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ISLAMIC LAW

Malaysian Legal System


Sources of Islamic Law
 The sources of Islamic law as applied in Malaysia are
divided to two main categories:
 Primary sources
(a) Qur’an: the Word of Allah;
(b) Sunnah: rules reduced from the traditions i.e. the sayings or conduct of
Prophet Muhammad (peace upon him)
 Secondary sources (means for discovering the law)
(a) Ijma: consensus of jurists of any particular era on a judicial rule; and
(b) Qiyas: deductions from reasoning by ijtihad or analogy.
Definition
 Syariah is the sacred law of Islam as revealed through Prophet
Muhammad (Peace Be Upon Him) in the Qur’an and Sunnah.

 It is the totality of God’s commands that regulate the life of


Muslims in all its aspect: their duties towards Allah (God) and
their relations with one another and the environment.

 The Syariah, which is an all-embracing body of religious duties


and ethical, moral and legal rules, is more than a legal system. It
is the Way of Life.
Historical background
 There are many arguments as to when did Islam arrived in Malaysia.
Historical evidence shown that Islam already existed in Terengganu as
early as 14th Century as shown by the existence of Batu Bersurat in
Terengganu.

 However, it is commonly accepted that Islam was brought by Muslim


traders from Arab countries, India and China.

 Islam came into Melaka in 1414 and was brought by Muslim traders
during the reign of Parameswara. By 15th century Malacca became the
centre for Islamic missionary work in the region.

 Before the coming of Islam, the Malays followed the Malay customary
law influenced by Hinduism. However, the elements were later overlaid
with principles of Syariah law.

 In political-legal matters, Islam replaced the Hindu system of devaraja


or divine kingship with the Sultanate system.
 Laws of Malacca were enacted incorporating Islamic principles:
 Hukum Kanun Melaka (Laws or Malacca)
 Undang-undang Laut Melaka (Maritime Laws of
Malacca)
 Other states later incorporated Islamic law in their legal digest
modelled on Hukum Kanun Melaka. Eg: Pahang legal digest,
Johor Constitution 1895

 The administration of justice in Malaysia was based on Islamic


law up till the 19th Century where courts based on Islamic law
were established to govern Islamic law and Malay customary
law in personal law, property matter, criminal law etc.
 In the case of Shaik Abdul Latif & Ors v Shaik Elias Bux [1915] 1
FMSLR 204 it was held that before the first treaty [the Pangkor
Treaty 1874] the population of these States [FMS] consisted
almost solely of Mohammedan Malays with a large industrial
and mining Chinese community in their midst. The only laws at
that time applicable to Malays was Mohammedan modified by
local custom

 In the case of Ramah v Laton (1927) 6 FMSLR 128 it was held


that Muslim law is not foreign law, it is the law of the land and
the local law is a matter of which the court must take judicial
notice.
Position of Islamic Law during British
colonization
 The Islamization of Malay customary law continued until
the coming of the British.
 According to RJ Wilkinson: “There can be no doubt that
Muslim law would have ended by becoming the law of the
Malays had not British law stepped to check it”
 The intervention of British into the administration of Malay
states had resulted into separation of religion from the
states’ affairs.
 In the Malay States, Federated and Unfederated, a system of
administration of justice headed by British judges was
introduced.

 English judges were brought to preside in the courts, and it was


expected that the English judges would bring with them the
English legal principles they were used with and trained with.

 Through the Residents and Advisers, legislations based on


principles of English law were introduced and later Statutes
were enacted to receive and to impose formally the English law
 Although in various treaties entered between the British and the
Malay Rulers had expressly provided that the Malay Rulers
would agreed to accept the advice of British officials subject that
it should not apply to Malay religion and custom, yet this was not
actually happen.

 The principles of the Syariah which concerned personal


obligation were incorporated within the framework of English
law, subjected to the form and procedures of the latter resulted
in extensive modifications and distortions of the principles of
Syariah.

 Due to advice from the British, laws were enacted based on


principles of English law in criminal law, rules of evidence,
contracts and replaced the Malay customary law and Islamic law
 In the Straits Settlements, English law had been made the lex
loci. By the virtue of the Charters of Justice, English laws were
introduced and administered in Penang, Malacca and Singapore.
 Eg: R v Willans [1858] 3 Ky 16 – “If a Mohammedan, Hindu or
Chinese marriage celebrated here according to the religious
ceremonies of the parties, be valid, it is not because the Charter
makes it so – for, as I have already observed, it makes no
expression in favour of the native contracts of any kind – but
because the law of England recognizes it…”
 See also: Ong Cheng Neo v Yeap Cheah Neo & Ors [1872] 1 Ky
326, Isaac Penhas v Tan Soon Eng [1953] MLJ 73
 Although the Mohammedan Marriage Ordinance of 1880 (No. V
of 1880) was enacted to be the foundation for subsequent
legislation concerning Muslim marriage and divorce, it does not
gave substantive recognition to Islamic law as the Ordincance
was largely procedural and administrative in nature.
 During British Colonization however, the position of Islamic law was not always
recognized due to various reasons:

 Total ignorance of the English and English trained judges

 Unacceptable or repugnant to the common law or prevailing judicial notions of


justice and morality

 Inconsistency in court’s practice and decision.

