Syariah: ‘The law of the land’

Clive Kessler
The Malaysian Insider
Sept 21, 2010

These days it’s not easy for a person of good sense to avoid being accused of sedition.

Especially if you have a basic grasp of modern political history and the nation’s constitutional foundations.

Voicing well-known facts and trite legal principles can get you into real trouble.

You question Ketuanan Malayu, for example, and you are told by those of a “Perkasa-ish” inclination, or lectured by Dr. Ridhuan Tee Abdullah in Utusan, that Malay political dominance is an agreed and foundational national principle. That it is inscribed in the Constitution.

What is in the Constitution? Here the champions of Ketuanan Melayu invoke Article 153.

That is the peg on which they hang the claim that enduring Malay ascendancy, even absolute political domination, is constitutionally enshrined. That it is an integral part of the “social contract” that made the nation and its Constitution possible.

But Article 153 is a small and dubious peg for such a big, even extravagant, claim. It merely provides for, or allows the government in its good judgement to institute, certain defined kinds of preferential treatment for Malays in certain identified and circumscribed areas.

It does not provide for, enshrine or constitutionally entrench Malay ethnic supremacy, enduring political domination.

But if you say this, you are likely to be challenged, and hit with a volley of police reports accusing you of sedition.

Of a triple sedition: against legitimate Malay political entitlement, as enshrined in Article 153; against the rulers who are the constitutionally-designated protectors of the Malay stake in the country; and hence also against the Constitution itself and the nation whose sovereignty it embodies.

Islam and the Constitution

The same rhetorical “fudge”, and similar vigilante recourse to zealous retribution, also apply in the case of claims that Islamic law, syariah law, is “the law of the land”.
Here again we now hear routinely, from Dr. Ridhuan and from those who write IKIM columns in The Star, that Islam is constitutionally the law of the land.

On what grounds?

First, they cite article 3 of the Constitution that proclaims Islam as the religion of the state.

Article 3 does not hold or in any way provide that Islamic law is the law of the land. In fact, the Constitution proclaims itself, in Article 4, as the sole and supreme law and basis of national sovereignty.

Moreover, any review of the debates on this subject that were part of the “Merdeka process and agreements” (the negotiations that some now retrospectively designate as “the social contract”) will reveal that, through Article 3, Islam was simply to be the emblematic “official” religion of the state as a sovereign international political entity, not the mandatory national religion or form of law.

Any such notion was resisted at the time, not only by most non-Malay and also Malay political leaders but also, crucially, by the Malay rulers themselves.
They resisted any assumption of religious powers under the Constitution by the new national government. They understandably wanted to protect their own traditional rights over, and their powers exercised through, Islam in their own states.

The Constitution could only be adopted, and national independence on its foundation proclaimed, on the basis of the consent of the Malay rulers. Their consent was granted on this specific assurance, that their Islamic religious standing would not be diminished.

Accordingly, the religious nature of the new state was, at their royal insistence, to be affirmed by only minimal measures, such as the formal reciting of a do’a at the opening of every session of the new national Parliament, nothing more.

So the notion that the Constitution, through Article 3, provides that Islam is to be, in any far-reaching and pervasive social and political way, the religion of the state’s citizenry, rather than the emblematic official religion of state ceremony and symbolism, is mistaken.

As for the claim that, under Article 3, Islamic law is to be entrenched and recognized and to be rightfully promoted as the national legal system or its unchallengeable foundation, that notion is even one step further from any accurate and faithful interpretation of the meaning of the Constitution and of the intentions of those whose agreement made its adoption and promulgation possible.

It is as much an inflation, or a fanciful embellishment, of the meaning of Article 3 as is the patently extravagant claim that Article 153 enshrines Ketuanan Melayu within the Constitution and as the foundation of national political life.

A precendental legal foundation?

Those who now, with retrospective revisionist objectives, seek to argue that syariah law — the legal system of Islam and its principles — is rightfully the supreme law of the land, or its authoritatively and incontrovertibly established foundation, have a second string to their bow.

