INTRODUCTION

TO
ISLAMIC LAW LEGAL STUDIES
 ISLAMIC LAW: BACKGROUND
•Reached Malaya at 14th century by
muslim traders.

•Before the advent of Islam, the Malays

followed customary law which was
influenced by Hinduism.

•After the Rulers embraced the Islamic

faith, attempts were made to adopt the
Islamic law – and to modify the Malays
customs so as to make them conform to
Islam.

•The process can be seen at the Laws of

Malacca- the Undang-undang Melaka.
 UNDANG-UNDANG MELAKA
Contents:
i.marriage and divorce;
ii.Islamic commercial transactions;
iii.rules relating to weights and
measures;
iv.prohibition on riba;
v.rules governing sale of land and
others;
vi.Procedure and punishment of
killing;
vii.Slander;
viii.Prohibition on alcohol drinking.
 BEFORE BRITISH
COLONIZATION IN MALAYA
•Proven that there was attempt before the coming of British
to modify the Malay custom and to adopt Islamic law.

•Before the coming of British, Islamic law was the law of the
land.

•The school of law was followed was the Shafii School.

 CASE: RAMAH V LATON

In the case of Ramah v Laton, the Court of Appeal of the

Federated Malay States held that Muslim law is not
foreign law but local law and the law of the land.
•In the various treaties entered
between the Malay Rulers of various
states and the British, the Malay
Rulers agreed to accept the advice of
the British Provided That this should
not apply to questions touching the
Malay religion and custom.

•Showed that the British did directly

or indirectly interfere with Muslim
law and its administration.
 ENGLISH LAW REPLACED MALAY
CUSTOMARY & ISLAMIC LAW
•Indirectly, British spread the introduction of English law.

•Acting on the advice of British Residents, the Federated

Malay States Sultans enacted a number of laws which
adopted the Indian codification of the principles of English
law.

•Matters relating criminal laws, rules of evidence, contract

and land and legislation based on English law replaced
Malay customary and Islamic law.
RESTRICTED POWERS ON
SHARIA COURTS DURING BRITISH
COLONIAL
•The powers of Sharia Courts had been restricted and
made inferior to those of the civil courts.

•In 1948, the Courts Ordinance established a judicial

system for the Federation and omitted Sharia Courts
from being part of the Federal court system.
ISLAM UNDER THE FEDERAL
CONSTITUTION
ARTICLE 3 of the Federal Constitution
– Islam is the religion of the
Federation.

Other religions may be practised in

peace and harmony in any part of the
Federation.

ARTICLE 11 – every person has the

right to profess and practise his
religion subject to Clause 4 to
propagate it.
ISLAM UNDER THE FEDERAL
CONSTITUTION (CON’T)

ARTICLE 12(2): The right to establish, maintain or

assisting in establishing or maintaining the Islamic
Institution.

ARTICLE 160: “Malay” means a person professes the

religion of Islam, speak Malays language, conforms to
Malay customs..
SHARIA COURT
 SHARIA COURT SYSTEMS
•Malaysia has 14 Sharia court systems.

•The Sharia court system is Malaysia is primarily

established by state law.

•Article 121(1A) of the FC, exclusive jurisdiction in

matters in respect to Islamic laws is conferred to the
Sharia courts.

•With respect to the Federal Territories, Parliament has

the legislative power to enact law.
NON-UNIFORMITY OF LAWS
•The different administration of the Sharia court
systems in each state and the Federal Territories
produce several consequences.

1. Non-uniformity of laws.

⮚One might find that the law of the Sharia Court in one
state might be different from that of the other states.
2. Territorial Limit of Orders

•The orders of a Sharia court in one particular state are

enforceable generally within the territorial limit of
that state only.

•This is due to the fact that the Sharia courts are

established by the states, not the Federation.

•It may be a problem in enforcing a judgement of a

Sharia court if one of the parties is residing in another
state.
3. Jurisdiction of the Court Depends on Residence of the
Parties

•The jurisdiction of Sharia courts depends on the residence

of the parties.

•Being a resident of one state is a requirement for a person

to initiate a case in the Sharia Courts.

•FT-Resident means a person permanently living or

ordinarily residing in a particular area or certified by the
Syarie Judge as such. Kedah-use the term “bermastautin” –
permanently living or ordinarily bermukim in a particular
area-residing or living in a particular place temporarily.
4. Forum shopping

•When multiple courts seemingly have concurrent

jurisdiction over a plaintiff’s cause, the plaintiff may
choose a Sharia court from a state that will treat his or
her cause most favourably.

•Case: Aishah bt Abd Rauf v. Wan Mohd Yusof

5. Sharia Courts of one state do not have to follow the
decision of Sharia courts of another state for the same
parties in the same case.

•The crucial is that the order issued by a Sharia court in

one state did not bind another Sharia court in other
states.
CONFERENCE OF RULERS TO
DECREE UNIFORM LAW
•The Conference of Rulers as an institution that brings
together the Head of States in Malaysia.

•Art 3(2) : confers power to the Ruler of every state to

be the Head of the Religion of Islam for states not
having a Ruler such as Malacca, Penang, Sabah and
Sarawak and also for the FT KL, Labuan and Putrajaya.

•COR may advise the YDPA on matters relating to the

religion of Islam and on legislation related to Islam.
 JURISDICTION OF
SHARIA COURTS
•The Sharia courts have jurisdiction over Islamic
matters and can generally pass sentence of not more
than 3 years; RM5,000 in fines and 6 strokes of the
cane.

•As established by the states, they have jurisdiction

within the respective state boundaries only.
HIERARCHY OF COURTS
•Administratively, the Sharia Subordinate Courts is
every state are bound by orders from the Sharia High
Courts.

•At present, there are 14 Sharia Courts of Appeal in

Malaysia, including at one Sharia Court of Appeal in
Federal Territories, functioning as the apex court in
each state in dealing with appeals from the lower
court.
CIVIL JURISDICTION
•Marriage, divorce, nullity of marriage;

•Any disposition or claim to property arising from the

marriage, divorce matters;

•Maintenance of dependents, guardianship or custody

of infants;

•Division of inter-vivos or sepencarian property;

•Wakaf.
CRIMINAL JURISDICTION
Offences can be divided into 6 categories:-
1)Matrimonial offences;
2)Offences relating to sex, close proximity (khalwat),
prostitutions;
3)Consumption of intoxicating liquor (buy & sell);
4)Spiritual- failure to attend Friday prayers, not fasting
during Ramadhan, non payment of Zakat;
5)Conversion of religion (report and register on
conversion);
6)Miscellanous offences not provided under of the above
categories.
 ISLAMIC RELIGIOUS AFFAIRS
(MAJLIS AGAMA ISLAM)
•Making rules in relation to administrative matters
such as:-

oCollection, administration and division of zakat and

fitrah;

oAppointing Mosque Committee and Zakat Fitrah

committee.

oMaking a final ruling regarding fatwa on cases where

the Legal Committee is not unanimous on the matter.