Ranjit Singh Malhi
Published: Aug 30, 2026 11:55 AM
Updated: 1:55 PM
COMMENT | The debate over whether Malaysia is an Islamic state resurfaces with predictable regularity. It became especially contentious in 2001, when then-prime minister Dr Mahathir Mohamad declared that Malaysia was already an Islamic state.
More recently, Sinar Harian, on Aug 21, reported Federal Territories mufti Ahmad Fauwaz Fadzil declaring that Malaysia remained an Islamic state on “fiqhi” (Islamic jurisprudence), “syarie” (syariah-compliant), historical and geographical grounds.
This article analytically examines whether Malaysia is an Islamic state.
Responding to Mahathir’s pronouncement in a statement dated Nov 2, 2001, the Bar Council maintained that a political declaration could not, by itself, alter the federation’s constitutional character.
It rightly argued that the issue must be determined by reference to the Federal Constitution and the rule of law. That central proposition remains sound.
However, the Bar Council’s reliance on the judicial view that Islam’s constitutional role was primarily ceremonial does not fully capture the legal position.
Published: Aug 30, 2026 11:55 AM
Updated: 1:55 PM
COMMENT | The debate over whether Malaysia is an Islamic state resurfaces with predictable regularity. It became especially contentious in 2001, when then-prime minister Dr Mahathir Mohamad declared that Malaysia was already an Islamic state.
More recently, Sinar Harian, on Aug 21, reported Federal Territories mufti Ahmad Fauwaz Fadzil declaring that Malaysia remained an Islamic state on “fiqhi” (Islamic jurisprudence), “syarie” (syariah-compliant), historical and geographical grounds.
This article analytically examines whether Malaysia is an Islamic state.
Responding to Mahathir’s pronouncement in a statement dated Nov 2, 2001, the Bar Council maintained that a political declaration could not, by itself, alter the federation’s constitutional character.
It rightly argued that the issue must be determined by reference to the Federal Constitution and the rule of law. That central proposition remains sound.
However, the Bar Council’s reliance on the judicial view that Islam’s constitutional role was primarily ceremonial does not fully capture the legal position.
Dr Mahathir Mohamad
The constitutional text, read alongside subsequent judicial decisions, points to a more complex and nuanced conclusion.
Definitions matter
An “Islamic state” has no universally accepted legal definition. If it simply means a Muslim-majority country in which Islam is constitutionally recognised, Islamic institutions receive public funding and Islamic law is given legal effect in specified areas, Malaysia qualifies in that broad sense.
However, if it means a state in which syariah is the supreme law, all legislation derives its validity from it and any inconsistent law is void, Malaysia does not.
“Secular state” is equally ambiguous. If secularism requires an impermeable wall between religion and government, Malaysia is not secular: the Federal Constitution expressly recognises Islam and provides extensive machinery for its administration.
The constitutional text, read alongside subsequent judicial decisions, points to a more complex and nuanced conclusion.
Definitions matter
An “Islamic state” has no universally accepted legal definition. If it simply means a Muslim-majority country in which Islam is constitutionally recognised, Islamic institutions receive public funding and Islamic law is given legal effect in specified areas, Malaysia qualifies in that broad sense.
However, if it means a state in which syariah is the supreme law, all legislation derives its validity from it and any inconsistent law is void, Malaysia does not.
“Secular state” is equally ambiguous. If secularism requires an impermeable wall between religion and government, Malaysia is not secular: the Federal Constitution expressly recognises Islam and provides extensive machinery for its administration.
If it means that the legal authority of public institutions ultimately derives from and is limited by a written Constitution, rather than directly from religious law, and is exercised through constitutional and representative institutions subject to review by the civil courts, Malaysia has a fundamentally civil-constitutional structure.
The answer therefore depends on the definition being used.
The answer therefore depends on the definition being used.
What constitutional text says
Article 3(1) of the Federal Constitution states: “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”
Islam’s position is therefore constitutionally recognised and institutionally significant; it does not rest merely on the country’s Muslim-majority population.
Other provisions give that declaration institutional effect. The Malay rulers are heads of Islam in their respective states, while the Yang di-Pertuan Agong holds that position in the federal territories and the four states without a ruler - Malacca, Penang, Sabah and Sarawak.
