MASTER OF COMPARATIVE LAWS

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

ARTICLE :

COMPARISON OF THE POSITION OF ISLAMIC LAWS IN INDONESIA AND

MALAYSIA

PREPARED BY :

GUNAWAN BUDI INDRA

G1924035
TABLE OF CONTENTS………………………………………………………… i

ABSTRACT……………………………………………………………………… ii

RESEARH METHODOLOGY………………………………………………….. iii

I. INTRODUCTION………………………………………………………... 1
II. DEFENITIONS ………………………………………………………….. 2
III. SOURCES OF LAW ……………………………………………… …… 4
IV. POSITION OF ISLAMIC LAW IN INDONESIA AND MALAYSIA…. 10
V. THE COURT SYSTEM INDOESIA AND MALAYSIA ……………….. 18
VI. CONCLUSSION …………………………………………………………. 26
VII. BIBLIOGRAPHY………………………………………………………… 31

i
Abstract

This paper will discuss comparison of the position of Islamic law in Indonesia and Malaysia, where
the part of society that cannot be separated from the Muslim Majority State. Indonesia and
Malaysia are two countries with muslim majority population and are considered to have the same
clump of lineage. However, the legal system of the two countries are different, which Indonesia
is affected by the Legal System Of Civil Law, while Malaysia is influenced by the legal system of
common law. This difference will affect the Islamic law that applies in the two countries even
though the population is the same as the majority of muslim. In Indonesia, The exsistence of
Islamic law can be seen in the preamble of the Constitution of indonesia and in article 29
paragraphs 1 and 2, while the existence of Islamic law in Malaysia is in article 3 paragraph 1 of
the Constitution Of Malaysia.

ii
A.Research Of Methodology

A.1 Place Of Research

The place of research that the writer made as the location of this research is Indonesia and
Malaysia.
A.2 Research Focus
This study focuses on describing the influence of Islamic law in applicable laws in Indonesia and
Malaysia
A.3 Data sources
The data source used in this research is secondary data sources. This secondary data can be
obtained from supporting literatures such as textbooks, journals, documentation, research institute
data and the constitution, as well as the applicable laws in both countries.
A.4 Comparative Research Method
Comparative research is research that is comparative in nature, which is carried out to compare
the similarities and differences of two or more properties and facts of the object under study based
on a certain frame of mind. Comparative research is usually used to compare between two or more
groups in a particular variable.In this case , it is to compare the position of Islamic law in Indonesia
and Malaysia, the history,development and sources of law both countries. This study analyzes the
viewpoint of Islamic law as a part of national law, where the part of society that cannot be separated
from the Muslim majority state. Indonesia and Malaysia are two countries with Muslim majority
population and are considered to have a same clump of lineage, but on the other aspects that
influence the laws in the two countries they have differences, in which Indonesia is affected by the
legal system of the Civil Law, while Malaysia is influenced by the legal system of Common Law.
Such differences would affect the legal systems of both countries, not only in that aspect, but also
will affect the Islamic laws in the countries which are predominantly Muslim.
Based on the research results through liberary research found that institutional form of
Malaysia and Indonesia have differences in terms of both form the state and the ruling
party.Malaysia is a country that adheres to the type of federal state which includes federal and state
government system with a democratic monarchy. While the Indonesian state, which includes the
unitary form of the central government and autonomous regions with a republican system of
government with the principles of constitutional democracy.By exploring the history of the two
countris as well as the background of the ethnicity, religion, race and customs as well as examining

iii
written and unwritten statutory regulations that apply in both countires, This comparison illustrates
the basis for the development of Islamic law, both in Indonesia and Malaysia. The basis is a basic
construction, so that this will provide clarity on the existence of Islamic law in Indonesia and
Malaysia.it will be possible to see how the position of Islamic law in the two countries.The process
of analyzing data is carried out after all the data has been collected. Data analysis will be carried
out by reading, studying, analyzing and comparing various sources of literature especially Islamic
law that has been in effect in both countries .The final stage is to draw conclusion from any
information obtained so that it is used to provide research result that can be understood by the
peoples of two countries especially people who are in the world of education and government.

iv
 I. INTRODUCTION

"Al-hukm yataghayyar bi taghayur al-azminah wa al-amkinah".These principles provide an

understanding that Islamic law is adaptable and flexible to social change. What is meant by social
change in context society includes various factors; economy, politics, culture, customs, and habits
that live in the community.
Social development that grows rapidly, makes scholars legal experts Islam is starting to
realize the legacy of fiqh from the previous scholars'. This awareness encouraging Islamic scholars
and thinkers to discuss fiqhiyah reform. This too recognized by Islamic jurists in Indonesia and
Malaysia who do not want Islamic law abandoned by the ummat while on the other hand,
customary law and Western law seem to occupy realist laws and are increasingly being used by
countries in the world even by countries with Muslim majority populations.
There are three groups that characterize the development of Islamic thought today. Firstly,
they are often referred to as liberal-progressive groups.This group has a thought that considers
Islamic reform as a necessity and views that there were so many teachings and doctrines of Islam
in the past that were not again in accordance with the demands of the modern world.This group
was born because of the belief in the spirit of progress in islam. Islam highly upholds the values
of freedom, equality and justice.The stagnation of Islamic law occurs because the renewal is not
included the concept of methodology (ushul fiqih). Ushul fiqh has since been initiated and
socialized by Imam Shafi'i as a pioneer was accepted by Muslims unconditionally.whereas
supposedly ushul fiqh as a result of ijtihad must always be reviewed according to developments in
society’s needs.

The second group is conservatives moderat group.They are intellectuals and Islamic
figures who tryto follow the pattern and flow of thinking of the majority muslim.They also believe
in the importance of Islamic reform and realize that there are some Islamic ruless that do not fit
the context of the modern world.But they prefer to re-understand it by making a few careful and
slow modifications to Islamic rules. Although they appear to inspire the spirit of ijtihad, but
basically they are still restrained with religious texts that they want to update. Invite them to open
up back door of ijtihad is a halfhearted invitation. Because they still claim that ijtihad can only be
done by certain people with very strict conditions elaborate crafted by medieval scholars.

