The Administration of Islamic Law in Malaysia

At Federal Level

Article 3(1), FC: Islam is the religion of the Federation; but other religions may be practised in
peace and harmony in any part of the Federation.

- This proves that the Constitution recognizes Islam as the main religion.
“This day I have perfected for you your religion and completed My favour upon you
and have approved for you Islam as religion.”
(Al-Ma’idah: 3)

- Reid Commission Report: In considering whether there should be any statement in

the Constitution to the effect that Islam should be the State religion, it was agreed
that if any such provisions were inserted it would be made clear that it would not in
any way affect the civil rights of non-Muslims. In the memorandum submitted by the
Alliance:
- “The religion of Malaysia shall be Islam. The observance of this principle shall
not impose any disability on non-Muslim nationals professing and practising
their own religions and shall not imply the state is not a secular state. There is
nothing in the draft of the Constitution to affect the continuance of the present
position in the State with regard to recognition of Islam.”
- The intention of making Islam as the religion of the Federation was merely for
ceremonial purposes.
- The White Paper dealing with the 1957 constitutional proposals:
“There has been included in the proposed Federal Constitution a declaration
that Islam is the religion of the Federation. This will in no way affect the
present position of the Federation as a secular State…”

Article 3(4): Nothing in this Article derogates from any other provision of this Constitution.

- No right, prohibition, law or institution is extinguished or abolished as a result of

Article 3(1) adopting Islam as the religion of the Federation.
- This Article does not have the effect of reinforcing the status of the Federation as a
secular state.

- Ramah v Laton (1927; before the Federal Constitution): The issue in this case was
whether the principle of Mohammedan Law commonly called ‘harta sharikat’ had
application in this case, and if so, whether in the circumstances the respondent was
entitled to the declaration she sought. The question in debate was what were the
rights of the plaintiff, according to the law of this land, towards the estate of her
deceased husband. Held: Mohammedan Law (Islamic law) is not foreign law, but local
law; it is the law of the land and that local law is a matter of which the court must take
 judicial notice. The court must propound the law and it is not competent for the court
to allow evidence to be led as to what is the local law.

- Che Omar Che Soh v Public Prosecutor (1988): An additional ground of appeal sought
to show that the mandatory death sentence for the offence of drug trafficking and the
offence under the Firearms (Increased Penalties) Act is against the injunctions of
Islam and therefore unconstitutional and void. Held: The term “Islam” or “Islamic
religion in Article 3 means only such acts related to rituals and ceremonies.
- During the British colonial period, through their system of indirect rule and
establishment of secular institutions, Islamic law was rendered isolated in a
narrow confinement of the law of marriage, divorce and inheritance only. It is
in this sense of dichotomy that the framers of the Constitution understood the
meaning of the word “Islam” in the context of Article 3.
- If it had been otherwise, there would have been another provision in
the Constitution which would have the effect that any law contrary to
the injunction of Islam will be void.
- It should thus appear that not much reliance can be placed on the wording of
Article 3 to sustain the submission that punishment of death for the offence of
drug trafficking or any other offence will be void as being unconstitutional.

- Meor Atiqulrahman Ishak v Fatimah Sihi (2000): Three pupils were dismissed from
their school because of their refusal to take off the ‘religious’ serban that they were
wearing at school. They refused to take it off on religious grounds. The plaintiffs
claimed that their expulsion from school was contrary to the freedom of religion. The
defendants argued that the wearing of the serban to school breached a regulation that
the school made under a circular issued by the Department of Education. Held: Article
3 if given its proper interpretation, namely putting Islam beyond rituals and
ceremonies, would mean that the Government has the responsibility to protect and
promote Islam as best as it could. This means the regulation regarding attire of pupils
should not ignore Islam. Prohibiting pupils from wearing the serban is contrary to
Articles 3 and 11 of the Federal Constitution.

Article 11(1), FC: Every person has the right to profess and practise his religion, and, subject
to Clause (4), to propagate it.

- Article 11(4): State law or Federal law (for Federal Territories) may restrict the
propagation of any religious doctrine or belief among persons professing the religion
of Islam.
- Article 11(5): This Article does not authorise any act contrary to any general law
relating to public order, public health or morality.
- However, the right to freely practice one’s religion is subject to the Constitution.
- Halimatussaadiah v Public Service Commission, Malaysia & Anor.: The Public Service
Commission issued a circular the prohibited any attire covering a female public
servant’s face when on duty. The plaintiff refused to comply with it because she
considered the wearing of the veil a religious duty. Held: The Supreme Court accepted
the testimony of the Mufti of the Federal Territory that the covering of the face was
not a mandatory requirement in Islam.
- The right to freedom of religion under Article 11 is not absolute as Article 11(5)
provides that this Article does not authorise any act contrary to any general
law relating to public order, public health or morality.