Article 12(2) permits public funding for Islamic institutions and instruction. Article 160 links the constitutional definition of “Malay” to the profession of Islam.
Religious freedom is also constitutionally protected, though not without limits. Article 11(1) gives every person the right to profess and practise a religion and, subject to Article 11(4), to propagate it.
Article 11(4) permits state law, and federal law in the federal territories, to control or restrict the propagation of religious doctrines or beliefs among Muslims. Article 11(5) provides that Article 11 does not authorise acts contrary to general laws concerning public order, public health and morality.
Article 74(2), read with Item 1 of the State List in the Ninth Schedule, empowers state legislatures to make laws concerning Islamic personal and family law, mosques, zakat, wakaf, and the creation and punishment of offences by persons professing Islam against the precepts of Islam, except in relation to matters within the Federal List.
This legislative field also encompasses the Constitution, organisation and procedure of syariah courts, whose jurisdiction is confined to persons professing Islam and matters falling within Item 1.
Their jurisdiction over offences extends only so far as federal law permits. These constitutional arrangements make clear that Malaysia is not a polity in which religion is institutionally excluded from public life or Islam confined to private devotion.
Yet, Article 3 does not stand alone. Article 3(4) expressly says that nothing in Article 3 derogates from any other constitutional provision.
Article 4(1) declares the Federal Constitution to be the supreme law of the Federation. Any post-Merdeka law inconsistent with it is void to the extent of the inconsistency. Islam’s protected position must therefore be read together with fundamental liberties, federalism, representative government and judicial review.
Article 121(1A), inserted in 1988, provides that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts”.
It is sometimes cited as proof that Malaysia has two co-equal and autonomous judicial systems. That interpretation overstates its effect.
The provision operates only where a syariah court lawfully possesses jurisdiction; it does not create or enlarge syariah jurisdiction, expand the State List or oust the superior civil courts’ power to determine constitutional and statutory legality.
Syariah court’s jurisdiction must be conferred by valid legislation, be limited to persons professing Islam and matters within Item 1 of the State List and, in respect of offences, remain within the limits conferred by federal law.
Founding fathers’ constitutional vision
The constitutional history reinforces this reading. Paragraph 169 of the 1957 Reid Commission Report recorded the Alliance’s proposal that Islam be the religion of Malaya, together with the assurance that this would not affect the civil rights of non-Muslims or imply that the state was not secular.
The commission’s majority did not recommend inserting such a provision. Judge Abdul Hamid from the Pakistan High Court supported it in his sole note of dissent, and the present clause was subsequently adopted through the working party process.
The Reid Commission
The 1957 government White Paper, Federation of Malaya Constitutional Proposals, was explicit that inserting the declaration on Islam would not alter the Federation’s existing position as a secular state.
On May 1, 1958, Tunku Abdul Rahman similarly told the Federal Legislative Council that Malaya was not an Islamic state in the generally understood sense, even though Islam had been made the state’s official religion.
The 1957 government White Paper, Federation of Malaya Constitutional Proposals, was explicit that inserting the declaration on Islam would not alter the Federation’s existing position as a secular state.
On May 1, 1958, Tunku Abdul Rahman similarly told the Federal Legislative Council that Malaya was not an Islamic state in the generally understood sense, even though Islam had been made the state’s official religion.
Formation of Malaysia
The formation of Malaysia added another layer. The 1962 Cobbold Commission recorded serious concerns in North Borneo (Sabah) and Sarawak.
Its Malayan members agreed that Islam should be the national religion of the Federation, while concluding that religious freedom would not be jeopardised and that the Federation would, in effect, remain secular.
These historical sources do not override the Constitution’s enacted text.
They do, however, show that Article 3 was not intended to establish a theocracy or make every law subject to a religious validity test.
In this context, “secular” did not mean hostility towards religion or the banishment of Islam from public life.
It described a civil constitutional polity in which public institutions derived their powers from the Constitution, non-Muslims retained religious freedom, and ordinary law did not become invalid merely because it failed to conform to a religious rule.
What courts have decided
The starting point remains Che Omar Che Soh v Public Prosecutor (1988) 2 MLJ 55. The Supreme Court rejected the argument that a federal criminal law became unconstitutional merely because it was inconsistent with Islamic law.