 Cases:

 In the Goods of Abdullah [1835] 3 Ky Ecc 8 – A will made by a Muslim


alienating all his property was held valid and admitted to probate

 Hawah v Daud [1865] Wood’s Oriental Cases 26 - Property of a Muslim woman


was held to be her own separate property in which her husband took no interest,
either during her lifetime or after death.

 Kader Mydin, Administrator of Hossan Sah v Shatomah [1868] Wood’s


Oriental Cases 42 – A married woman’s conveyance was held to be not valid
unless her husband consented and the deed was acknowledged before a judge
or an appointed commissioner as required by statute
Effect of English Law on Islamic Law

1. English law had been made the law of the land while
Islamic law was restricted to be a mere personal matter
concerning marriage, divorce and private aspect of
Muslim rituals.

2. The British had interfered in the administration of


Islamic law by legislating laws concerning appointment
and salaries of the qadi,; the regulations of zakat and
fitrah, administration of mosques, registration of Muslim
marriages and divorce, punishment for offences against
the religion of Islam etc.
3. Syariah courts were relegated to a subordinate position. They
were placed at the bottom of the court structure. Their
jurisdiction was restricted and the work of kadi was
supervised. Whenever there is a conflict between the decision
of the Syariah court and the Civil court, the latter court’s
decision shall prevail
4. The existence of dual or parallel system of courts
POSITION OF ISLAM AND
ISLAMIC LAW IN FEDERAL
CONSTITUTION
Article 3 of Federal Constitution
 The position of Islam in the constitution is generally
limited.
 Article 3 (1) of the Federal Constitution declares that
‘Islam is the religion of the Federation’. With the necessary
qualification that ‘other religions may be practiced in
peace in harmony in any part of federation’.
 Even though Article 3 (1) recognised Islam as the religion
of the Federation, at the same time clause (4) of the same
Article limits it. It says: Nothing in this Article derogates
from any other provision of this Constitution
 Although Islam is the religion of the Federation, there is no head
of the Muslim religion for the whole of the Federation. Clause (2)
of Article 3 states that in every state, other than states not
having a Ruler, the position of the Ruler as head of Islam in his
state and all rights, privileges, prerogatives, and powers enjoyed
by him as head of Islam are unaffected.
 In states without a Ruler, i.e. Melaka, Penang, Sabah and
Sarawak, Federal Territories of Kuala Lumpur, Labuan and
Putrajaya, the head of Islam is the Yang di-Pertuan Agong who
also remains head of religion in his own state.
 Historically, Article 3 was not in the Reid Commission draft constitution and
the proposal was actually came from the Alliance Party.

 The idea was first rejected by the Commission and the Malay Rulers but
later it was accepted after the coalition explained their intention not to usurp
the position of the Malay Rulers as Head of Islam in their respective states
but primarily to be symbolic so that religious ceremonies could be
conducted at federal official functions.

 Article 3 merely declares that Islam is the official religion of the Federation
and not declaring the federation as an Islamic state

