ISLAMIC LAW

IBTISAM ILYANA ILIAS

FACULTY OF LAW
UITM
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POSITION OF ISLAM
POSITION OF ISLAM UNDER FC
Article 3 of Federal Constitution

Islam to be the religion of Malaysia but other

religions may be practiced in peace and harmony.
Article 11 provides that every person has the right to
profess and practice his religion and subject to clause
(4), to propagate it. According to the clause (4) State
law (and in respect of the Federal Territories, Federal
law) may control or restrict the propagation of any
religious doctrine or belief among persons professing
the religions of Islam.
However, article 160 does not include Islamic law in
its definition of law.
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POSITION OF ISLAM UNDER FC

In Che Omar bin Che Soh v Public Prosecutor 2 MLJ 55,
the Supreme Court sidestep the central issue of whether the
mandatory death sentence for the offence of drug trafficking,
under the Firearms (Increasing Penalties) Act 1971 (Act 37),
was unconstitutional as it was in contravention of Islamic law.
Falling back upon history, the Supreme Court held that under
British administration, Islamic law was confined to the
personal law concerning marriage, divorce, and inheritance
only, and that the basic law of the country was what it is
today, secular law.
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SCOPE OF ISLAMIC LAW

POSITION OF ISLAM UNDER FC
According to List II, Ninth Schedule of FC, Islamic

law falls within state jurisdiction.

Applicable to person professing religion of Islam
only.
Areas include interalia succession, testate
andintestate, betrothal, marriage, divorce, dower,
mantenance, adoption, legitimacy, guardianship,
gifts, partitions and non-charitable trusts; Wakafs .
Administered by Shariah courts.

SOURCES LAW
SOURCES OF ISLAMIC

PRIMARY
QURAN
SUNNAH

SECONDARY

IJMA

QIYAS
ISTIHSAN

MASALIH
MURSALAH
URF

SADD ZARIAH
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PRIMARY
SOURCE
:AL-QURAN
PRIMARY
SOURCE
:AL QURAN
Holy Quran is the sacred book of Muslims and is the principle

source of the Muslim laws.

Allah, dictated Quran through Gabriel (the Angel) to Prophet
Muhammad (s.a.w).
Contains provisions on almost all aspects of human life from
family matters such as marriage, divorce, inheritance, daily
transaction, act of worship such as prayer, fasting, hajj, etc.
Islam urges Muslim to refer to this source to solve problem face
by them.

PRIMARY SOURCE :AL-SUNNAH

Sunnah is an Arabic word which means "Method".
It was applied by the Prophet Muhammad (peace be upon him) as a legal

term to represent what he said, did and agreed to. Its authority is
derived from the text of the Quran. The Quran says,
"For you the life of the Prophet is a model of behaviour" (AlQuran 33:21)

PRIMARY SOURCE :AL-SUNNAH

PRIMARY
SOURCE
:AL-SUNNAH
Many of books of traditions were compiled by the companions of

the Prophet saw. These were later on incorporated in the great

collections of Hadith (i.e. traditions) of Bukhari, Muslim etc. The
collectors of the traditions adopted a very scientific system in
collection the Traditions. They did not record any tradition
except with the chain of narrators. Every tradition gives the
names of the last narrator of the tradition from whom he learnt
the tradition and so on back to the Prophet or Companion of the
Prophet. The Sunnah which is established through reliable
narrators is fully dependable as legal element.
The Quran and Sunnah are complementary. The meaning of the
Quran is general in nature, the Sunnah makes it specific and
particular. The Sunnah explains the instructions of the Quran.
The Quranic injunction is sometimes implicit, the Sunnah makes
it explicit by providing essential ingredients and details.
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SECONDARY SOURCE :IJMA

It means unanimous agreement among the mujtahidun of

the Muslim community on Shariah rulings imposed during

a particular period after the death of the Prophet SAW.