- Lina Joy v Majlis Agama Islam Wilayah & Anor: The plaintiff, a Muslim, applied to the
National Registration Department to Lina Lelani out of the intention of marrying a
Christian man. When the application was rejected, she applied again to the NRD to
change her name to Lina Joy and to remove the word ‘Islam’ from her new identity
card. Held: The plaintiff’s appeal was dismissed.
i) The plaintiff contended that she has a freedom to profess a religion of her choice
under Article 11(1) and that her freedom to profess is a matter of personal choice
and not to be dictated by any other party.
- Article 11 speaks of freedom of religion and not freedom of choice. There is no
restriction on the right of any person to profess and practise his religion. If a
Muslim wishes to renounce or leave Islam, Articles 11(4) and (5) must also be
read into.
- A person’s rights and obligations as a Muslim will be jeopardised, making it a
matter falling under the jurisdiction of the Majlis Agama Islam.
- Even though Article 11(1) provides that every person has the right to profess
and practise his religion, this does not mean that the plaintiff can hide behind
this provision without first settling the issue with the religious authority, which
has the right to manage its own religious affairs under Article 11(3)(a).
- Only after the person has complied with the requirements and the
authorities are satisfied that she has apostatized, can she brace
Christianity. A person cannot at one’s whims and fancies, renounce or
embrace a religion.
ii) Whether the plaintiff’s rights to convert out of Islam under
Article 11(1) is subject to the Syariah Laws.
- Article 3(1) has a wider and more meaningful purpose than a mere fixation of
the official religion.
- Islam is the main and dominant religion in the Federation to which the
Federation has a duty to protect, defendant and promote the religion
of Islam.
 - The plaintiff’s interpretation of Article 11(1) is by reading it in a limited and
isolated manner without any regard to the other provisions of the
Constitution.
- Such an interpretation would result in absurdities not intended by the
framers of the Constitution.
- To avoid such absurdities would be to apply the principle of
harmonious construction.
- The restrictive interpretation of Article 11(1) should be reconciled with
the relevant provisions on Islam such as Articles 3(1), 12(2), 74 and
121(1A).
- Applying the principle of harmonious construction would be to read
Article 11(1) together with Articles 3(1), 12(2), 74, 121(1A) and 160 to
give the intended effect.
- When read together, Article 11(1) must be qualified by provisions on Islamic
law on apostasy enacted pursuant to Article 74, List II.
- Therefore, the plaintiff’s supposed renunciation of Islam can only be
determined by the Syariah Courts and not the Civil Courts pursuant to Article
121(1A).

Article 12(2): Every religious group has the right to establish and maintain institutions for the
education of children in its own religion. State or Federal government may lawfully establish
or maintain, or assist in establishing or maintaining, Islamic institutions, and incur the
necessary expenditure for these purposes.

- State and Federal government may spend money on the administration of Islamic law
through annual Supply Acts and Enactments.

At State Level

Article 74(2), FC: The legislature of a State may make laws 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.

Item 1, List II – State List, Ninth Schedule, FC: Except with respect to the Federal Territories of
Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons
professing the religion of Islam, 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, 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,
- Creating 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 constitution, organisation and procedure of Syariah courts which shall have
jurisdiction only over persons professing the religion of Islam and in respect 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

Article 121(1A)

Syariah courts are courts created by State Assemblies to administer certain Islamic laws. The
jurisdiction of Syariah Court as lain down in Item 1 of the State List, Ninth Schedule, of the
Federal Constitution provides Muslims with an opportunity to be tried under Islamic law
especially in family matters.

Up until 10th June 1988, Syariah Courts were regarded as subordinate to the High Courts.

Through Act A704, an amendment was made to Article 121 of the Federal Constitution adding
Clause (1A), which provides: The courts referred to in Clause (1) (High Courts) shall have no
jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

- Article 121(1A) helps protect the jurisdiction of the Syariah Courts against interference
by civil courts.
- This amendment brought Syariah Courts to an equal constitutional status as that of
the Civil courts.

However, the introduction of Article 121(1A) does not clarify several things.

1. Whether the power to determine if a matter is within or outside the jurisdiction of

the Syariah Courts lies with the Civil Courts or the Syariah Courts.

- Tongiah Jumali v Kerajaan Johor: The plaintiff, a Muslim at birth, had converted to
Christianity and married the second plaintiff, a non-Muslim. She claimed that her
marriage was valid under Malaysian law. The issue was whether her conversion out of
Islam was valid, and who had the power to determine such issue. Held: The jurisdiction
of the Syariah Court to deal with conversions out of Islam, although not expressly
 provided for in the State Enactments, may be read into them by implication derived
from the provisions concerning conversion into Islam.

- However, in Norlela Mohamad Habibullah v Yusuf Maldoner: The parties had

contracted a Muslim marriage abroad and divorced under civil law abroad. Neither
the marriage nor the divorce was registered under the Muslim laws of Selangor. When
the issue of custody of the infant child came up, the plaintiff obtained a civil High Court
order. The respondent challenged the right of the High Court to issue such an order in
the light of Article 121(1A). Held: The Selangor Islamic Family Law Enactment did not
apply to the unregistered marriage and the unregistered divorce. Syariah courts have
no inherent jurisdiction unlike civil courts which are courts of general jurisdiction and
have inherent powers.

