Muwasafat Tarbiyah

ASSIGNMENT ON ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA

TITLE : 

THE CONSTITUTIONAL FRAMEWORK FOR THE ADMINISTRATION OF ISLAM AND ISLAMIC LAW IN MALAYSIA

PREPARED BY:

NUR SHAHIRA BINTI ELYAS

(Matric No: 1170547)

PREPARED TO:

PROFESOR DR. HJ. ABDUL SAMAT MUSA

FAKULTI SYARIAH DAN UNDANG-UNDANG

INTRODUCTION

The British colonial rule had a major impact on the legal systems of the Malay States which used to be under the growing influences of Islamic law during the Malay Sultanates. However, this development was thwarted by the imposition of English law by the British colonial authorities. English law was introduced through several methods, based on the distinct political background that existed then, namely the Straits Settlement, the Federated and Unfederated Malay States, Borneo States of Sabah and Sarawak had somewhat a different legal history.

Basically, however, the British had curtailed the application of Islamic law in the Malay States and separated the Syariah courts from civil courts. In Sabah and Sarawak however. The Islamic law has always been applied as a personal law, administered as part of the local customary laws. Since Merdeka (independence) in 1957, and the formation of Malaysia in 1963, the administration of Islamic law has been governed by the Federal Constitution. The purpose of this paper is to provide a brief explanation on the constitutional framework of the administration of Islam and Islamic Law in Malaysia and historical account for the Islam and Islamic law.

ISLAM AND ITS FRAMEWORK

Islam As the Religion of The Federation

Article 3(1) of the Federal Constitution declares Islam as the religion of the Federation[1]. The provision has been described as the traditional element, a basic feature, a basic structure and a unique character of the Federal Constitution. The meaning and the purpose of inserting the provision into the constitution were not clarified by its framers. This was not surprising as the provision was only inserted in the final draft of the constitution which was done by working party. Be that as it may the provision was said to be ‘innocuous’. Despite that the provision eventually became quite significant given the various interpretations – academic, judicial and political – given to it. One could say that in the view of the multifarious views the scope of the provision is uncertain.

Understanding the provision

Before one could embark on evaluating the implication of Article 3 of the Federal Constitution on the entre constitutional structure, one needs to see the provision in its context. Justice Abdul Hamid in his note of dissent proposed that the provision was to be phrased as, “Islam shall be the religion of the State of Malaya…” However, the suggestion was not imitated. The provision was phrased as ‘Islam is the religion…’ which is also the phrase, used in the White Paper. The word ‘is’ instead of ‘shall’’ has been said as an assertion of the clearly accepted the fact that Islam is the recognized religion on the states, either in practice or in the state constitution.

Status of Islam in Federal Constitution

The status of Islam in the Federal Constitution can only be properly understood by assessing and reading it together in a holistic manner with other related constitutional provision and not just relying in only Article 3 that provides Islam as the religion of the Federation and protects freedom of other religious belief in isolation. Apart from the Federal Constitution, some provisions of States Constitution are also relevant. Constitutional and historical background of the Constitution and various interpretations by constitutional scholars, commentators and Malaysian courts are equally pertinent on order to comprehend the tenor and ambit of Islam and its relationship with state under the Federal Constitution.

Constitutional References to Islam

Article (3) of the Federal Constitution 1957 provides that “Islam shall be the religion of the Federation, but other religion may be practiced in peace and harmony in any part of the Federation.” Article (11) provides that every person has the right to profess and practices his religion and subject to clause (4) to propagate it. Furthermore, every religious group has the right to manage its own affairs, to establish and maintain institutions for charitable with law. Islamic religious matters including the applications or otherwise of Syariah to individuals thus fall under the jurisdiction generally of the state law. In almost every state, the Sultan is the official head of the religion and the power to legislate on Syariah related matters lies with the State Legislature.

Although it was not intended that Malaya should become an Islamic state, the constitutional recognition of Islam as the state religion in combination with the strong undercurrent of communal politics in the post-independence era generated controversy over the practical consequences that should or should not be implicit in such provision. Although Islam is the religion of the Federation, there is no head of the Muslim religion for the whole of the Federation. The King (Yang di-Pertuan Agong) continues to be the Head of Islam in his own state, and under the constitution also the Head of Islam in the Federal Territory, Melaka, Penang, Sabah and Sarawak as these states have no Malay Rulers by their own.

Other Provision Related to Islam

Apart from the prominent position of Islam specifically stated and guaranteed under Article 3(1) of the Federal Constitution, there are other several provisions in the Federal Constitution that relate to the religion of Islam. These includes, Article 3, 8,11,12,37,38,74,76,150, 121(1A), 160, Fourth and Ninth Schedule of the Federal Constitution. These provisions include, religion of the Federation, Equality, Freedom of religion, rights in respect of education, Oath of office of Yang di-Pertuan Agong, Conference of Rulers, Subject matter of federal and State laws, Power of Parliament to legislate for States in certain cases, Judicial power of the Federation, Proclamation of emergency, and Interpretation.

