INTRODUCTION &

HISTORICAL BACKGROUND
OF THE ISLAMIC LAW OF
EVIDENCE
TOPIC OUTLINE
• This topic will briefly discuss the history and background as well as the
development of the evidence law of the Syariah Court in Malaysia from
the reign of the Malacca empire in the 15th century until today.
• For that purpose, this topic will be divided into three main sections
namely Part I: Introduction, Part II: History of Islamic Evidence Law in
Malaysia and Part III: Conclusion.
• Part II discusses the development of the Islamic evidence law and is
divided into three sections:
• Section 2.1: Islamic Evidence Law Before independence, during the reign of
Malacca and the Malay states,
• Section 2.2: Legal Description of Islam During the Era of British and
• Section 2.3: Islamic Evidence Law After Independence. Section 2.3 will discuss the
development of Islamic evidence law in Civil Courts and Syariah Courts.
Part I - INTRODUCTION
• The law of evidence is a very important part of the substantive
law in the justice process in Court.
• In contrast to the civil evidence law contained in the Evidence Act
1950 which is derived from the ‘Common Law’, the Islamic
evidence law which is derived from the Quran and the Sunnah has
some differences and variations in terms of concepts and
principles.
• In line with the needs of the community and the country, legal
provisions on Islamic evidence and proof in Malaysia are provided
under the Syariah Courts evidence enactments of the states.
• Each state has its own Syariah Court evidence enactment.
 Part II - History of Islamic Evidence Law
• Islamic law implemented in the time of Malay Sultanate has an influence
of the Turkish Kanun Uthmani – this was proven by the use of the term
‘Kanun’ (Code) on the law in force.
• The term Kanun (Code) is an unfamiliar term in the Malay Sultanate; It was
initially used in the Uthmaniyyah Empire during the reign of Dhulgadhi rid
Beg Alauddarullah Beg (1479-1515M), known as Kanunname
Alauddarullah Beg.
• This Code comprised provisions on fiscal law, criminal law and the
government's relationship with individuals.
• Kanun Uthmani was later introduced in the Uthmaniyyah provinces and
was widely implemented.
• This fact proves that the law is carried out during the reign of Malacca and
other Malay states at one time been under the influence of Turkey.
• The influence of Islamic law in Turkey can also be seen in
some of the laws in the states. For example, Majallah al-
Ahkam al-Adliyyah was made the legal basis contained in
Majallah al-Ahkam of Johor in 1331H.
• Not only that, but the historical facts also clearly prove that
Malaya, including Aceh, has had diplomatic relations with
the Ottoman (Uthmaniyyah) government as early as the 16th
and 17th centuries.
 2.1 History of Islamic Evidence Law
Before Independence
• In the early 15th century, Islam began to influence control of
Malaya through the Arab traders who came to trade and the
spread of Islam.
• Melaka at that time became a leading trade center and a center
of international economic activity.
• Due to the strategic Melaka factors that Islam can be
propagated so effectively extending to the whole of the Malay
Civilization in a very short time.
• Referring to the law of evidence during the rule of Melaka, whether we
like it or not, we need to refer to the development of the law of Melaka
and other state canons.
• If we look at the laws of Melaka, it can be seen that Islamic marriage law,
criminal law, and sale and evidence law have been implemented in the
state and laws of Melaka.
• Not only that, but Islam has also become the official religion of Melaka at
that time. There were famous judges during the Melaka era such as Kadi
Yusof, Kadi Monawar, Kadi Sadar Johan and Sharif Muhammad
Kebungsuan.
• The existence of this law clearly proves that Islamic law especially Islamic
Evidence Law has been implemented over hundreds of years ago.
2.1.1 Laws of Melaka
• The legal treatise of the Malacca Code (Hukum Kanun
Melaka) and the legal treatise of the Malacca Sea Code
(Undang-undang Laut Melaka) were introduced since the
15th century by Sultan Mahmud Shah in 1444M.
• This law was later adopted and implemented in other states
such as Johor, Pahang, Selangor and Perak. This law
incorporated elements of custom and Shariah principles in
accordance with the practices of the society at that time.
