A recent Report published by G25, a group of former top civil servants, “Administration of Matters Pertaining to Islam” points out that “there is no constitutional or legal basis for the establishment of JAKIM [The Malaysian Islamic Development Department].” The Report acknowledges the need to have a federal agency to promote uniformity in the administration of Islamic law among the states. However, the Constitution would have to be amended to legitimize the existence of JAKIM. It is noted that even if JAKIM were to be legally established, its role should be confined to advising the states, which would not be obliged to heed its advice.
Excerpts from “Administration of Matters Pertaining to Islam”
4.3.8. Constitutionality and Legal Basis of the Establishment of JAKIM
Critics have questioned the constitutionality of JAKIM given that Islamic affairs come under the purview of individual States and not under the Federation. The Department responded that the entity is the only institution that can safeguard Islam’s position as the religion of the Federation. However, this defensive argument by JAKIM using “safeguarding Islam” does not render it constitutional. In this regard, even before its constitutionality is studied and determined. It may be pertinent to ask a more basic question, that is, “Was there a need to establish a federal body for matters pertaining to Islam?” The answer to this has been alluded to above – it was needed for ensuring uniformity and coordination among the states – a valid enough reason.
The Federal Constitution does not empower either the Federal Government or the Conference of Rulers to establish the National Council for Islamic Affairs (NCIA). Matters pertaining to the Muslim religion and Malay custom are within the exclusive jurisdiction of the State Legislatures and the State Executive Councils. There is no provision in the Constitution that prescribes the creation of the NCIA. The Regulations of the National Council for Religious Affairs Malaysia 1968, which purportedly establishes the NCIA, itself makes no reference as to the law under which it is being made.
However, the framers of the Federal Constitution did express the intention before Merdeka that ‘[i]f it is found necessary for the purposes of co-ordination to establish a Muslim Department of Religious Affairs at federal level, the Yang di-Pertuan Agong will, after consultation with the Conference of Rulers, cause such a department to be set up as part of his establishment’.
[Refer to the White Paper on the Religion of the Federation, as highlighted in page 55 of this Report.] Although framers of the Constitution intended that a coordination body can be set up at federal level if found needed, it has not been so provided for in the Constitution. As such, despite the intent of framers of the Constitution, it will still be unconstitutional to set up a federal agency for coordination of Islamic rules as this has not been provided for in the Constitution.
It is to be noted that the powers of the Conference of Rulers are limited to only those prescribed by Article 38 of the Federal Constitution, and these powers do not include establishing a federal institution such as the NCIA. Be that as it may, we do appreciate that the intention of establishing the NCIA is to have a federal agency to coordinate and to promote uniformity in the administrative of Islamic law among the States. But to reiterate what we have just said, there is no legal justification for its creation, regardless of the fact that it was established by the Conference of Rulers. In our view, if there is the need for such a body, then, in order to legalise its establishment, the Federal Constitution needs to be amended to incorporate a provision somewhat analogous to Article 91 of the Federal Constitution that establishes the National Land Council. In any event, even assuming for the moment that the NCIA is legally established, its role is merely advisory as confirmed by the regulations itself. This means that the recommendations are advisory in nature and the States are not legally obliged to implement them.
Perhaps it is relevant to mention here that in the context of promoting the uniformity of State legislation pertaining to the administration of Islamic law, there is another avenue: Article 76 (1) (b) of the Federal Constitution. Article 76 prescribes a legislative procedure. The Parliament, for the purposes of promoting the uniformity of laws, may make laws with respect to any matter enumerated in the State List including matters concerning the religion of Islam and Malay custom, as enumerated in item 1 of the State List; such law will only come into operation in a State once it is adopted by the Legislature of that State. Such uniform law, once adopted by the State Legislature through the passing of a State Enactment, are deemed to be State law (and not Federal law) and the State Enactment (that adopts the federal law) may be amended or repealed by a law made by the State Legislature.
Regarding fatwas, the fatwas of the National Fatwa Committee do not have any legal effect in a State, and merely represent a religious consensus at a ‘national’ level on a question concerning the Islamic faith in Malaysia. They have no legal effect in a State until adopted by the State via a fatwa by the State Mufti or by the State Fatwa Committee (as the case may be) and gazetted in accordance with the procedure as prescribed by State law. Such fatwas, however, can be challenged in the civil courts by persons adversely affected on the grounds that the subject matter of the fatwa is not within the jurisdiction of the Fatwa Committee or that the effect of the fatwa purports to restrict freedom of speech and expression.
There have been functions entrusted to JAKIM by Cabinet that is in addition to its responsibility as the secretariat of the NCIA, for e.g., development if Islam and dakwah. The substance of these functions, arguably, exceed the executive authority of the federation (exercisable by Cabinet) given that the executive authority of the Federation does not extend to the Muslim religion except for the Federal Territories only; thus, Cabinet’s entrusting of these specific functions to JAKIM could be said to be inconsistent with article 80(2) of the Constitution. So far, there has been no legal challenge, by any person with legal standing, to the validity of the executive functions exercised by JAKIM in relation to the Muslim religion. A legal challenge of this nature in the courts may clarify the validity of JAKIM’s functions and will be of great public interest, particularly given that much of the deliberations of the NCIA or JAKIM do not seem to be openly available to the public.
Considering the matter above, we take the position that there is no constitutional or legal basis for the establishment of JAKIM, the secretariat of the NCIA, and the body responsible for the administration of the NCIA which itself was established without constitutional or legal basis. [pp. 146-149]
It is clear in the analyses in the earlier chapters that legally, JAKIM cannot remain status quo and needs to be reviewed and re-organised, re-constituted or reformed to be aligned to the Federal Constitution, and to also be a more effective body operating on the principles of mercy, justice, compassion.
A final determination requires a serious in-depth review on the legal, institutional and regulatory set-up of JAKIM as well as the governance of its decision-making, implementation, processes and procedures. Given that the Malay Council of Rulers (MCOR) is the apex body provided by the Federal Constitution to determine Islamic religious matters for the country, it is proposed that the relevance and review of JAKIM be taken up by the MCOR. Should the MCOR decide that JAKIM is truly necessary, the Constitution needs to be amended to include a provision making JAKIM constitutional (along the same lines as the constitutionality of the National Land Council). Should JAKIM be found to be unnecessary, where its functions can be found to be sufficiently run by the State (in implementing Islamic affairs) and governed by existing legislation and bodies (similar to Islamic finance governed by economic policies already in place under the purview of the Ministry of Finance and its subsidiaries), JAKIM can then be dissolved.
It is also proposed that the MCOR engage a special task force of Syariah and constitutional experts to undertake the review of JAKIM. Upon agreement on the final course of action, MCOR can take its proposals to the bigger COR for final endorsement and implementation. [pp. 272-273]