MALAYSIA: ISLAMIC LAW,

THE CONSTITUTION AND

HUMAN RIGHTS COMPATIBILITY &
CHALLENGES
By Nizam Bashir

Introduction
Historically, no nation States and it is within this
milieu that Quran was revealed
Number of ideals and values ordained by God. Eg.,
specifically in relation to womens rights:
o
o
o
o

Prohibited female infanticide (At-Takwir 81:8-9)

Permitted woman to inherit (An-Nisa 4:7)
Restricted the practice of polygamy (An-Nisa 4:3)
Gave woman ownership of the dower or mahr (An-Nisa 4:4)

Principal aim of Quran?

o Removal of abuses that women were subjected to

Today, we have nation States and the ideals of that

State finds its voice and resonates through written
Constitutions

Introduction (2)
Fundamental liberties in the Federal Constitution (Malaysia):
o
o
o
o
o
o
o
o
o

Right to Life and Liberty (Art. 5)

No Slavery (Art. 6)
No Retrospective Criminal Laws or Increases in Punishment and no Repetition in Criminal Trials (Art. 7)
Right to Equality (Art. 8)
Prohibition Against Banishment and Freedom of Movement (Art. 9)
Freedom of Speech and Expression (Art. 10)
Freedom of Conscience (Art. 11)
Rights in Respect of Education (Art. 12)
Rights to Property (Art. 13)

Are these fundamental liberties consistent with Islam/Quran?

Should these fundamental liberties be extended equally and without
disparity in terms of standards between Muslims and non-Muslims?
E.g. in Maldives, fundamental liberties exist for citizens but the extent
of it is lower for Muslims
Will this be a live issue in Zanzibar? Depends other Courts
considered to be subordinate to the High Court. : s. 100 But how will
those rights be construed?

Fundamental Liberties in
Practice
Right to Life and Liberty (Art. 5)
o Female Genital Mutilation?
o Is there a right to marry?
Can a Muslim man marry a non-Muslim woman who is not of the
People of the Book?
Can a Muslim woman marry a non-Muslim man?
o Is there a right to divorce? Negative right of right to marry?
o Freedom from torture (and beatings)?
o Access to Education?

Slavery (Art. 6)
o Child labour?
o Trafficking of persons?

Fundamental Liberties in
Practice (2)
Right to Equality (Art. 8)
o Do Muslim woman have a case to argue that they should inherit in
equal shares as compared to Muslim men?
o Should Muslim woman have access to the Kadhi Courts?

Right to Speech and Expression (Art. 10)

o Is a Muslim woman entitled to use a dress according to a modesty that
she sees fit? Can the State legislate a different standard?
o What does this mean for transsexuals? Should they have a right to
attire?

Right to Conscience (Art. 11)

o Can a woman previously professing the religion of Islam now profess a
different religion?

Fundamental Liberties
Reconciled
Freedom exists only to the extent that God grants
to us?
What if there is a Written Constitution? How can
the values in a Written Constitution be reconciled
with the notion that Man only has liberties to the
extent defined by God?
o Constitution, arguably, is a contract with other individuals
o Quran : O you who believe! Stand out firmly for Allah and be just
witnesses and let not the enmity and hatred of others make you avoid
justice. Be just: that is nearer to piety, and fear Allah. Verily, Allah is
well acquainted with what you do. (Al-Maidah 5:8)

Conclusion
Navigating these issues can be tricky
Particularly when some scholars hold on to traditional
views that men and woman have pre-defined roles in
society. E.g. Mawdudi:
o Women are created to bear and rear children. They are tender, unusually
sensitive, soft, submissive, impressionable, timid and unable to render
unbiased, objective judgment.
o Men are coarse, vehement and aggressive and thus suited to be generals,
statesmen and administrators.

Nevertheless, the key idea to take away from todays

talk is this: what matters is the Quranic ideal
abuses against women are taken away and this is
compatible with the idea of fundamental liberties
within written Constitution