.[77]

In 2024, two Kelantan residents, a mother-daughter pair, challenged the constitutionality of the Code under the Malaysian Constitution’s Article 4(4),[78] which empowers states to legislate on Islamic civil and criminal law matters that have not already been addressed by the federal government.[79]

C.    Case Summary: Zurina & Natasha v. Kelantan (Malaysian Federal Court 2024)

The question presented in the case challenging Kelantan’s Islamic Criminal Code—Zurina & Yasmin Natasha v. Kelantan (2024), was not whether the State legislator’s decision to pass such a Code into law or whether the substantive principles within that Code were valid.[80] Rather, the question presented was whether Kelantan overstepped its authority when legislating sharīʿa-based criminal provisions that had already been addressed by federal legislation.[81] According to the Court, the case “ha[d] nothing to do with the substantive principles of Islamic law or its position in this country;”[82] the Court further emphasized that “the Islamic principles of aqidah, syariah or akhlak [that is, Islamic beliefs, laws, ethics] are not matters for our consideration.”[83]  The sole issue, as the Court understood it, concerned whether the state of Kelantan or the federal government of Malaysia is authorized, as a matter of constitutional law, to enact state criminal laws based on or inspired by sharīʿa.

The Court determined that, of the 18 challenged provisions, 16 provisions were unconstitutional because they covered existing federal criminal legislation or fell into areas that were clearly of national concern—covering various measures of sex acts, financial crimes, and other “vices.”[84] Specifically, the Court invalidated the following Sections of the Kelantan Syariah Criminal Code: Sections 11, 14, 16, 17, 31, 34, 36, 37(1)(b), 39, 40, 41, 42, 43, 44, 45, 47 and 48.[85] The Court upheld two of the challenged provisions as constitutional: prohibitions against selling or giving away children to non-Muslims or to those of reprehensible moral character and speech acts that threatened to incite violence.[86] In so ruling, the Court clarified that the category of “precepts of [Islam]” listed in the Constitution as matters for state regulation extends in criminal law only to “offences that are purely religious in nature.”[87] It further clarified that the Constitution generally reserves legislation on “criminal law and procedure” to regulation by the federal government.[88] In sum, the Court concluded, the 16 sharī‘a-based or inspired Kelantan state laws that it invalidated regulated matters that were not purely religious but instead implicated non-religious concepts of public order.[89]

In declaring the state Islamic criminal law provisions unconstitutional, the majority relied on the constitutionally enshrined principle of federalism rather than engaging in a substantive discussion of Islamic law and its principles. That is, the Court held that the state of Kelantan’s interpretation of federalism, by which it sought to pass sweeping criminal law provisions, was incorrect on two grounds. First, the Court held that the federal government retains authority over serious crimes, even when it does not enact laws that cover them all; its failure to pass legislation does not confer a right on states to do so.[90]  Second, the Court reasoned, whereas the federal government retains authority over certain criminal laws, Kelantan was under the misapprehension that states could enact any and all laws as long as they dealt with the precepts of Islam.[91]  Reviewing Malaysian constitutional history, the Court concluded that “the primary powers of legislation were given to the Federation including the powers to legislate generally on civil and criminal law, and procedure.”[92] In the end, the Court determined that each of the sharīʿa-based or sharīʿa-inspired Kelantan state laws at issue regulated a matter not purely religious and instead implicated non-religious concepts of public order and governance.[93]

To be sure, the Court recognized that “the official religion of Malaysia is Islam[.]”[94] Furthermore, the majority opinion recognized the category of “precepts of Islam” in the Constitution as one that allows state regulation.[95] However, the Court also noted that Malaysia is a multi-ethnic and multi-religious society, for which reason “our general criminal law needed to be developed such that it could be applied equally to all persons regardless of race or religion[,]”[96] and that “criminal law and procedure” are reserved to the federal government, not to states.[97] Moreover, the Court observed that permissible areas of state regulation of sharīʿa extend only to “offences that are purely religious in nature,”[98] which does not extend to ordinary criminal law and procedure.

The dissenting justice would have dismissed the case on grounds of standing.[99] In his view, the two petitioners had not demonstrated a direct injury from the challenged state laws.[100] As he put it: “The petitioners have completely failed to clear this hurdle by failing to point out which of their constitutional rights . . . are or have been violated by the impugned provisions.”[101] Accordingly, he would have dismissed the case for lack of standing.

In an act of defiance following the federal Court’s ruling, which may set Malaysia up for a constitutional crisis, the Kelantan government is poised to reenact the 16 annulled provisions.[102] Its State Legislative Assembly reportedly passed a motion to that effect in March 2024, one month after Court’s ruling.[103] Other legislators called for further amendments that remained within the four corners of the Court-delineated authority of the States over matters of Islamic criminal law. While such amendments would preserve and possibly expand the judicially regulated and circumscribed criminal law, re-enactment of old and invalidated provisions would set the stage for a constitutional crisis.[104]

III. 2024 Criminal Law Enforcement in Terengganu

As noted above, alongside two other Malaysian States and the federal government, the State of Terengganu enacted an Islamic Criminal Code in 2001, expanded its provisions in 2002, and amended it in 2022.[105] The 2001 laws declared a set of discretionary crimes and punishment based on Islamic law (taʿzīr).[106] The 2002 provisions announced fixed crimes and punishments for major offenses under Islamic law (ḥudūd and qiṣāṣ laws), with a broad-based understanding that those laws are not enforceable, as their punishments exceed the maximum punishment allowed under federal law for sharīʿa offenses (Law 355): 5000-ringet fines, three years’ imprisonment, or six lashes.[107]

