FACULTY OF SYARIAH AND LAW

SEMESTER 7 (2015/2016)

LAB 2013

ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA

TLB 18

“IS MALAYSIA AN ISLAMIC STATE?’

NAME OF STUDENT:

SITI NUR JANNAH BT HASANUDDIN

1122051

NAME OF LECTERUR:

MADAM NAWAL BT SHOLEHUDDIN

1.0 Introduction

Islam is the faith and religion of over five hundred million people around the world.1 Islam

begun with the mission of all Prophets of God and Prophet Muhammad (PBUH) was the last

prophet to whom the God’s guidance was revealed in its completeness. This guidance

enshrined in the Quran and Sunnah which is the word of God and the example of the Holy

Prophet.

The missions of the Prophets are to cater the spiritual elevation, to purify the beliefs and ideas

of man about reality, to purge his soul of all impurities, to awaken his moral consciousness

and to use this moral force for the reconstruction of the society and the remoulding of the flux

of history, and to establish the virtue and justice in accordance with the revealed guidance.

This is illustrated in the verse in the Quran2, “ We verily sent Our messengers with clear

proof, and revealed with them the Scripture and the Balance,( i.e., coercive power ) wherein

is mighty power and many uses for mankind and that Allah may know who helped Him and

His messengers, though unseen”. Thus, Islam wants to fashion one’s entire life in line with

the principles of individual and social behaviour revealed by Allah and does not confine itself

with the life of individual alone.

Maybe this is one of the reasons why the Muslims want to establish an Islamic state. Besides

that, the Islamic state is neither a dream nor a figment of the imagination. The existence of

Islamic state had dominated and influenced history for more than thirteen hundred years. It is

a reality and it has been and always will be. This is proven in the Prophet’s time, and the four

Right-Guided Caliphs which are Abu Bakar, Umar, Uthman and Ali.

The Medina Caliphate was truly Islamic in the sense that it fully reflected the teachings of

both Quran and Sunnah. Even though some might rebutted that there has never existed a truly

Islamic state after the Islamic history or one might ask does Islam really expect the Muslims

to strive at all times under any circumstances for the establishment of Islamic state or it is just

desire for it based on the historical memories?? The answer is only way for us, as a Muslim

to re-establish an Islamic state is by looking for guidance to no other sources than Quran and

Sunnah which is relying on no authority than the explicit word from Allah and the teaching of

the Prophet, so that hopefully it will guided the world that had been in the darkest of ages

return to enlighten humanity once again.

1 Abdullah Al-Madusi, Muzahib-e-Alam, Karachi,1938, p.1302 Quran (57 : 25)

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2.0 Terminologies

To determine whether a country can classified as Islamic state, first, we need to discuss the

concept of state under the Islamic Constitution Law and define each of the term. In the

Oxford dictionary, concept can be defined as an abstract idea or synonymous, a plan or

intention, or philosophy, where an idea or mental image which corresponds to some distinct

entity or class of entities or to its essential features, or determines the application of a term

and thus plays a part in the use of reason or language.

The origin of concept exists in the mid-16th century. It is from Latin word, “conceptum”

meaning “something conceived”. Then, what is it “state”? The Law dictionary defines state

as a body politic or society of men united together for the purpose of promoting their mutual

safety and advantage by joining efforts of their combined strength.

So, what is the concept of state? As we know, state is a community of persons more or less

numerous, permanently occupying a definite portion of territory, independent of external

control and possessing an organized government to which the great body of inhabitants

render habitual obedience.

States vary in shapes, sizes, cultures, forms of government, language, natural sources and to

name a few. However, all states possess four elements which are people, territory,

government and sovereignty. The absence of this element will not make a state becomes a

state.

From the Western perspective, state emerged as part of the opening or unfolding process of

cultural development which had its corollary the breakdown of the power of undifferentiated

primitive communities such as the sib, the clan and the tribe.3

The first Western thinker, Jean Bodin defined state as “the right government of several

families and what is common to them, with sovereign power”. The word right in this

definition implied that the power is exercised from the common good.4

Thomas Hobbes define state as an aggregate of individuals, each free to pursue his proper

interest through contract, each free from artificial constraints of class, church, guild or any

other form of association.5

3 Chap 12, The State in Western History, E.L Hedden Taylor, Confessing Christ in Doing Politics4 J. Bodin, Six Books of the Commonwealth, Abridged5 Robert A. Nisbet, Community and Power, (Oxford University Press, New York, 1968), p.137. Cf. John Plamenatz, Man and Society, (Longmans, London, 1967), Vol. I and II.

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To conclude, in the Westerners view, they hold towards the reality of the state and towards

the type of ruler within the state, whether it was religious, as was the case in the medieval

times, or dictatorial or democratic, all agree that the state is reflected in the land, its people

and its rules and that represents the cornerstone of the state. For them, the state is established

over a specific piece of land, in which a specific group of people live permanently and over

whom a ruling authority presides.

