The Position of Islamic Lawin Malaysia

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Introduction It has been argued, that if colonisation had not been responsible for the

introduction and application of English law, Islamic law would have developed to become the law of the land. Islamic law, coupled with the customary law of the various races, indeed represent the indigenous sources or basic foundation upon which the eventual growth of a legal system could have been founded.1 However, the grant of the Charters of Justice 1826 to the Straits Settlements, and the eventual application of English law both through the judicial process and through legislation in the Malay States had effectively displaced Islamic law from its premier position. The role which Islamic law now plays in the system is extremely limited. Under the Federal Constitution, Islamic law is a matter falling within the State List, that is, it is a matter over which the State Legislature has jurisdiction, and not the Federal Legislature.2 In this regard, matters over which the State Legislatures have been permitted to make laws have been stated to be: "Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trust, charities and charitable institutions operating wholly within the State; Malays customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship,…"

1 2

See Shaik Abdul Latif & Ors. v. Shaik Elias Bux (1915) 1 FMSLR 204, 214. Federal Constitution, Article 74, Ninth Schedule.

With regards to offences, or Islamic criminal law, the Federal Constitution goes on to provide that the State Legislature may make laws for the: "… creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List;…"3 Likewise, the State Legislature has jurisdiction over: "… the constitution, organisation and procedure of Syariah Courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law,…" 4 While it may be true that the practice of Islamic law differed among the various Malay states due to the varied influences of custom, British intervention in the affairs of the Malay state had the effect of formalising the manner in which Islamic law was administered. Islamic law was left to be administered by the respective states, with the Sultans proclaimed as ‘Head’ of Islamic religion in each state, thus giving rise to the lack of uniformity in the administration of Islamic law in Malaysia, whereas the uniform application of English law throughout the land was guaranteed.5 The judicial power of the Federation resides in several courts constituted under Article 121. Clause (1) of that Article mentions two High Courts of co-ordinate jurisdiction and status, that is, one in the states of Malaya known as the High Court in Malaya, and one in the states of Sabah and Sarawak known as the High Court in Sabah and Sarawak, together with such inferior courts as may be provided by federal law. Clause (1A) states that the court referred to in clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts. The 3 4

Ibid. Ibid. 5 Sharifah Suhana Ahmad, Malaysian legal system, Malayan Law Journal, Kuala Lumpur, 1999, pp. 108-109.

effect of Article 121 (1A) has been...
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