The 2022 amendments both expanded and regulated the sharīʿa-based penal provisions in the State. Expanding the reach of the law, those amendments affirmed or expanded certain provisions—including punishment of couples who create pregnancy out of wedlock, those who publicly consume alcohol, and those who publicly disregard rules of fasting during the month of Ramadan.[108] But constricting and further regulating the reach of the law, those same amendments render some of the 2001 provisions moot as outmoded (including, for instance, provisions with gendered language that led to penalization of women only, as with Section 35—previously setting punishments only for women for public indecent exposure).[109] Moreover, the 2022 amendments set forth alternative punishments to the maximum sentences allowed under federal law to include home counselling assignments and commitment to rehabilitation centers in addition to or in lieu of the more punitive sentences (Part 2, Sections 3–7, 8, 9, 10, and 38; and Part 4, Sections 24–36A).[110]

At the end of December 2024, Terengganu officials enforced the punishment for a recent conviction: they publicly caned a man with six lashes, consistent with state and federal law.[111] The stated crime was a third offense of khalwat: close or intimate proximity to a non-family member of the opposite sex.[112] The month prior, the defendant has pleaded guilty to a third-time offense, and the Terengganu Syariah High Court sentenced him accordingly.[113] (For the first and second offenses, in 2023 and earlier in 2024 respectively, he had been fined and punished with four strokes of the cane, in private.[114]) With this third offense, 70 pre-selected observers—ranging from government officials to journalists and NGO representatives—witnessed the punishment at the Al-Muktafi Billah Shah Mosque.[115] The caning reportedly lasted two minutes.[116] This punishment against this defendant is apparently only the second time that the State of Terengganu has carried out a public caning under its Islamic criminal code,[117] the first being in 2018, against two women convicted of public lesbian sex in a car.[118]

Similar to the Federal Mufti Bill and the recent Federal Court case on the State of Kelantan’s Islamic Criminal Code, this episode raised debate among lawyers and muftis across the country. Public caning meets with support and opposition alike. Some lawyers associations, witnesses, and scholars support the practice—arguing that it was applied in a humane way that did not injure the defendant, that decreased prison time and expense, and that was more likely to serve as a more effective deterrent to commission of the offense for repeat offenders.[119] The mufti of the State of Sabah, Datuk Bungsu Aziz Jaafar, announced support for the practice as aligned with general principles of Islamic law,[120] even as Datuk Mohd Arifin Mohd Arif, a state religious affairs executive councilor, announced that Sabah would not implement public caning.[121] Finally, Pan-Malaysian Islamist Party (PAS) spiritual leader Hashim Jasin called for every state to follow Terengganu’s lead in enforcing Islamic criminal punishments (i.e., caning) publicly, to better “uphold and honour Islamic law.”[122] But, on the other side, prominent mufti for the State of Perlis, Datuk Mohd Asri Zainul Abidin, opposed the practice, writing online that “[t]here is no stipulation in Islamic law requiring khalwat (close proximity) offenders to be caned in public,” and that “[i]n fact, public caning for such offences may contradict the principles of Islamic law which calls for a person’s faults to be concealed.”[123] Legal scholars have specifically denounced Islamic criminal punishments in East Malaysia,[124] and—citing the Perlis mufti’s opposition—activists from the region reject PAS spiritual leader Hashim Jasin’s calls for such punishments as contrary to local norms and modern rights.[125] The Malaysian Bar president, the Parliament-established Human Rights Commission of Malaysia, and others argued that the law undermines defendants’ fundamental sense of dignity and urged lawmakers to consider whether and how to invalidate the practice under Article 5 of the Federal Constitution, which does not contemplate public whipping.[126] (Ten out of Malaysia’s 13 states have Syariah Offense Enactments and at least nine have implemented caning for violations of these laws, usually conducted in jail.[127])

Appendix: Resource Roundup

This resource roundup provides references to relevant primary and secondary sources that offer further reading on sharīʿa in Malaysia. Updated periodically, these links should help interested readers better situate the country’s constitutional law, federal law, and state law on the scope of sharīʿa in Malaysia.

Relevant Primary Sources

The below primary sources provide select laws and regulations in Malaysia that give rise to the most recent developments on Islamic criminal law and the scope of sharīʿa in the country’s States and Federal Territories.

  • Constitution of Malaysia. See also the SHARIAsource country profile on Malaysia (providing background on Malaysia’s legal system).
  • Federal Regulation of Islamic Law in Malaysia
  • Cases and Controversies on Islamic Criminal Law in Malaysia
    • Zurina & Natasha v. Kelantan (Malaysia 2024), paras. 125, 135, 146–48, 154–55, 158, 171, 177, 185, 187, 195, 208–09, 218, 224–26, 229–30 (quoting the various Kelantan state laws, and assessing the constitutionality of provisions of the Syariah Criminal Offences Enactment of Kelantan (1985, rev. 1993, 2019)).
    • Islamic criminal codes in Malaysian States (by initial year of legislation, link where available): Syariah Criminal Offences Enactment of Kelantan, Law No. 14 (1985, rev. 1993, 2019) [at issue in the 2024 case]; Syariah Criminal Offences Enactment of Terengganu, Law 6 (2001, rev. 2002, 2022); Syariah Criminal Offences Ordinance of Sarawak, Law No. 157 (1991, rev. 2001, 2004, 2007, 2024); Syariah Criminal Offences Enactment of Negeri Sembilan, Law No. 4/1992 (1992); Syariah Criminal Offences Enactment of Perak, Law No. 3 (1992 rev. 2004); Syariah Criminal Offences Enactment of Perlis, Law No. 4 (1993); Syariah Criminal Offences Enactment of Sabah, Law No. 3 (1995, rev. 2024); Syariah Criminal Offences Enactment of Selangor, Law No. 9 (1995); Syariah Criminal Offences Enactment of Pulau Pinang (Penang), No. 3 (1996); Syariah Criminal Offences Enactment of the Federal Territories, Law No. 103 (1997); Syariah Criminal Offences Enactment of Johor, Law No. 4 (1997); Syariah Criminal Offences Enactment of Kedah Darul Aman, Law No. 18 (2014).