They point to the judgment, long before the adoption in 1957 of the Merdeka Constitution, in the case of Ramah v. Laton in 1927.

The case involved the claim of a second wife, under syariah law, to a share in the estate of her deceased husband.

In arguing her case, lawyers for the second wife, whose claims were not at first recognized under the British common law system of the Malay states, sought to present the expert testimony of an expert in Islamic inheritance law.

The court, through its presiding judge Wilson, refused permission for such an expert presentation to be offered.

It cited clear grounds.

Had the case been one requiring the expert testimony of say, an expert in fingerprinting (or now, in our time, DNA sequencing), the court would have allowed such expertise to be placed before it.

Why? Because the court itself had no expertise of its own in the matter. This would have been specialized, arcane science.
But in the case of Islamic law, the court had held, the matter was different. Not that the court was itself expert in Islamic law, as knowledgeable as a master exponent of the technicalities of fara’id (Islamic inheritance law).

But, it held, Islamic law was a part of the common legal tradition of the country. As part of local “legal culture and tradition”, it was not unknown, nor were its principles foreign, to the common law courts. Though not expert in syariah legal technicalities, the court was entitled and empowered to pursue its own consideration of the principles involved.

It was competent and expert in the law of the land. So, it held, far from foreign and exotic or unrecognizable to the court, Islamic legal principles and processes were, for at least some part of the population, part of the legal culture with which the court worked, part of “the law of the land”.

The court did not need to avail itself of outside expertise. What Ramah sought and the grounds of her doing so were all part — a part though hardly the whole — of the common legal tradition and culture of the land and its people; a legal system that the common law courts were instituted to uphold, and in whose matters those courts were not simply competent and expert but the rightful ultimate authority.

The common law tradition operates by the crystallization of enduring and established custom as firm social conventions and their subsequent absorption and eventual recognition as legal principle, within and by the legal system itself.

The misappropriation of Ramah v. Laton

When Wilson J., in rejecting the presentation of outside expert testimony concerning fara’id and affirming the court’s own competence to consider the principles involved, declared that syariah law was, or was to be considered as part of, “the law of the land” he meant something specific in that context, as every competent lawyer will understand.

He was affirming the court’s own independent ability, unaided, to deal with whatever was part of the local common law tradition.

He was not affirming that the syariah law, and certainly not the syariah law as understood and upheld by its technical experts (such as the man whose testimony Wilson declined to hear, or in our day the champions of syariah law implementation and supremacy), was any foundational part of the national legal system — and certainly not that it was the overriding law of the land, to whose claims and requirements all other legal concerns must be subservient, and to which all other legal traditions must acknowledge subordination.

Yet that — the dubious notion of an established “syariah pre-eminence” — is precisely the construction that the champions of syariah supremacy now make of Wilson’s judgment in Ramah v. Laton and the use to which, either uncomprehendingly or with knowing tactical purpose, they put it.

They deploy this misconceived or disingenuous interpretation of Ramah v. Laton as a way of getting around the problems that, when rightly and plainly understood, Article 3 of the Constitution clearly provides to the promotion of their cause.

Properly understood, Article 3 presents a huge obstacle to their cause. But the strategic misappropriation of the much earlier case from 1927 enables them to assert that matters were already decided, in a precedental legal decision, long before the Merdeka Constitution was promulgated.

That Constitution, for some, lacks legitimacy since it was, as they see it, “foisted” upon them by foreigners; but, provided it is construed as they wish it to be, the judgment of another outsider, Wilson J., may be used to trump constitutional principles. His words that Islamic law “is the law of the land” are now sedulously deployed to obviate any resistance that the Constitution and its clear-minded defenders might offer to the promotion of claims of Islamist legal supremacy.

Such views have been put by IKIM columnists in The Star, by newspaper columnists and polemicists, and even in law textbooks written by lecturers at the International Islamic University and used in that institution’s Law Faculty courses. (It is noteworthy here that the national committee, operating from the Attorney-General’s Chambers, on the Harmonization of Civil Laws and Syariah has, by formal decision, resolved to make the Law Faculty of the International Islamic University, where this questionable form of legal reasoning prevails and is developed, the sole source of competent specialist legal expertise and advice in its work.)

