Malaysia-Whether fatwas apply to non-Muslims

In the Federal Court case of Sulaiman bin Takrib v Kerajaan Negeri Terengganu (Kerajaan Malaysia, intervener) and other applications [2009] 6 MLJ 354, it was held as follows:-

"[13]    Article 3 of the   Federal Constitution provides:

3(1)          Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation.
(2)             In every State other that 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 of the State, and, subject to that Constitution, all rights, privileges, prerogatives and power enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observances of 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 as Head of the religion of Islam authorize the Yang di-Pertuan Agong to represent him.

[14]    Article 4(1) of the   Federal Constitution provides:

4(1)          This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

[15]    Article 11 of the   Federal Constitution provides:

(1)             Every person has the right to profess and practice his religion and, subject to clause (4), to propagate it.
(2)             ...
(3)             ...
(4)             State law and, in respect of the Federal Territory, federal law may control or resist the propagation of any religions doctrine or belief among peoples professing the religion of Islam.

[16]    Article 71(1) of the   Federal Constitution provides:

(1)             The Federation shall guarantee the right of a Ruler of a State to ... exercise the constitutional rights and privileges of Ruler of that State in accordance with the Constitution of that State ...

[17] Item 1(2)(d) of Eighth Schedule of the Federal Constitution provides:

1(2)          The Ruler may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion under the Federal Constitution) that is to say:
(d)             any function as Head of the religion of Islam or relating to the custom of the Malays;

[18]    Article 74 of the   Federal Constitution provides:

74(1)       ...
(2)             Without prejudice to any power to make laws conferred on by any other Article, the Legislature of a State, may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.
(3)             Power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.

[19]    Article 75 of the   Federal Constitution provides:
75 If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.

[20] We now come to the Ninth Schedule, made with reference to arts 74 and 77, entitled 'Legislative Lists'. List I is the Federal List. The list enumerates matters that are within the powers of the Federal Parliament to make laws, which, includes, 'civil and criminal law and procedure and the administration of justice ...' (item 4) and 'Ascertainment of Islamic law and other personal laws for purposes of federal law ...' (item 4(k)).
[21] List II enumerates matters that the State Legislature may make laws. Item 1 is the relevant one. It is very lengthy. To avoid confusion I shall only reproduce the material parts for the determination of this appeal:
... Islamic law ..., 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.

[22] At this juncture, I would only like to emphasise four points arising from this item. First, the State Legislature may create offences and punishment of offences:

(a)            by persons professing the religion of Islam;
(b)            against the precepts of Islam,
provided it is not in regard to matters included in the Federal List.
[23] Secondly, the jurisdiction of the Syariah Court in respect of offences is limited to in so far as conferred by federal law. Hence, the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) ('SC (CJ) Act 1965') was enacted. It contains three sections only. Section 2 provides:

2                 The Syariah Courts duly constituted under any law in a State and invested with jurisdiction over persons professing the religion of Islam and in respect of any of the matters enumerated in List II of the State List of the Ninth Schedule to the Federal Constitution are hereby conferred jurisdiction in respect of offences against precepts of the religion of Islam by persons professing that religion which may be prescribed under any written law:

Provided that such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding five thousand ringgit or with whipping exceeding six strokes or with any combination thereof.
[24] Thirdly, the State Legislature may make law for the control of propagating doctrines and beliefs among persons professing the religion of Islam. So, any argument that any law that seeks to control the propagation of doctrines and beliefs among persons professing the religion of Islam is unconstitutional because it is inconsistent with art 11(freedom of religion) or any other provision is doomed to fail from the start....

SECTION 51 OF THE AIRA
[28] To appreciate the discussion regarding s 51 of the AIRA, we would have to begin from s 48.
[29] Section 48 establishes the Fatwa Committee.
[30] Section 49 provides:

49 The Fatwa Committee shall, on the direction of the Duli Yang Maha Mulia Sultan (The Ruler -- added), and may on its own initiative or on the request of any person by letter addressed to the Mufti, prepare a fatwa on any unsettled or controversial question of or relating to Hukum Syarak.

[31] Section 50 of the AIRA provides for the procedure in making a fatwa. After the proposed fatwa is discussed by the committee, the Mufti, on behalf of the committee, submits the prepared fatwa to the Majlis (Council). After deliberation, the Majlis may make a recommendation to the Ruler for his assent for publication of the fatwa in the Gazette. When the fatwa has been assented to by the Ruler, the Majlis shall inform the State Government of the fatwa and thereafter shall cause it to be published in the Gazette. Then comes the impugned s 51 which, in brief, provides that the fatwa, upon its publication in the Gazette, becomes binding on every muslim in a state and it shall be his religious duty to abide by and uphold it, unless he is permitted by Hukum Syarak to depart from it in matters of personal observance.
[32] The legality of the establishment of the Fatwa Committee and that it has power to issue fatwas are not disputed. There is no dispute that the Terengganu State Legislative Assembly ('TSLA') has power to create offences provided that it is within the limits provided by the Federal Constitution. However, it was argued that what had been done was to empower the Fatwa Committee to create offences when that power vests in the TSLA.
[33] With respect, I am unable to agree with that argument. The power given to the Fatwa Committee is to 'prepare a fatwa on any unsettled of controversial question of or relating the Hukum Syarak'. The term 'Hukum Syarak' used in the section has the same meaning as 'Islamic law' used in item 1 of List II, State List. In other words, the Fatwa Committee may prepare a fatwa on any question of or relating to Islamic law. The only exception is if it is an ascertainment of Islamic law for purposes of federal law.
[34] However, this should not be confused with creation and punishment of offences. Creation and punishment of offence have further limits:

(a)            it is confined to persons professing the religion of Islam;
(b)            it is against the precept of Islam;
(c)            it is not with regard to matters included in the Federal List; and
(d)            it is within the limit provided by s 2 of the SC (CJ) Act 1965.

[35] So, while the Fatwa Committee may give its fatwa on any question of or relating to Islamic law, except for the ascertainment of Islamic law for purposes of federal law, not all its views may be made offences for disobedience thereof. Only fatwas that have gone through the process provided by s 50 of the AIRA become binding and the disobedience thereof, by virtue of s 10 of the AIRA becomes an offence under the law. Here, the four restrictions or conditions mentioned as (a), (b), (c) and (d) in the preceding paragraph come into play...."

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