 According to Sheridan and Grove, it does not seem that the clause “Islam is
the religion of the Federation” has any legal effect. These words possibly
impose an obligation on the participants in any federal ceremony to
regulate any religious parts of the ceremony according to Muslim rites
 Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55
 Mandatory death penalty for drug trafficking offences and Firearms
(Increased Penalties) Act 1974 were held valid despite not being
compatible with Islamic law. It was argued that the death penalty was
unislamic and therefore contrary to Article 3 of the Constitution.
 The Supreme Court rejected this argument. It was held that Islamic law
was to be confined to the areas of personal law such as marriage, divorce
and inheritance for Muslims.
 It was held that Article 3(1) means only such acts as related to rituals and
ceremonies.
 Teoh Eng Huat v Kadhi of Pasir Mas, Kelantan & Anor [1990]
2 MLJ 300
 Issue that had been raised in this case was whether a person below the
age of eighteen years old had legal capacity to choose her own religion in
exercise of her constitutional right
 The Supreme Court having looking at the drafting history of the Federal
Constitution held that the constitution was drafted on the basis that
although Islam is the religion of the federation, the federation is a secular
state.
 As such, the right of religious practice of an infant shall be exercised by the
guardian on her behalf until she becomes major.
Article 11 of Federal Constitution
 Article 11(1) of Federal Constitution: Every person has the right
to profess and practice his religion and, subject to Clause (4), to
propagate it.
 Art. 11(4) provides that State law and in respect of the Federal
territories of Kuala Lumpur, Labuan and Putrajaya, federal law
may control or restrict the propagation of any religious doctrine
or belief among persons professing the religion of Islam
Ninth Schedule: List II – State list
 According to the Federal Constitution, the power to administer
Islamic law is primarily under the jurisdiction of the states.
 It is provided that: Except with respect to the Federal territories
of Kuala Lumpur, Labuan and Putrajaya, Islamic law and
personal and family law of persons professing the religion of
Islam..
 However, the states do not have the full and exclusive power to
legislate on legislate on Islamic law. Only matters that have
been enumerated in Item 1 or other Islamic matters as provided
in the State List or Concurrent Lists.
 State jurisdiction in Islamic law is restricted not only by the
provisions of the Federal Constitution, but also by the operation
of federal legislation for instance Syariah Court (Criminal
Jurisdiction) Act 1965 to confer a limited criminal jurisdiction
upon the Syariah court.
 Mamat Bin Daud & Ors v Government of Malaysia [1988] 1 MLJ
119
 In this case, each of the petitioners was charged for an offence under section
298A of the Penal Code for doing an act which is likely to prejudice unity among
persons professing the Islamic religion.
 The issue before the court is whether the said section which was enacted by
Parliament by an amending Act in 1983 is ultra vires against Article 74(1) of the
Federal Constitution, since the subject matter of the legislation is reserved for
the State Legislatures and therefore beyond the legislative competency of
Parliament.
 The Supreme Court had allowed the application and declared that the provision
was ultra vires the Federal Constitution because the provision in pith and
substance is a law on the subject of religion with respect to which only the states
have power to legislate under Articles 74 and 77 of the Federal Constitution
Administration of Islamic Law
 As administration of Islamic law is vested on the states,
separate legislations could be found according to each states on
various aspect of Islamic law.
 And each state shall have their Adminitration of Islamic Law
Enactment or Act to govern the following:
1. Majlis Agama Islam – responsible for all matters concerning
the Islamic religion (enforcement)
2. Mufti – responsible to determine Islamic Law
3. Syariah Courts – responsible for the administration of justice
Majlis Agama Islam
 The Majlis is a corporate body whose primary function is to
advice the Ruler (or the YDPA) in all matters concerning Islam.

 It has the duty to promote economic and social well being of


Muslim community and is empowered to hold property.

 The Majlis has the responsibility on collection of zakat and fitrah


and to administer the baitul mal; as trustee to all mosque, waqaf
(endowment), trusts and act as executor of a will and administer
the estate of a Muslim deceased.
Mufti
 The Mufti and his deputy are appointed by the Ruler (or the
YDPA) to make and publish fatwa, either on request or direction
or on his own initiative on any unsettled or controversial issues
regarding Islamic law.
 Upon publication in the Gazette, the fatwa shall be binding on all
Muslims and recognised as authoritative.
Syariah Court
 Syariah Court is constituted by virtue of the Federal Constitution
(Art. 121(1A) & Ninth Schedule,Item 1 of the State List) and
states’ Administration of Islamic Law Enactment or Act
 In 1988, an amendment was made to Art 121 of the Federal
Constitution (FC) by insertion of Article 121(1A) giving the
Syariah Court exclusive jurisdiction whereby High Court shall
have no jurisdiction on matters which falls within the jurisdiction
of the Syariah Court.
 Prior to the amendment, it is observed that there were conflict of
jurisdiction between the Civil courts (established by virtue of FC)
and the Syariah Court (established by virtue of State Legislation)
by looking at deciding case laws.
 After the amendment, Syariah Court has only jurisdiction to
person professing Islam.
Issues

 The jurisdiction of the Syariah Courts is protected by Article 121(1A


) against interference by ordinary courts. Syariah Courts were ti
ll 10.06.1988 regarded as subordinate to the High Court.
 Nafsiah v Abdul Majid – Breach of promise to marry
 Myriam v Mohamad Arif - Custody
 Ainan v Syed Abu Baker – Sec 112 of Evidence Act
 Who has the power to determine whether a matter is within or
outside the jurisdiction of Syariah Court?
 Tongiah Jumali v Kerajaan Johor [2004] 5 MLJ 41
 Norlela Mohamad Habibullah v Yusuf Maldoner [ 2004] 2 MLJ 629
 Where a case should go if one party is a Muslim and the other a n
on‐Muslim?
 Saravanan a/l Thangathoray v Subashini a/p
Rajasingham [2007] 2 MLJ 705
 M. Indira Gandhi v Mohd Riduan
 Section 96 & 105 of the Administration of the Religion of Islam
(Perak) Enactment 2004,
 Where the case should go to if the issue is mixed
and involves elements of both syariah and civil law?
 what if a syariah related law or decision involves a grave con
stitutional law question about fundamental rights or federal‐stat
e division of power
Priyathaseny v Pegawai Penguatkuasa Agama [2003] 2 MLJ 302
 Problem relating to Article 121(1A) is that sometimes
the remedy being prayed for is unavailable in the syariah cour
ts
 Soon Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM)
[1999] 1 MLJ 489
Section 88A of Law Reform (Marriage and
Divorce) (Amendment) Bill. (Withdrawn)

 Calls initiated to stop issues relating to child conversion by one


parent (Singular, Conversion cases)
 Halted by the decision of the Federal Court in the case of Indira
Gandhi.
 Article 12(4) of Federal Constitution