• The Malacca Code contains 44 Chapters consisting of the Original
Malacca Law, the Law of the Sea, Muslim Marriage, the Law of Sale
and Evidence, State Law and the Law of Johor.
• There are more than 25 percent local provisions relating to marriage
law, evidence law and criminal law.
• Chapter 25.1 deals with guardians and concerns about consent,
• Chapter 25.2 deals with Ijab and Qabul,
• Chapter 29 deals with weights and measures,
• Chapter 30 deals with the law of sale and prohibition of usury,
• Chapter 31 deals with the pillars of land sale,
• Chapter 32.1 deals with bankruptcy,
• Chapter 33 refers to the tenets of partnership and
• Chapter 34 deals with the tenets of trustee.
• Although in principle this law does not directly mention the law of
evidence but indirectly it can be understood that there should be a law
to prove every case heard before a judge or kadhi.
• This is evidenced by the existence of the final part of the Law of Melaka
which touches on the pillars related to the law of evidence.
• Chapter 35 touches on notifications.
• Chapter 37 principles of witness testimony and its authenticity.
• Chapter 38 the pillars of the procedure and taking the oath (al-yamin).
• The criminal law is mentioned in the next five chapters, namely in
Chapter 36 the pillars of apostasy, Chapter 39 the pillars of murder,
Chapter 40 the pillars of adultery, Chapter 41 the pillars of qazaf and
Chapter 42 the pillars of drinking liquor.
• In general, it can be concluded that there are 12 clauses in the
Malacca Code that touched on the question of evidence, namely the
emphasis on the concept of syahadah or testimony, iqrar, the
concept of oath or al-yamin, the concept of burden of proof and
priority of witnesses, and specific methods of hudud conviction.
• The application of this law of evidence can be seen in Chapter 5.3
with respect to the murder of an adulterer. If the adulterer flees into
the yard of the person and the owner of the yard is confronting face
to face with him and in the quarrel the adulterer is killed, then there
is no charge.
• This proves that the homeowner can argue that he was not guilty of
killing an adulterer in his backyard by bringing evidence that the one
killed was an adulterer.
2.1.2 Other State Law in Malaya
• The Malacca Code has influenced the enactment of laws in
several states under its rule. Its wide influence can be seen in
the Pahang Code, Kedah Code, Kelantan Code, Terengganu
Constitution and Johor Constitution.
• The laws of Pahang were enacted during the reign of Sultan
Abd Ghaffar Mahayuddin Syah (1592-1614) based on the
Risalah Hukum Kanun Melaka. He made changes to the
provisions of this law by streamlining the existing provisions
and adding elements of Shariah as well as reducing the
customary elements found in the Malacca Code which was
the basis of Pahang law at that time.
• The Pahang Code is divided into four parts. Namely Chapters 24-44 on
muamalat such as transactions and guarantees, Chapters 46-59 on
criminal law and fines. Chapters 58-61 on Basic Religious Obligations.
• The second chapter - Chapters 40 to 65, touches on iqrar and
testimony. Chapter 40 on types of testimony and their attributes,
Chapter 63 on the pillars of testimony in Islam and its characteristics.
Chapter 64 on rules on the position of a slave and his master or his
former master and Chapter 65 on the law of taazir against false
witnesses and the rules of judicial procedure relating to plaintiffs and
defendants.
• This Pahang law provides for Islamic evidence law. For example, the
provision regarding the oath if there is no witnesses in the case of
muamalat and the conditions of witnesses or syahahah in the case of
adultery, stealing, drinking liquor and killing an apostate.
• In Kedah, the provisions of Datuk Seri Paduka Tuan's Law
state that thieves, robbers, chicken poachers, opium dealers,
gamblers, tree and stone worshipers, drunkards, - all such
acts are against Allah's command and must be reported to
the Penghulu. Failure to do so may result in a fine.
• Laws in Kelantan around the 19th century provided that the
Mufti had jurisdiction to hear cases of marriage and divorce
while judges heard criminal cases based on Islamic and
customary law.
• In Terengganu, the influence of Islamic law greatly influenced
its government. The Terengganu Constitution has been
declared as Iqtanul Muluk fi al-ta’dil al-suluk, which provides
that Islam is the official religion of Terengganu.