The Constitution Of Islam

Component of Islam

1.      Administration of Islamic religious affair in general

2.      Administration of Syariah Court Justice in Malaysia (applicable for only Muslim whether for civil law or criminal law)

3.      Administration of Fatwa in Malaysia

4.      Administration of Islamic finance.

Islam also discuss about:

1.      Aqidah

2.      Syariah

3.      Akhlak

1. Aqidah

Aqidah is to believe in Allah and everything related to Him; His worthiness of worship and lordship, his names and attributes, belief in the angels, books, messengers, destiny, the last day and everything authentic in the religion. We must accept Allah as the ruler and legislator and accept the messenger, peace be upon him, as one worthy of obedience and as a leader and guide, whose behavior and judgment we seek to emulate.

The most important part of the Aqidah of the Muslim is Al-Tawheed, which is the oneness of Allah in worship, lordship and names and attributes. The importance and meaning of Al-Tawheed enables us to use the term interchangeably with Aqidah. Some common Aqidah mistakes which affect many Muslims, whether in belief or practice.

2. Syariah

The word sharia mean "the right path," refers to traditional Islamic law. The Sharia comes from the Koran, the sacred book of Islam, which Muslims consider the actual word of God. The Sharia also stems from the Prophet Muhammad's teachings and interpretations of those teachings by certain Muslim legal scholars. Muslims believe that Allah (God) revealed his true will to Muhammad, who then passed on Allah's commands to humans in the Koran. Islam classically draws no distinction between religious, and secular life. Hence Sharia covers not only religious rituals, but many aspects ofday-to-day life, politics, economics, banking, business or contract law, social issues and legal rules, is more than legal system, strictly speaking. Islam is al-deen which is the way of life.

3.  Akhlaq

Akhlaq is an Arabic term referring to practice virtue, morality and good manners and character in Islam. In simple words, we can say that Akhlaq is basically the ethics, good conduct and moral character of a person. It has been reported that our beloved Prophet Muhammad (SAW) said about Akhlaq in these words: “The only reason why I am sent is to perfect good Akhlaq.”

An act of goodness is much dear to Allah Almighty than one’s wealth and richness. We should also know that from where this goodness comes. Goodness comes from good Akhlaq which is the practice of virtue, ethics, morality and also a good character. Allah Almighty said that person’s Akhlaq is a tremendous thing in His sight.

ISLAMIC LAW

Although Islam was recognized as a complete way of life including law, the Malaysian Supreme Court (now the Federal Court) noted in 1988 that notion was not the meaning intended by the framers of the Merdeka Constitution as far as the connection of Article 3 with the application of Islamic law is concerned [Che Omar Che Soh v Public Prosecutor][2]. In Malaysia, Islam and Islamic law are constitutionally a state matter, except for regulating the religious affairs of the Muslims in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya. Both Islamic religion and law are listed in State List under the Ninth Schedule of the Federal Constitution.

Islamic law was admittedly one of the sources of Malaysian law, but it is applied only to the Muslims and administered by the Syariah courts. However, under the doctrine of the supremacy of the Federal Constitution [Article 4 (1)], the scope of the application of Islamic law is determined by the Federal Constitution and Acts of Parliaments. Although Islam enjoys certain privileges, Article 3 does not override any other provision in the Constitution. Further, the adoption of article 3 was not meant to affect the civil rights of the non-Muslims.

In theory, it is open for each Ruler to act independently in religious matters. In practice, however, state legislatures have created Majlis Agama Islam (Islamic Religious Council) which is variously known in each state, in order to aid and advise the Rulers in such matters. In the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, the Federal Constitution provides that Parliament may by law make provisions for regulating Islamic religious affairs and for constituting a Council to advise the Yang di-Pertuan Agong in matters relating to the religion of Islam. Malaysian Muslims belong to the Sunni sect, and it appears that it is the policy of the both federal and State governments to adopt the Sunni Schools of law, although there is no specific provision in the Federal Constitution to that effect, except it is stated notably in the State Constitution of Kedah and Perlis. Both constitutions provide that the religion of the State shall be the Muslim Religious of Ahli Sunnah Waljamaah[3].  However, reference to the Sunni schools of law, particularly the Sharie school of law is to be found in the state and federal legislation relating to the administration of Islamic law.