- Shahamin Faizul Kung Abdullah v Asma Haji Junus: The court held that Article 121(1)(a)
of the Federal Constitution does not affect the jurisdiction of the High Court because
the effect of s 4 of the Courts of Judicature Act 1964 is to render ineffective
amendments to the Constitution pertaining to the jurisdiction of the High Court made
after the date of its commencement unless made with retrospective effect.

- However, in Mohammad Habibullah Mahmood v Faridah Dato’ Talib: The court held
that the intention of Parliament by art 121(1A) of the Federal Constitution is to take
away the jurisdiction of the High Courts in respect of any matter within the jurisdiction
of the Syariah Court. The Courts of Judicature Act 1964, including Sec. 4, does not
qualify as an Act or statutory provision affecting the Constitution because it is ordinary
law enacted not under art 159 of the Constitution but enacted in the ordinary way. It
therefore cannot override the provisions of the Constitution as amended from time to
time.

2. Whether a case involving parties of a Muslim and a non-Muslim should proceed in

the Civil Courts or the Syariah Courts.

- Saravanan v Subashini: The couple married under Civil law in 2001 and had two infant
children. In 2006, the husband converted himself and his infant son to Islam. The wife
complained that the son’s conversion was carried out without her knowledge and
consent and she sought an ex parte injunction to restrain the husband from converting
either child and commencing or continuing any proceeding in any Syariah Court with
regard to the marriage or the children. Held: The court had no jurisdiction to grant an
injunction against a court not subordinate to the High Court. On appeal to the Court
of Appeal, the majority expressed its inability to grant the injunction sought because
the matter was within the jurisdiction of the Syariah Court.
 3. Whether a case involving a Syariah-related law or decision involves a grave
constitutional law question about fundamental rights or federal-state division of
power should proceed in the Civil Courts of the Syariah Courts.

- Priyathaseny v Pegawai Penguatkuasa Agama: The first plaintiff, who was a Malay and
Muslim, had renounced Islam, adopted Hinduism, changed her name, married the
second plaintiff, and gave birth to two children. She was arrested and charged for two
offences, first for insulting Islam by her act of conversion, and second, of cohabitation
outside of lawful Muslim wedlock with a non-Muslim. Sometime after her arrest, her
Hindu husband converted to Islam. The first plaintiff sought a declaration that she was
a Hindu and that her constitutional rights were being violated. The second plaintiff
also sought a declaration that he was not subject to Islamic law because he had been
coerced into converting into Islam in order to save his wife from jail. Held: The High
Court denied both declarations and refused to answer the constitutional issues. The
court held that the core issue was whether the first plaintiff was still a Muslim despite
her alleged conversion and whether the second plaintiff remained a Muslim despite
his allegation that he was coerced into conversion, and that both issues were for the
Syariah Courts.

4. Whether a case involving elements of both Syariah law and Civil law should proceed
in the Civil Courts or the Syariah Courts.

- In Islamic banking cases, vigorous arguments have been submitted that the High Court
should not exercise jurisdiction.

5. Sometimes the remedy being prayed for is not available in the Syariah Courts.

- Azizah Shaik Ismal v Fatimah Shaik Ismail: There was a custody dispute between the
natural mother and her sister over an infant child. The natural mother applied to the
civil High Court for the writ of habeas corpus. The Federal Court, in following the
subject matter approach, refused the writ, as the subject matter was in the exclusive
jurisdiction of the Syariah Courts, even if the remedy was not.

Since 1988, the civil courts have generally shown great reluctance and restraint in any matter
where there is the slightest whiff of an Islamic religious issue.

- They have generally hidden behind Article 121(1A) to give way to the Syariah Courts
and to avoid such constitutional issues.
- A legislative initiative is therefore necessary to clarify issues arising under Article
121(1A).
Islamic Administrative Institutions: Federal level

Roles of the YDPA and Conference of Rulers

- Article 3(5): YDPA shall be the Head of Islam in the Federal Territories of Kuala Lumpur,
Labuan and Putrajaya.
- Article 3(2): In every other State than States without a Ruler, the position of the Ruler
as the Head of Islam in his state and subject to all rights, privileges, prerogatives and
powers enjoyed by him as the Head of Islam are unaffected and unimpaired.
- CORs also has a duty to protect the laws concerning Islam from being easily
repealed or amended.
- Article 3(2): In any acts, observances or ceremonies, each Ruler in the Conference of
Rulers in his capacity of the Head of Islam shall authorise the YDPA to represent him.
- This has been applied to circumstances such as determining or announcing the
commencement of the month of Ramadhan or the dates of Aidil-Fitri and Aidil-
Adha.
- In the National Council for Islamic Affairs:
- CORs appoint the Chairman
- A representative of each state in Peninsular Malaysia is appointed by the
respective Ruler
- Representatives from Melaka, Penang are appointed by the YDPA
- Representatives from Sabah and Sarawak are appointed by the YDPA with the
approval of the YDPN after consulting with the State’s Majlis Agama Islam
- 5 other persons are appointed by the YDPA with the consent of the CORs.