• The Terengganu government really emphasized on the
implementation of shariah law that the Sultan must also
abide by the law and the obedience to the Sultan can be
withdrawn in the event of breach of contract.
• In Johor, the law implemented is also based on the Risalah
Hukum Kanun Melaka.
• The law of Johor is also heavily influenced by the Islamic law
compiled in Turkey and Egypt.
• For example, Majallah al-Ahkam al-Adliyyah has been made as
Majallah al-Ahkam Johor and Hanafi Code of Qadri Pasha has
been adapted as Al-Ahkam Shar’iyyah Johor.
• In general, states in Malaysia have long practiced Islamic law. It
has become synonymous in the life of the community,
particularly on the implementation of Islamic law.
• In addition to the law of these states having received the
influence of Islamic law compiled in Turkey and Egypt, the laws
enacted also contained the elements of customary law.
• Indeed, not many references about the application of Islamic law
of evidence early in the reign of the Malay states.
• Nevertheless, the implementation of Islamic law and the
existence of Syariah Courts and the profession of kadhi show
that Islamic evidence law has long been used in Malaysia for
more than hundreds of years.
2.2 Islamic law of evidence during British
rule
• The arrival of the Portuguese, the Dutch and the Japanese
rule did not much influence the law in Malaysia.
• The British rule has influenced most of the application of
Islamic law.
• English law had begun to enter through the Charter of
Justice 1807 and was followed by a number of English laws
in practice.
• The Second Charter of Justice of 1826 and the Third of 1885
subsequently made English law harmonized and enforced in
the Straits Settlements.
• The British had separated jurisdiction in government administration
between the national and religious aspects.
• In 1902 and 1905, the Criminal Procedure Code and the English Penal
Code was introduced and enforced on the Malay land.
• As a result, Islamic law to date only refers to the aspects of marriage,
divorce, testacy and inheritance, and religious practices; while other
aspects, such as commercial law and contracts, are placed under civil law.
• For example, in the state of Selangor, the Prevention of Adultery
Regulation 1894 is one of the first Islamic laws enacted in the state of
Selangor and so as the Law on Registration of Marriages and Divorces of
Muslims 1900 which is the law in connection with the marriage and
divorce of Muslims in the state of Selangor.
• Initially, the British had introduced English evidence law through the
Straits Settlements Evidence Ordinance 1893.
• Eventually, the British had introduced a more complete evidence law,
namely the Evidence Act 1950, modeled on the Indian Evidence Act
1872, which was enacted by Sir James Stephen.
• The Evidence Act is a British attempt to codify the principles of
‘Common Law’ in one Act and become a reference in Court.
• With the introduction of the Evidence Act 1950, Islamic evidence law
is no longer the main reference of the Court even though it involves
Muslims when the principle of evidence law based on ‘common law’
is applied based on the Evidence Act 1950 passed.
• In relation to that, Islamic evidence law in Malaysia is increasingly
not being applied.
• There are cases where Islamic law of evidence is set aside, and
the principles of English law was applied.
• Islamic law of evidence is increasingly forgotten and not
practiced in the true sense.
• It is placed in certain cases covering family affairs and the
administration of Islamic property only.
• Although Islamic law covers such matters, English law often
interferes with and interferes in the affairs of Muslims and
become the reference of the Court in deciding a case i.e.,
according to ‘Common Law’.
2.3 Islamic Evidence Law After Independence
• Malaysia gained independence on 31 August 1957.
• Article 3(1) of the Federal Constitution provides that Islam is the
religion of the Federation, but other religions may be practiced
peacefully in any part of the Federation.
• Although this provision is indirectly recognizing Islamic law as a
law that covers all aspects of life, but the provisions on Islamic law
in Malaysia are only relevant to matrimonial matters and
inheritance, and limited to Muslims.
• Similarly with Islamic law of evidence, the application of Islamic
law of evidence only occurs in certain cases and even does not
receive due attention.
• Along with the development of independence and society's need for specific laws
related to Islamic administration, several enactments on the administration of Islamic
law have been enacted and implemented.
