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ISLAMIC LAW IN MALAYSIA

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Munirah Nazri

on 13 April 2015

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Transcript of ISLAMIC LAW IN MALAYSIA

Primary Sources:

The Quran (Words of Allah)
The Sunnah [Rules from the Tradition of Prophet Muhhamad (pbuh)]

Secondary Sources/ Means of Discovering the law:

Ijma’
Qiyas
Other forms of Ijtihad

Case Law
: Lina Joy v Majlis Agama Islam Wilayah Persekutuan & 2 Ors 2005 [CA]
Special Reference: [Artivle 3, Article 74, Article 121 (1A)
Article 3 is not a declaration that the federation is an Islamic State, only as religion.
This is based on the the clarification made by the PM Tunku Abdul Rahman in the Federal Legislative Council 1958:

“I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provide that Islam shall be the official religion of the State”

ADMINISTRATION OF SYARIAH LAW IN MALAYSIA
In today’s practice of Islamic laws in Malaysia you may ask these questions:

Is Malaysia an Islamic state?
In what extend does Islamic law applicable to the Muslims?
Who has the authority over (Shariah) Islamic law in Malaysia?
Is there a conflict in the practice and the jurisdiction of Islamic law and the Civil law in Malaysia?

Lina Joy, 43, was born Azlina Jailani and was brought up as a Muslim, but at the age of 26 decided to become a Christian. She wants to marry her Christian boyfriend, a cook, but she cannot do so while her identity card declares her to be Muslim.
In 1999, the registration department allowed her to change the name in her identity card to Lina Joy but the entry for her religion remained "Islam".
She was asked to apply for a new replacement identity card. This she did on 25 October 1999.
The application by the appellant for replacement identity card was rejected.
Then, the appellant made a third application on 3 January 2000 (third application) to NRD office in Petaling Jaya and applied to remove the word “Islam” and her original name from her replacement identity card.
The counter clerk however refused to accept her application on the ground that it was incomplete without an order of the Syariah Court to the effect that she had renounced Islam.
The Director General attempted to deny that the application was rejected at the counter. However the Court of Appeal accepted the version of the appellant.

$1.25
Article3, Article 74, Article 121 (1A)
Syariah
DEFINITION
ARTICLE 74
In what extend does Syariah laws were applicable to the Muslims?

Sacred law of Islam revealed through Prophet Muhammad (s.a.w.) in the Quran & Sunnah
It is Allah’s command that regulate the life of Muslims in all aspects
It is more than a legal system


Islamic law:

The legal rules that are part of the Syariah and enacted as legislation in accordance with the Federal and State Constitution
In Malaysia the Islamic law applied is of the Shafii school of jurisprudence (mazhab), with some modification by Malay adat (customary) law.

Subject Matter of Federal and State Laws:


Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List ( that is to say, the First or Third List set out in the Ninth Schedule).

Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make law with respect to any of the matters enumerated in the State List ( that is to say, the Second List set out in the Ninth Schedule ) or the Concurrent List.

The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.

Where general as well as specific expressions are used in describing any of the matters enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter.

ISLAMIC LAW IN MALAYSIA
SOURCES OF ISLAMIC LAW
Is Malaysia an Islamic State?
Article 3
Islam is the religion of federation. But, other religions may be practised in peace and harmony in any part of the Federation.
In every state other than states not having a Ruler the position of the Ruler as the Head of the religion of Islam in his State in the manner and to the extent acknowldged and declared by the Constitution of tha State, and, subject to that Constitution, all rights, privileges, prerogatives and powers enjoyed by him as head of that religion, are unaffected and unimpaired. But in any acts, observances or ceremonies with respect to which the Conference of Rulers has agreed that they should extend to the Federation as a whole each of the other Rulers shall in his capacity of Head of the religion of Islam authorize the Yang di-Pertuan Agong to represent him.
Explanation of Article 3
Federal Constitution declares Islam as the religion of Malaysia but the other religions may be practiced by non-Muslims.

It actually explained that our Federal Government's main priority in religion is Islam.

It imposes positive obligation on the Federation to protect, defend, and promote Islam.

Islamic law is not our Federal management but it is within the state management.

Does not import Islamic principles into the Constitution but it does contain a number of specific Islamic features:

- States may create their own laws to govern Muslims in respect of Islamic Law and personal and family law matter.
- States may create Syariah courts to adjudicate over Muslims in respect of State Islamic Laws.
- States may also create laws in relation to offenses against percepts of Islamic but this is subject to a number of limitations: (i) Such laws may only apply to Muslims, (ii) Such laws may not create criminal offenses as only Parliament has the power to create criminal laws and (iii) the state Syariah Courts has no jurisdiction over Islamic offences unless allowed by Federal Law ( See the above section. )
Case Law Related to Article 3
Explaination on Article 74
If any dispute happened, each government jurisdiction must followed its own power that had been enumerated.

The State cannot legislate contrary to the Federal Constitution.