State List

Islamic law and personal and family law of person professing the religion of Islam. The power of the Islamic law under state list is based on below:

1.      Wakafs

2.      Malay Customs

3.      Zakat, Fitrah and Baitulmal

4.      Mosque or any similar public places of worship

5.      Creation and punishment of offences by persons professing the religion of Islam against precepts of Islam except in regard to matters included in the Federal List

6.      The Constitution, organisation and procedure of Syariah Courts which shall havve jurisdiction only oover person professing the religion of Islam and in respect only of any matters in the State List and in so far as conferres by federal law.

7.      The control of propagating doctrines and beliefs among the Muslims.

8.      The determination of matters of Islamic law and doctrine

9.      Malay custom.

Administration of Islamic Law Act 11993 (Federal Territories)

1.      S. 46: Jurisdiction of Syariah High Court

2.      S. 47: Jurisdiction of Syariah Subordinate Court

3.      S. 48: Appeals to Syariah High Court

4.      S. 49: Application for leave to appeal

5.      S. 50: Supervisory and Revisionary Jurisdiction of Syariah High Court

6.      S. 52: Jurisdiction of Syariah Appeal Court

7.      S. 53: Supervisory and Revisionary Jurisdiction of the Syariah Appeal Court

THE CONSTITUTIONAL FRAMEWORK

Islamic law is not a legal system, but a legal tradition, much like the common or civil law tradition. A legal tradition is a set of related beliefs, attitudes, and practices regarding the necessary components of a legal system, including the scope and purposes of the law, the manner in which law is created or discovered, the identity and function of legal actors, and the manner in which law is learned, implemented, developed and adapted.

Islam has its own personal, civil, criminal, mercantile, evidentiary, constitutional, and international law. In Malaysia, Islamic law and customary law were the law of the land long before English law became prominent, as under the current system. According to the Federal Constitution, Islamic law is a matter falling within the State List, meaning that the State Legislatures are empowered to enact the law. Exceptions to this are the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, in which Islamic law is enacted by the Parliament. Malaysia maintains two parallel justice systems: the Syariah Court System in each of the thirteen states, and the Civil Court System for the whole Federation. Each state in Malaysia has its own Syariah court system, which deals with matters relating to Islamic law in which all parties are Muslim.

All matters pertaining to Islamic law and Muslims shall only be heard in the Syariah court; all other cases are heard in the civil courts. The Constitution has empowered State Legislatures to promulgate Islamic law and personal and family law for all persons professing the religion of Islam (except in regard to matters included in the Federal List) such as succession, betrothal, marriage, divorce, maintenance, adoption, guardianship, trusts, Islamic religious revenue and mosques. Civil and Criminal law are within the Federal Government’s jurisdiction, except on criminal offences which effect Muslims as listed in the State List. The rules of Syariah are set by various sultans, who serve as Head of the Islamic religion in their respective states. Because Islamic law is administered by the respective states, there is a lack of uniformity in the administration of Islamic law in Malaysia. 

 

CONCLUSION

Historically, Islamic law, apart from adat (Malay custom) played a very important role in the legal system of the Malay states which is Malaysia especially before the advent of the British. However, since the reception of English law, the application of Islamic law had been reduced to personal and family laws. Contrary to the position enjoyed in Malay States, the limited scope of Islamic Law has always been the practice in Sabah and Sarawak. Under the present Federal Constitution, the position of Islamic law as defined by the constitution has since independence been entrenched and some improvements have been introduced into the legal system. Notably in the area of Islamic family law. However, this progress still leaves something to be desired. As far as the wider application of Islamic law and the uniform administration of Islamic family law are concerned, arguable, there are still constitutional and practical issues that need to be addressed and the final answer to those problems remains to be seen. However, it is hoped that the special position of Islam in the Federal Constitution will be used to further enhance the development of Islamic Law in Malaysia.

 

REFERENCES

Abdul Samat Musa, 2018. Islam, State and the Constitutional in Malaysia and Islamic Constitutional Theory: Their Relationships and Challenges,

Irwan Mohd Subri, Md. Yunus Abd Aziz, Abidah Abdul Ghafar, Dina Imam Supaat & Syahirah Abdul Shukor (comp. and ed.) 2003. Kajian Syariah Undang-Undang: Studies in Syariah and Law.

Mohammad Hashim Kamali, Islamic Law in Malaysia Issues and Developments, (2000) Kuala Lumpur Malaysia.

Sharahayu A. Aziz, Islam as the Religion of the Malaysian Federation, the Scope and Implications, (2006) 14 IIUMLJ 3

Shaikh Mohamed Noordin, Researching Islamic Law, Hauser Global Law School Program

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[1] Article 3(1) of the Federal Constitution states that ‘Islam is the religion of the Federation; but other religion may be practiced in peace and harmony in any part of the Federation.’ It is to be noted that this clause contains two limbs; namely (I) the religion of the federation and (ii) the practice of other religion.

[2] Che Omar Che Soh v. Public Prosecutor (1988) 2 MLJ 55

[3] Articles 22A and 5(1)