• For example, the administration of Islam in the states has been passed and these
include the -
• Administration of Islamic Law (State of Malacca) Enactment 1959,
• Administration of Islamic Law (Penang) Enactment 1959,
• Administration of Islamic Law (Negeri Sembilan) Enactment 1960,
• Administration Enactment the law of Islam (State of Selangor) 1962,
• Administration of Islamic law (Negeri Perak) 1965,
• Islamic Council and Malay Customs Council (Kelantan) Enactment 1966,
• Administration of Islamic law (Negeri Perlis) 1964,
• Administration Islamic Law (State of Sabah) 1978,
• Islamic Religious Council (State of Sarawak) Ordinance 1978, and
• Administration of Islamic Law (State of Johor) Enactment 1978.
• All these enactments provide legal provisions on the
administration of Islam in the states which cover aspects of
the incorporation and establishment of religious councils,
Syariah Courts, prosecution and representation, finance,
mosques, conversion to Islam and religious education.
• Brief provisions on Islamic law of evidence have also been
included in the Islamic administrative laws of these states
such as matters of testimony according to Islamic law.
2.3.1 Islamic Evidence Law in Civil Courts
• Civil courts have the discretion whether to refer to or apply
the principles of Islamic evidence law.
• If we refer to the cases decided in the Civil Courts, there are
some old cases which refer to Islamic evidence law.
• However, it is not a mandatory reference for the Civil Courts
in determining the decision of a case.
• The civil courts will refer to the Evidence Act 1950 while the
Syariah Courts implement the Islamic law of evidence
provided under the Syariah Courts’ evidence enactment of
the respective state.
 Ainan bin Mahmud v. Syed Abubakar

• In the case of Ainan bin Mahmud v. Syed Abubakar [1939] MLJ 209 the Civil
High Court had ruled that a child born four months after the marriage of his
mother to a man named Mahmud was a legitimate child. The decision was in
accordance with section 112 of the Evidence Enactment, but it was very
clear that the decision was against Islamic law.
• The judge in the case was of the view that in the question of the legitimacy
of a child in respect of Muslims, section 112 of the Evidence Enactment
applies and removes Islamic Law. On the other hand, if the matter is brought
to the Syariah Court, Islamic law applies.
• The above case shows that the law recognizes the implementation of Islamic
evidence law, but the court reserves the right to take or reject it.
• The court in this case set aside the evidence adopted by Islamic law and
applied the Evidence Enactment based on English law. To date, the
applicable law of evidence is contrary to Islamic law.
Amendment of Article 121 of FC
• In 1988, Article 121 of the Federal Constitution was amended
by stating in clause (1A) that the Civil High Court shall not
have jurisdiction in respect of any matter within the
jurisdiction of the Syariah Court.
• In the past, before the amendment was made, there were
many cases where the Civil Court had decided on matters
that fell within the jurisdiction of the Syariah Court and
sometimes had changed the decision that had been made in
the Syariah Court.
• As a result, the restructuring of Islamic religious affairs in the
states then has separated between the powers of the Islamic
Religious Council, the Mufti and the Syariah Courts.
• Syariah Courts are held at three levels - Syariah Subordinate
Court, Syariah High Court and Syariah Court of Appeal.
• Appeals can be made from the Syariah Subordinate Court to the
Syariah High Court and from the Syariah High Court to the Syariah
Court of Appeal.
• The jurisdiction of the Syariah Court is only over those who
profess Islam.
• Therefore, the Syariah Court has no jurisdiction when any party
involved is not a Muslim.
• At present, the criminal jurisdiction of the Syariah Court is very limited.
• According to the Constitution, the Syariah Court has jurisdiction over
offences to the extent provided by the federal law.
• According to the Syariah Courts (Criminal Jurisdiction) Act 1965, Syariah
Courts are only given jurisdiction over offences punishable by imprisonment
not exceeding six months or a fine not exceeding RM1000 or both.
• The Syariah Courts (Criminal Jurisdiction) Act 1965 was amended in 1984
and the Syariah Courts were subsequently given jurisdiction over offences
punishable by imprisonment not exceeding three years or by not more than
RM5000 or whipping not more than six lashes or a combination of such
punishments.