National Fatwa Council

- Established under Section 11(a) of the National Council of Islamic Affairs Regulations.
- Role and functions are provided under Section 14 of the Regulations.
- The Council deliberates, decides and issue fatwas on matters related to the
religion of Islam referred to by the Conference of Rulers.
- The Council tenders its opinion on a matter together with the recommendation of the
Conference of Rulers to the National Council of Islamic Affairs.
- After the issue is discussed by the National Council of Islamic Affairs, any
recommendations of decisions made by the National Fatwa Council are
referred to once again to the Conference of Rulers.
- Section 9: Once a decision has been agreed upon by the Conference of Rulers,
it cannot be amended by any member States with the approval of the
Conference of Rulers.
- Importance:
- To dictate and publish fatwas concerning issues among Muslims.
- Fatwas issued and agreed upon at the National level can be standardized and
applied by the member States.
 - Implementation of the fatwas at State level should be in line with the
fatwa that has been recommended by the National Fatwa Council.
- However, in order to enforce the decided fatwa, the fatwa must first
be delivered to the Fatwa Committee in each State and gazetted in
each State.
- The Council acts as a coordinating body to which the Fatwa Committees in each
State can refer to.
- E.g: Haram or Halal status of the Amanah Saham Nasional, the al-
Arqam faith and the anti-Hadith group.
- Decisions made by the Council acts as a reference and guidance for the State
Fatwa Committees.
- It is open to Fatwa Committees to amend the Council’s decided fatwa.

Islamic Administrative Institutions: State Level

Federal Territories

Administration of Islamic Law (Federal Territories) Act 1993

- Section 3: The YDPA is the Head of Islam as set in the Federal Constitution.

The Majlis Agama Islam

- Section 4(1): There shall be a body known as the “Majlis Agama Islam Wilayah
Persekutuan” to advise the YDPA in matter relating to Islam.
- Section 10(1): The Majlis shall comprise of a Chairman, a Deputy Chairman, the Chief
Secretary to the Government or his representative, the Attorney General or his
representative, the Inspector General of Police or his representative, the Mufti, the
Commissioner of Kuala Lumpur, and fifteen other members, at least five of whom are
learned in Islamic studies.
- Section 11: The appointment of an appointed member shall terminate upon his death,
a letter of resignation addressed to the YDPA, and upon his absence without the
permission of the Chairman for a period exceeding six months.
- Section 12: The YDPA may revoke the appointment of any appointed member if his
conduct has discredited the Majlis; if he has become incapable of properly carrying
out his duties; or if without any excuse, he has been absent from three successive
meetings of the Majlis.

Functions of the Majlis:

- To aid and advise the YDPA in all matters relating to Islam

- To administer all moneys and funds of the Baitulmal
- To act as the sole trustee of all wakafs, all nazar am, and all trusts for the support and
promotion of Islam and for the benefit of Muslims.
 - To act as the trustee of all mosques in the Federal Territory; to ensure that all mosques
in the Federal Territories are kept in a proper state or repair and cleanliness; the Majlis
may raise or apply to raise special funds for the purpose of making such repairs or
defray the cost of such repairs from the Baitulmal.

Powers of the Majlis:

- To appoint Committees to assist it.

- To establish corporations and borrow money in order to be involved in the economic
and social development and well-being of the Muslim community.
- The Chairman is given power to act in cases of emergency.
- With the approval of the YDPA, the Majlis may make rules for the collection,
administration and distribution of all properties of the Baitulmal.
- To appoint banks and operate the accounts; cost of maintenance and repair of any
immovable property, and salaries and allowances of servants or members of the Majlis
shall be paid out of the property and assets of the Baitulmal.
- To determine, amend and alter boundaries of any kariah of a mosque and may provide
by the rules for the establishment of the kariah Committee.
- To appoint officers of a mosque, namely the Naqib, Imam, Imam ratib, Bilal, and
assistant of Bilal.
- To register Islamic religious schools in the Federal Territories and shall appoint a
Committee known as the Religious Teaching Supervisory Committee which has power
to grant a tauliah for the purpose of teaching on any aspect of Islam, as well as to
withdraw such tauliah.
- To make rules for carrying into effect the provisions of the Act relating to conversion,
and may advise the YDPA to make rules for carrying out the provisions of the Act.

State of Selangor

Administration of the Religion of Islam (State of Selangor) Enactment 2003

- Section 3: The Sultan of Selangor is the Head of Islam as set in the Selangor State
Constitution.

