FEBRUARY 12 — Malaysia is a federation. In “Know what a federation is” I explained three distinct and defining characteristics that make a federation different from other political systems.
The first characteristic is that federal systems have at least two levels of government: a central or federal government and a regional or state government.
The federal government governs the entire country in relation to matters of importance to every citizen like national security, national infrastructure, foreign policy, trade, macroeconomic policy, immigration and citizenship.
The state government operates within each of the territories into which the country is divided. Each of the state governments has control over certain defined matters such as land, water and public health.
The exact distribution of powers and responsibilities varies greatly between federations, which is about sharing of powers and responsibilities between the federal government and state governments.
The second characteristic is the processes and mechanisms by which the different states can be included in decision-making at the federal level.
Normally, this takes the form of an upper House of Parliament, or Senate, in which the states are represented.
Power-sharing is also achieved through co-operation between different levels of government.
The third characteristic is that the powers and responsibilities of the federal and state governments are enshrined in a constitution which is not easily changed or amended. The constitution sets out the establishment of the federal government and state governments.
In the case of Malaysia, it is the Federal Constitution which provides for the Federal List, the State List and the Concurrent List, according to which the federal government has no power in the administration of Islamic matters.
Item 1 of the State List under the Ninth Schedule of the Federal Constitution provides that states, not the federal government, have the power to enact Islamic laws and administer Islamic matters. The exception is that the power to administer Islamic matters for the Federal Territories falls under the federal government.
The scope of the states’ power in the administration of Islamic matters is limited though to personal laws, creation of offences, distribution of inheritance, establishment and procedures of the Syariah Court and the determination of matters relating to the precepts of Islam.
The Federal Constitution, therefore, does not prevent the federal government from enacting laws on other Islamic matters such as banking, and on Islamic education.
Notwithstanding that the federal government has no expressed power in relation to Islamic matters — save for the Federal Territories — there are several federal institutions involved in the administration of Islamic matters in Malaysia. These include the Conference of Rulers, the National Council of Islamic Affairs (MKI) and the National Fatwa Council.
Then there is the Department of Islamic Development (JAKIM), which is placed under the Prime Minister’s Department and acts as the secretariat of the MKI and the National Fatwa Council.
Another two departments in charge of Islamic matters under the Prime Minister’s Department are the Syariah Judiciary Department of Malaysia (JKSM) and the Department of Awqaf, Zakat and Hajj of Malaysia (JAWHAR).
In addition, the Attorney General’s Chambers (AGC) has an important role in legislation pertaining to Islamic matters.
For the uninitiated and “those who are not familiar with the intricacies of the administrative aspect of Islamic matters in Malaysia”, read Dr Nurhafilah Musa’s Administration of Islamic Matters and Cooperative Federalism in Malaysia (2020).
The legal scholar summarises the organisational structure of the administration of Islamic matters for the whole Federation of Malaysia in a Table as below:
The Table above shows that the Conference of Rulers is at the top of the structure of administration in Islamic matters due to the power granted by the Federal Constitution. The Conference of Rulers in turn creates two additional bodies to assist them in Islamic matters: the MKI and National Fatwa Council.
The Federal Constitution expressly provides that on certain matters, the Conference of Rulers is to play an important role. For example, Article 38(2)(b) states that the Conference of Rulers has the function of agreeing or disagreeing to the extension of any religious acts, observances or ceremonies to the Federation as a whole.
So, understand the structure of the administration of Islamic matters for the whole Federation.
We are at a perilous moment when understanding is lacking and knowledge is little.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