• If seen, this jurisdiction is still lower than the jurisdiction of a First-Class
Magistrate who can usually hear a case punishable by ten years
imprisonment and can impose a sentence of five years imprisonment or a
fine of RM10,000 or whipping of twelve strokes or a combination thereof.
 Dalip Kaur v. Police Officer, Bukit Mertajam

• After the amendment to Article 121 of the Federal Constitution, there was a change
in the attitude of the Civil Court as decided in the case of Dalip Kaur v. Police Officer,
Bukit Mertajam [1982] 1 MLJ 1; [1982] 8 JH 306.
• In this case, the Sikh appellant had applied for a declaration that his son at the time
of his death on 3 October 1991 was not a Muslim and/or he had renounced the
religion of Islam and for a further declaration that he was entitled to the body of
the deceased.
• The deceased, a Sikh had converted to Islam on 1 June 1991 in the presence of the
Kulim District Kadi and his admission was registered under section 139 of the
Administration of Islam (State of Kedah) Enactment 1962.
• The appellant had argued that after the deceased converted to Islam, he had
passed a Deed Poll on September 9, 1991, declaring him out of Islam and returned
to the Sikh religion, including eating pork and not being circumcised.
• However, there is also evidence given that the deceased was engaged to a Muslim
woman and their marriage was fixed on 15 November 1991.
 Dalip Kaur… (cont’d)
• In the trial, the High Court judge had ruled that the signature on the Deed Poll
was not the signature of the deceased.
• The judge also rejected the testimony of the Sikh priest and the deceased’s
brother on the deceased’s re-acceptance to the Sikh religion and his presence at
prayers at Sikh temples.
• The judge decided that the deceased was a Muslim at the time of his death.
• When the appeal was made in the Supreme Court, the judge sent the case back to
the High Court so that the High Court Judge could refer some questions on Hukum
Syarak that arose to the Kedah Fatwa Committee.
• The Fatwa Committee is of the opinion that the deceased was a Muslim because
he had converted to Islam by reciting the syahadah in front of the Kadi as
recorded in the affidavit of the convert person and remained a Muslim because
there was no punishment from any Kedah Syariah Court who convicted him of
being out of Islam.
Dalip Kaur … Cont’d
• In this case, the Islamic evidence law has been applied and
reference to Islamic authorities is made to ensure that the
decision made is in accordance with Islamic law.
• Based on the above cases, it can be concluded that the Civil
Court has the discretion whether to apply the principles of
Islamic evidence law in the case under trial.
• In short, now in Malaysia there are two laws of evidence,
namely the Evidence Act 1950 and the enactment or
evidence act of the Syariah Court of the states.
• The Evidence Act 1950 applies in Civil Courts.
2.3.2 Islamic Evidence Law in Syariah Courts
• The Islamic evidence law enacted and applied in the Syariah Courts
in Malaysia is based on the Evidence Act 1950.
• However, there are differences and variations in some principles
and concepts when the content of the Evidence Act 1950 is adapted
to Islamic evidence law.
• This was acknowledged by the late Prof Ahmad Ibrahim where he
stated that among the methods of enacting the evidence
enactment of the Syariah Court in Malaysia is by integrating English
and Syariah law.
• Appropriate provisions are retained or adapted, and any principles
of Islamic evidence law not contained in the Evidence Act will be
added, including specific clauses in reference to Islamic law.
• The codification of the evidence enactment of the Syariah Court
uses four main methods, namely the Repeal Method, Maintaining
Non-Conflicting Provisions, Application of Various Opinions and
Sects and Addition Method.
• The Repeal Method refers to the repeal of all provisions in the
Evidence Act 1950 that conflict with Islamic law.
• For example, the provision in section 112 which provides for the
legality of a child has been removed because it is contrary to the
principles of Syarak.
• The second method – Maintaining non-Conflicting Provisions –
maintains every provision that does not conflict with Islamic law
and this is made in accordance with the Fiqh maxim, “The origin
of everything is permissible”.
 Cont’d

• The third method, Application of Various Opinions and Sects, is to make

the evidence enactment of the Syariah Court in Malaysia contain the
provisions of Islamic evidence law which are sourced from various sects.