Further Reading (Scholarly Analysis)

Below is a list of select scholarly books, research articles, and shorter opinion essays providing content and context on Islamic (criminal) law in Malaysia and analyzing the ramifications of the recent federal court judgment on Kelantan Code for Malaysian law and politics.

News Reports

The case has sparked considerable controversy in Malaysian politics, with factions of various ideological persuasions and backgrounds making different assertions about its implications for the status of Islamic law in the Malaysian legal order. Below are some of the most prominent news stories (as updated from time to time).

  • “About 1,000 people including PAS supporters [PAS: Parti Islam SeMalaysia, the opposition party that has ruled the state of Kelantan since 1990] and conservative Muslims gathered outside the court in Putrajaya ahead of the ruling.” As the Chief Justice delivered the Court’s ruling, she said: “As lawyers, we are officers of the court and I believe it is our duty as legal practitioners to uphold and defend the sovereignty of the law,” adding “I did this not for myself, but all.”
  • Takiyuddin Hassan, PAS secretary-general and a member of parliament, criticized the ruling and stated on the same day the Court’s decision came down: “We are very sad today. This is a Black Friday. Black Friday as the decision was against Islamic Shariah law.”
  • Malaysia’s Syariah Department noted that the case did not mean that the offenses regulated by the invalidated Kelantan rules were to go unpunished: “[Those offenses] just cannot be tried in the Syariah Court, but it can be tried in the civil court. If a Muslim in the state of Kelantan commits a mahram offence, the offence can be tried in a civil court.”
  • Malaysia’s Syariah Department also stated that it believed the judgment “can also be described as a strengthening of the Islamic law in Malaysia” because it provides clarity and uniformity.
  • To allay concerns that some of the crimes regulated by the voided Kelantan state laws would now go unpunished, a Syariah Department official gave the example of the crime of incest, sumbang mahram, which one of the invalidated state laws had criminalized. The official explained: “For the offence of sumbang mahram, when the court declares it invalid and void, it does not mean that it is no longer an offence for Muslims in Kelantan, it is invalid because the law has [already] been provided for in the Penal Code, which is a federal law.”
  • “Mohamad Na’im Mokhtar, the government minister in charge of religious affairs, promised that the [C]ourt[‘s] ruling woold not affect the position of Shariah courts. He urged Muslims to stay calm and said that ongoing efforts to empower Shariah courts would continue.”
  • “Lawyer Nik Elin Nik Abdul Rashid, who brought the challenge to the state laws with her daughter, said the [C]ourt’s ruling attested to the Malaysian Constitution as the supreme law of the country. “In the face of backlash and personal attacks, Nik Elin and her daughter persevered in their pursuit of due process and adherence to the law. They faced death threats, leading Nik Elin to lodge police reports over the threats received.”
  • Some pundits have predicted that the judgment “could pose a challenge for Prime Minister Anwar Ibrahim, who is struggling to win Malay support after taking office following a 2022 general election.”
  • Other states with laws similar to those Kelantan state laws invalidated by the Court have been assessing their situation and how to best respond to the Court’s ruling. For example, the Kedah government stated that it “will examine the impact of the Federal Court’s recent ruling on the Kelantan syariah criminal enactment, on the state’s existing Islamic law.”
  • Some pundits have criticized the Court’s ruling as not respecting the democratic process that takes place in the state of Kelantan, which is overwhelmingly Muslim in population. “Over 90% of the population of Kelantan are Malay Muslims. For more than 33 years, they have chosen PAS, an Islamist party with an agenda to strengthen Islamic syariah law in the state, through democratic elections, not through coercion or force,” one pundit said in the immediate aftermath of the judgment.
  • In response to the judgment, the government “proposed [the] Mufti (Federal Territories) Bill 2024 (Mufti Bill), which was announced to be debated in Parliament on 16-17 October by Minister in the Prime Minister’s Department Mohd Naim Mokhtar.” Sisters in Islam, a Malaysian civil rights organization, has sharply criticized the bill, arguing that if passed into law, it would “undermine individual freedoms, human rights and institutional accountability in the Constitution of Malaysia.”

Notes:

* The author wishes to thank for astute comments and corrections to an earlier draft Tamir Moustafa, Adnan Zulfiqar, and Cem Tecimer, as well as the Malaysian lawyer who provided the text of the Federal Mufti Bill. All mistakes remain my own, with hopes that the resource roundup can offer a means to continually update the laws and associated debates as they evolve.

[1] See Syaza Shukri, Populism as a Strategy in Malaysia, in Three Faces of Populism in Asia 86, 88–106 (Shiru Wang ed., London: Routledge, 2024) (“Another form of populism that has become increasingly common is Islamist civilizational populism, which leverages religious sentiments within the global ummah or Muslim community, promising a return to traditional Islamic values and governance and often portraying secular or Western ideologies as adversarial.”). See also Tamir Moustafa, Constituting Religion: Islam, Liberal Rights, and the Malaysian State 124–37 (2018) (analyzing nationwide survey results addressing sharīʿa-related cases, legislation, and religious commitments to assess popular legal consciousness about Islamic law and secular law; also describing several Malay Muslim survey participants’ sense of an insufficient scope of Islamic law and a longing for the “full implementation of sharīʿa,” in contrast to non-Malay and non-Muslims concerns emphasis on minority rights and nostalgia for a time when religion was less central to the public sphere).