SECONDARY SOURCE :QIYAS

Qiyas means analogy. Qiyas or analogy is resorted to in respect

of problems about which there is no specific provision in the

Quran or the Sunnah of the Prophet.
In such issues, the scholars have derived law through analogical
deduction on the basis of the provisions of the Quran and the
Sunnah on some similar situation. The scholars have developed
detailed principles of analogical deductions or Qiyas in the
books of Islamic jurisprudence.
It refers to likening an original hukm having explicit legal term
with a new matter having no explicit legal term but having the
same cause (illah).
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SECONDARY SOURCE :ISTIHSAN

It means disregarding a hukm that is based by dalil and applying another

hukm that is sounder than the former based on dalil permitting the act in
question.

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SECONDARY SOURCE :MASLAHAH

This means making a judgement based on the principle of general

benefits on matters that have no clear nas from the Quran or the Sunnah.

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SECONDARY SOURCE :URF

This refers to norms of the majority of a society whether

applied in speech or deed.

Example urf tijari.

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SECONDARY SOURCE :
SADD ZARIAH
This refers to the approach to curtail anything that can lead to

the prohibited things.

Considered as early preventive measures to prevent a Muslim
from doing what is forbidden by Allah swt.

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SHARIAH ENACTMENTS
At presence, Islamic laws have been codified in the form of

statutory provisions (Enactments) on matters prescribed by

Federal Constitution. It varies from one state to another.
Examples : Islamic Family Law Enactment (Selangor)
Islamic Criminal Law Enactment (Selangor)

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THE ADMINISTRATIONS OF ISLAMIC

LAW ENACTMENTS
Recently new laws for the administration of the Islamic law

have been enacted in the states in Malaysia.

Unlike the former administration of Muslim Law
enactments which concentrated power in the Majlis Agama
Islam or Council of Muslim religion, the new laws provide
for three principal authorities, that is
I. the Majlis Agama Islam
II. the Mufti
III. the Shariah Courts.
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MAJLIS AGAMA ISLAM

The Majlis Agama Islam is a corporation whose primary function is

to advise the Ruler (or the Yang di-Pertuan Agong in those states
and territories without a Ruler) in all matters concerning Islam.
Its day-to-day operations are carried out by a Department of
Islamic Religious Affairs.
The Majlis is empowered to acquire, to hold, and dispose of
movable and immovable property and to administer all funds of
the bait-ul-mal (treasury) and to collect zakat and fitrah. It is the
trustee of all mosques, wakaf (gifts for religious purposes) and all
trusts, promoting the Islamic religion or for the benefit of
Muslims, in the state. It also has the power to act as the executor
of a will and administer the estate of a deceased Muslims.
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MAJLIS AGAMA ISLAM

In addition, The Majlis is entrusted with the duty to promote

the economic and social well-being of the Muslims

community. In discharging duty it may engage in commercial
in industrial activities, invest in authorized investment,
establish and maintain Islamic schools, and grant loans to
Muslims individuals for higher learning. For such purposes,
the Majlis may establish corporations under the Companies
Act 1965 (Act 125) (Revised 1973).

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MUFTI
The mufti and deputy mufti are appointed by the ruler and in the

states without a ruler and the federal Territories by the Yang diPertuan Agong on the advised of the Minister in the Prime
Minister's Department responsible for Islamic Affairs.
The mufti, on the direction of the Ruler (or the Yang di-Pertuan
Agong) or in his own initiatives, or on the request of any person
made by letter addressed to him, may made and publish in the
Gazette a fatwa (legal ruling) on any unsettled or controversial
question of or concerning Islamic Law. Upon publication in the
Gazette, the fatwa is binding on all Muslims and recognized as
authoritative of all matter laid down there in by all courts, in the
state or territory concerned.
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MUFTI
In the making of the fatwa, the mufti is assisted by a

committee. That committee (variously named) is presided

over by the mufti and comprises members (the membership
varies from state to state) who are either appointed or
nominated by the Majlis.

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SYARIAH COURTS (eg. FT)

SYARIAH
APPEAL
COURT

SYARIAH HIGH
COURT

SYARIAH
SUBORDINATE
COURT
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