How did this strange appropriation and misdirection of Ramah v. Laton occur?

When the late Professor Ahmad Ibrahim published his monumental study of Islamic Law in Malaya (1965) he made no reference to Ramah v. Laton. But by the time he began teaching at Universiti Malaya he had discovered it and explored its uses. Students from the early 1970s remember him dwelling on this case in his introductory lectures.

By the mid-1980s Ramah v. Laton had become a “stock in trade” of the group of young “syariah-minded” academic lawyers whom Professor Ahmad Ibrahim, now at the International Islamic University, had gathered around him and who were “making the running” in promoting the implementation of Islamic law.

By the time of the 1988 amendment to Article 121 (1A), these experts had persuaded the government — contrary to the clear meaning of the decision in Ramah v. Laton, but in its name and on its authority — that the civil courts could not hear any case involving syariah law principles; that cases that implicated such principles had to be heard by a separate and autonomous syariah court system of equal standing to the civil; and that the syariah courts and not the civil courts must be the ultimate and unchallengeable arbiter whether, in any instance, syariah principles were involved (and the case accordingly one for disposition at the sole discretion of the syariah courts).

By 2008, in the wake of the so-called Lina Joy case, the leading judges of the land were invoking Ramah v. Laton to justify the development of a new, syariah-based system of Malaysian common law. The common law evolves, true. This was Wilson J.’s point and underlying justification. But to see Wilson’s words in Ramah v. Laton used, over twenty years and more, to justify the supremacy of certain notions of syariah law, held by some very single-minded parties and partisans, within the local common law and over the Malaysian legal system as a whole is something that must surely have worried lawyers of good sense and conscience. It would, they must have known, have greatly displeased Wilson.

An odd exception

Much of the revisionist reinterpretation, or misinterpretation, of Ramah v. Laton has been the work of academic or scholastic lawyers, legal idealists and ideologues rather than “hands-on” daily practitioners of the law. Wilson’s oft-quoted words have beguiled the polemicists and provided them with a powerful instrument, a bludgeon against all doubters and opponents.

Yet there is one area where Islamic law in Malaysia has, in the real world, developed greatly and become of ever increasing practical significance. This is the area of Islamic finance.

In this area, specialist practitioners, eager that Malaysia might become an international pioneer and pace-maker in institutional innovation, have for some time argued, in effect, for the recourse that Wilson J. rejected in Ramah v. Laton. They have argued that in complex commercial cases involving Islamic finance and Islamic commercial law, courts should be set up that combine the standard common law procedures with conjoint legal and judicial expertise in Islamic commercial law. (Apparently some courts with this character are already operating, initially on a trial basis, in Shah Alam.)

But how might such tribunals — where judges in the civil law tradition would be assisted by, take advice from, sit jointly with, or even operate within specific legal parameters set by syariah-law experts —be constituted, given the words and real implications of Wilson’s judgment in Ramah v. Laton?

These worldly and purposeful practitioners working in the area of Islamic finance and business law understood the situation clearly. They knew what needed to be done if such “mixed” courts and tribunals were to be established. “It is time,” they declared in their professional legal bulletins (as an Internet search will show), “for the ghost of Ramah v. Laton to be laid”.

Nothing less than the exorcism of an unwelcome and troublesome legal ghost was required. But they, at least, unlike the doctrinaire syariah expansionists of the International Islamic University, clearly understood what Ramah v. Laton had been about and what the judgment in that case really meant. No sentiment here, no ideology, just a practical purpose and determination.

Yet it is strange that, at the same time though in different areas, Ramah v. Laton can both be invoked by some yet its setting aside be urged by others in the name, and for the common purpose, of syariah law institutionalization and implementation.


This is a straight-forward argument, one that should prove unexceptionable to informed scholars, observers and students of these matters.