The Majlis Agama Islam

- Section 4(1): There shall be a body known as the “Majlis Agama Islam Selangor” to aid
and advise His Royal Highness the Sultan in matters relating to the religion of Islam.
- Section 11(1): (1) The Majlis shall consist of a Chairman; a Deputy Chairman; the State
Secretary; the State Legal Adviser; the State Financial Officer; the Mufti; the Chief
Police Officer; and not more than eight other members, at least five of whom are
learned in Hukum Syarak.
- Section 12(1): The appointment of an appointed member of the Majlis shall terminate
upon his death; by a letter of resignation addressed to the Sultan; and upon his
 absence from Malaysian without the permission of the Chairman for a period
exceeding six months.
- Section 13(1): The Sultan may revoke the appointment of any member of the Majlis if
his conduct has discredited the Majlis; he has become incapable of properly carrying
out his duties as a member; he has been absent from three consecutive meetings of
the Majlis without any excuse; he has acted contrary to the interest of the Majlis; or
he is declared a bankrupt.
- Functions of the Majlis:
- Section 6: To aid and advise the Sultan in all matters relating to Islam, except matters
of Hukum Syarak and the administration of justice.
- Section 7(1): To promote, stimulate, facilitate and undertake the economic and social
development of the Muslim community in the State of Selangor.
- Section 5(1): To be a corporate body having perpetual succession with a common seal.

Powers of the Majlis:

- Section 5(2): To sue and be sued by its corporate name.

- Section 5(3): To enter into contracts and acquire, purchase, take, hold, and enjoy
movable and immovable property, and convey, assign, surrender and yield up, charge,
mortgage, demise, reassign, transfer or otherwise dispose of, or deal with, any
movable or immovable property vested in the Majlis.
- Section 5(4): To act as an executor of a will or as an administrator of the estate of a
deceased person or as a trustee of any trust.
- Section 8(1): To establish a corporation to carry out and have the charge, conduct and
management of any project, scheme or enterprise which has been planned or
undertaken by the Majlis.
- Section 9(1): To establish companies under the Companies Act
- Section 10: To borrow sums as it may require which shall be paid into the Baitulmal.
- Section 7(2)(a): To carry on all activities, particularly the development of commercial
and industrial enterprises, the carrying on of which appears to the Majlis to be
requisite, advantageous or convenient for or in connection with the discharge of such
duty, including the manufacturing, assembling, processing, packing, grading and
marketing of products.
- (b): To promote the carrying on of any such activities by other bodies or persons, and
to establish or expand, or promote the establishment or expansion, of other bodies to
carry on any such activities, and to give assistance to such bodies or to other bodies
or persons appearing to the Majlis to have the facilities for the carrying on of any such
activities, including the giving of financial assistance by way of loan or otherwise.
- (c): To carry on any such activities in association with other bodies or any person,
including the department or authorities of the Federal Government or the
Government of any State or as managing agent or otherwise on behalf of the State
Government.
 - (d): To invest in any authorised investment as defined by the Trustee Act 1949 [Act
208], and to dispose of the investment.
- (e): To establish any scheme for the granting of loans from the Baitulmal to Muslim
individuals for higher education.
- (f) To establish and maintain Islamic schools and Islamic training and research
institutions.
- (g) To establish, maintain and manage welfare home for orphans.
- (h) To do such acts as the Majlis considers desirable or expedient.
- Section 29(1): To appoint such number of officers and servant as may be necessary to
assist it in carrying out its function.
- Section 26(1): The Chairman has the power to act in cases of urgency.

Purpose of setting up Baitulmal, Zakat and Wakaf in the State

Baitulmal

- Defintion: An Arabic term which means ‘Rumah Harta’ or ‘House of Properties’.

- In modern terms, it known as ‘Treasury’.
- It is a financial institution that serves to coordinate all public property or place of
storage of valuables.
- E.g: Money, gold, silver.
- It serves as a centre of Islamic investment property.
- It serves to establish Islamic banks that actively and directly deal in property of
Muslims collectively.

Zakat

- Definition: The giving of a small percentage of one’s income to charity.

- The amount of money that every Muslim adult, who is mentally stable, free,
and financially able, has to pay to support specific categories of people.
- These categories are laid down in Surah at-Taubah, verse 60, namely the poor
(Fuqara’), the needy (al-Masakin), those employed to collect funds and to
attract the hearts of those who have been inclined towards Islam, to free the
captives, those in debt, for Allah’s cause, and for the wayfarer that is a traveller
who is cut off from everything.
- Zakat is a mechanism for charity institutions to save people from hunger, ensure socio-
economic justice and provide an environment in which humans can preserve the
honour and responsibility towards God.
- By increasing societal productivity, it helps remove all sense of envy among members
of society and produces a peaceful and united society.
- Established by God with its primary goals of being a form of social security for the poor
in the community; to develop a balanced economic growth through redistribution of
wealth in society; and as a form of purification and social development.
Wakaf