1
 2

And the last group is puritan –extrimis groups.These are scholars and religious figures
who completely reject the idea of Islamic renewal while constantly inviting muslims to return to
the Islamic past. This group is very obsessed with presenting the life and behavior of the prophet
and the caliphs , no matter whether it still relevant to the present world or not.the importance thing
is that they feel they must live a life exactly like the times of the Prohphet and the caliphs. Even
in their view, both groups it is branded liberal and has been leaving Islam, because both are
considered to put forward the mashlahah aspect (public virtue) and reason in fiqh analysis.1
In almost all muslim-majority countries , differences like the group mentioned above have
always existed and have become along and endless debate as well as Indonesia and Malaysia.Even
thought the two countries are majority Islamic countries , the legal system of the both are different
where Indonesia is more influenced by the civil law while Malaysia applies the common law.These
difference will of course affect the position of Islamic law in the two countries.
After comparing the position of Islamic law in Indonesia and Malaysia, we can find out
how Islamic law affects the two national legal systems, then we will find out whether Islamic law
is a law that can stand alone? Is Islamic law totally applicable?can Islamic law be adapted to the
times? and what causes Muslim majority countries to mix Islamic legal systems and other legal
system?
II. DEFINITIONS

Based on the opinion of Ludwig Von Bertalanffy, H. Thierry, William A. Shorde / Voich Jr,
as quoted by Bachsan Mustofa, the legal system is a system as a type of unit that is built with
system components that are functionally related to one another to achieve goals.2 So,when we
discuss about the position of the Islamic legal system in Indonesih a and Malaysia, we are talking
about three types of legal systems that apply in the world, namely the Islamic legal system, the
civil law system (Indonesia) and common law (Malaysia).But on the other hand ,it can not be
denied that customary law is also quite influential in the preparation of the legal systems of the
two countries.Next will explain what is meant by the Islamic legal system ,civil law, common law
and customary law.

1 Salam Abdul. (2013). Pembaharuan hukum Islam melalui yurisprudensi Pengadilan Agama;Mahkamah Agung
Republik Indonesia.at.3
2
Burlian,Paisal (2015).Siste Hukum Indonesia.Palembang: Fakultas Dakwah Dan Komunikasi Uin Raden Fatah.at1-
 3

1. Islamic legal system

Islamic law is a system of rules based on the revelations of Allah SWT and the Sunnah of
the Prophet regarding the behavior of mukalaf (people who can already be burdened with
obligations) that are recognized and believed, which are binding for all adherents.
The Islamic law system in this context is defined as the legal system of god which in its
application some of it involves the ability of human reasoning. the are two main aspect
regulated in Islamic legal system ,namely : Human relationship with God (Allah ) in Arabic its
called hablun minallah and the second aspect is human relationship with others or also known
as hablun minannas.The first form is called whorship and the the second form of relationship
is called muamalah.so, when we viewed from the legal aspect, Islamic law is a complete
concept of life, both as an individual and as a community unit.3
2. Civil law
Continental European law , also known as Romano-germanic lega system,this legal system
developed in mainland European countries and is often referred to as "Civil Law" which was
originally derived from the codification of the law prevailing in the Roman empire during the
reign of Emperor Justinian in the 6th century BC.
The emphasize on this legal system is the use of written legal rules, various provisions are
systematically codified which will be interpreted by the judge in their application.Nearly 60%
of the world’s population live in countries with this legal system.4
3. Common law
Common Law (Anglo Saxon) is a legal system that originated in England and developed
in its colonies. The Common Law legal system relies on court decisions as its source of
law. The common law system implemented in many English speaking countries such as
Australia, Canada, United States, Wales, Irlandia,Selandia and other countries.This legal
system based on jurisprudence, namelythe decisions of previous judges’ decisions which
then become the basis for subsequent judges’ decisions.5

3
Usman,Suparman.(2017).Hukum islam;asas asas dan pengantar studi hokum islam dalam tata hokum
Indonesia.pg.215.
4
Burlian,Paisal (2015).Sistem Hukum Indonesia.Palembang: Fakultas Dakwah Dan Komunikasi Uin Raden
Fatah.Pg4
5
Ibid.,at .4
 4

4. Customary law
Customary law is a series of rules that bind to a society that are not written and originate
from the habits that grow and develop in a particular society which are then accepted into
law from generation to generation.
Both Indonesia and Malaysia have customary laws that have been in existence for a long
time and are accepted by the people.
III. SOURCES OF LAW
A. SOURCES OF INDONESIAN LEGAL SYSTEM

According to C.S.T Kansil, that what is meant by source law is anything that gives rise to
rules that have the character of force to force, namely the rules which if violated will produce
clear, firm and consequences or sanctions real.Source of law can also be interpreted as a
embodiment in the law itself. Everything that can it can result or give birth to a law called the
source of law. The term source of law contains many meanings,the term can be seen from a
historical, sociological, philosophy, and law. Each discipline interpret the source of law from
its perspective on law. Historians, sociologists, philosophers, and jurists looked at law from
each point of view. In the European view Continental, the source of the law is related to the
process the occurrence of law and binding on society. But deep the Anglo-American view of
legal sources is distinguished between source of material law as well as source of formal law.6
1. Formal source of law is the place or source from which a regulation obtains legal force. This
is related to the form or manner in which the legal regulations take effect formally.

2. Material legal sources are factors that help form law, for example religion, social relations,
political power relations, socio-economic situations, custom or community traditions,
international developments, geographical conditions. According to L.J. Apeldoorn material
sources of law include;7
a. Source of law in historical sense
b. Source of law in a sociological sense
c. Source of law in a philosophical sense
Overall sources of law in Indonesia can be divided into :

6
Nurhayati, Yati (2020).Pengantar ilmu hukum.Nusa media.pg68
7
Ibid.,pg68-69
 5

1. CONSTITUTION
Article 7 paragraph (1) of Law Number 10 Year 2004 states that the hierarchy of statutory
regulations consists of the 1945 Constitution, Laws / Government Regulations in Lieu of Laws,
Government Regulations, Presidential Regulations, and regional regulations. Meanwhile, in
Article 7 paragraph (1) of Law Number 12 Year 2011 there is an addition by including the
TAP MPR.
The contents of Article 7 paragraph (1) of Law Number 12 Year 2011 concerning the
Formation of Laws and Regulations :

1. The 1945 Constitution of the Republic of Indonesia;

2. Decree of the People's Consultative Assembly(TAP MPR);
3. Laws / Government Regulations In Lieu of Laws;
4. Government regulations;
5. Presidential decree;
6. Provincial Regulation;
7. Regency / City Regional Regulations.
2. Custom (Adat)

If a certain habit is accepted by the community, and the habit is always repeated in such a way
that an action contrary to the habit is perceived as a violation of legal feelings, then a legal
habit will arise, which is seen by the community as law.8

3. International treaties
Treaties are agreements between countries / international agreements / agreements made by
two or more countries.For instance :International agreements between the Indonesian
government and the PRC government regarding dual citizenship, cooperation agreements
between several countries in the field of defense and ideology such as NATO, and agreements
in the United Nations.
4. Jurisprudence
The definition of jurisprudence in countries where Common Law (England or America) is a
little broader, where jurisprudence means the science of law. Meanwhile, the meaning of

8
Ibid.,Pg79
 6

jurisprudence in Continental European Countries (including Indonesia) only means court

decisions. as for the jurisprudence that applies in Indonesia ;
• Reconciliation decision Unappealed district court decision
• High court judgments that are not in cassation
• All Supreme Court decisions
5. Doctrine
Definition doctrine according to the opinion of legal scholars (doctrine) is the opinion of a
person or well-known legal graduate in legal science. This doctrine can be the basis for the
judge's consideration in making his decision. Doctrine applies not only in the association of
national law, but also in the association of international law, even doctrine is the most
important source of law.