It should be noted that, many Muslim scholars have explained the nature of an Islamic state.

This topic is studied in Islamic political science (siyâsah syar‘iyyah) as part of Islamic

jurisprudence or Islamic law (fiqh al-Islâm). In Islamic sources, an Islamic state can be

defined in Arabic terms as “ Al-Dawlah” or “Ghalaba” meaning the supremacy. It is also a

term used to indicate the change of time or the days that had alternated or rotated. That is

why state change according to the change of concept, change of time and change of people. It

shows that the condition of a state is changeable. Some of Islamic sources, defining Islamic

state as bani (dynasty), hukumiyyah (government), sulthan (kingdom), khilafat (state) and

imamah (leadership).6

In modern Persian, “dawlat” is a similar word refers to government. It is interchangeable with

another Persian word, hukumat (hukumah). In modern Turkish, devlet ( a derivative from the

Arabic ) refers to state, not government7. Apparently, there is an evidence for dawlah that

have been used in the Jahiliyyah - pre Islamic period by poets who meant by it “times of

success”. Even the first Abasid Caliph, Al-Saffah, triumphantly declared on his accession,

“you have reached our time and Allah has brought you our dawlah” (i.e., turn/time of

success).

Thus, Islamic state is a ruling authority and a political entity that looks after the citizen’s

affairs according to the Shariah rules, in other words, it is a Khaleefah ruling by what Allah

has revealed and carrying Islam as a message to the entire world. Allah has decreed that the

Islamic state should be the method to implement the Shariah rules and to carry Islam by way

of Da’wa and Jihad.

The concept of Islamic state does not consider its territory, or specific group of people. The

numbers of citizens are growing in numbers at all times including different races and colours.

This is due to message brought by Islam, which Islam is universal and also Allah invited all

6 (Hilmi 1998;Ahmad 1988), The discourse of Islamic State and Islamic Law in Malaysia, Kamaruzzaman Bustaman, Ahmad7 Islamicus.org/Daulah/

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types of people to enter into Deen of Allah. Therefore, anyone could become part of the state

subject despite the races and religion, who respond to call and believe in Islam.

3.0 Islamic Constitutional Law

Islamic Constitutional Law is composed by norms and regulations extracted from the sources

of divine law which is Quran, Sunnah, the Consensus of the jurists and the analogical

reasoning related to the administration of the state. As Ann Elizabeth Mayer points out,

“Islamic Constitution is a constitutionalism in some form, based on Islamic principles, as

opposed in the constitutionalism develops in countries that happen to be Muslim but which

have not been informed by distinctively Islamic principles.8

There shall be no such legislation that would contravene any of the Shariah principle, if there

is, it shall not be included. It is incumbent upon the state to uphold and enforce the virtues

that Islam provided. This is illustrated in Iran country where the country enacted Islamic

Constitution 1982. It should be noted that Islamic state is given to the state which inserted

Islamic provisions in its Constitution and exercise it. However, if the state not applying the

Islamic provision, even though the majority citizen is Muslim, it is still not categorized under

Islamic state, for example, Malaysia, Saudi Arabia, Bangladesh and to name a few.

From the Western perspective, the term constitutionalism defines a theoretical doctrine whose

aim to limit the power whereas in the Islamic perspective, Islamic Constitution tries to find

place for Sharia’ inside the institutional architecture.9 Quoting Tamara Sonn ; the question of

the proper Islamic form of government remains open. Is it simply headed by a Muslim,

regardless of its form? Is it one which only Muslims participate? Is it one hat based on

models derived from particular era of Islamic history?10

As we all know, the term of Islamic state is composed of two words which is “Islam” and

“State”. Nowadays, the Muslim had realized the importance of creating an Islamic state but

much confusion remains in defining its parameters. Does a state can be considered as an

Islamic state when the majority of the citizens a Muslim? Does the existence of Islamic

movements in positions of the authority constitute an Islamic state? These questions can be

answered if we as a Muslim work together and find the best solution by relying on Islamic

sources which is Quran and Sunnah to re-establish Islamic state.8 A.E Mayer quoted in : N. Hosen “ In Search of Islamic Constitutionalism” in The America Journal of Islamic Social Sciences, vol 21, No 2, Association of Muslim Social Scientists of North America, Herndon 2206, p 1-249 Constitutionalism is composed by government according to the constitution, separation of power, sovereignity of people and democratic government and etc.10 T. Sonn, “Elements of Government in Classical Islam” in M.A Muqtedar Khan, Islamic Democratic Discourse, Theory, Debates and Philosophical Perspective, Lexington Books, New York, 2006, p.21

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The formation of Islamic state is composed of Aqidah (doctrine) and a collection of laws

emanating from it. The Islamic state must derive its entire constitution by evidence to verify

such a law or article derived from Islam for a state to be considered Islamic. Any

contradiction that existed in the constitution will be excluded a state from the circle of Islam.