• This is very much in line with the development of laws that require
adjustments to ensure justice.
• The fourth method, Addition Method, involves the addition of provisions
regarding the principles of Islamic evidence law that are not found in the
Evidence Act 1950.
• For example, section 3 of the Syariah Court Evidence Enactment (State of
Selangor) 2003 involves the addition of the interpretation of some terms
derived from Hukum Syarak’; section 72 related to oath; sections 83 to 88
relating to bayyinah and syahadah and other minor additions including
those found in the descriptions (explanation) and examples (illustration)
sections.
2.3.3 Evidence Enactment of the Syariah
Courts of the States
• Although there is already a non-specific provision of Islamic evidence law in
the Islamic administrative law of the states, it is still insufficient to be a
clear reference to the Syariah Court.
• Therefore, the states have enacted and passed an enactment of Islamic
evidence law.
• The benefit is also to be stated that the Evidence Act 1950 is not applicable
at all in the Syariah Courts after the existence of the evidence enactment of
the Syariah Courts of the states.
• The following are the enactments, acts or ordinances of Islamic evidence
that are available in all states in Malaysia and are applicable in the Syariah
Courts.
• Syariah Court Evidence (State of Kedah) Enactment 1989/2007;
• Syariah Court Evidence Law (State of Terengganu) Enactment 2001;
• Syariah Evidence (State of Sarawak) Ordinance 2001;
• Syariah Court Evidence (State of Melaka) Enactment 2002;
• Syariah Court Evidence (State of Kelantan) Enactment 2002;
• Syariah Court Evidence (State of Selangor) Enactment 2003;
• Syariah Court Evidence (State of Perlis) Enactment 2003/2006;
• Syariah Court Evidence (Negeri Sembilan) Enactment 2003;
• Syariah Court Evidence (State of Johor) Enactment 2003;
• Syariah Court Evidence Law (State of Perak) Enactment 2004;
• Syariah Court Evidence Law (State of Sabah) Enactment 2004;
• Syariah Court Evidence (Penang) Enactment 2004;
• Syariah Court Evidence Law (State of Pahang) Enactment 2005; and
• Syariah Court Evidence (Federal Territories) Act 1997/2005.
• The Syariah Court Evidence (State of Kedah) Enactment 1989 is
the first Islamic evidence law enacted and implemented in
Malaysia.
• The other states then followed Kedah's lead and passed their
respective Syariah Court evidence law enactments.
• With regard to the evidence law of the Syariah Court in
Selangor, the first law of evidence approved was the Syariah
Evidence Enactment No. 6 of 1996.
• This Enactment, however, was replaced by the Evidence of the
Syariah Court (State of Selangor) Enactment 2003 which was
approved and gazetted on 24 July 2004.
 The case of Federal Territories
• In the Federal Territories the development of Islamic evidence
law is quite different from any other state in Malaysia.
• As Kuala Lumpur was a province of Selangor before it was
declared a Federal Territory in 1974, it uses the Selangor syariah
evidence law enshrined under the Selangor Islamic
Administration Enactment.
• Similarly, for Putrajaya which was previously an area in the
district of Selangor and was later declared a Federal Territory on
1 February 2001.
• The law of evidence used before that was the Selangor Islamic
Administration Enactment and also the Selangor Syariah
Evidence Enactment 1996.
• Labuan has become part of Federal Territories of Malaysia on
16 April 1984. Thus, the law used before that was the Sabah
Syariah Law Administration Enactment 1972.
• The Federal Territories now has its own evidence law, namely
the Syariah Court Evidence Act (Federal Territories) 1997 and
the Syariah Court Evidence Act (Federal Territories) (Revised
2005).
 Standardizing the Law
• Due to the inconsistency of enactments related to Syariah Courts between states,
the National Islamic Religious Affairs Council under the secretariat of the
Department of Islamic Development Malaysia (JAKIM) has implemented an
initiative to standardize several laws that were approved by the Conference of
Rulers (Majlis Raja-raja) on 20 March 2001.