B. SOURCES OF MALAYSIAN LEGAL SYSTEM

Between 1957 and 1963, a number of colonized states in peninsular Malaysia and Northern
Borneo united to form the new, independent Federation of Malaysia.' The legal system in the
independent Federation of Malaysia reflected the plural model that had emerged in Britain's Malay
colonies. Most areas of life were to be regulated by a common body of federal law. Federal law at
the time of independence was based primarily on British models. A few aspects of Muslim life,
however, were to be regulated not by federal law but by state Islamic-based law referred to locally
as Syariah law. In this context, the states were permitted to establish their own state Islamic court
systems, known locally as Syariah courts, to apply this law. Malaysia consists of 13 states; three
of them arefederal territory. Nine states are said to be native Malay namely Johor,Kedah, Kelantan,
Negeri Sembilan, Pahang, Perak, Perlis, Selangor, and Terengganu and Sarawak. While the
remainder is comprised of federal territories of three parts, the so-called fellowship area, namely
the island of Labuan, the capital Kuala Lumpur, and the new city of Putrajaya.9
Muslim sailors and traders have been a presence in trading ports across Southeast Asia,
including the Malay Peninsula, since the early centuries of Islamic history. By the end of the
thirteenth century, the first Islamic sultanate was established in the region. Over the centuries that
followed, other Muslim port polities were established across the region. Our knowledge of the

9 Dikuraisyin,Basar (2017).Sistem Hukum Dan Peradilan Islam Di Malaysia.Jurnal Keislaman Terateks.vol. 1.pp3
 7

political and legal systems of these sultanates is severely limited by a lack of primary sources. The
few extant documents that do survive from the early period suggest, however, that in a number of
sultanates on the Malay Peninsula various forms of Islamic law came to be applied to resolve some
disputes within the sultanates. European travelers and British officers also reported that some
substantive rules of Islamic law were applied in the Malay sultanates.10
In 1963, two former British colonies located on the north coast of Borneo, Sabah and Sarawak,
were granted independence and joined the Federation. In that same year, the Straits Settlement of
Singapore was also granted independence, and from 1963 to 1965 was joined to Malaysia." In
1965, however, Singapore broke off to become an independent state, leaving Malaysia with its
current configuration of fourteen units: thirteen states and the special unit called the Federal
Territories. Of the thirteen states, nine have hereditary sultans as their formal heads of state.2o
Four-Malacca, Penang, Sarawak and Sabah-do not.
The Constitution of Malaysia established a legal system that resembles, in general terms,
the plural legal system that the British established during the colonial era.11 Most areas of life in
Malaysia are regulated by federal law that applies consistently throughout the nation. Included are
most of the issues that, during the colonial period, would have been resolved by civil court judges
applying British common law. Each of the states, however, was given the constitutional right to
identify an interpretation of Islamic law that would be applied to Muslims in their territory and the
right to establish courts to adjudicate disputes involving Muslims and arising in a range of areas,
including:
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 endowments, institutions,
trusts, charities, and charitable institutions operating wholly within the State; Malay customs;
Zakat, Fitrah and Baitulmal or similar Islamic religious revenue, mosques or any Islamic public
places of worship, 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; the

10 Shuaib, F. (2012). The Islamic Legal System in Malaysia, Washington International Law Journal.
11 Perlembagaan Malaysia [Constitution] Aug. 27, 1957, art. 74, sched. 9, list I (Federal List),
item 6(e).
 8

constitution, organization 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; the control of propagating doctrines and beliefs among persons professing the religion
of Islam; the determination of matters of Islamic law and doctrine and Malay custom.
According to this provision, each state is free to enact its own version of Islamic law, and
is free to establish its own state Islamic courts to adjudicate disputes arising under the state's
Islamic laws. In recent decades all the states that make up Malaysia have chosen to exercise their
power to create Islamic laws more assertively and have established an increasing number of
regulations that are binding on Muslims within their borders.
Over time, constitutional amendments have given state courts that adjudicate disputes
arising under Islamic law an increasing amount of autonomy. At the time of Malaysia's
independence, decisions issued by the states' Syariah courts could be appealed to the civil courts-
allowing the federal government's civil courts, through their appellate jurisdiction, to impose
nationwide a homogenized (and arguably Anglicized) version o Islamic law that had been
developed in the civil courts of colonial Malaya. In recent decades, states have begun to
aggressively interpret the scope of their power to regulate the affairs of Muslim citizens located
within their boundaries. This has led to an increasing amount of Islamic legislation being passed
by Malaysian states. Furthermore, as will be discussed below, a recent constitutional amendment
has eliminated the right of appeal from a state Syariah court to the federal civil courts. Each state's
Syariah court is thus now effectively a self-contained system.
The Department of Islamic Development of Malaysia (Jabatan Kemajuan Islam Malaysia or
"JAKIM"), was established in 1997 to further develop Islamic institutions and the administration
of Islamic law, and has spearheaded the standardization of Islamic legislation. 32 In 1998, the
Department of Syariah Judiciary Malaysia ("JKSM") was established to streamline the
administration of justice in Syariah courts, and to improve their infrastructure, procedure, and
quality of service.33 It offers financial assistance to states wishing to improve infrastructure or
increase the remuneration of judges and legal officers of Syariah courts. The states who accept
assistance subscribe to a "joint service scheme," where judges and legal officers may be promoted
and transferred between different state and federal Syariah courts.
 9