But in these times these are not easy things to say.

For those who have formed excessive, even quite distorted, revisionist views of the meaning of Articles 3 and 153 of the Constitution and of the meaning of the judgment in Ramah v. Laton, the argument offered above will be unwelcome.

It will be rejected because those who hold the positions that are criticized confuse what is congenial to them —what they want, and wish to be the case —with what in fact is the case, what the Constitution and that legal decision really mean and imply. Where these meanings and implications displease them, they substitute, perhaps unwittingly but in some cases with canny purposefulness, their own, and then persuade themselves that their convenient fictions are the historic truth.

To make this argument exposes the author to charges of sedition: of questioning the standing of Islamic law under the Constitution (as some mistakenly see it); of impugning by implication the position of the Malay Rulers as the constitutionally appointed guarantors of the position of Islamic law (including, the “syariah supremacists” hold, their own inflated notions of its position); and hence of seditiously putting in question the supremacy of the Constitution itself.

Faced with such accusations, one can do nothing but to say, and go on saying, that those of that other opinion are simply wrong, mistaken —and generally, so far as the lawyers and legal scholars among them are concerned, that they should know better.

* Clive S. Kessler is Emeritus Professor of Sociology & Anthropology at The University of New South Wales, Sydney.

  1. #1 by yhsiew on Saturday, 25 September 2010 - 11:24 am

    It is a well-known fact that in Bolehland ministers like to interpret laws to suit their agenda. Did not Mahadir say we are already an Islamic country? The sad thing was sycophantic BN component parties supported such irresponsible interpretation dictated by their boss.

  2. #2 by David69 on Saturday, 25 September 2010 - 12:41 pm

    I am not so sure what this article is all about syariah or article 153. I don’t agree with the syariah law as well. As most will condemn a person for life instead of just punishment for a crime.

  3. #3 by boh-liao on Saturday, 25 September 2010 - 1:11 pm

    Over MCA car plate issue, MCA ex-minister n current minister r calling each other liars
    Fascinating; so with Syariah, whose tongue should b chopped off?

  4. #4 by k1980 on Saturday, 25 September 2010 - 2:25 pm

    Would the above happen in the 13GE (after Chinese New Year in 2011)

  5. #5 by Loh on Saturday, 25 September 2010 - 3:18 pm

    Article 3(1): Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation.

    Islam is not called official religion of the Federation, but the religion of the Federation. It would imply that when there is any ceremony for the country where a religious ceremony is in order, that ceremony should follow the form as practised in Islamic religion. The proclamation of Malaya independence would have been carried out in Islamic ceremony, or the surrender of Malaysia to its victor could be done through Islamic religious ceremony.

    The constitution does not say that the persons practising any one specific religion are superior to those practising any other religions. Thus there are no religious followers who are recognized by the constitution as official religious followers.

    ///When Wilson J., in rejecting the presentation of outside expert testimony concerning fara’id and affirming the court’s own competence to consider the principles involved, declared that syariah law was, or was to be considered as part of, “the law of the land” he meant something specific in that context, as every competent lawyer will understand.///–Clive kessler

    The judgement was made in 1927, 30 years before Malays independence. If Malaya was then an Islamic state, Syariah law was considered only as part of the law of the land. So, Syariah law could not be a complete system of law for the land.

    Independence Malaya founded a secular nation, and only the number one racial opportunist introduced a change to the constitution in introducing in 1988 amendment to Article 121 (1A). Mamakthir chose to make changes on the legal system in the country not because the court could not understand Syariah law principles but he wanted to show that he contributed to Islamic religion so that he could have a stronger claim to be called Malay, being aware that he had two spoonfuls of Pakistani blood and that his blood-mix in the body was public knowledge.

    Strangely the experts who had persuaded the government quoting the decision in Ramah v. Laton, in its name and on its authority — that the civil courts could not hear any case involving syariah law principles– when Wilson the judge rejected the need for Syariah law experts because the Syariah principles were embedded as part of the law of the land. Thus, it is not a case of pursuing justice that Mamakthir made constitutional amendment to 121; if he had he would not have destroyed the legal system in the country in 1989 where the lord President and five supreme court Judges were dismissed.