• Law- the laws in question are the Islamic Religious Administration Enactment, the
Syariah Court Criminal Procedure Enactment, the Syariah Court Civil Procedure
Enactment, the Islamic Family Enactment and including the Syariah Court
Evidence Enactment.
• Efforts to standardize these laws will benefit the more systematic implementation
and practice of law in Syariah Courts and will simplify court procedures.
• This positive development can certainly be the starting point for the more
effective implementation of Islamic law and further elevate the institution of the
Syariah Court.
Cases
• Bukhari bin Mohd Noor lwn Aisyah binti Ismail (2004) 18 JH(2) 245;
[2006] 1 CLJ (Sya) 59.
• Bukhari bin Mohd Noor lwn Aisyah binti Ismail (2006) 21 JH(1) 26
(Syariah Appeal Court)
 Part III - Conclusion
• This chapter aims to briefly discuss the history of Islamic
evidence law in Malaysia and its development to date.
• Although the Islamic law of evidence is derived from the Quran
and Sunnah, the development of this law is still influenced by
several laws practiced elsewhere beginning in the reign of
Malacca since the 15th century.
• In other words, Islamic evidence law practised in Malaysia has
undergone a process of evolution, influence of foreign countries,
adaptation to local customs and culture as well as integration
with civil law.
Conclusion (cont’d)
• Historical facts prove that the laws implemented during the
rule of Malacca and other states’ rule were strongly
influenced by the Kanun Uthmani (Ottoman Code) in Turkey.
• While Islamic law implemented during British rule has
narrowed its scope to include family law and inheritance of
property.
• This means that the Islamic law of evidence that was used
and implemented during the British rule also revolved
around family law and inheritance of property.
 Conclusion (cont’d)
• After independence, Islamic evidence law has begun to gain
attention in line with the development of the institution of the
Syariah Court.
• Syariah courts refer to Islamic evidentiary law which is generally
contained in the administrative enactments of Islamic law of the
states.
• While the Civil Court used the Evidence Act 1950 as a reference.
• Although the Civil Court refers to the Evidence Act 1950, there
are also certain cases where a Civil Court judge at his discretion
has referred to the application of the concept of Islamic evidence
law even though it does not bind the judge to make a decision
based on that law.
 Conclusion (cont’d)
• Due to the ambiguity in terms of the position of the application of Islamic
evidence law in the Syariah Court with the Evidence Act 1950, the states in
Malaysia have introduced their respective Syariah Court evidence enactments.
• This Syariah Court evidence enactment has exempted the application of the
Evidence Act 1950 and all cases in the Syariah Court thereafter have to refer
only to Islamic evidence law.
• With the existence of special Islamic evidence law through the evidence
enactment of the Syariah Courts of the states, it can help the process of justice
in the Syariah Courts in a more orderly and clearer.
• To further strengthen the administration of Islamic law in Malaysia, the
National Council of Islamic Religious Affairs under the secretariat of the
Department of Islamic Development Malaysia (JAKIM) has commenced
initiatives towards the standardization of Islamic administrative law and this
includes the evidence enactment of the Syariah Courts of the states.
 Conclusion (cont’d)
• The development of Islamic evidence law in Malaysia, which has received
external influences and through a process of integration, shows the dynamics
of Islamic law itself.
• As one of the very important substantive laws to the justice process, the
Islamic law of evidence must be applied and implemented comprehensively.
• After going through various times and challenges, Islamic evidence law was
finally codified in the evidence enactment of the Syariah Courts of the states.
• Beginning with Kedah in 1989 and ending with Pahang in 2005, until now, all
states in Malaysia have had their own Syariah Court evidence enactments.
• The codification evidence enactment of the Syariah Courts is one of the
positive manifestations of the development and implementation of Islamic
law in Malaysia.
 References
• Abdul Halim El Muhammady, Kanun Pahang Zaman Pemerintahan Sultan Abdul Ghaffar
Mahyuddin Shah, Satu Analisis dan Teks, Bangi, Selangor, 2012.
• Abdul Monir Yaacob, Sejarah Perundangan Islam, Kuala Lumpur: Dewan Bahasa dan Pustaka,
1998.
• Abdul Monir Yaacob, “An Introduction to Malaysian Law”, Bangi: Universiti Kebangsaan Malaysia,
1989.