IV. POSITION OF ISLAMIC LAW IN INDONESIA AND MALAYSIA

A. History Of Indonesian Legal System and the position of Islamic law
The legal system in Indonesia today is a unique legal system,a legal system built from the
process of discovery,development,adaptation and even compromise of several existing legal
system.the Indonesian legal system not only emphasizes local caracteristics, but also
accommodates general principles adheredto by the international community.12
As a country with the largest muslim community in the world, of course, Islamic law is
quite influential in the existing legal system in Indonesia, even before the Indonesian state was
formed.Islamic law entered Indonesia along with the entry of Islam to Indonesia. According to
the conclusion of the Seminar The entry of Islam in Indonesia in Medan 1963, Islam has
entered Indonesia in the first Hijriyah century or 7/8 century Miladiyah. New Western Law
introduced by the VOC at the beginning of the XVII century Miladiyah. Before the entry of
Islamic Law to Indonesia, the Indonesian people embrace various customary laws system, is
very extensive in nature presumably, the influence of Hinduism and Buddhism very strong
against the people's customary law.13
When Indonesia achieved independence (17 August 1945) after World War II, the new
state formally recognized the accumulated body of Dutch legislation, including the regulations
of 1882 and 1937 that established Islamic tribunals in Java, Madura, and south Kalimantan. In
this era of independence the Islamic law experienced two periods, namely the period
persuasive-source and authoritative-source.The persuasive period is the period of acceptance
Islamic law as persuasive, that is the source against which one must be sure and accept it.14 All
trial results BPUPKI is a persuasive source for UUD 1945, so the Jakarta Charter too is a
persuasive-source of the 1945 Constitution.Even though the 1945 Constitution is not published
the seven word Jakarta charter, but legal Islam applies to the Indonesian nation are Muslims
based on article 29 verses (1) and (2).
The cotents of Article 29 are :15

12
Burlian,Paisal (2015).Sistem Hukum Indonesia.Palembang: Fakultas Dakwah Dan Komunikasi Uin Raden
Fatah.Pg8
13
Muin, F. (2016).Politik hukum islam di Indonesia dan Malaysia :suatu kajian perbandingan;Al-Manahij vol.x.pg.1
14
Usman,Suparman (2017).Hukum islam ;Asas asas dan penghantar studi hukum islam dalam tata hokum
Indonesia.pg.120
15
Undang undang dasar Republic Indonesia(constitution).art 29
 10

(1) The State shall be based upon the belief in the One and Only God.
(2) The State guarantees all persons the freedom of worship, each according to his/her own
religion or belief.
Suharto’s New Order (1965-1998) was marked by a series of major changes to Indonesia’s
Islamic legal system. The formalization of Islamic law was carried out with efforts to transform
laws Islam into the rules of law. In statutory regulations position Islamic law is increasingly
clear. From here then came Islamic law legislation which is national in nature, namely Law
no. 1 1974 concerning Marriage and Law No.28 of 1977 concerning Waqf Owned Land.
Article 2 paragraph (2) of Law No.1 1974 stipulates that marriage is valid if done according to
respective religious laws.16 With this provision means that there is a change the laws of the
racial to ethnicity (mass colonial) to a grounded law religious beliefs.
The Marriage Act assigned new functions to Islamic tribunals that greatly expanded the
courts’ caseload. In response to the challenges presented by the Marriage Act, the Ministry of
Religion undertook an ambitious program of expansion, restructuring, and modernization to
equip the courts to carry out their new functions. Though the sponsors of the Act initially
intended the opposite, the passage of the Marriage Act had the effect of significantly
strengthening the Islamic courts and solidifying their place in the Indonesian legal system.
Islamic judicial institutions also occupy a strong position under the Act No.14 of 1970
about power Justice. In Article 10 paragraph (1) stipulated that the judicial powers on Indonesia
is carried out by an inner court general court environment, judiciary religion, military court,
and administrative court state effort. This type of justice includes the court of first instance and
appeal rate. Therefore religious court is a court the state, namely the established official
judiciary by the government and applies specifically to Muslims.
The existence of the Religious Courts is increasing clear with the enactment of Law No.7
1989 regarding the power of the Judiciary Religion.17 Competence of Religious Court has two
dimensions, namely the principle of personality and the field of case law certain. In Chapter II
Articles 49-53 the authority of the religious court includes fields of civil law include:marriage,

16
Usman,Suparman (2017).Hukum islam ;Asas asas dan penghantar studi hukum islam dalam tata hokum
Indonesia.pg.130-131
17
Ibid.132
 11

inheritance, will, grant,waqf and sadaqah. From fields it can be said that jurisdictionThe
Religious Court is a field of law family (ahwal al-syakhsiyah). 18
Based on its competence, then material law is needed as a guide for Religious judges in the
carry out its duties. In handing cases, Religious court judges use classical jurisprudence as a
basis the verdict. The jurisprudence book used between one religious court and other religious
courts are not the same. Thing this resulted in a verdict different in the same problem.
Based on the above considerations, a joint decision is issued with the Chairman Supreme
Court and Minister of Religion dated March 21, 1985 No. 07 / KMA / 1985 and No.25 / 1985
regarding appointments implementation of the development of Islamic law. 23 This project is
known as Compile Islamic Law in Indonesia (KHI). The implementation is carried out through
four channels, namely the book, jurisprudence, ulama 'interviews, and comparative studies to
countries with Muslim majority.19 This matter intended to study books fiqh which is used as
the basis for the decision judge and adapt it to developments Indonesian society towards
national law. The KHI format is divided into in three books. Book one is about marriage
law(article 1-170), book two about inheritance law(article 171-214) and book three about waqf
lawarticle 215-229).20
Based on the description above, the formatization of Islamic law in national law can be
general law applies nationally or becomes a special law that applies to Muslims only.Islamic
law that applies nationally reflected in Law No.1 of 1974 concerning marriage, PP No.28 of
1977 concerning Waqf, and Law 7 years 1992 on Banking, where at it is recognized that the
existence of Islamic Bank. Formatization in the form of a special law seen in Presidential
Instruction No.1 of 1991 about the Compilation of Islamic Law, UU No.17 of 1999 concerning
Implementation Hajj, and Law No.38 of 1999 on Management of Zakat.21
When the reform era in 1998 replaced New Order (Suharto Government), the desire to be
positive Islamic law is getting stronger.The development of Islamic law at this time
experiencing progress. In legal terms Islam began to be actualized in life social. The coverage
area becomes very broad, not only in problemcivil law but it is includeed in the realm public

18
Law No.7 of 1989(religious courts)
19
Adurrahman (2019).Kompilasi hukum islam di Indonesia.Jakarta.Akademika Pressindo.pg 37-38
20
Usman,Suparman (2017).Hukum islam ;Asas asas dan penghantar studi hukum islam dalam tata hokum
Indonesia.pg.149
21
Ibid.pg130-134
 12

law. This is influenced by the emergence of a law on autonomy Area. Autonomy law areas in
Indonesia were originally Law No.22 of 1999 concerning government area, which was later
amended through Law No.31 of 2004 on regional autonomy. According to the provisions This
law, every region has authority to regulate its territory itself is included in the field of law.
Development Islam in the reform era was followed by developments Islamic law
culturally.This situation is supported by the birth several laws as positive Islamic law, namely
Law no. 7 of 1989 about the Religious Courts changed by UU no. 3 of 2006 jo No. 50 years
2009; UU no. 38 of 1999 concerning zakat management; UU no. 17 of 1999 regarding the
administration of the hadj was changed by Law no. 13 of 2008; and UU No. 21 of 2008
concerning Sharia Banking.