[2] Malaysia is a federal democratic-constitutional monarchy located on an archipelago between mainland Southeast Asia and Australia, comprising thirteen states and three federal territories (the capital, Kuala Lumpur, the administrative capital, Putrajaya, and the island of Labuan off the east coast of Malaysia). As constitutional monarch, the King is referred to as the Yang di-Pertuan Agong, and he serves as head of state and of religion; he is elected by the Conference of Rulers (of Malaysia’s States), and the position rotates among them; he formally appoints the prime minister, who is expected to form a government that commands the confidence of its members, Westminster style. Most states are headed by a hereditary ruler—referred to as the Yang di-Pertuan Negeri or “state ruler” or sultan (in all but Perlis, which has a raja, or “king, and in the State of Negeri Sembilan, which has a Yang di-Pertuan Besar, or “chief ruler”). Each state head ruler also serves as the local head of Islam. Each state has its own written constitution, parliament, and executive council—each of which in turn has a head Minister. The federal territories fall under Malaysia’s King and national parliament rather than having a head of state and religion or a separate legislature or executive council. See Craig A. Lockard, Thomas R. Leinbach, Malaysia: Local Government, in Encyclopedia Brittanica [online] (updated Jan. 10, 2025), at https://www.britannica.com/place/Malaysia/Local-government.

[3] See Fed. Const. Malaysia art. 3(2) (naming the King, as monarch-head of state and head of religion, the “Yang di-Pertuan Agong”). For other constitutional provisions regulating state-federal relations and the role of sharīʿa in Malaysia, as well as discussion of them, see infra notes 48–51 and 65–70 and accompanying text.

[4] See Draft Mufti Bill (Federal Territories) of 2024, Draft Bill No. 19 (introduced to the Malaysian Parliament July 2, 2024; debated on Oct. 16, 2024, pursuant to Constitution of Malaysia, Ninth Schedule, List I, item 6(e).

[5] See Sisters in Islam, The Far Reaching Implications of Muftī Bill, Sisters in Islam Press Statements (Oct. 10, 2024), https://sistersinislam.org/the-far-reaching-implications-of-mufti-bill (“The Mufti (FT) bill is part of a broader five-year roadmap to strengthen Syariah laws within the Federal Territories, as announced by then-Deputy Minister in the Prime Minister’s Department, YB Datuk Ahmad Marzuk Shaary in 2021 when Perikatan Nasional was in power. Besides the Mufti Bill, three other bills would be introduced as part of this roadmap – the Wakaf Bill, the Syariah Court Bill, the Control and Restriction on the Propagation of Non-Muslim Religions Bill, and the amendment to seven existing legislations.”).

[6] Compare, e.g., Mohd Faizal Musa, Malaysia’s Mufti (Federal Territories) Bill 2024: Sectarian or Crucial Step Forward?, Fulcrum (July 17, 2024), https://fulcrum.sg/malaysias-mufti-federal-territories-bill-2024-sectarian-or-crucial-step-forward, with Sisters in Islam, supra note 5, sections 2–7. For further debates, see infra notes 41–51 and accompanying text, as well as Appendix: Resource Roundup.

[7] Mufti Bill 2024 To Be Tabled for Second, Third Readings in Parliament – Mohd Na’im, Bernama (Oct. 11, 2024, 12:33 PM), https://www.bernama.com/en/news.php?id=2350411.

[8] Malaysian Media Council Bill Expected to be Tabled for Second Reading in February 2025, The Sun (Dec. 18, 2024, 8:16 AM), https://thesun.my/malaysia-news/malaysian-media-council-bill-expected-to-be-tabled-for-second-reading-in-february-2025-KF13431856.

[9] See Mohammad Hashim Kamali, Islamic Law in Malaysia: Issues and Developments, in Yearbook of Islamic and Middle Eastern Law 4:153–79, at 170 (Martin Lau & Eugene Cotran eds.; Leiden: Brill, 1997), https://doi.org/10.1163/221129898X00071.

[10] See Administration of Islamic Law (Federal Territories) Act of 1993 [hereinafter “AILA”], Part II, art. 4 (establishing “a body to be known as the ‘Majlis Agama Islam Wilayah Persekutuan’ to advise the [King] in matters relating to the religion of Islam” [the “Majlis”]), art. 10 (defining the members of the committee, all of whom are to be Muslim: a chairman and deputy chairman, Chief Secretary to the Government or his representative, the Attorney General or his representative, the Inspector General of Police or his representative, the Mufti [of the Federal Territories], the Commissioner of the City of Kuala Lumpur, fifteen other members— “at least five of whom shall be persons learned in Islamic studies”). For discussion and analysis, see Kamali, supra note 9, at 4:169.

[11] See Kamali, supra note 9, at 169. In the federal system, the Malaysian Islamic Department of Islamic Affairs (JAKIM: Jabatan Kemajuan Islam Malaysia) is the government ministry responsible for managing issues of Islamic affairs. It operates in coordination with an Islamic consultative council (MAIWP: Majlis Agama Islam Wilayah Persekutuan) and the mufti (and deputy mufti) for the Federal Territories, who head the Territories’ Department of Islamic Affairs (JAWI: Jabatan Agama Islam Wilayah Persekutuan).