- Definition: Derived from the word ‘wakafa’ which means stop or retained.
- It is understood as a practice of submitting owned property for public use or benefit.
- It is a branch of worship as its fundamental purpose is to reach out and seek God
Almighty’s blessing.
- E.g: A person endowed as wakaf land area which he owns to build a mosque
for the use of public worship and religious activities.
- It can also be implemented in the form of permanent property.
- E.g: Land, buildings, homes, and money.
- It is a religious mechanism which helps contribute to development of society and to
receive eternal rewards continuously.
- Its purpose:
- To revitalize all the alms deeds highly demanded by Islam
- To provide an alternative for the Muslim community to participate in worship
endowment even without the involvement of the permanent assets.
- To expand and multiply all Muslims holding property, whereby the sale of stock
lots of capital endowment will be utilized to develop wakaf property or to
purchase developing properties which will be channelled to welfare benefits
and the development of Muslim communities.
- To promote recognition of wakaf as a potentially reliable system to mobilize
social and economic development of the Muslim community.
- To cultivate and nurture the spirit of cooperation between Muslims based on
the concept of Islamic brotherhood, taa’wun.

Majlis Fatwa for the State

A fatwa: An answer to a question.

- Its purpose is to offer an opinion, not to silence alternative views.

- At State Level, only a Mufti appointed by a Ruler can issue a fatwa.
- In simple cases, the Mufti would issue the fatwa himself.
- In controversial and complicated cases, the Mufti, as chairman of the Fatwa
Committee would call upon the Committee to discuss the matter and
eventually issue a fatwa on it.

Federal Territories: Admin. of Islamic Law (Federal Territories) Act 1993

- Section 37(1): There shall be a Committee known as the Islamic Legal Consultative
Committee.
- Section 32(1): The YDPA may, on the advice of the Minister, after consulting the Majlis,
appoint fit and proper persons to be the Mufti and the Deputy Mufti for the Federal
Territories.
 - Section 37(2): The Committee shall comprise of the Mufti as the Chairman, the Deputy
Mufti, two members of the Majlis Agama Islam nominated by the Majlis itself, at least
two fit and proper persons appointed by the Majlis Agama Islam, and an officer of the
Islamic Religious Department of the Federal Territories, appointed by the Majlis, shall
be the Secretary.
- Section 37(5): Whenever the Mufti proposes to make a fatwa, he shall call a meeting
of the Committee for the purpose of discussing the proposed fatwa.
- Functions of the Fatwa Committee:
- Section 33: To aid and advise the YDPA in all matters relating to Hukum Shara’ and
shall be the chief authority in all such matter after the YDPA.
- Section 34(1): To make and publish in the Gazette a fatwa on any unsettled or
controversial question of Islamic Law which are not addressed by the Qur’an, Sunnah
or Ijma’.
- Section 36(1): To amend, modify, or revoke any fatwa issued earlier by the same Fatwa
Committee or previous Committees.
- Section 37(6): To order a study or research to be conducted on any issue submitted to
them.
- Section 34(4): A fatwa shall be recognised by all courts in the Federal Territories as
authoritative.
- Section 34(3): Upon its publication in the Gazette, a fatwa shall be binding on every
Muslim in the Federal Territories.

Selangor: Admin. of the Religion of Islam (State of Selangor) Enactment 2003

- Section 46(1): There shall be a committee known as the Fatwa Committee.

- Section 44(1): The Sultan shall appoint any fit and proper person to be the Mufti and
Deputy Mufti for the State of Selangor.
- Section 46(2): The Committee shall consist of the Mufti, as Chairman; the Deputy
Mufti; the State Legal Adviser; two members of the Majlis Agama Islam, nominated by
the Majlis; an officer of the Islamic Religious Department of Selangor who is well
versed in Hukum Syara’ to be appointed by the Majlis; not less than two persons and
not more than seven fit and proper persons appointed by the Majlis; and an officer of
the Mufti’s Department appointed by the Majlis, as Secretary.
- Section 48(2): Whenever the Committee proposes to make a fatwa the Mufti shall call
a meeting of the Fatwa Committee for the purpose of discussing the proposed fatwa.
- Functions of the Fatwa Committee:
- Section 45: To aid and advise His Royal Highness the Sultan in respect of all matters of
Hukum Syarak, and in all such matters shall be the chief authority in the State of
Selangor after the Sultan.
- Section 48(4): To deliberate on a fatwa and make a recommendation to the Sultan for
his assent for the publication of the fatwa in the Gazette.
 - Section 50(1): To amend, modify or revoke any fatwa that has been published in the
Gazette under this Enactment or under the previous Enactment.
- Section 48(1): To conduct any study or research to be carried out on any issue
submitted.
- Section 49(2): A fatwa shall be recognised by all courts in the State of Selangor of all
matters laid down therein.
- Section 49(1): A fatwa shall be binding on every Muslim in Selangor.

Process of Conversion to Islam in Selangor

Many converts claim to have seen the light and believe that Islam is the one and only true
religion.

- To Muslims these new converts are proof that Islam is the truth.