Broadly speaking, enforcement Islamic law in various parts of Indonesia can be divided
into two groups, viz full enforcement and enforcement in part. Fully enforced Islamic law can
be seen in the province of Nangroe Aceh Darussalam. The enforcement of this model is
thorough because it's not just set legal material, but also structure law enforcement agencies.
Other areas are currently preparing is South Sulawesi (Makassar) which is has formed the
Sharia Enforcement Committee Islam (KPSI), and the Garut district establish an Institute for
the Study, Enforcement, and the application of Islamic Shari'at (LP3SyI).

Nangroe Aceh Darussalam Province is at the forefront of implementation Islamic law in

Indonesia. Basic the law is Law No.44 of 1999 concerning the Privileges of the Province of
Nangroe Aceh Darussalam. The privilege includes four things, including:

a. The application of Islamic syari'at in all aspects

religious life,
b. Use of education based curriculum
Islamic syari'at without neglecting
general curriculum.
c. Inclusion of customary elements in the system
village government, and
d. Recognition of the role of the ulama in stipulation
regional policy.
 13

The phenomenon of law enforcement Islam has also penetrated other areas in
Indonesia, although the pattern is different with Aceh. Based on the principle of autonomy
regional, then nuanced local regulations emerge Islamic syari'at in the region level I and
level II. These areas among others: West Sumatra Province Perda No. 11/2001 concerning
Eradication and Immoral prevention; City of Solok Perda No. 10/2001 regarding the
obligation to read al-Qur'an for students and brides; City Padang Pariaman Regional
Regulation No. 2/2004 regarding Eradication and prevention of immorality; Riau type of
Governor's Letter No. 003.1 /UM / 08.01.2003 regarding board making Arabic name;
Pangkal Pinang Perda No. 6 2006 regarding Supervision and Alcohol control; Regency.
Bulukumba Perda No. 5/2003 regarding Muslim clothing for employees agencies, shops
and students and many more again.
B. History Of Malaysian legal system and the position of Islamic law

On 31 July 1957, the British Parliament passed the Federation of Malaya

Independence Act 1957 to conclude with the Rulers of the Malay Statesan agreement for
the establishment of the Federation of Malaya as anindependent sovereign country under
a federal constitution. On 5August 1957, the Federation of Malaya Agreement 1957 was
concluded between the High Commissioner on behalf of Her Majesty, and the Rulers.
This agreement established a new federation of States called the Federation of Malaya
consisting of the Malay States and the Settlementsas from 31 August 1957.[8] The
agreement revoked the 1948 Agreement and contained the Federal Constitution and the
Constitutions of Penang and Malacca.22
In Peninsular Malaysia, the Melaka Sultanate was a prominent port that
controlled the strategic Strait of Melaka produced legal digests — Hukum Kanun
Melaka and Melaka Maritime Laws — being the applicable laws before Melaka was
conquered by the Portuguese. Those legal digests contain provisions based on Islamic
law and custom. The mixed nature of the digests shows that the Sultanate and its legal
system were undergoing a gradual process of Islamization when the process was
unceremoniously interrupted by the western colonial intervention.

22
S. Ramalingam, D. J. S. Sabaruddin, and D. S. Dhanapal, “The History of The Judicial and Legal System in
Malaysia,” pp. 1–30, 2018.
 14

Other Malay Sultanates, although were not as abruptly intemipted as in Melaka by

violent conquest — were similarly interfered with. The British who used a different tact in
controlling the Malay Sultanates decided to indirectly control the Sultanates by entering
into treaties with the Sultans and retaining them as the Head of States. To this end, the
British inserted into the treaties — such as the Treaty of Pangkor i8zq — provisions that
require the Sultanates to accept a British adviser whose advice “should be asked and acted
upon”. These arrangements retained the de jure sovereignty of the Sultans but formed the
de facto reign of the British in the Malay Sultanates.
Working in the Sultanates where the territorial laws were Islamic law and
custom, the British advisers introduced new court systems, legislations and court
officers that were modelled after and trained under English law. Being the dominant
political and military forces in the Malay States, the British Residents encountered
minor resistance in imposing English law — be it for instance penal law, contract law
and torts - indirectly into the Malay States, edging the existing Islamic law and custom
— albeit remaining as the territorial law - to the periphery of the legal system.
From the conquest of Melaka in '5" by the Portuguese, the cession of the Island
of Penang in 1786 to the British and the introduction of the British adviser in the Treaty
of Pangkor 1814.- apart from the objective of spreading the Gospel, the primary
objective of the colonial enterprise is to control the trade from the East and later to
plunder the natural resources.“ The colonial enterprise of the British in the territories
now constituting Malaysia in particular coincides with the industrial revolution in
Britain. The discovery of the tin mines and the opening of rubber plantations enable
exports of these raw materials to assuage the need of the industry in Britain. To
streamline administration of the 9 Malay Sultanates that would make it easier to exploit
the natural resources and to conduct trade, the British created the Federated Malay
States consists of four Malay states and the Unfederated Malay States consists of the
other s states." It was observed that an “efficient legal and administrative framework”
is valuable to private industry in mining and agricultural industry.“ The centralising of
the powers from the g Malay States culminates with the creation of the much opposed
Malayan Union in ig which was replaced by the Federation of Malaya in 1948.
 15

The rapid growth of the mining and agricultural industry in British Malaya led to
the massive immigration of Chinese and Indian labourers from China and India. The
population in Peninsula Malaya of Chinese and Indian combined in 1884 was z 4 per
cent and in 1597 it increased to 48 s per cent. The indigenous Malays (who are
Muslims) who understandably would want to be the master in their own land, have to
consider this new demographic reality in working towards independence of Malaya.
The Chinese and Indians, who are mostly non-Muslims, had taken root in Peninsula
Malaya and some had made Malaya their new home. The British also did not want to
be saddled with a large number of non-Europeans, who they have brought into
Peninsula Malaya to work, asking for British citizenship. Negotiations of the different
communities have produced a political compromise. This compromise or sometime
referred to as “the social contract” - could be seen in the provisions of the constitution
of the independent Federation of Malaya.'s This inter-communal bargain entails that
citizenship to the non-Malays are given under the yes soft principle (citizenship by
birth) rather than the more restrictive, but commonly applied Jxs sanguinis principle
(citizenship by the nationality of the parents);' 6 freedom of religion to a11;' 7
special
position of the Malays;" and the primary and dominant position of Islam as the
Religion of the Federation and preservation of the Sultanates." Together with the
passing of the Federal Constitution, the Federation of Malaya was born on the 3ist
August 1957.