[12] Id. See also Norshahril Saat, Malaysian Muftis and Official Ulama: The State Captured?, in The State, Ulama and Islam in Malaysia and Indonesia 171–214 (Amsterdam: Amsterdam University Press, 2017).

[13] See Kamali, supra note 9, at 4:169.

[14] See AILA, supra note 10, Section 34(3). See further Kamali, supra note 9, 153–79.

[15] For examples and discussion, see Moustafa, supra note 1, 63–123, 138–41.

[16] See Kamali, supra note 9, 153–79.

[17] See AILA, supra note 10, Section 34(3).

[18] Syariah Criminal Offences Act (Federal Territories) [“SCOA”], Law No. 559 (1997) [Malaysia], art. 12; see also arts. 4, 9, and passim, especially in Part III. Article 2 of the SCOA defines fatwā as “any fatwa made under section 34 of the Administration [of Islamic Law] Act.”

[19] See Kamali, supra note 9, at 169. For state Islamic criminal laws, see infra Appendix: Resource Roundup.

[20] For an overview of the Mufti Bill, see Iman Muttaqin Yusof & Minderjeet Kaur, What Do We Know about the Mufti Bill 2024?, Benar News (Nov. 13, 2024), https://www.benarnews.org/english/news/malaysian/mufti-bill-11132024135737.html.

[21] See Musa, supra note 6 (“One constitutional analyst argued the bill does not infringe on states’ rights, as it pertains solely to the federal territories.”).

[22] Mufti Bill, supra note 4, art. 7(2) (members are to include the mufti, acting as chairman, and additional 9 to 15 members: deputy muftis, the Director General of the Islamic Religious Affairs Department or his representative, two members nominated by the Majlis, and a representative from the Attorney General’s Office, a representative from the Islamic Religious Affairs Department of the federal territories, and two to nine other Muslim members to be appointed by the “Yang di-Pertuan Agong” [King]). Cf. AILA, supra note 10, art. 37.

[23] Mufti Bill, supra note 4, art. 8.

[24] See Sisters in Islam, supra note 5, section 2.

[25] Each Sunnī school of law reflects a different interpretive approach with a shared sense of theology and history; the new law would operate to the specific exclusion minoritarian Shīʿī or other schools of law, which have divergent notions of both. On the history, origins, and approaches of Sunnī and Shīʿī law, see, respectively, M. Hashim Kamali, Principles of Islamic Jurisprudence 16–55, 58–60 (rev. ed. 1991); Hossein Modarressi, Introduction to Shīʿī Law: A Bibliographical Study 3–4 (London: Ithaca Press, 1984). On the Shīʿī minority, previous banning of it, and other minority religious groups in Malaysia, see generally Alternative Voices in Muslim Southeast Asia (Norshahril Saat & Azhar Ibrahim eds., Singapore: ISEAS Yūsuf Ishak Institute, 2020).

[26] Mufti Bill, supra note 4, art. 3(4) (further defining that phrase to refer to people that follow mainstream Sunnī theology (Ashʿarī and Māturīdī streams), the four recognized Sunnī madhhabs (centering on Shāfiʿī law, and where necessary, referring to Ḥanafī, Mālikī, or Ḥanbalī law or else legal reasoning that the Fatwa Committee has specified, and following the Sufi-spiritual principles elaborated by Junayd al-Baghdādī and Imām al-Ghazālī).

[27] Mufti Bill, supra note 4, art. 16.

[28] Sisters in Islam, supra note 5, sections 1–2.

[29] Mufti Bill, supra note 4, Part VIII, arts. 26–29.

[30] Id. art. 29(3).

[31] Sisters in Islam, supra note 5, section 3.

[32] See supra note 6 and accompanying text. See further infra Appendix: Resource Roundup.

[33] See, e.g., James Chin, Anwar’s Long Walk to Power: The 2022 Malaysian General Elections, 112 The Roundtable: The Commonwealth J. Int’l Affairs 1, 9–11 (2023) available at https://doi.org/10.1080/00358533.2023.2165303; Meredith L. Weiss, Malaysia’s Anwar, Anwar’s Malaysia, 122 Current History 217–23 (2023).

[34] See Sophie Lemière, The (Final) Rise of Anwar Ibrahim, J. Democracy (Dec. 2022), https://www.journalofdemocracy.org/the-final-rise-of-anwar-ibrahim/.

[35] Parti Keadilan Rakyat (PKR) – People’s Justice Party, Library of Congress (Oct. 7, 2019), https://www.loc.gov/item/lcwaN0006325/.

[36] See J.C. Liow, Anwar Ibrahim (Malaysia), in Dictionary of the Modern Politics of Southeast Asia (J.C. Liow ed., 5th ed., [UK]: Taylor & Francis Group, 2022).

[37] A first prison stint lasted from 1999 to 2004, at which point his conviction was overturned; he mounted a comeback as leader of the opposition from 2008 to 2013; but he returned to prison after an attempted campaign for state leadership of Selangor, a sentence that lasted from 2015 to 2018, after which he was pardoned and rejoined the government of Mahathir Mohamad; and he mounted a second comeback as opposition leader from 2020 to 2022. See Lemière, supra note 34.

[38] Id.

[39] See Chin, supra note 33.