PART IX, Admin. of the Religion of Islam (State of Selangor) Enactment 2003

Sec. 117: A person who is not a Muslim may convert to the religion of Islam if he is of sound
mind and:

- (a) has attained the age of eighteen years; or

- (b) if he has not attained the age of eighteen years, his parent or guardian consents to
his conversion.

Sec. 107(1): The following requirements shall be complied with for a valid conversion of a
person to the religion of Islam:

- (a) the person must utter in reasonably intelligible Arabic the two clauses of the
Affirmation of Faith. A person who is incapable of speech may utter the two clauses
of the Affirmation of Faith by means of signs.
- (b) at the time of uttering the two clauses of the Affirmation of Faith the person must
be aware that they mean “I bear witness that there is no god but Allah and I bear
witness that the Prophet Muhammad S.A.W. is the Messenger of Allah”.
- (c) the utterance must be made of the person’s own free will.

- (2) A person incapable of speech may utter the two clauses of the Affirmation of Faith
by means of signs that convey the meaning specified in paragraph (1)(b).

Sec. 108: A person is converted to the religion of Islam and becomes a Muslim as soon as he
finished uttering the two clauses of the Affirmation of Faith; and that person shall thereupon
be referred to as a muallaf.
Sec. 111(1): A person who has converted to the religion of Islam may apply to the Registrar in
the prescribed form for registration as a muallaf.

- (2) If the Registrar is satisfied that the requirements have been fulfilled, the Registrar
may register the applicant’s conversion to the religion of Islam by entering in the
Register of Muallafs the name of the applicant and other particulars.

- (3) The Registrar shall also determine the date of conversion to the religion of Islam
and enter the date in the Register of Muallafs.

Sec. 112(1): The Registrar shall furnish every person whose conversion to the religion of Islam
has been registered a Certificate of Conversion to the Religion of Islam in the prescribed form.

Conversion

In regards to conversion, the right to convert out of one’s faith has not been explicitly
mentioned in the Federal Constitution even though it is alluded to in Article 18 of the
Universal Declaration of Human Rights 1948, which declares that “everyone has a right to
religion, including the right to change his religion and belief.” UDHR has been given partial
recognition by Malaysia’s Human Rights Commission Act.

To Islam:

For non-Muslims, the right to opt out of one’s faith and choose another has been regarded as
an implicit part of religious liberty guaranteed by Article 11.

- Implications upon child-parent relations

- Teoh Eng Huat v Kadhi Pasir Mas: The court held that a child below 18 must conform
to the wishes of his or her parents in matter of religious faith. Here, a Buddhist girl of
seventeen had no constitutional right to abandon her religion and embrace Islam.

- When one spouse converts into Islam

- PP v David John White @ Abdul Rahman: In 1918, David was married to Birdie Rose
according to the rites of the Church of England. Then in 1936, the accused and a Miss
Webb converted into Islam and were named Abdul Rahman and Aisha, and were
subsequently, married. Under Section 494 of the Penal Code, bigamy is an offence
punishable with imprisonment of seven years and a fine. The accused argued that in
Islam, the second marriage is not void as he is permitted to have four wives. Held: The
accused will be convicted in accordance with how Civil law governs polygamous
marriages. Further, during the subsistence of his monogamous marriage, the
conversion to another faith has no legal effect on the status of that spouse.
 - In custodial issues
- Children are automatically converted to Islam when either one of their parents
embraces Islam.
- The Islamic authorities will provide a conversion certificate, which is conclusive
evidence that the children have also converted.
- After the conversion, if the husband (whichever spouse converts to Islam)
applies for a divorce of his non-Muslim marriage in the Syariah Court and for
custody of his now Muslim children, he will receive interim custody orders
immediately.
- The wife can petition for a divorce in the High Court, but has to wait 3 months
before filing that petition under Section 51 of the Law Reform (Marriage and
Divorce) Act 1976.
- The 3 month period is for the husband to try and persuade the wife to convert
to Islam.
- After the 3 month period, if the wife does not convert, the High Court will
endorse the conversion of the children and the orders granted by the Syariah
Courts over the children.

- Under such matters, Article 121(1A) of the Federal Constitution is to mean that the
High Court cannot even question unconstitutional Syariah Court orders.

- Islamic law provides that only a Muslim can be a guardian of Muslim children, and
should ordinarily be given custody unless the children are of very tender years.
- Thus, once the husband converts into Islam, the wife loses her guardianship rights
under the Guardianship of Infants Act.

From Islam:

In relation to Muslims, the issue of apostasy is regarded as taboo, as absolutely abhorrent,

and as a politically explosive proposition. Nevertheless, the freedom in Article 11(1) is broad
enough to permit change of faith.

Although Article 11(4) forbids propagation of any religion to Muslims, nowhere does the law
forbid voluntary conversion of a Muslim to another faith.

On issues of conversion out of Islam, the civil courts have been trying to carve out a middle
path.