The British in Peninsular Malaya worked towards centralising the

administration of the states leading to the short-lived Malayan Union. This was
continued on the road towards independence where one of the terms of reference in
drafting the constitution is to have a strong central government. In spite of that, the
existence of the Malay Sultanates in 9 states ensures the continuation of
autonomous existence of the states under a federal system of government. The
Westminster system of government is followed by having the King as the Head of State
and the Prime Minister as the Head of Government. The King is elected every s years by
the g Malay Sultans from among them. The Prime Minister is appointed by the King from
among members of the House of Representative who were elected in the general election.
 16

At the state level, the Sultan, or for the state not having a Sultan, the Governor, is the
Head of State and the Chief Minister is the Head of Government. The Chief Minister is
appointed by the Sultan or the Governor from among members of the State Legislative
Assembly. The Sultans are constitutional monarch in the sense that their powers are
limited by the Federal Constitution and the State Constitution. However, one of the
areas that their powers are retained is their position as the Head of Religion of Islam in
their own state.
The Federal Constitution as a foundation of a newly independent nation
prescribes for a primacy and dominant legal position of Islam. The early part of the
Constitution starts with the proclamation that Islam is the religion of the Federation. The
wording of the provision is very general and it is not clear what it means for Islam to
be the religion of the federation. Regarding what the provision means, the acourts have
given the answer in a negative form, by saying that Islam as the religion of the federation
does not mean that Islam is the supreme law and every law should be consistent with
Islam." On the other hand, the court did not say that Islamic law could not be applied in
Malaysia since there is no provision in the constitution that bars the application of Islamic
law and Islamic law is the indigenous law. To the contrary, the Federal Constitution
contains many provisions giving the exalted position to Islam, including the content in the
oath of the King for him to protect Islam. In contrast to non-Islamic institutions, the
Constitution expressly allows for the government to provide allocation to establish and
to maintain Islamic institutions.“ The federal government and the state governments
have established various Islamic institutions such as the Department of Islamic
Development Malaysia, the Pilgrim Fund Board, the Department of Syariah Judiciary
Malaysia and the International Islamic University Malaysia. In practice, the
government also spends money for non-Islamic religious institutions. Although this
practice seems to be contrary to the wording of the constitution, no legal challenge has
been brought against it.
Malaysia is also one of the countries that has a majority Muslim population,
which in the Malaysian constitution in article 3 paragraph (1) it is stated that the official
religion of the association is Islam. This sentence implies that as the official religion,
 17

Islam has a larger portion of the legal system in Malaysia. In article 3 of the Malaysian
constitution, it is as follows:23
(1) Islam is the religion of the Federation; but other religions may be practised in peace
and harmony in any part of the Federation.
(2) 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 acknowledged and
declared by the Constitution of that 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.
(3) The Constitution of the States of Malacca, Penang, Sabah and Sarawak shall each make
provision for conferring on the Yang di-Pertuan Agong the position of Head of the religion
of Islam in that State.
(4) Nothing in this Article derogates from any other provision of this Constitution.
(5) Notwithstanding anything in this Constitution the Yang di-Pertuan Agong shall be the
Head of the religion of Islam in the Federal Territories of Kuala Lumpur, Labuan and
Putrajaya; and for this purpose 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.
The exalted position of Islam does not mean non-Muslims are prevented against
practising their religion. The Federal Constitution guarantees the right of Muslims and non-
Muslims to profess and to practise their religion.Consistent with the exalted position of
Islam under the constitution, the Federal Constitution allows for restrictions to be imposed
on propagation of other religions among Muslims.
In respect of powers to legislate on Islamic matters, the Federal Constitution took
cognizance the traditional place of the religion of Islam which is under the protection of

23 Muin, F. (2016). Politik Hukum Islam Di Indonesia Dan Malaysia:Suatu Kajian Perbandingan, al-manahij vol.

x.pp273
 18

the Sultans. Because of the intertwined nature of Islam, Malays and the Sultans, the
legislative competency to make law relating to Islam is put under the states. Since Islamic
law is the indigenous law and has been applied since the arrival of Islam in the 4th century
in the Peninsula Malaysia, the Federal Constitution reaffirms the competency of states
to establish its own Shariah courts.‘sThus, each state legislates its own law on Islamic
matters and establishes its own Shariah court system in a multi court system in Malaysia.

V. THE COURT OF SYSTEM

A. The court system in Indonesia
Legal reform in the field of legal institutions has prompted the application of a one-stop
judicial system in Indonesia which gave birth to the amendment to the 1945 Constitution, viz
article 24 paragraph (2), which states that judicial power is exercised by a Supreme Court and
the judiciary under it in general courts, religious courts, judiciary military, state administrative
court, and by a Constitutional Court.24 Then Law no. 4 of 2004 concerning Judicial Power
Article 10 paragraph (2) states that the judicial bodies that are under the Supreme Court include
judicial bodies within the domain of general courts, religious courts, military courts and state
administrative courts. 25
The four judicial institutions culminate in the Supreme Court, both in terms of technical
judicial and non-technical judicial. The four strata of the institution are:

1. Supreme court
The Supreme Court is one of the executors of judicial power in Indonesia as referred to in
the 1945 Constitution of the Republic of Indonesia Article 24 Paragraph (2) and Article
24A Paragraph (1) and Law No.48 Year 2009 regarding judicial power and Law No. 1989
concerning the Supreme Court and Law No.3 of 2009 concerning the second amendment
to Law No.14 of 1985 concerning the Supreme Court.
The powers of the Supreme Court are:
a. The Supreme Court has the duty and authority to examine and decide
- Application for Cassation;

24
Undang undang dasar amandemen 2002 (constitution Indonesia amendment 2002)
25
Undang-Undang Republik Indonesia Nomor 4 Tahun 2004 Tentang Kekuasaan Kehakiman art 10
 19

- Disputes regarding the authority to judge;