[40] See Imran Shansunahar, With Malaysia’s Opposition Weakened, Anwar Faces More Secure Future, Fulcrum (June 20, 2024), https://fulcrum.sg/with-malaysias-opposition-weakened-anwar-faces-more-secure-future. But see Meredith L. Weiss, Malaysia in 2023: Reconciliation Under Pressure, 64 Asian Survey 288–98 (2024) (arguing that Anwar’s coalition is on “more certain political ground . . . but challenges loom” in light of contrasts between his coalition and ethnonationalist and more religiously conservative Malay-Muslim opposition, a fraught geopolitical landscape with special attention to Gaza and China, and several domestic challenges that center partially on economic and climate-change concerns).

[41] See, e.g., Mufti (Federal Territories) Bill 2024 Relevant for Uniting the People – Ngo, Bernama (July 7, 2024, 9:03 PM), https://www.bernama.com/en/news.php?id=2315311.

[42] See, e.g., Musa, supra note 6.

[43] See Yusof & Kaur, supra note 20.

[44] See Hazlin Hassan, PAS Pushes Islamic Agenda with Eye on Next Malaysia Election, The Straits Times (Jan. 3, 2025), https://www.straitstimes.com/asia/se-asia/pas-pushes-islamic-agenda-with-eye-on-next-malaysia-election. See further Moustafa, supra note 1, at 124–37.

[45] See Imran Said, Malaysia’s Anwar Ibrahim Faces the Demons He Helped Unleash, The Diplomat (Apr. 8, 2024), https://thediplomat.com/2024/04/malaysias-anwar-ibrahim-faces-the-demons-he-helped-unleash.

[46] See generally Benjamin Laker, Malaysia’s Economic Turn Around Under the Leadership Of Anwar Ibrahim, Forbes (July 10, 2024, 9:00 AM EDT), https://www.forbes.com/sites/benjaminlaker/2024/07/10/malaysias-economic-turn-around-under-the-leadership-of-anwar-ibrahim.

[47] See generally Lemière, supra note 34.

[48] See, e.g., Sisters in Islam, Democracy at Crossroads: Far-Reaching Implications of Malaysia’s Mufti Bill, Aliran (Oct. 10, 2024), https://aliran.com/civil-society-voices/democracy-at-crossroads-far-reaching-implications-of-malaysias-mufti-bill. On the prominent role of the NGO Sisters in Islam on debates about legislation, adjudication, and the scope of sharīʿa in Malaysian law and society, see Moustafa, supra note 1, at 133–37.

[49] Fed. Const. Malaysia art. 3(5).

[50] See, e.g., New Mufti Bill Unconstitutional, Undermines Agong [King] and Harms Muslims through Government Control, says Latheefa, Malaysia Now (Oct. 10, 2024, 12:30 AM), https://www.malaysianow.com/news/2024/10/10/new-mufti-bill-unconstitutional-undermines-agong-and-harms-muslims-through-government-control-says-latheefa.

[51] See id.

[52] See Rozanna Latiff & Danial Azhar, Malaysia’s top court strikes out some Islamic laws in landmark case, Reuters (Feb. 8, 2024, 10:44 PM EST), https://www.reuters.com/world/asia-pacific/malaysias-top-court-declares-16-islamic-laws-kelantan-state-unconstitutional-2024-02-09.

[53] Elin Zurina & Yasmin Natasha v. Kelantan, No. BKA-2-05/2022(D), Feb. 9, 2024 [Malaysia], available at https://efs.kehakiman.gov.my/ [hereinafter Zurina & Natasha v. Kelantan].

[54] Id. (Abdul Rahman Sebli, J., dissenting), available at https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.
aspx?DocumentID=50ecfcfa-896f-4870-b4b5-fb52672bbd4a&Inline=true.

[55] See Ida Lim, Simplified: Why the Federal Court ruled Kelantan’s 17 Shariah provisions invalid, and why one judge disagreed, Malay Mail (Mar. 22, 2024, 7:00 AM MYT), https://www.malaymail.com/news/malaysia/
2024/03/22/simplified-why-the-federal-court-ruled-kelantans-17-shariah-provisions-invalid-and-why-one-judge-disagreed/124811.

[56] See Intisar A. Rabb, Doubt in Islamic Law 6 (Cambridge: Cambridge University Press, 2015); Intisar A. Rabb, “Reasonable Doubt” in Islamic Law, 40 Yale J. Int’l L. 41, 48 n.30 (2015). For an overview of the Malaysian constitutional system and judicial decisions interpreting its principal sharīʿa clauses, see Moustafa, supra note 1, at 54, 138–141 as well as chapters 4 and 5: id. at 63–123 (comprehensively assessing all reported Malaysian Constitution Article 121(1A) cases that answers questions about jurisdiction between its civil courts and sharīʿa courts).

[57] See infra Appendix: Resource Roundup.

[58] Syariah Criminal Offences (Federal Territories) Act 1997, available at http://www.commonlii.org/
my/legis/consol_act/scota1997420.

[59] See infra Appendix: Resource Roundup.

[60] For a general overview, see M.A.R. Habib, Kuala Lumpur: Islam in Malaysia, Rutgers (Oct. 26, 2005), https://habib.camden.rutgers.edu/islam/kuala-lumpur/.

[61] See id.

[62] See Fed. Const. Malaysia art. 1(2).

[63] See Intisar A. Rabb, “We the Jurists”: Islamic Constitutionalism in Iraq, 10 U. Pa. J. Const. L. 527, 531 (2008).