Then-lord president Salleh Abas held that, in the context of Article 3, “Islam” meant acts relating to rituals and ceremonies, and concluded that the law then operating was “secular law”.
Salleh Abas
Che Omar should nevertheless not be read as reducing Islam to pageantry in every constitutional respect.
In Nik Elin Zurina Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan (2024) 2 MLJ 150 (Nik Elin), the Federal Court explained that Malaysia’s general legal system “leans more towards secularity without being purely secular”, because the Constitution also permits the limited enactment and application of Islamic law.
READ MORE: Apex court strikes down 16 Kelantan syariah criminal provisions
Che Omar should nevertheless not be read as reducing Islam to pageantry in every constitutional respect.
In Nik Elin Zurina Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan (2024) 2 MLJ 150 (Nik Elin), the Federal Court explained that Malaysia’s general legal system “leans more towards secularity without being purely secular”, because the Constitution also permits the limited enactment and application of Islamic law.
READ MORE: Apex court strikes down 16 Kelantan syariah criminal provisions
The controlling point in Che Omar remains that Article 3 does not make conformity with syariah the general test of validity for every Malaysian law.
Indira Gandhi’s case
Later Federal Court decisions have reaffirmed the constitutional hierarchy. In Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals (2018) 1 MLJ 545, the court held that Article 121(1A) does not remove the civil courts’ power of judicial review.
Civil and syariah courts operate within their respective constitutional spheres, and syariah courts cannot acquire jurisdiction beyond what valid state law confers within constitutional and federal statutory limits.
In Iki Putra Mubarrak v Kerajaan Negeri Selangor & Anor (2021) 2 MLJ 323, the Federal Court invalidated a Selangor syariah offence because its substance fell within federal criminal law.
In Nik Elin’s case, an 8-1 majority declared 17 Kelantan provisions - 16 complete sections and paragraph 37(1)(b) - invalid because, in pith and substance, they fell within Parliament’s legislative power over criminal law.
The court emphasised that the case concerned legislative competence, not the constitutional position of Islam or the authority of the syariah courts within their lawful sphere.
On June 19, 2025, a 3-1 majority in SIS Forum (Malaysia) & Anor v Jawatankuasa Fatwa Negeri Selangor & Ors (2025) 4 MLJ 625 followed the court’s earlier decision in SIS Forum (Malaysia) v Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener) (2022) 2 MLJ 356.
Indira Gandhi’s case
Later Federal Court decisions have reaffirmed the constitutional hierarchy. In Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals (2018) 1 MLJ 545, the court held that Article 121(1A) does not remove the civil courts’ power of judicial review.
Civil and syariah courts operate within their respective constitutional spheres, and syariah courts cannot acquire jurisdiction beyond what valid state law confers within constitutional and federal statutory limits.
In Iki Putra Mubarrak v Kerajaan Negeri Selangor & Anor (2021) 2 MLJ 323, the Federal Court invalidated a Selangor syariah offence because its substance fell within federal criminal law.
In Nik Elin’s case, an 8-1 majority declared 17 Kelantan provisions - 16 complete sections and paragraph 37(1)(b) - invalid because, in pith and substance, they fell within Parliament’s legislative power over criminal law.
The court emphasised that the case concerned legislative competence, not the constitutional position of Islam or the authority of the syariah courts within their lawful sphere.
On June 19, 2025, a 3-1 majority in SIS Forum (Malaysia) & Anor v Jawatankuasa Fatwa Negeri Selangor & Ors (2025) 4 MLJ 625 followed the court’s earlier decision in SIS Forum (Malaysia) v Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener) (2022) 2 MLJ 356.
The majority held that paragraph 1 of the fatwa was valid only insofar as it applied to natural persons, because SIS Forum, as a corporation, was incapable of professing the religion of Islam.
It invalidated paragraphs 2 and 3, which mandated the confiscation of publications and directed the MCMC to block social-media content, because those matters lay beyond Selangor’s legislative competence. Paragraph 4 remained valid. The court expressly declined to rule on the theological merits of the fatwa’s condemnation.
Judicial secularisation?
