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This position was maintained in the FMA 1948,[vi] with a proviso that federal legislation could be made for enabling the courts to ascertain Islamic law or Malay customs concerning matters brought before them for adjudication.[vii] As for legislation, each Malay State had the power to pass laws on Islam and Malay customs to the extent not repugnant to any law passed by the legislative council of the Federation.[viii] This distribution of legislative powers between the Federation and the Malay States remains unchanged to this day.Islam as the religion of the Federation was to come later.

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It is vital that the history of how religion came to be inserted in the Federal Constitution be first examined, objectively and dispassionately, given that the subject is fraught with difficulty.

Federation of Malaya The Federal Constitution has its roots in the Federation of Malaya Agreement 1948 (“the FMA 1948”) which established a federation known as the Federation of Malaya or comprising the nine Malay states[ii] and the Settlements[iii] of Penang and Malacca.[iv] It was envisaged that the Federation, while remaining under British rule for the time being, would progress towards eventual self-government.[v] Historically, British rule in the Malay States eschewed interference with the powers of the Malay Rulers on matters relating to Islam and Malay customs.

In recent years, the bitter custody and child’s religious rights battles in [xxxii] sparked new conflicts between the Shariah court and the civil court.

In these three cases, all involving Hindu married couples with children, the husband had converted to Islam, taken the children away from their mothers and in two cases, converted the children also to Islam.

Public and private aspects of Islam in Malaysia In 1988, a full bench of five in the Supreme Court (as the Federal Court was then known) had occasion to consider Article 3 in an appeal against a mandatory death sentence for drug trafficking and possession of firearms.

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