[64] Fed. Const. Malaysia art. 3 (establishing Islam as the religion of state, Malaysia’s Ruler (Yang di-Pertuan Agong) as head of Islam authorized to represent Malays in matters related to the federation as a whole and in the federal territories, and each State Ruler as the local “head of Islam;” this article further authorizes the country’s Ruler to establish a Council to propose laws, and allows parliament to issues laws concerning Islamic law matters); art. 5(4) (conferring jurisdiction over some criminal offenses to Syariah Courts); art. 11 (conferring a general freedom of religion but permitting federal and state law restrictions on Muslims propagating certain doctrines or beliefs); art. 12(2) (authorizing federal and state authorities to establish and maintain Islamic institutions, among other institutions of education); art. 34 (limiting the religious power as head of Islam of the country’s Ruler from impinging on that analogous power in his State of origin, except as accrues to his federal power); art. 42 (granting the Ruler a general pardon power, including in matters pertaining to Islam); art. 76 (empowering parliament to enact legislation to implement treaties or other international agreements so long as they do not infringe on matters of Islamic law or custom, and directing parliament to consult the States before passings laws on any matter related to Islamic law or custom); art. 97(3) (exempting zakāt and religious revenue from the state treasury, and requiring such funds to be deposited into a separate fund, as repeated in the Eighth Schedule, art. 14 for state revenue). The Constitution’s Eighth Schedule entails state provisions governing Islam embedded in the Federal Constitution. See, especially, id. art. 71 (Eighth Schedule: Provisions to be Inserted in State Constitutions), Part 1.1(2)(d) (authorizing each State Ruler to act “in his discretion” as head of Islam, consistent with federal law). The Constitution’s Part IX regulates the judiciary. See, especially, id. (Part IX: The Judiciary) art. 121(1A) (conferring on Syariah Courts exclusive jurisdiction over certain matters); art. 145(3) (empowering the Attorney-General to prosecute all cases except those involving sharīʿa).

[65] Id. arts. 3, 5.

[66] Id. art. 160 (“‘Malay’ means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and was born . . . in the Federation or Singapore. . . .”).

[67] Id. art. 3.

[68] Id. art. 3(2).

[69] Id. art. 121(1A) (reserving for the sharīʿa courts exclusive jurisdiction over certain matters, not shared in the dual civil/federate courts of the State of Malaya and the States of Sabah and Sarawak).

[70] Id. arts. 3, 5(4) (“And provided further that in the case of an arrest for an offence which is triable by a Syariah court, references in this Clause to a magistrate shall be construed as including references to a judge of a Syariah court.”).

[71] See John Gee, Anwar Ibrahim Wins Malaysia’s Premiership, Wash. Rep. (Feb. 25, 2023), https://www.wrmea.org/turkey-other/anwar-ibrahim-wins-malaysias-premiership.html  (commenting on “the conservative religious Malay heartlands of Kelantan and Terengganu in Malaysia’s northern peninsula” and noting the popularity there of the Pan-Malaysian Islamist Party, PAS).

[72] Analysis of the Kelantan Syariah Criminal Offences Enactment, Justice for Sisters (Nov. 8, 2024), https://justiceforsisters.org/homepage-draft/resources/analysis-of-the-kelantan-syariah-criminal-offences-enactment/.

[73] Id.

[74] Id.

[75] Sisters in Islam et al., Analysis of the Kelantan Syariah Criminal Offences Enactment 5 (2023), available at https://sistersinislam.org/wp-content/uploads/2023/08/Analysis-of-the-Kelantan-Syariah-Criminal-Offences-Enactment-.pdf.

[76] Id. at 1. See also Kelantan Syariah Criminal Code of 2019 (Enakment Kanun Jenayah Syariah (I)), No. 14 (Bahasa and English).

[77] See infra Appendix: Resource Roundup.

[78] See Salma Ben Souissi, Malaysia federal court declares Kelantan state Shariah laws unconstitutional, Jurist (Feb. 11, 2024, 12:25 PM), https://www.jurist.org/news/2024/02/malaysia-federal-court-declares-kelantan-state-shariah-laws-unconstitutional/.

[79] Fed. Const. Malaysia art. 4. See also id. at List 2.1 (State List).

[80] Zurina & Natasha v. Kelantan.

[81] Id. paras. 15, 51 (“[T]he Islamic principles of aqidah, syariah or akhlak are not matters for our consideration”); see also id. paras. 55–56 (on federal areas of interest).

[82] Id. para. 15.

[83] Id. para. 51.

[84] The Court invalidated the following 16 provisions of the Kelantan Syariah Criminal Code: Sec. 11 (Destroying or defiling a place of worship), Sec. 14 (Sodomy),  Sec. 16 (Sexual intercourse with a corpse); Sec. 17 (Sexual intercourse with a non-human); Sec. 31 (Sexual harassment); Sec. 34 (Possessing false document, giving false evidence, information or statement); Sec. 37 (Gambling); Sec. 39 (Reducing scales, measurements and weights); Sec. 40 (Executing transactions contrary to ‘hukum syarak‘ (syariah)); Sec. 41 (Executing transactions via usury); Sec. 42 (Abuse of halal labels and connotations thereof); Sec. 43 (Offering or providing vice services); Sec. 44 (Preparatory acts of offering or providing vice services); Sec. 45 (Preparatory acts of vice); Sec. 47 (Acts of incest); Sec. 48 (Muncikari—a person who acts as a procurer between a female and a male for the purpose which is contrary to hukum syarak (sharīʿa)). See id. para. 241; see also Lim, supra note 55.

[85] See supra note 84.

[86] The Court ruled that the following two provisions were constitutional: Sec. 13 (Selling or giving away a child to non-Muslim or morally reprehensible Muslim); and Sec. 30 (Words capable of breaking peace). Zurina & Natasha v. Kelantan, paras. 143, 169.

[87] Id. para. 105 (internal quotations omitted).