Islam has to be the basis for the foreign policy between the Islamic state and the other states.

Consequently, Islam outlines the objective of the foreign policy of the state. The questioning

of the ruler/state by the ummah(citizen), individuals or the political parties has to be based

upon Islam. Islamic state cannot be implemented by the state alone, it must be implemented

by both, the ummah and the state. For example, the state implements Islam whilst the ummah

keeps a check and balance on the state. Even the process of check and balance must be based

on Islam.

The Islamic state is not a desire that one aims to satisfy, but one need to bear in mind that it is

an obligation that Allah has decreed on Muslim and commanded them to execute. Allah said

in surah Al-Hashr, 59:7 “Do take all that the Messenger of Allah has brought to you, and do

refrain and keep away from all that he prohibited for you, and fear Allah for Allah is swift in

punishment. This verse shows that Allah commanded all the Muslim, including the rulers, to

abide by Islam and to comprehensively implement all of His rules exactly as they have been

revealed and refrain from all the prohibitions. The request of taking and refraining in this

verse is decisive and obligatory because there is conjunction acting as evidence at the end of

this verse where Allah warns us against the severe punishments waiting to those who do not

take all the Messenger has brought and do not refrain from all that He prohibited. This

supported in surah Al-Maida, 5:49, “And whoever rules by what Allah has revealed, they are

the disbelievers”. This verse indicated those who rules by other than what Allah revealed,

without believing in what he rules, as a fasiq (rebel) and dhalim (wrongdoer). In response to

the question whether constitution making was acceptable in Islam, Rashid Rida argue that if

enacting a formal constitution operates as a check on despotism, then there is no question

over its compatibility with the Shariah. The contemporary Egyptian scholar Mahmud Hilmi

Mustafa has also concurred with his argument and commented that there is nothing in the

Sharia against enacting a written constitution.11

11 Muḥammad Rashīd Riḍā, Fatāwa Imām Muḥammad Rashīd Ridā, comp. Ṣalāḥ al-Dīn Munjid and Yūsuf Khurī (Beirut: Dār al-Kitāb al-Jadīd, 1390AH/1970), 805–8; Maḥmūd Ḥilmī Muṣṭafā, Niẓām al-ḥukm al-islāmī (Cairo: n. publ., 1401AH/1981, 6th ed.), 122

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Therefore, Muslims must re-establish the Islamic state as Islam would not have an influential

presence without it and the country would not become an Islamic homeland unless it is ruled

by Islamic state.12

4.0 The concept of Islamic State in the Quran And Sunnah

First of all, we should know whether there is any concept of Islamic state that had been laid

down in the two main sources of Islam. A thorough examination of the scripture and Hadith

literature shows that there is no such concept of Islamic state. In fact, after the death of the

Holy Prophet, the Muslims were not agreed on the issue of his successor.

The question arose that the Prophet (PBUH) had never appointed any successor. As far as the

Quran is concerned, there is, at best, a concept of society rather than a state. The Quran

emphasize on Adl and Ihsan, i.e. justice and benevolence. A Quranic society must be based

on these moral values. Also the Quran strongly opposes zulm and udwan, meaning applession

and injustice. These Quran verses are most fundamental. It is debatable whether a state,

declaring itself to be Islamic state can be legitimately accepted without being the civil society

on those values.

5.0 Historical Background

In the pre Islamic Arab year, there was no distinction between a state and a civil society.

There was no written law, much less constitution. There was no governing authority either

hereditary or election. However, there was a senate called “mala”. It consisted of tribal chiefs

of the tribes in the area. Any decision taken had to be unanimous and the tribal chiefs

enforced the decision in their respective tribes. If a tribal chief dissented, the decision could

not be implemented.13 There was no taxation system, or any police or army. No concept of

territorial governance, or defence or policing. Each tribe followed its customs and traditions.

The only law prevalent was qisas, i.e.; retaliation. This is illustrated in surah Al-Baqarah 2:

179, “And there is life for you in retaliation, O men of understanding”. This verse indicated

that the whole tribal law and ethic in pre Islamic Arabia was based on the law of retaliation.

Fortunately, there was one very important occasion for the development of political theory,

which is the Compact of Medina. Some scholars named it the Dastur Al-Medina (The

Constitution of Medina). This sahifah existed after the Prophet Muhammad (PBUH) migrated

12 Al-Qadri, Anwar Ahmad. Islamic Jurisprudence in the Modern World. Karachi: n.p., 1973.13 Mahmassani Subhi. Falsafah al-Tashri’ fi al-Islam. Trans. Shah Alam. Hizbi, n.p., 1986

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from Mecca to Yathrib (Medina) in 6222ce. The prophet was the first person to establish the

first Islamic state. It was about twenty three years. The prophet exercised his jurisdiction over

the Muslims as well as Non-Muslim within the city. The legitimacy of his rule over Mecca

and Medina was based on his status as the Messenger of Allah.