- Request for reconsideration
b. Examining statutory regulations that are under law against law
c. Other powers granted by law
There are exceptions in filing an appeal for cassation, there are certain cases that cannot be
filed for cassation, these cases are:
- Judicial decision
- Criminal cases which are punishable by a maximum imprisonment of 1 year / fine
- State administrative case where the object of the lawsuit is in the form of a regional
official's decision whose term of decision applies in the region concerned.
The Supreme Court also has the authority to:
a. The Supreme Court decides at the first and last level all disputes concerning the authority
to judge
b. The Supreme Court has the authority to decide in the first and last levels, all disputes
arising from the seizure of foreign ships and cargo by warships of the Republic of Indonesia
based on the applicable regulations.
2. The general court
General Courts are regulated in Law No.2 of 1986. In this Law the composition, powers
and positions of judges are regulated as well as administrative work procedures in district
courts and district high courts.
The district court is the court of first instance, and the higher court is the court of appeal.
General justice as the exercise of judicial power culminated in the Supreme Court.
Within the General Court, a special court can be established which is regulated in law as
stated in article 8 of Law No. 49 of 2006 concerning amendments to Law No. 2 of 1986
concerning General Courts.
3. The religious court
The religious court consists of the Religious Court as the court of first instance and the
High Religious Court as the court of appeal and culminating in the Supreme Court.
As for the Religious Courts in Nanggroe Aceh Darussalam province based on Presidential
Decree No. 11 of 2003 was changed to the Syar'iyyah Court, while the Banda Aceh
Darussalam High Religious Court was changed to the Syar'iyyah Court of the Province of
 20

Nanggroe Aceh Darussalam. The religious court is located in the capital of the regency,
city and its jurisdiction covering the provincial area, the religious court has the authority to
investigate, try, decide and settle cases between people who are Muslim in accordance with
the provisions of the laws and regulations.
The religious high court is a court of appeal at the level of appeal that examines, decides,
and resolves cases decided by religious courts and is the court of first instance and the last
one on disputes over the authority to judge between religious courts in their jurisdiction.
4. The military court
The military court consists of the Military Court as the court of first instance and the High
Military Court as the court of appeal and culminating in the Supreme Court.
Military justice is a special court for soldiers of the armed forces of the republic of
Indonesia. Soldiers are citizens who meet the requirements stipulated in the provisions of
laws and regulations and are appointed by an authorized official to devote themselves to
defending the state by carrying weapons. The judiciary within the military court is the
executing agency for judicial power within the armed forces which culminates in the
Supreme Court as the highest court.
The authority of military justice is to examine, try and decide military criminal cases in
accordance with the provisions of laws and regulations.
5. The State Administrative Court
The judiciary within the military court is the executing agency for judicial power within
the armed forces which culminates in the Supreme Court as the highest court.
The authority of military justice is to examine, try and decide military criminal cases in
accordance with the provisions of laws and regulations.
The State Administrative Court is the Court of First Level and the High Court of State
Administration is the Court of Appeal. The state administrative court as the implementation
of justice culminates in the Supreme Court.
The state administrative court is not authorized to examine, decide, and resolve certain
State Administration disputes in the case of the disputed issue:
-in a time of war, a state of danger, a state of natural disaster or an extraordinary situation
that endangers the law in force
-in urgent circumstances for the public interest based on statutory regulations.
 21

6. Constitutional Court
The Constitutional Court is a new state institution as the exercise of judicial power in
Indonesia. The Law on the Constitutional Court was signed by President Megawati
Soekarnoputri and published in the State Gazette on August 13, 2003, then given the
number Law Number 24 of 2003 concerning the Constitutional Court (State Gazette of
2003 Number 98, Supplement to the State Gazette Number 4316).
The discourse on the establishment of a constitutional court actually existed during the
discussion of the constitution at the investigation body for the efforts of the Indonesian
independence preparation (BPUPKI). Prof. Moh. Yamin as a member of BPUPKI has
expressed the opinion that the Supreme Court needs to be given the authority to compare
laws whether or not they are compatible with the Indonesian constitution.
The Constitutional Court has nine members of the judge. The constitutional judges are
nominated 3 each by the Supreme Court, 3 by the People's Representative Council, and 3
by the president who will be determined by a presidential decree with a term of 3 years.

The decision of the constitutional court is final, that is, the decision of the constitutional
court immediately gains permanent legal force, since it is pronounced and no legal remedy
can be taken again. The final nature of the Constitutional Court's decision in this law also
includes binding legal force (final and appeal).

B. The court of system in Malaysia

Malaysia has a multi-court system consisting of the civil court, the Shariah court and the
Native court systems. The court systems are established by different laws and under different
legislative mandates. The civil court system as the main court system, which applies laws of
general application over all parties irrespective of race and religion, has its own hierarchy with
the Federal Court as the apex court and followed by the Court of Appeal and the High Court
under the superior court category. Under the subordinate court category, one could find the
Sessions Courts and the Magistrate’s Courts. Matters like penal sanctions, banking and finance
including Islamic finance, contracts, torts and international affairs fall under the jurisdiction of
the civil court system.
The Shariah court system is established by states and has narrower jurisdiction which is
generally over Muslim parties and applies Islamic law. The states establish their own Shariah
 22

court systems and the federal govern establishes the Shariah court system for the Federal
Territories. Under each of the Shariah court system it has the Shariah Appeal Court as the apex
court and followed by the Shariah High Court and the Shariah Subordinate Court. Islamic law
matters adjudicate under the Shariah court system includes marriage, divorce, custody of
children, writ hibah (gift), faraid (law of succession), aqidah (faith) and limited Shariah
offences.
The states of Sabah and Sarawak which is situated in Borneo bordering with Brunei and
Kalimantan of Indonesia have more than 6o ethnic groups such as Malays, Melanaus, Ibans,
Bidayuhs, Kadazan-Dusun, Bajau and Murut. The right of the indigenous communities to live
by their customs are recognised by allowing the establishment of the Native court system."
The native as defined by relevant laws in Sabah and Sarawak generally could opt to be
governed by native law and adjudicate by the native courts. Most of the subject matters that
fall under the jurisdiction of the native courts are family law, land and limited offences under
native customs. Sabah and Sarawak have each their own native court system with its own
hierarchy.26

These three court systems generally operate in parallel to one another, in particular between
the civil court system and the Shariah court system. Appeals from one court system are heard
by a higher court under the same court system and each court system has its own apex court.
There is no combined apex court that hears appeals from the different court system.
The types of courts in Malaysia can be grouped as follows:27
1. High Court
High Court there are two high courts in Malaysia; The High Court in Peninsular Malaysia,
known as the High Court in Ma-laya; and in East Malaysia, which are known as the High
Courts in Sabah and Sarawak. With the permission of all matters within the jurisdiction of
the Syari'ah courts, these courts have pure jurisdiction not limited to their territory.