If the matter falls under the Federal List, the state cannot legislate on it.

In exercising its legislative powers, it must be in line with the provisions of the Federal Constitution.

If a matter falls under the precept of Islam and also the Federal List, the Federal List prevails.
The
9th Schedule, List II
, i.e. The State List of the Federal Constitution, Syariah Law in Malaysia applied on persons professing the religion of Islam in the following areas:

Family Laws in respect of:

Marriage
Divorce
Custody and Guardianship
Maintenance of Children
Matrimonial Properties
Alimony
P/s: Except in Federal Territories of Kuala Lumpur, Labuan, Putrajaya.
Laws of Succession:

Probate and Administration ( Relating the distribution )
Trust Deed ( In respect of Gift Inter-Vivas )
With regard to Criminal Laws the jurisdiction of the Syariah Law are limited and confined to offenses in respect of :

Polygamous Marriage
Close Proximity
Indecent Dressing and Behavior
Violation of the "Pillars of Islam". ( i.e., not fasting during Ramadhan days, not attending Friday Prayers, Desertion by either spouse )
Apostasy
Who has the authority over Islamic Law in Malaysia?
Islamic Law is a state matter.

Each state has separate legislation; mainly on administration of Islamic Law.

The present enactments provides for three independent authorities in administrating Islamic Law in Malaysia:

Majlis Agama Islam
The Mufti
The Syariah Courts
MAJLIS AGAMA ISLAM
A corporation with primary function to advise the Sultan in all matters concerning Islam.

Responsible for all Islamic matters except Islamic Law & the administration of justice.
THE MUFTI
The Mufti are appointed by the Sultan/YDPA ( For states without Sultan )

He is responsible for the determination of Islamic Law; i.e settle unsettled or controversial issues by making & publishing in the Gazette a Fatwa (Legal Ruling) on the issues.
The Syariah Courts..
Responsible for the administration Islamic Law/Justice.

The structure of the Syariah Court are as follows:

Syariah appeal courts
Syariah High Courts
Syariah Subordinate Courts
ARTICLE 121 (1A)
There shall be two high court of co-ordinate jurisdiction and status, namely -

One in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principle registry in Kuala Lumpur; and
One in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;
(Repealed)
and such inferior court may be provided by the federal law and the High Court and Inferior Courts shall have such jurisdiction and powers as may be conferred by or under federal law.
1A) The courts referred to in clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.
Is there a Conflict in the practise and jurisdiction of Islamic Law and the Civil Law in Malaysia?


Case of Yusof bin Abdullah
Convert to Islam
Have a wife and son, named Sanjay ( 2 yrs old)
Lived together for 2 years before his wife brought away their son to Kuala Lumpur.
Yusof asked custody of Children from Syariah Court and take back his son with him after get the custody.
Then his wife went to High Court in Kl to get the custody of children.
However she failed to take back her son even after get the right.
She make a police report and Yusof Muhamad had been caught and being imprisoned for 8 days.
The case was winned by his wife with the custody of children was under her and she convert back the son to Hindu.
Question: Are there recognized specific Islamic principles pertaining to matrimonial disputes in relation to a non-Muslim couple with one spouse converts to Islam?
Guidance in this area of dispute:

"In such a situation of conversion by one spouse, the husband still bears the responsibilities of sustaining the children until the age of majority." [Surah al Baqarah:233)
Religion of the children below the Muslim age of majority is authentically considered to be a Muslim after the conversion of one spouse
Conclusion of the case:

Muslim have a right and;
Demand the Federation to allow him to be governed by Islamic Principles.
Despite the other party being a non-Muslim.
CONCLUSION
Islam had been given position in our Constitution and King as the Religious Leader.

Constitution also had given jurisdiction to the State Legislature to make Islamic Law within the boundaries set by the Constitution and its subject to Federal Legislation.

Suggestion:

Establish Mufti of the Federation as Islam is the religion of Federation.

Establish Bahagian Peguam Cara Syarie Negara in relation to the Islamic Law that relate to national.

Syariah Courts have to rearrange and get more comprehensive power.

The staff of court have to be trained and sufficient.

Make the Supreme Court of Syariah. So, there are two phase of appeal.

The status of judges also have to be enhanced.
THE SYARIAH COURT
Jurisdiction of Syariah Court
Power in Civil and Criminal Matters
Syariah Court have jurisdiction over offences that is against the precepts of the religion of Islam provided that such jurisdiction does not deal with offence that are punishable exceeding syariah court punishment power.
Level of Syariah Court
The Syariah Court of Appeal
The Syariah High Court
The Syariah Subordinate Court
Punishment in Syariah Court
Agreed eupon similar issue, facts and law which have been determined /decided by a higher syariah court shall be respected by the lower court.

Trial and sentence with imprisonment & fine-Muslim only.

Fine not more than RM 5000

3 years imprisonment.

Canning not more than 6 strokes.

Combination of any of the above.
Thank you!
Full transcript