Critics sometimes characterise such rulings as judicial secularisation. That confuses the subject of a law with the source of legislative power.
A measure does not become constitutionally valid merely because it is made in the name of Islam, just as a federal law does not become valid merely because Parliament enacted it.
Both Parliament and the state legislatures derive their powers from the Constitution. If the present division of powers is considered inadequate, the remedy lies in constitutional amendment through the prescribed democratic process - not in criticising judges for applying the existing constitutional allocation of powers.
Hybrid constitutional system with clear legal apex
In Iseas Perspective 2025/27, “Legal Pluralism in Malaysia: Navigating the Civil and Shariah Systems”, constitutional scholar Shad Saleem Faruqi referred to “Malaysia’s hybrid, partly secular, partly religious constitutional system”.
That description is persuasive because it acknowledges both sides of the settlement: Islam has an exalted constitutional and institutional position, while the overall system rests on constitutional supremacy, parliamentary law-making, federalism and judicial review by the superior civil courts.
Judicial secularisation?
Critics sometimes characterise such rulings as judicial secularisation. That confuses the subject of a law with the source of legislative power.
A measure does not become constitutionally valid merely because it is made in the name of Islam, just as a federal law does not become valid merely because Parliament enacted it.
Both Parliament and the state legislatures derive their powers from the Constitution. If the present division of powers is considered inadequate, the remedy lies in constitutional amendment through the prescribed democratic process - not in criticising judges for applying the existing constitutional allocation of powers.
Hybrid constitutional system with clear legal apex
In Iseas Perspective 2025/27, “Legal Pluralism in Malaysia: Navigating the Civil and Shariah Systems”, constitutional scholar Shad Saleem Faruqi referred to “Malaysia’s hybrid, partly secular, partly religious constitutional system”.
That description is persuasive because it acknowledges both sides of the settlement: Islam has an exalted constitutional and institutional position, while the overall system rests on constitutional supremacy, parliamentary law-making, federalism and judicial review by the superior civil courts.
Shad Saleem Faruqi
Malaysia is not secular in the strict separationist sense, but neither is it a theocratic Islamic state.
Political declarations cannot change that architecture. A prime minister may call Malaysia an Islamic state, a secular state or something in between, but such a statement neither amends the Constitution nor binds the courts. Constitutional identity cannot be created by proclamation.
The most defensible formulation is this: Malaysia is a constitutional monarchy and parliamentary democracy in which Islam is the religion of the Federation and enjoys a special institutional position, while Islamic law enacted by the states - and by Parliament for the federal territories - operates within constitutionally defined fields, and the Federal Constitution remains supreme.
Malaysia is not secular in the strict separationist sense, but neither is it a theocratic Islamic state.
Political declarations cannot change that architecture. A prime minister may call Malaysia an Islamic state, a secular state or something in between, but such a statement neither amends the Constitution nor binds the courts. Constitutional identity cannot be created by proclamation.
The most defensible formulation is this: Malaysia is a constitutional monarchy and parliamentary democracy in which Islam is the religion of the Federation and enjoys a special institutional position, while Islamic law enacted by the states - and by Parliament for the federal territories - operates within constitutionally defined fields, and the Federal Constitution remains supreme.
So, is Malaysia an Islamic state? Malaysia is unquestionably a Muslim-majority country in which Islam enjoys special constitutional and institutional recognition.
But in the constitutional sense of a state governed by the supremacy of syariah, the answer is no. The Federal Constitution is the supreme law, and any legal answer must ultimately be anchored in it.
After nearly seven decades of independence, Malaysians should be celebrating our remarkable diversity, not allowing this recurring dispute to drive us further apart.
Malaysia belongs to all its citizens. Our future depends not on endlessly contesting one another’s place in the nation, but on respecting the Constitution, embracing our shared citizenship and recognising our diversity as a source of strength.
That is the Malaysia we should strive to build - and the nation we should be proud to leave to future generations.
RANJIT SINGH MALHI is an independent historian who has written 19 books on Malaysian, Asian, and world history. He is highly committed to writing an inclusive and truthful history of Malaysia based upon authoritative sources.
***
It should be interesting to know the opinions of Pak Lebai, Encik Tiii and Prof KangKong, wakakaka