- They are near unanimous that under our basic charter, a Muslim does have a right to
convert, but he cannot do it unilaterally.
- He must first obtain a Syariah Court certificate of renunciation, as in the case of
Kamariah Ali v Govt. of Kelantan.
 - Strict affirmative proof is required to show that a Muslim had renounced Islam; merely
showing that he drank alcohol or ate pork does not indicate renunciation, as in the
case of Dalip Kaur v Pegawai Polis Daerah.

- Lina Joy v Majlis Agama Islam Wilayah & Anor: The plaintiff, a Muslim, applied to the
National Registration Department to Lina Lelani out of the intention of marrying a
Christian man. When the application was rejected, she applied again to the NRD to
change her name to Lina Joy and to remove the word ‘Islam’ from her new identity
card. Held: Even though Article 11(1) provides that every person has the right to
profess and practise his religion, this does not mean that the plaintiff can hide behind
this provision without first settling the issue with the religious authority, which has
the right to manage its own religious affairs under Article 11(3)(a).
- Only after the person has complied with the requirements and the authorities
are satisfied that she has apostatized, can she brace Christianity. A person
cannot at one’s whims and fancies, renounce or embrace a religion.

- Dalip Kaur v Pegawai Polis Daerah: The appellant applied for a declaration that her
deceased son at the time of his death on 3 October 1990 was not a Muslim and had
renounced the Islamic faith and for the consequential declaration that she was
entitled to the body of the deceased. The deceased was born a Sikh and brought up in
the Sikh faith. He converted to Islam on 1 June 1991 before the District Kadi of Kulim.
The appellant contended that after the conversion the deceased had renounced the
Islamic faith and resumed the practice of the Sikh faith. It was also alleged that the
deceased had been re-baptized by a Sikh priest at a Sikh temple and had regularly
attended the congregation at the Sikh temple. It was also contended that the
deceased continued to eat pork and had not been circumcised. At the hearing of the
appeal, the Supreme Court remitted the case to the High Court for the learned judicial
commissioner to refer certain questions of Islamic law that arose to the Fatwa
Committee of Kedah. Held: The learned judicial commissioner was entitled to accept
the answers of the fatwa committee to the questions which were referred to it and
which were agreed to by all parties. The fatwa committee was of the opinion that the
deceased was a Muslim as he had been duly converted to Islam and there was no
decision of a Syariah Court which decided that he had renounced or left the Islamic
faith.

Many of the above judicial decisions have created deep resentment and misgivings among
non-Muslims and have contributed immensely to the polarization of society.

The overall situation of religious tolerance in Malaysia was exemplary until the late eighties.
Since then many religious dilemmas have arose and set before our courts. Therefore, change
is needed within the judiciary to not only put forth religion, but also tolerance and freedom
of conscience.
Islamic Administration at National Level

Jabatan Kehakiman Syariah Malaysia

- Department of Syariah Judiciary Malaysia

- Established by the Federal Government on 15th December 1998 at the Islamic Centre
Kuala Lumpur Malaysia.
- The department is under the authority of the Prime Minister’s Department.
- Role: To coordinate the administration of Syariah Courts at National level.
- It assists States with a joint service for Islamic Affairs Officers headed by the Chief
Syariah Judge of Malaysia.
- The result is the establishment of one panel of Syariah judges forming the
bench of the Syariah Appeal Court to hear appeals from Syariah Subordinate
Courts of different States.
- As Islamic law is under the jurisdiction of the State, it is up to the States to join
the service.

Objectives:

- Establishing Islamic Laws relating to the administration of the Uniform Court for
adoption in the states;
- Ensure that all states use the Open Service Syariah Officer of General Federation;
- Ensure that the cases handled by the Syariah Appeal Court fair, efficient and orderly;
- Facilitate the use of information technology systems to facilitate widespread Islamic
judicial administration;
- Developing a resource center for use by public officials and related legal and judicial
system of Syariah;
- Mobilizing resources and research related to the legal system of Sharia judicial system
for the promotion of judicial management and the Islamic Shariah Court of Malaysia;
- Implement training requirements for all officers and employees of the Syariah legal
and judicial institutions throughout the country.
- Functions:
- To standardize Islamic legal systems and procedures applied by States.
- To develop trained and sufficient human resources in the Syariah State Courts, Legal
Aid Bureau, Islamic Religious Department and other agencies.
- To formulate policies and strategies to improve the coordination of organizational
performance of Syariah Courts in the States.
- To control and evaluate programs and activities of the Syariah State Courts that
accepts the Syariah Scheme Shared Services Officer.
- To administer and coordinate the rules, etiquette and rules of practice and instruction
on all Syariah Officers and staff at the Syariah State Courts.
- To administer and coordinate the use of electronic systems at the department and
Syariah State Courts.
- To develop a resource centre related to Syariah Judicial Legal System to provide
scientific reference materials to Syariah Officers around the country and to the public.
- To implement research programs related to the Syariah Judicial Legal System in
accordance with the progress of Muslims in the society.
- To handle Syariah Court cases on appeal in the States effectively and systematically
based on national legislation and state enactments.