Upholding Law and Order: Why Should the Malaysian Taxpayers Fund Religious Bodies?

Photo: Firdaus Latif/CC BY 2.0

The current system of funding for Sharia courts is unconstitutional. There needs to be an overhaul of Sharia funding policy.

By Oliver Ward

UMNO and PAS have defended their decision to expand the reaches of the Sharia courts in the state of Kelantan, reassuring non-Muslims that the expansion would not affect them. The Sharia courts have expanded the range and limits of their punishments, as part of some bills aimed at increasing the power and status of the Sharia courts across the country.

But their reassurances sound like hollow words. With state funding for the Sharia courts coming from the taxpayer’s pocket, any amendment or expansion to the courts will financially affect Muslims and non-Muslims across Malaysia equally.

Taxpayer funding for the Sharia courts goes against the Constitution

In the Malaysian constitution, under the Freedom of Religion section, it expressly states that no person should have to pay for the “be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own”. In this case, the Sharia court’s jurisdiction applies only to Muslims, serving the purposes of the Islamic faith.

As a result, using non-Muslim taxpayer’s money to fund an institution rooted in Islamic legal practice and punishment is unconstitutional. But the government has not offered any explanation or comment on this yet.

The government sees Islam as operating outside the law

While Sharia Law works separately from Malaysia’s Federal Law, the former should not contravene the latter. Sharia courts should be able to administer justice to Muslims, insofar as they do not operate above the civil law dictated by Malaysia’s elected representatives.

However, there have been examples where Islamic belief has operated above the federal law. The most recent was over the issue of fathers maintaining the right to give their family name to illegitimate children. A Court of Appeal, operating under federal law, asserted that biological fathers must have their names on the child’s birth registration documents. In a deliberate act of defiance, the National Registration Department (NRD) refused to acknowledge the Court of Appeal’s decision. This was because it contradicted the National Council for Islamic Affairs’ ruling that illegitimate children should not be able to take the name of their father. With deputy prime minister Datuk Seri Ahmad Zahid Hamidi’s blessing, the NRD has filed an appeal against the ruling to the Federal Court.

The government have also favoured Islamic institutions in their tax policy towards religious bodies. In 2016, the Malaysian Parliament approved an act which meant that from 2017 onwards, religious bodies would have to pay tax on all earnings which were not given to them expressly as a charitable donation. The tax was only applicable to non-Muslim religious bodies. After a public outcry, the amendment was abolished in February of 2017, and all religious bodies have since remained exempt from income tax.

As a religious body, Sharia court should be funded by the Muslim community

Proceeding to treat Islamic laws and religious institutions as exempt from legal and constitutional restraints puts Malaysia on a slippery slope. Syahredzan Johan, lawyer and former Bar Council member, expressed his concerns on Facebook after the  Deputy Prime Minister and the NRD undermined the Court of Appeal’s decision. He said that any government who willingly disregards a court ruling “does not believe in the rule of law”.

Instead, funding for the Sharia Court should be borne by Muslims who believe in the merit of the Court. This would preserve the dignity of the Malaysian constitution and law, while simultaneously offering a legal system which adheres to the Islamic legal code.

This would also remove any reason for non-Muslims to interfere in the Sharia courts and may diffuse some of the debate surrounding the introduction of hudud and the expansion of the Sharia across Malaysia.

Without an overhaul of the way the religious body is funded, the Malaysian government are undermining their own law and constitution. It shows a clear message that Islam is free to operate outside the Malaysian legal system, putting Malaysia on a questionable path for both Muslims and non-Muslims alike.