It should be noted that, the prophet did not rule the Non-Muslims of Medina as they did not

recognize the particular credential of his. He ruled over them by virtue of the tri-partie

compact that was signed by the Muhajirin (Muslim immigrants from Mecca), the Ansar

(indigenous Muslim in Medina) and the Jews. It is interesting to note that Jews were

constitutional partners in the making of the first Islamic state.

On the Western era, there are really few examples of constitution event in human history. In

the America, the Mayflower compact is one of the examples. The writing and signing of the

constitution after six month of deliberation in Philadelphia may be considered as the example

of social contract.

Thus Muslim is fortunate to have the compact of Medina, as a tradition upon which the

foundation of a modern state can build. But one might argue that the compact of Medina by

itself cannot serve as a modern constitution as it would be quite inadequate since it is

historically specific document and quite limited in its scope. However, it can serve as a

guiding principle to be emulated rather than a manual to be duplicated.

To put it simply, the constitution of Medina establishes the importance of consent and

cooperation for the governance. According to this compact, Muslim and non-Muslim are

equal citizens of the Islamic state with identical rights and duties. Communities with different

religious orientations enjoy religious autonomy. The Constitution Of Medina indirectly form

a pluralistic state as it promised equal security to all citizens and they were equal in the eyes

of law. The principles of equality, consensual governance and pluralism are beautifully

enmeshed in the Compact of Medina.

6.0 The Concept of State under Islamic Constitution Law

An Islamic state cannot be isolated from society because Islam is a comprehensive and

integrative way of lives. The division between private and public, state and society, which is

familiar in Western culture, has not been known in Islam. However, Islam does not dictate

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any particular system of government, or any system of economic. Instead, there are certain

Islamic political principle, including syura (participation), justice, economic, which can be

adapt to guide the Muslim’s participation in political affairs.

According to Hassan Al-Turabi,14 the foundation of an Islamic state lies in the doctrine of

Tauhid (the unity of God and human life) as a comprehensive and exclusive worship. This

fundamental belief has four consequences for an Islamic state.

Firstly, Islamic state is not secular state. All public life in Islam is religious, being

permeated by the experience of the divine. Its function is to pursue the service of God as

expressed in a concrete way in the Syariah, the religious law. The general characteristic of a

secular state are (a) the state must be neutral towards religion, (b) the state cannot give

religion a privilege position in the public arena, (c) the state’s coercive powers and resources

cannot be utilized in the service of any religion, (d) the state should not privilege a religion

over another, (e) the state should not permit religion to be a requirement in public office and

(f) the state should not interfere with the affairs of religion and vice versa.

These characteristics are far from the nature and characteristics of the Islamic state. For the

first example, Al-Mawardi is blaming and critizing the actions of Abbasid in the Tashil15. He

said “Rulers are like the sea out of which small rivers flow. If the water is of the sea is sweet,

rivers will also be sweet and if the water of the sea is salty, then the rivers will also become

salty”. This phrase indicates that Rulers of the state shall play their role in the state affairs

such as religion, economic and others in order for the state to be succeeded. This indirectly

breaches the characteristics of secular state which stated the state shall not interfere in the

affairs of the religion.

The second example, Islamic state is essentially an ideological state. It classified the citizen

into Muslim (who believe in ideology of the state) and Non-Muslims (who do not believe in

that ideology). It is obvious from the ideological nature that on Islamic state has

responsibility to run the state primarily with the Muslim. For the non-Muslim, they were

asked to cooperate with the Muslim in the task of administration but they should be neither

called upon to undertake nor can be entrusted with the responsibility of policy making. This

is clear cut shown that Muslim citizen is given privilege. Thus it breaches the secular

characteristics which state that the state should not privilege any religion over other religion.

14 In the Shadow of the Prophet15 Al Mawardi, Tashil, p.45

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Secondly, an Islamic state is not a nationalistic state because ultimate allegiance is owned

to God and thereby to the community of all believers (the Ummah). The Islamic state is

unique in nature and structure. It is built on the root of Islamic Aqeeda, which is “there is no

God except Allah and Muhammad is the Messenger of Allah”. This principle is

comprehensive thought about life and the Muslims viewpoint about life has been determined

as this viewpoint reads to the belief that life is just temporary and is created by a Creator.

Muslim as the slave of the Creator, Allah, shall conducted life by the commands and His

prohibition. For the Muslim, it is a foregone conclusion that there is no legislator but Allah

and there is no allegiance in this life except to the Rule of Allah, not to the people, nor the

Ruler.

It should be noted that Islamic state is established by human, which means it is not a holy

one. The Khulafa or Imam or Ruler who run the state is human being. They tend to make

mistake as they are neither holiness nor infallibility. It is the ummah who appointed them.

Allah has delegated the appointment of the ruler by the Bay’ah (pledge of allegiance), so that

the Ruler undertake the responsibility on His behalf.

