LLB 101B NOTES 3 ISLAMIC LAW IN CIVIL COURTS (M’SIA DURING ENGLISH OCCUPATION)

Islamic Law – Sources

1. al-Quran
a. Holy Book – Word of God
2. as-Sunnah
a. Prophet Mohammad (Nabi Mohammad) – Messenger of God
b. Teachings & Practices of Prophet
3. ijtihad Practice
a. Matters ≠ Covered in al-Quran & as-Sunnah
b. Practiced by Legal Scholars to address modern matters
Islamic Law in Civil Courts (English Occupation Period)
 During English Occupation → 1 Legal (Civil) System → Attend Civil & Islamic Matters
 After Independence → 2 Legal Systems → Civil Matters by Civil Court
→ Islamic Matters by Syariah Court

 Civil Court → Islamic Law on matters: -

o Polygamous Marriage & Divorce
 Public Prosecutor v David John White alias Abdul Rahman [1940] | Horne J
 P (Married) → Convert Muslim → Marry 2nd Muslim Wife against PC S494 Bigomy
 PC S494 Bigomy / Polygamous Marriage = Offense | × Allowed in Civil Marriage
 P Argued → Converted Muslim allowed to have multiple wives
Held : PC (Civil Law) Prevails; Not Islamic Law

o Child Custory
 Myriam v Mohamed Ariff [1971]
 Ex-Wife → Custody of Children → Ex-Husband
 Ex-Wife → Remarried → Sought Custody of Children
 Syariah Law : Ex-Wife ≠ Custody of Children when Remarry
 Civil Law : Ex-Wife = Custody of Children when Remarry
 Ex-Wife → Filed HC (Civil Court) → Overturn Syariah Law
Held : Ex-Wife = Custody of Children → Syariah Law Overturned
Result : Civil Court → Asserted Influence over Syariah Court → Confusion
: On 1988 FC Amended → FC Art 121(1a)

 FC Art 121(1a)
o HC Malaya ∙ HC Borneo ≠ Jurisdiction over Syariah Court Matters
o Before 1988: Civil Court = Influence Syariah Court Matter
o After 1988: Civil Court ≠ Inlfuence Syariah Court Matter
o Wakaf ∙ Fatwa
 Wakaf – Donation of Land Strictly for Religious Purpose
 Fatwa – Legal Scholar Opinion
o Child Legitimacy (Born out of Wedlock)
o Status of Non-Muslim Spouse