26
Shuaib, F. (2012). The Islamic Legal System in Malaysia, Washington International Law
Journal.
27
Dikuraisyin,Basar (2017).Sistem Hukum Dan Peradilan Islam Di Malaysia.Jurnal Keislaman Terateks.vol. 1.pp5
 23

2. Court of Appeal
There are two appellate courts in Malaysia; The Malaysian Court of Appeal (Court of
Appeal) and the Federal Court (Court of Justice). The Court of Appeal consists of a trial
president and 10 judges. Its job is to examine high court appeals and have other jurisdictions
as provided for in federal law.
3. Federal Courts
Federal Courts have jurisdiction in determining the legality of a law, with these considerations
relating to matters outside the jurisdiction of parliament and state legislation to make laws.
Federal Courts also have jurisdiction to determine disputes between states or within federations
and other states. When questions regarding the implications of statute are in litigation in other
courts, the Federal Court has jurisdiction to determine questions and dismiss cases in other
courts in accordance with the provisions of the Federal Court.
4. Session Courts
Session Courts have criminal jurisdiction to try all crimes that are not subject to the death
penalty. This court also has jurisdiction in civil cases relating to vehicle accidents, landlords'
cases with their tenants, and other cases with a total compensation of around Ringgit 250,000,
and can also hear cases with higher claims on agreement with the parties concerned. However,
civil disputes relating to requests for something such as contract recession, injections,
declarative decisions, or exercise of trust are outside the jurisdiction of Sessions Courts.
5. Magistrates' Courts
First class Magistrates' Courts examine criminal cases with sentences limited to 10 years in
prison or a fine. Magistrates Courts can also examine appeals by the Pengulu Court. Second
class Magistrates' Courts examined civil cases with charges of RM30,000 and criminal
proceedings with a 12 month prison sentence or a fine. The court can provide prison terms of
up to 6 months, a fine of Ringgit 1,000 or a combination of the two sentences.
6. Juvenile Court
Crimes committed by juveniles (between the ages of 10 and 18 years) are tried in a juvenile
court, unless the crimes committed are serious. The court consists of 2 advisors (one of them,
if applicable a woman). The magistrate decides a case, and the advisors only advise on
punishments. Imprisonment is a last resort compared to sending to a special school that has
been determined.
 24

7. Shari'ah Courts (Syariah Code)

Shari'ah courts are state courts that are separate from the courts in federal states, which are not
limited by any jurisdiction to the Shari'ah courts. These courts have jurisdiction over Muslims
with regard to individual and family laws such as engagement, marriage, divorce,
guardianship, adoption, legitimacy, succession, along with alms and waqf.
8. Native courts
Indigenous Courts In Sabah and Sarawak, adat law is used in indigenous courts. The
jurisdiction that applies differs between the courts in Sabah and the courts in Sarawak, but
generally extends to situations where both parties are indigenous; cases being examined
include matters of religion, sexuality, or marriage in which one of the parties is a native; and
other cases where jurisdiction is governed by written law.
 25

VI. CONCLUSSION
From the history and cultural structure and culture of the people, Indonesia and Malaysia are
not much different. In general, the Malaysian legal system is influenced by the legal tradition of
the British Common Law System while the Indonesian Legal System mostly adopted the civil law
system tradition from the Netherlands. In addition, the Islamic legal system and the customary law
system also influence national law both countries.Based on the results of research through
comparative research it was found that the institutional format Malaysia and Indonesia has
differences in both the form of the country and the system of government. Malaysia is a country
that adheres to the type of federal state which includes federal and state states by adopting a
democratic monarchy government system. Meanwhile, Indonesia is in the form of a unitary state
which includes the central government and autonomous regions with a republican government
system with the principle of constitutional democracy.
Malaysia in its 1957 constitution has been amended in 1964 with a clear statement that Islam
is the religion of the federation (article 3 paragraph 1 of the Malaysian Constitution 23 August
1957), as a logical consequence of this statement there are four principles of Islamic nomocracy
stated in the Malaysian constitution, namely: Deliberation (article 38 paragraph 1 of the
Constitution Malaysia), the principle of justice (article 7 paragraph 1 and article 8 paragraph 1
Malaysian Constitution), principle freedom (article 10 paragraph 1, a, b, c while the principle of
equality (article 8 paragraph 2). Meanwhile in the Indonesian constitution it is not officially stated
that Islam is the official religion or source of state law but Islamic law can be applied to national
law based on article 29 paragraph (1) and paragraph (2) of the 1945 Constitution, and the Preamble
to the 1945 Constitution of the Republic of Indonesia.
Indonesia and Malaysia, which are Muslim majority countries, have made Islamic law
accepted voluntarily by the community. Islamic law matters adjudicate under the Shariah court
system includes marriage, divorce, custody of children, writ hibah (gift), faraid (law of
succession), aqidah (faith) and limited Shariah offences. The rapid growth of the need for law has
made Islamic law a little behind and the refusal of some scholars to open the door to ijtihad is an
obstacle to the development of Islamic law where Islamic law which should be able to adapt to the
times has become rigid. But it is not impossible that both countries will be able to apply Islamic
law in all aspects if the government and Muslim clerics and society want to accept Islam not only
as a religion but as a legal guideline in the state.
 VII. BIBLIOGRAPHY

Adurrahman. (2018). kompilasi hukum islam indonesia (1st edn.). jakarta: akademika pressindo.
Dikuraisyin,Basar (2017).Sistem Hukum Dan Peradilan Islam Di Malaysia.Jurnal Keislaman
Terateks.vol. 1
Burlian,Paisal (2015).Sistem Hukum Indonesia.Palembang:Noerfikri offset dan Fakultas Dakwah
Dan Komunikasi Uin Raden Fatah.
Nurhayati, Yati (2020).Pengantar ilmu hukum.Nusa media.
Muin, F. (2016). Politik Hukum Islam Di Indonesia Dan Malaysia:Suatu Kajian Perbandingan,
al-manahij vol. x.
Perlembagaan Malaysia [Constitution]
Shuaib, F. (2012). The Islamic Legal System in Malaysia, Washington International Law
Journal.vol.21
Usman,Suparman (2017).Hukum islam ;Asas asas dan penghantar studi hukum islam dalam tata
hukum Indonesia.Jakarta;gaya media pratama.
Undang undang dasar amandemen 2002 (constitution Indonesia amendment 2002)
Undang-Undang Republik Indonesia Nomor 4 Tahun 2004 Tentang Kekuasaan Kehakiman