  6. #6 by DAP man on Saturday, 25 September 2010 - 4:17 pm

    Almost every opposition member has been questioned for sedition – in all cases the report were made by UMNO or Perkasa.

    Today Ms Teo is being investigated for entering a mosque.
    May I know if the police have the power to make phone calls to people and ask them to drop by the police station to be questions.
    “We wont tell you who lodged the report and under that offense but you come here”.
    Now, is this legal.

  7. #7 by negarawan on Saturday, 25 September 2010 - 4:54 pm

    “NEW YORK: Americans need to understand Islam better to stop the increasing Islamophobia in the United States, said Prime Minister Datuk Seri Najib Tun Razak. He said that there appeared to be a negative perception of the religion and that Malaysia was prepared to work with the United States to fend off such intolerance.”

    Najip, don’t pretend you can solve other people’s problem when you have more serious inter-racial and inter-religious problems at home! Obama must be a fool to believe this.

  8. #8 by cemerlang on Saturday, 25 September 2010 - 11:04 pm

    Syariah law for all ? Now that is Islamophobia !

  9. #9 by Jeffrey on Sunday, 26 September 2010 - 12:38 pm

    Much of what Clive Kessler says is true.

    In Ramah v Laton (1926) what the court acknowledged was that if it had to address a point relating to Sharia raised before it, then the Court could can draw from experts available locally – since Islamic Law “is not foreign but local law, and is the law of the land” and one need not source the evidence from an expert on Sharia from (say) Saudi Arabia. This does not mean that the Court acknowledged that Sharia was the base and general law of priority application over the whole land. The British were colonialist(s) ruling the country via the euphemism of British Residents! Naturally the base law has since then been their law – the Common Law – though that does not mean it excludes all local elements or personal law like Sharia where it needed to be applied.

    Why it did not even exclude Chinese personal law as (before the Marriage Law Reform Act in 1976) if a Chinese man did not opt to marry under monogamous marriages enacted under the Civil Marriage Ordinance (based on English law) he could marry under his personal law allowing polygamy! The Courts recognized this. In Mary Ang’s divorce case the Court accepted evidence on Chinese personal law from a local expert Mr Lee Siow Mong. It was because Mr Lee was an expert on 2000 years of Chinese customs that he told the court – which the court accepted – that a Chinese man could divorce the wife if she were “barren” talkative and disrespectful to her mother in law! There was such an outcry from woman leaders then that the government enacted the Marriage Law Reform Act in 1976 to abrogate personal laws application, thus taking the traditional right of Chinese and Hindu men from taking more than 1 wife at the pain of committing the offence of bigamy! Muslim right relating to matrimony and inheritance are separately preserved under our Federal Constitution.

    The point of this is to show that the acknowledgement, recognition and application of personal law by the courts – Sharia in the case of Ramah v Laton and Chinese Customary law in Mary Ang’s case – could not by itself be skewed to argue for an affirmation that any personal law so applied or recognized implied its superior status of being the base and general law of the land! If Sharia was recognized as local law so was Chinese customary law so recognized! It is the particular flexibility of English and Common law that it does not preclude other laws. That’s the genius of it. It does not mean it was displaced as base law of primacy just because it applied Sharia local law or any other personal law in the process.

    When the Constitution was promulgated in Merdeka it definitely proceeded on the assumption that English Common Law was the base law for the new nation of pluralistic composition. The institutions of parliament, federalism vs state, judiciary etc in the Federal Constitution as today practised are all English Common Law and convention. The law as administered was and is now based on English law. Our Civil law Act receives all English law up to 7th April 1956, in the case of merchantile and banking law even thereafter Where our Parliament has enacted our own statutes and our courts have by their decisions evolved a body of own Malaysian case law, all their principles are guided and based on common law principles. So I don’t understand how anyone could seriously argue that Sharia is the base law without factoring in British colonization, the creation of a new nation from independence based on Federal Constitution and also the institutions of parliament judiciary etc based on British constitutional precepts (though taking into account local elements) and the workings of the law and courts way after. Ramah v Laton (1926) does not suggest it. LP Salleh Abbas Federal Court decision in Che Omar Che Soh v PP (1988) was clear that we are a secular state / constitution notwithstanding Islam the religion of the Federation.