• Abu Hasan Mohd Sham, Pertauran dan Hukum Kanun Pahang dari Zaman Melaka Hingga ke
Zaman Pemerintahan Sultan Abdul Ghaffar Mahyuddin Shah, Pahang Meniti Zaman, Kuantan:
Pahang Historical Society, 2001.
• Ahmad Akgundu, “Introduction to Islamic Law”, Jus Press Rotterdam, 2010.
• Ahmad Ibrahim, Perkembangan Terkini Undang-undang Islam di Malaysia, in Monir Yaacob (ed.),
Undang-undang Keterangan dan Prosedur di Mahkamah, Kuala Lumpur: IKIM, 1995.
• Ahmad Ibrahim and Ahilemah Joned, “The Malaysian Legal System”, Kuala Lumpur: Dewan
Bahasan dan Pustaka, 1995.
• Ahmad Ibrahim, “Conflict Between Shariah Law and Common Law: Problem and Solution”, in
Seminar on Shariah and Common Law in Malaysia, Universiti Islam Antarabangsa Malaysia, 1992.
 References (cont’d)
• Ahmad Ibrahim, “The Amendment of Article 121 of the Federal Constitutions: Its Effect on
Administration of Islamic Law”, [1989] 2 MLJ xvii, p. xvii-xix.
• Andrew Phang Boon Leong, “Of Codes and Ideology: Some Notes on the Origins of the Major
Criminal Enactments of Singapore” (1989) 31 Mal. L.R. 46.
• Hamid Jusoh, 2007, “Undang-Undang Keterangan Islam dan Perkembangan Perlaksanaannya di
Malaysia”, In Undang-Undang Islam – Jenayah, Keterangan dan Prosedur, Vol. 13, pp. 129-160,
DBP.
• Hamid Jusoh, 2007, “Tazkiyah al-Syuhud”, in Undang-Undang Islam – Jenayah, Keterangan dan
Prosedur, Vol. 13, pp. 161- 186, DBP.
• Hamid Jusoh, Kedudukan Undang-undang Islam Dalam Perlembagaan Malaysia, Suatu Rujukan
Khas Terhadap Kes-kes Konversi Dalam Undang-undang Keluarga, Kuala Lumpur: Dewan Bahasa
dan Pustaka, 1992.
• Liaw Yock Fang, Undang-undang Melaka, The Hague-Martinus Nijhoff, 1976.
• Mohd Nik Mohd Salleh, “Kelantan in Transaction: 1891-1910” in W.R. Roff, “Kelantan: Religion,
Society, Politic in a Malay State”. Kuala Lumpur, 1974
• Muhd Yusuf Hashim, Undang-undang Melaka atau Hukum Kanun Melaka dan Undang-undang
Laut Melaka: Wacana Mengenai Perundangan Melayu Islam, Warisan Persuratan Johor,
Yayasan Warisan Johor, 1999.
 References (cont’d)
• Rafiah Salim, “Evidence in Malaysia and Singapore Cases, Materials and
Commentary”, Kuala Lumpur: Butterworths, 1994.
• Ruzman Md. Noor, Kedudukan Bayyinah, Syahadah dan Qarinah Dalam Penggubalan
Undang-undang Keterangan Islam di Malaysia, Jurnal Syariah, Vol. 16, Bil. 2 (2008)
345-366.
• Sharifah Munirah al Attas, “The Nature of Ottoman-Acheh Relations in the 16th and
17th Centuries: Commercial, Religions and Military Connections, al Shajarah, vol 12,
2007.
• Sheikh Ghazali Abdul Rahman,Isu dan Permasalahan Terkini di Mahkamah Syariah in
Zulkifli Hasan, Abdul Hamid Abdul Murad and Arif Fahmi Md Yusof (Eds), Amalan
Kehakiman dan Guaman Syarie, Nilai: Universiti Sains Islam Malaysia, 2007.
• Winstedt, Undang-undang Kedah, JM BRAS (1928) 6 (2).
• Wu Min Aun, “The Malaysian Legal System”, Petaling Jaya: Pearson Education, 2000.