[88] See, e.g., id. para. 89.

[89] Id. paras. 125–238.

[90] See id. para. 65.

[91] Id. para. 66.

[92] Id. para. 76.

[93] See generally id. paras. 125–238.

[94] Id. para. 83.

[95] Id. para. 105 (internal quotations omitted).

[96] Id. para. 89.

[97] Id. para. 105.

[98] Id. (internal quotations omitted).

[99] Id. (Abdul Rahman Sebli, J., dissenting).

[100] Id. (Abdul Rahman Sebli, J., dissenting) paras. 30–31.

[101] Id. (Abdul Rahman Sebli, J., dissenting) para. 85.

[102] See Kelantan to Re-Enact 16 Annulled Provisions of Syariah Criminal Offences, The Vibes (May 21, 2024, 4:43 PM), https://www.thevibes.com/articles/news/102076/kelantan-to-re-enact-16-annulled-provisions-of-syariah-criminal-offences.

[103] Id.

[104] See, e.g., V. Anbalagan, Kelantan assembly in contempt if struck-down laws re-enacted, says lawyer, Free Malaysia Today (Mar. 7, 2024), https://www.freemalaysiatoday.com/category/nation/2024/03/07/kelantan-assembly-in-contempt-if-struck-down-laws-re-enacted-says-lawyer.

[105] See infra Appendix: Resource Roundup and text accompanying supra note 57.

[106] Justice for Sisters et al., Analysis: Terengganu Syariah Criminal Offences Act 4 (2022), available at https://sistersinislam.org/wp-content/uploads/2022/12/Analysis-of-Terengganu-Syariah-Criminal-Offences-Enactment.pdf.

[107] Id.

[108] See, e.g., id. at 5.

[109] See id. at 8.

[110] See id. at 9.

[111] Hazlin Hassan & Azril Annuar, Public caning in Terengganu over syariah offence sparks tensions, The Straits Times (Dec. 27, 2024, 8:00 PM), https://www.straitstimes.com/asia/se-asia/public-caning-of-carpenter-in-terengganu-over-syariah-offence-splits-conservative-muslims-rights.

[112] Id.

[113] Id.

[114] Id.

[115] Id.

[116] Malaysian Man Publicly Caned for Islamic Crime of Close Proximity, Reuters (Dec. 27, 2024, 4:17 AM EST), https://www.reuters.com/world/asia-pacific/malaysian-man-publicly-caned-islamic-crime-close-proximity-2024-12-27/.

[117] Hassan & Annuar, supra note 111.

[118] Two Malaysians Caned in Public for “Attempting Lesbian Sex,” Reuters (Sept. 3, 2018, 4:15 AM EDT), https://www.reuters.com/article/world/two-malaysians-caned-in-public-for-attempting-lesbian-sex-idUSKCN1LJ0MG/.

[119] See Hassan & Annuar, supra note 111.

[120] FMT Reporters, Sabah Mufti’s Views on Public Caning His Own, Says Minister, Free Malaysia Today (Jan. 6, 2025, 4:51 PM), https://www.freemalaysiatoday.com/category/nation/2025/01/06/sabah-muftis-views-on-public-caning-his-own-says-minister/.

[121] Julia Chan, Sabah Govt Says No to Public Caning for Islamic Offences Despite Mufti’s Support, Malay Mail (Jan. 6, 2025, 4:44 PM MYT), https://www.malaymail.com/news/malaysia/2025/01/06/sabah-govt-says-no-to-public-caning-for-islamic-offences-despite-muftis-support/162235#google_vignette.

[122] FMT Reporters, All States Should Implement Public Caning, Says PAS, Free Malaysia Today (Dec. 28, 2024, 10:40 AM), https://www.freemalaysiatoday.com/category/nation/2024/12/28/all-states-should-implement-public-caning-says-pas/.

[123] After public caning in Terengganu, Perlis mufti says rejection of practice does not mean opposing Islam, Malay Mail (Dec. 28, 2024, 1:39 MYT), https://www.malaymail.com/news/malaysia/2024/12/28/after-public-caning-in-terengganu-perlis-mufti-says-rejection-of-practice-does-not-mean-opposing-islam/161347.

[124] Carolyn K, East M’sians Will Fear PAS More After Public Caning, Say Analysts, Free Malaysia Today (Jan. 2, 2025, 8:00 AM), https://www.freemalaysiatoday.com/category/nation/2025/01/02/east-msians-will-fear-pas-more-after-public-caning-say-analysts/.

[125] Carolyn K, Keep Public Caning in Your Own States, PAS Told, Free Malaysia Today (Dec. 30, 2024, 8:30 AM), https://www.freemalaysiatoday.com/category/nation/2024/12/30/keep-public-caning-in-your-own-states-pas-told/.

[126] Hassan & Annuar, supra note 111.

[127] Id.

(Suggested Bluebook citation: Intisar Rabb, Legislation and Regulation of Islamic Law in Malaysia, Islamic Law Blog (Jan. 22, 2025), https://islamiclaw.blog/2025/01/22/legislation-and-regulation-of-islamic-law-in-malaysia-federal-mufti-bill-state-criminal-codes-shari%ca%bfa-jurisdiction/)

(Suggested Chicago citation: Intisar Rabb, “Legislation and Regulation of Islamic Law in Malaysia,” Islamic Law Blog, January 22, 2025, https://islamiclaw.blog/2025/01/22/legislation-and-regulation-of-islamic-law-in-malaysia-federal-mufti-bill-state-criminal-codes-shari%ca%bfa-jurisdiction/)

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