  10. #10 by Jeffrey on Sunday, 26 September 2010 - 1:39 pm

    Islamic law definitely had gained firmer legal footing at least in peninsular Malaya centuries before the advent of the British. It is argued that Muslim law would have become the law of the then Malaya had not British law stepped in. Maybe so but the fact is that the British had stepped in and colonised, bequeathed their laws and developed the economy bringing in Chinese to work at the tin mines and Indians at the rubber plantations.

    No matter that the Terengganu Inscription dating back to the 13th century and the Undang-undang Melaka (Malacca Laws) in the 15th century, for example, had provisions concerning punishment for adultery, liquor consumption and theft, the incontrovertible fact is that the course/history has changed forever.

    Can one look back in nostalgia and asked what ifs – no British, no Colonisation, no English laws and no ‘immigrant’ races – and using Ramah v Laton (1926) or article 3 of the Constitution, say lets go back to emulate the times when all these never happened and yet (selectively when it suits one’s purpose) continue to enjoy all the things that have since happened?
    This is what it all tantamount to. It ignores that the nation created in 1957 was not the same before the British came. Whilst everyone goes forward we have people who want to go backwards.

    However the view on religion now is also different from then. Now, more than ever, Islam is viewed “a complete way of life covering all fields of human activities, private or public, legal, political, economic, social, cultural, moral or judicial”. This is basically what PAS supporters feel as well. That is why PAS Youth recently still seized on the multiple murders in Banting and insisted that the enactment of Islamic criminal laws would prevent serious crimes from taking place.

    At the heart if Islam is an all encompassing system of way of life how to reconcile with secular, western or common wealth precepts enshrined in the first and most basic obstacle our Federal Constitution?
    So that’s why until the Constitution is changed every effort will be made to interpret its provisions in line with Islam being the general base law of ultimate importance instead of English law.
    The first step is amending article 121(1) A of the Federal Constitution to say that civil courts have no jurisdiction to rule on anything touching Sharia.
    The next argument will be the make civil courts and civil law subordinate to syariah and shariah courts.

    The argument always proceeds thus : “the general public is under the mis-impression that Islamic law is strictly meant for Muslims. This is not the case in all situations because non-Muslims could seek justice from Syariah courts during the reign of various Muslim rulers…”

    Maybe yes when one talks of ancient times but in modern times? The counter-argument is that Muslims too could seek justice from Civil Courts. Ironically the case they cite- Ramah v Laton (1926) – prove it.

  11. #11 by good coolie on Monday, 27 September 2010 - 10:58 pm

    This time there will be no more non-Muslim MP’s who would support 121(1A) type of amendments. No more passing Constitutional amendments, and then, servilely carrying memoranda to the Prime Minister to ask back their rights. The MCA, MIC, and Gerakan MP’s were a bunch of clowns! If they had felt that was the right thing to do, Tungku, Sambanthan, and Tan Siew Sin would have legislated 121(1A) themselves during Merdeka. Why did they not do that, you silly clowns?

  12. #12 by frankyapp on Tuesday, 28 September 2010 - 3:04 pm

    Frankly speaking all the presentation or argurment about who’s who .whose’s whose and what’s what in the context of the constitution will not lead us to any better position with Umno. The main reason is Umno/Perkasa/TDM have a mindset that malays rule irrespective of come what may.I think one pretty good reason to en-counter this is to go to the heart land of the vast majority of the ordinary malays folks to telling them the true colour of Umno/Perkasa/TDM whose main intention is using them as shield to protect their own selfish interests.

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