Can Islamic laws be tested by constitutional rights in Malaysia?

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The question of whether Islamic laws can be tested by constitutional rights in Malaysia is currently a subject of legal contention.

The Negri Sembilan government is preparing to argue in August that the validity of Islamic state laws should not be subject to testing against constitutional rights. This position is being advanced in a case where a Shariah law in Negri Sembilan, which criminalised cross-dressing among Muslims, was previously ruled unconstitutional and void by the Court of Appeal. The central point of contention is whether "Islamic laws be tested with Part II of the Federal Constitution," which outlines the fundamental liberties guaranteed to all Malaysians.
Legal Challenge to Shariah Law Validity

The Negri Sembilan government's appeal stems from a Court of Appeal decision that declared a Shariah enactment against Muslim cross-dressers unconstitutional. This ruling, which favoured three Muslim transgenders, found the law to be in contravention of fundamental liberties and discriminatory, particularly for failing to recognise individuals diagnosed with gender identity disorder. The state government, along with other applicants including religious affairs departments and officials, is seeking to overturn this decision.
Federal Territories Islamic Religious Council's Stance

The Federal Territories Islamic Religious Council (MAIWP), acting as an amicus curiae or "friend of the court," intends to present a similar argument. MAIWP's involvement highlights a broader debate within Malaysia concerning the intersection of civil constitutional rights and religious laws. This argument was also raised in a separate case concerning the constitutionality of a rule preventing non-Muslims from practising as Shariah lawyers, leading to a postponement of that hearing.
Federal Constitution and Fundamental Liberties

Part II of the Federal Constitution, encompassing Articles 5 to 13, enumerates essential fundamental liberties. These include rights such as personal liberty, equality before the law, freedom of movement, and freedom of expression. The Court of Appeal's decision in the cross-dressing case specifically referenced these provisions, stating that the Shariah enactment violated these guaranteed freedoms and was therefore void.
Ongoing Judicial Review and Future Proceedings

The Federal Court has accepted the challenge to the Court of Appeal's ruling, indicating that it will examine whether the specific section of the Negri Sembilan Shariah Criminal Enactment 1992, which criminalises cross-dressing, conflicts with Articles 5(1), 8(1), 8(2), 9(2), and 10(1)(a) of the Federal Constitution. The upcoming hearings in August are expected to further clarify the legal framework governing the relationship between constitutional rights and Islamic laws within Malaysia.

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Can Islamic laws be tested by constitutional rights in Malaysia?

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