There is a hadith, by Abdullah Ibn Amr Ibn Al-Aas reported, I heard the Messenger of Allah

(PBUH) said; “whose pledge allegiance to an Imam (Ruler) giving him the clasp of his hand

and the fruit of his heart, shall obey him as much as he can”.

However, if the Ruler disobey the command of Allah and committed sins, we as the ummah

has the right not to allegiance to him and take up arms against the Ruler. This is supported by

hadith Bukhari, narrated by Ubada Ibn As-Samit, “And that we shall not dispute with the

people in authority unless you witness an act of flagrant disbelief of which you have proof

from Allah”.

Therefore, the power of ummah and the ruler is alike. There is no mandatory power to

legislate any rule or any law that has been revealed by Allah upon His Messenger.

Third, an Islamic state is not an absolute or sovereign entity. The term “sovereign” is

derived from the Latin words “supernuus” which means supreme. The definition of the term

is varied but “it always signifies the highest governmental and legal authority of some sort”.16

The attributes and characteristics of sovereignty are said to be permanence, exclusiveness, all 16 Francis W.Cooker, “Sovereinty”. Encyclopedia of Social Science, Vol-14, p.265

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comprehensiveness and absoluteness17. If a person or a group or an institution is to be

sovereign, it would mean that the word of the poem, group or institution is law. For Muslims,

sovereignty in all aspects is only for Allah. He alone is the Creator and the Ruler of this

universe. No subject has any absolute right against him or in contravention of His orders.18

The Quran stresses in many verses regarding the sovereignty of Allah who is omnipotent

such as Allah is All Powerful19, He is the Creator, He is the Law20 and to name a few. Thus

constitution in an Islamic state is not sovereign because it does not have the power to make

any law arbitrary. The concept of sovereignty only belongs to Allah, whose de facto

sovereignty is inherent and manifest in the working of the entire universe and who enjoys

exclusively the sovereign prerogative order all creation. Any deviation of acceptance of His

de jure sovereignty has been described as plain and unadulterated kufr, i.e, disbelief, in

(5:14), “And those who do not make their decision in accordance with that revealed by Allah

are in fact the disbelievers”. This clearly shows that the acceptance and admission of de jure

sovereignty of God in Islam and its denial are kufr.

Fourth, an Islamic state is not primordial. The primary in Islam is the ummah. The phrase

“Islamic state” itself is misnomer. The state is only the political dimension of the collective

endeavour of Muslims. The norms of Islam are only partly legal depending on the sanction of

the state power. For most of it, the implementation of the Syariah is left to the free conscience

of believers or informal means of social contract.

According to Hassan Al-Turabi, the state consists of people, territory and power, which is

executive, legislative and judicial. The state has to regulate some aspects of national religious

communities. For example, Constitutional legal and judiciary procedure involve extensive

oaths, which have a religious content and so on. Thus religion must form an integral part of

political life. The form of the government is determined by the foregoing principles of tauhid,

entailing the freedom, equality and unity of believers. One can call on Islamic state if the

Syariah rules out usurpation and succession as ground of political legitimacy.

One of the examples that illustrates the importance of ummah is the women in Sudan are now

allowed full freedom of mobility and allowed to attend mosque at will unlike the earlier time

in the Sudanese history where women were commanded to their side of the house. Women

17 Edward Mecheshey Sait (Ed) (1949), masters of Political Thought Vol- II, London18 Maududi, Syed Abul ʿAla. The Islamic Law and Constitution. Lahore: Islamic Publications, 196019 Al-Quran 11:10720 Ibid, 7:54

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are also granted the same civil rights as men and are allowed to vote and hold public office in

the Sudanese Parliament.

In conclusion, the political theory of Islam hat to undergo frequent changes to accommodate

the empirical reality. Nowadays, there are several Muslim countries that call themselves

“Islamic state” such as Iran, Pakistan, Sudan and others. It should be noted that support for

the ideal of an Islamic state today needs to be situated against the broad failure of the secular

post-colonial Muslim majority state. Most states in the Muslim world today have been

characterized by corruption, authoritarians and varying degrees of political repression.

Even though the Quran does not give much about the concept of a state but it greatly

emphasize the nature of society. It lays down the principles of morality and ethics, also give

guidance in political, social and economic fields. These cannot be translated into practice

unless there is a state to enforce them.

7.0 Commentary

Based on the discussion provided above, to my way of thinking in adapting to Malaysia

context, the answer regarding the issue is negative. From my point of view, Malaysia is not

an Islamic state, neither is secular. It is an ambiguous state. The reasons for my view are

discussed below.

Firstly, the Federal Constitution forms the basis in establishing the government in Malaysia. Hence it does not fulfil the primary requirement of being an Islamic state which is well-known that the vital reference in governing the Islamic state is the divine law i.e. the Holy Quran and Sunnah (the practise of the Prophet)21. Even though, there is contention stating that there is no example of Islamic state22, nowadays there are several countries that have applied the concept in governing the state namely Saudi Arabia, Egypt, Pakistan and East Middle country.

