administration of islamic law in malaysia

1. 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

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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.130
2 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 Politics
4 J. Bodin, Six Booksof the Commonwealth, Abridged
5
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 discourseof IslamicStateand IslamicLawin Malaysia,Kamaruzzaman
Bustaman, Ahmad
7 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
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 MuslimSocial Scientists of North America, Herndon 2206,p 1-24
9 Constitutionalismis composed by government accordingto 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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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.
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

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Mustafa has also concurred with his argument and commented that there is nothing in the
Sharia against enacting a written constitution.11
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:
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
12 Al-Qadri,Anwar Ahmad. IslamicJurisprudencein 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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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
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.

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

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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.
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.

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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
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.
16 Francis W.Cooker,“Sovereinty”. Encyclopedia of Social Science,Vol-14,p.265
17 Edward Mecheshey Sait(Ed) (1949), masters of Political ThoughtVol - II,London
18 Maududi, Syed Abul ʿAla. The Islamic Lawand Constitution.Lahore:Islamic Publications,1960
19 Al-Quran 11:107
20 Ibid,7:54

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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
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
21
Moustafa, T. (2013).Judging in God’s Name: State Power, Secularism,and the Politicsof Islamiclawin
Malaysia.Oxford Journal of Law and Religion, Vol. 3,(No. 1 (2014)),Pp. 152–167,doi:10.1093/ojlr/rwt035
22 Bustamam-Ahmad, K. (n.d.). The DiscourseOf The Islamic StateAnd IslamicLawIn Malaysia.In CirclesOf
Power And Counterbalances (p.16). Asian Transformations in Action The Work of the 2006/2007 API Fellows.

13. 13
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
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.
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
25 Thomas, T. (2005,November 17). Is MalaysiaAn IslamicState?
26 Wan Ahmad, D. (n.d.). Historical Legal Perspective.
27 The Islamic Partof Malaysia(PAS),The Islamic State Document, p19
28
Wu, J. (2014, May 18). Is Malaysiaan Islamic country? Retrieved from
http://www.themalaysianinsider.com/sideviews/article/is-malaysia-an-islamic-country-josh-wu
29 Meng, T. (2014,May 6). Pas And Hudud Law In Malysia:APositiveOr Peril?

14. 14
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
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 IslamicState. Islamic Studies (Islamabad).
31 Kamali,H. (1993). Characteristics Of The IslamicState. Islamic Studies (Islamabad),p 33
32 Moustafa,T. (2013). Judging in God’s Name: State Power, Secularism,and the Politics of Islamiclawin
Malaysia.Oxford Journal of Law and Religion, Vol. 3,(No. 1 (2014)),Pp. 162, doi:10.1093/ojlr/rwt035
33 The Syariah Criminal ProcedureAct (1997) and the Syariah Civil ProcedureAct (1997) borrow extensively
from the framework of the civil courts in Malaysia.The draftingcommittee literally copied the codes of
procedure wholesale,making only minor changes where needed. When they are placed sideby 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 Justiceof the Federal Court(as he then was),who
was on the draftingcommittees for the various federal and stateshariah procedures acts in the1980s and
1990s candidly described the codification of shariah procedureas follows:‘Wedecided to take the existing
laws that were currently in use in the common lawcourts as the basis to work on, remove or substitutethe
objectionableparts,add whatever needed to be added, make them Shari’ah-compliance[sic] and havethem
enacted as laws

15. 15
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 DiscourseOf The Islamic StateAnd IslamicLawIn Malaysia.In CirclesOf
Power And Counterbalances (p.20). Asian Transformations in Action The Work of the 2006/2007 API Fellows
36 Moustafa,T. (2013). Judging in God’s Name: State Power, Secularism,and the Politics of Islamiclawin
Malaysia.Oxford Journal of Law and Religion, Vol. 3,(No. 1 (2014)),Pp. 166
37 Article3 of Federal Constitution
38 Dr Malik Munip taught history atUniversity of Malaya for two decades, and was also a former Member of
Parliamentfor Muar
39 In Che Omar bin Che Soh v Public Prosecutor,Tun Salleh Abbas (former Lord President of the Federal Court
of Malaysia) said thatthe laws of Malaysia weresecular.

16. 16
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 stateis justa concept.This leads usinto a
misunderstandingon theconceptof Islamic,even among theIslamicmovement.Itseemsto them
thatwhen there is the promotion of an Islamic state,it will marginalizenon-Muslims.So,itis safeto
say thatan Islamicstate is howto formthe government.When wetalkaboutwhatis Islamic
government,you named itDaulah Islam,Negara Islam,Islamicstate.…al-ibrah musammâ wa laisa
bi ism (in fact,a thing is valued for its substance,notfromthename).Thenamecan be changed,but
the substanceisthe soul.Whatis in Islamis the soul”.
40 (1993, 95-6)
41 Islamic Law in the Modern World
42 (Winzeler 1985).

17. 17
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 IslamicState and Islamic Law in Malaysia, Kamaruzzaman Bustamam-
Ahmad