For instance, Article 3 of the Federal Constitution speaks about Islam is the religion of the federation, but other religion may be practised in peace and harmony in any part of the federation. There is numerous interpretation of this article. It is reflected by a number of cases where the said argument was presented before the courts23. The learned judge in the landmark case, Che Omar24, concluded that the real intention of these constitution framers was Islamic law was to be understood in an isolated manner, confined just to the law of 21 Moustafa, T. (2013). Judging in God’s Name: State Power, Secularism, and the Politics of Islamic law in Malaysia. Oxford Journal of Law and Religion, Vol. 3,(No. 1 (2014)), Pp. 152–167, doi:10.1093/ojlr/rwt03522 Bustamam-Ahmad, K. (n.d.). The Discourse Of The Islamic State And Islamic Law In Malaysia. In Circles Of Power And Counterbalances (p. 16). Asian Transformations in Action The Work of the 2006/2007 API Fellows.23 Hajjah Halimatussaadiah binti Haji Kamaruddin v. Public Services Commission Malaysia & Anor., [1994] 3 C.L.J. 532; Meor Atiqulrahman bin Ishak & Ors v. Fatimah bte Sihi & Ors, [2000] 5 M.L.J. 375; Fatimah Sihi v. Meor Atiqulrahman bin Ishak, [2005] 2 M.L.J. 25.24 Che Omar bin Che Soh v. Public Prosecutor, [1988] 2 M.L.J. 55

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marriage, divorce and inheritance only. He put the responsibility of relegating the scope of Islam, i.e. Islamic law to the British colonialists following their rule of the land.

According to Professor Sheridan, the Supreme Court decision in the Che Omar, was doubtless correct, where he stated that “A Federation, as opposed to the people within its territory, having a religion is a difficult notion to grasp. It has been suggested that the probable meaning of the first part of Article 3(1) is that, insofar as federal business (such as ceremonial business) involves religious matters that business is to be regulated in accordance with the religion of Islam.”25 This shows that the meaning of Islam in the frames of constitution had been given a narrow interpretation where Islam is only relates to rituals and ceremony26 nevertheless it is recognise as the law of the land.

Besides that, Malaysia does not enforce some of the mandates which stipulated in the divine law such as Hudud, in curbing the criminal cases. Hudud provides much required peace and security as crimes would be reduced to its minimum27. The Holy Quran, Al-Maaidah: 38, stated to the effect that “As to the thief, male or female, Cut off his or her hands: punishment by way Of example, from Allah. For their crime: And Allah is exalted in Power, Full of Wisdom”. As a person professing Islam, it is mandatory upon the believers to comply with what had been instructed to the believers in the divine law and it must be implemented. Those who votes for hudud will claim that, "Malaysia is an Islamic country, therefore, we should have Islamic laws" while those who against hudud claimed that “Malaysia is a secular country and Islamic law has no place in it"28. Instead, Malaysia implements the Penal Code (Act 574) which is originated from Indian Penal Code in administrating the criminal law.

It is contended that Hudud penalties violate the human rights29. There are several types of punishments stated in the Hudud laws. One of the punishments is the punishment for Sariqah (theft) is amputation of hand or cross amputation of limbs. It is allege that Hudud penalties are disproportionate for the crime committed. Implementation of punishments that includes different form of cruel, inhuman and degrading treatment imposed on the offenders violates the human rights. The nature of Hudud penalties is out dated and inhuman. It does not fit in the country with multiracial and multi religion society. Hence, this is one of the reasons why the non-Muslim rejected and opposed firmly Islamic state which they fear that the divine law will be implemented.

Apart from that, Malaysia applied democracy concept. The main difference between an Islamic state and democracy state lies in the ultimate or sovereign authority which inherent in the will of the people. Although, the people remain the main sources of authority in an Islamic polity, the basic structure of values in Muslim society is determined by reference to divine revelation. But within that framework, the community is the locus of considerable authority. It is the ummah, as stated earlier, whose authority the government represents. The government is accountable to it and the ummah is entitled to depose a leader who is in serious

25 Thomas, T. (2005, November 17). Is Malaysia An Islamic State?26 Wan Ahmad, D. (n.d.). Historical Legal Perspective.27 The Islamic Part of Malaysia(PAS), The Islamic State Document, p19 28 Wu, J. (2014, May 18). Is Malaysia an Islamic country? Retrieved from http://www.themalaysianinsider.com/sideviews/article/is-malaysia-an-islamic-country-josh-wu29 Meng, T. (2014, May 6). Pas And Hudud Law In Malysia: A Positive Or Peril?

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violation of the terms of his office30. One might also argue that the Islamic state has features in common with democracy and it is, in many ways. It is committed to the democratic ideals of justice, equality and the basic liberties of the individual. Separation of powers which is a pillar of Western democracy is also upheld in the Islamic state31.

For example in the jurisdiction matters32, the Administration of Islamic Law Act and parallel state-level enactments establish a hierarchy in the shariah court judiciary akin to the institutional structure that one would find in common law and civil law systems. Articles 40 through 57 of the Act, establish Shariah Subordinate Courts, a Shariah High Court and a Shariah Appeal Court. While the concept of appeal is not completely alien to the Islamic legal tradition, there is little or no precedent for the hierarchical structure of the shariah judiciary from within the Islamic legal tradition.

It is important to note that there is a political logic to judicial hierarchy in the common law tradition, upon which the shariah courts are modelled. Judicial hierarchy is designed to achieve uniformity and ‘the downward flow of command’.

This is precisely the opposite dynamic of the concept in the Islamic legal tradition, where the evolution of jurisprudence is bottom up and pluralistic, rather than a top-down and uniform. It is not only the structure of the shariah court system that resembles the English common law model. Procedural codes also follow suit33.

The process and that ‘‘methodology’’, if it can be so called, continue until today. The ex-learned judge acknowledged that the similarity between the shariah criminal and civil procedure are ‘to a large extent, the same as those used in the common law courts’. So much so that ‘a graduate in law from any common law country reading the ‘‘Shari’ah’’ law of procedure in Malaysia would find that he already knows at least 80% of them . . . a common law lawyer reading them for the first time will find that he is reading something familiar, section by section, even word for word. Yet they are ‘‘Islamic law’’’.

30 Kamali, H. (1993). Characteristics Of The Islamic State. Islamic Studies (Islamabad).31 Kamali, H. (1993). Characteristics Of The Islamic State. Islamic Studies (Islamabad), p 3332 Moustafa, T. (2013). Judging in God’s Name: State Power, Secularism, and the Politics of Islamic law in Malaysia. Oxford Journal of Law and Religion, Vol. 3,(No. 1 (2014)), Pp. 162, doi:10.1093/ojlr/rwt03533 The Syariah Criminal Procedure Act (1997) and the Syariah Civil Procedure Act (1997) borrow extensively from the framework of the civil courts in Malaysia. The drafting committee literally copied the codes of procedure wholesale, making only minor changes where needed. When they are placed side by side, one can see the extraordinary similarity between the documents, with whole sections copied verbatim. Abdul Hamid Mohamad, a legal official who eventually rose to be Chief Justice of the Federal Court(as he then was), who was on the drafting committees for the various federal and state shariah procedures acts in the 1980s and 1990s candidly described the codification of shariah procedure as follows: ‘We decided to take the existing laws that were currently in use in the common law courts as the basis to work on, remove or substitute the objectionable parts, add whatever needed to be added, make them Shari’ah-compliance [sic] and have them enacted as laws

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Therefore, it can be said that Malaysia is not an Islamic state34, but recently, research35 shown that the Muslims practise the Islamic law according to Sharia. It cannot be denied that, maybe one day, Malaysia will become an Islamic state36.

Secondly, Malaysia does not fall under secular state requirements. One of the crucial reasons because in the federal constitution37 recognize Islam as the federal religion. Dr Malik Munip38 views that, by all the characteristics that define a secular state, Malaysia by the definition is not a secular state. It violates the principle attributes of a secular state on multiple fronts. Breaches to the tenants of a secular state are not the exception. It is almost the rule. In Malaysia, religion is not separated from the state but entrenched, empowered, enforced, expressed and elevated. 

The arguments are based on the judgment in Che Omar, where it was alleged that the statement in the case illustrate that Malaysia is a secular country39. After all, it is logical that a secular country would be governed by secular laws. But it should be noted that, the learned judge also stressed out the fact that Islam is "a complete way of life covering all fields of human activities, private or public, legal, political, economic, social, cultural, moral or judicial".

To collaborate the fact above, in the case of Ramah v. Laton   (1926), the Court of Appeal, presided by two English judges, acknowledged and held that Islamic Law "is not foreign but local law, it is the law of the land". 

In fact, the late Prof. Ahmad Ibrahim, a well-known legal figure, argued for decades that Islamic law is the fundamental law of the country. Even, R.J. Wilkinson, an English historian of this Malay Archipelago stated that there can be no doubt that Muslim law would have become the law of Malaya had not British law stepped in to check it. This indirectly rebutted the argument claiming that Malaysia is secular state. As it is known that, secular state cannot interfere with the matters regarding religion and should not be given any privilege to any religion.

34 Quoted from Tunku Abdul Rahman speech; “Malaysia cannot practise Islam fully because about half of the population are not Muslim. They have a different culture and different ways of life, and they don’t want Islam. Malaysians are generally a peace-loving people. We don’t want big changes to the values and traditions which we all practise. In the past, and I know this since I have been through all this since Independence, Malays, Chinese and Indians had no problems because we stuck to our constitutional bargain and we don’t want to impose our values on other people. So, there is no way we should have an Islamic State here. I’ve stated this before and I can say this again, since many of my Chinese friends want me to say this. The nature of our political parties, our coalition government, our democracy, and our multiracial life are sufficient foundations which can be used to build a prosperous and peaceful Malaysia. Why must we look to Iran and other Islamic States?”35 Bustamam-Ahmad, K. (n.d.). The Discourse Of The Islamic State And Islamic Law In Malaysia. In Circles Of Power And Counterbalances (p. 20). Asian Transformations in Action The Work of the 2006/2007 API Fellows36 Moustafa, T. (2013). Judging in God’s Name: State Power, Secularism, and the Politics of Islamic law in Malaysia. Oxford Journal of Law and Religion, Vol. 3,(No. 1 (2014)), Pp. 16637 Article 3 of Federal Constitution 38 Dr Malik Munip taught history at University of Malaya for two decades, and was also a former Member of Parliament for Muar39 In Che Omar bin Che Soh v Public Prosecutor, Tun Salleh Abbas (former Lord President of the Federal Court of Malaysia) said that the laws of Malaysia were secular.

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It is pertinent to note that, Choudhury 40 has categorized Muslim countries by governance. First, there some Muslim states like Afghanistan, Iran, Pakistan, Saudi Arabia and Sudan which designate themselves as Islamic states. Second, there are the vast majority of Muslim countries which do not claim to be Islamic states, but there are references to Islam sometimes in a form such as ‘state religion.’ These countries are governed mainly by Western legal codes but in personal matters such as marriage, inheritance etc., Islamic law or syarî‘ah is implemented. Third, there are a very few Muslim countries which prefer to have a ‘secular state’ on the pattern of the Western concept of the separation of politics and religion.

Whereas J.N.D Anderson41, classifies the legal systems of the Muslim world today: (1) those that still consider the sharî‘ah as the fundamental law and still practice it to a certain extent in their countries; (2) those that have abandoned the sharî‘ah and become secular; (3) those have reached some compromise between these two position.

Hence, Malaysia can be categorized as the state that practise Islamic law, but does not legally stated in the law that it is an Islamic state neither a secular state. The debate on the nature of Malaysia’s identity is mired in confusion. The confusion is regarding the semantic nature which is lack of clarity in defining a secular or an Islamic state.

8.0 Conclusion

In conclusion, based on my findings above, I would like to point out that the debate on an Islamic state has led different groups of Malaysians to form their own interpretation of this concept. So far, this investigation has provided a brief portrayal of Muslim and non-Muslim interpretations of what an Islamic state are. I am convinced that Malaysia is neither an Islamic state nor secular state. However it cannot be denied that the practise in Malaysia nowadays is towards becoming an Islamic state. My hope is that, the concept of Islamic state can be construed in an exact concept. It is not impossible as in the Islamic era, the Prophet had governed Medina where the citizen was not only the Muslim but non-Muslims too i.e. Jews and others. In Malaysia, Kelantan can be an example of how an Islamic state is, where one can say that there is no serious tension between Muslims and non-Muslim.42

I would like to quote the Head of the PAS Consultative Council, Dato’ Nik Aziz Nik Mat, on the notion of the Islamic state, “The Islamic state is just a concept. This leads us into a misunderstanding on the concept of Islamic, even among the Islamic movement. It seems to them that when there is the promotion of an Islamic state, it will marginalize non-Muslims. So, it is safe to say that an Islamic state is how to form the government. When we talk about what is Islamic government, you named it Daulah Islam, Negara Islam, Islamic state. …al-ibrah musammâ wa laisa bi ism (in fact, a thing is valued for its substance, not from the name). The name can be changed, but the substance is the soul. What is in Islam is the soul”.

40 (1993, 95-6)41 Islamic Law in the Modern World42 (Winzeler 1985).

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9.0 References

Maudoodi, Syed Abul ʿAla. The Islamic Law and Constitution. Lahore: Islamic Publications,

1960

Taqiuddin An Nabhani, Hizb ut-Tahrir

Mahmassani Subhi. Falsafah al-Tashri’ fi al-Islam. Trans. Shah Alam. Hizbi, n.p., 1986

Constitutionalism and Democracy : An Islamic Perspective , Mohammad Hashim Kamali

The Principles of State and Government in Islam, Muhammad Asad

Al- Mawardi’s Theory of State ; Some ignored dimensions, Eltigani Abdulqadir Hamid

Azizah Y. al-Hibri, Islamic and American Constitutional Law: Borrowing Possibilities or a

History of Borrowing?

Md. Abdul Awal Khan, The need of Uniform Islamic Constitution for the Muslim Ummah: A

study of Islamic provisions on the Constitution of selected countries.

The Discourse of The Islamic State and Islamic Law in Malaysia, Kamaruzzaman Bustamam-

Ahmad

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