LAW 245

MALAYSIAN LEGAL SYSTEM

(FOR NON LAW STUDENTS)

UNWRITTEN LAW
(ISLAMIC LAW)

Lecture by:
Muhamad Helmi Muhamad Khair
Department of Law
UiTM Negeri Sembilan, Kampus Seremban 3
© 2021
 LEARNING OUTCOMES

By the end of this lecture, you should be able to:

1) Briefly explain the term “Islamic Law”.

2) Identify and describe the relevant provisions of the Federal
Constitution relating to Islam.
3) Briefly explain the three main entities that are responsible with the
administration of Islamic law in Malaysia.
 UNWRITTEN LAW?

(1) English Law (3) Customary Law

Not formally
legislated / enacted
by the legislature.

(2) Judicial Precedents (4) Islamic Law

 WHAT IS ISLAMIC LAW

• Islamic law is a system of law and ethics based on the divine will of Allah,
intimately linked to religious tenets (Ashgar Ali, 2017).

• The sources of Islamic Law include:

a) Al Quran

b) As-Sunnah

c) Ijma (consensus of opinion)

d) Judicial reasoning (qiyas)

 PROVISIONS RELATING TO ISLAM
UNDER THE FEDERAL
CONSTITUTION
Article 3 of the Federal Constitution

• Islam is the religion of the Federation, but other religions may be practiced
in peace & harmony in any part of the Federation.

• However, when it comes to acknowledging Malaysia as “Islamic State”,

some viewed that Article 3 is not a declaration that the Federation is an
Islamic state, but only as a religion.

• Thus, the declaration of Islam as the religion of the Federation is primarily

for ceremonial purposes e.g. to read doa at an official function.
 PROVISIONS RELATING TO ISLAM
UNDER THE FEDERAL
CONSTITUTION
Article 11 of the Federal Constitution

• Article 11 in general guarantees the right of every person to profess and

practice his religion, but it is subject to Article 11(4).

• Article 11(4) authorises the state law and federal law (for federal
territories) to control or restrict the propagation of any religious doctrine
or belief among persons professing the religion of Islam.
 PROVISIONS RELATING TO ISLAM
UNDER THE FEDERAL
CONSTITUTION
The term “Islamic Law”

• The term “Islamic Law” is not included in the definition of law under
Article 160 of the Federal Constitution. The Article reads;

“Law includes written law, the common law in so far as it is in operation

in the Federation or any part thereof, and any custom or usage having
the force of law in the Federation or any part thereof.”

• The 9th Schedule, List II (known as State List) sets out 26 matters that fall
under the states’ jurisdiction. Among other are matters relating to
marriage, divorce, adoption, Wakaf, zakat and Baitulmal.
 PROVISIONS RELATING TO ISLAM
UNDER THE FEDERAL
CONSTITUTION
Maintenance of Islamic Organisation

• The 1976 amendments to the Federal Constitution has allowed the Federal
and State governments to fund and maintain Islamic organisations and
projects specifically for muslims.

• The new clause, Article 12(2) of the Federal Constitution now states:

“Every religious group has the right to establish and maintain

institutions for the education of children in its own religion, and there
shall be no discrimination on the ground only of religion in any law
relating to such institutions or in the administration of such law; but it
shall be lawful for the Federation or a State to establish or maintain or
assist in establishing or maintaining Islamic institutions or provide or
assists in providing instruction in the religion of Islam and incur
expenditure as may be necessary for the purpose.”
 EXAMPLE OF CASES

Case 1: Che Omar Che Soh v Public Prosecutor

• This is an appeal from Che Omar Che Soh.

• He submitted that the mandatory death sentence for drug trafficking

offence and for the offence under the Firearms Act is against the
injunction of Islam – and should be declared void.

• He argued that since Islam is the religion of the Federation (Article 3), and
since the Constitution is the supreme law of the land (Article 4), the
imposition of death penalty on these offences (not being hudud or qisas) is
contrary to Islamic injunction and is therefore unconstitutional.
 EXAMPLE OF CASES

Case 1: Che Omar Che Soh v Public Prosecutor

The court dismissed his appeal.

1) The term “Islam” in Article 3 means only such acts relate to rituals and
ceremonies.

2) Under the British administration, Islamic law was confined to personal

matters concerning marriage, divorce and inheritance only, and that the
basic law of the country was that is today – secular law.
 EXAMPLES OF CASES

Case 2: Teoh Eng Huat v Kadhi of Pasir Mas

• Mr. Teoh discovered that his daughter had converted to Muslim, who was
still a minor (almost 18 years old) when she became a Muslim.

• Mr. Teoh then applied for a declaration that he (as a father) has the right to
decided the religion and upbringing of his minor daughter.

• The High Court dismissed his application, stating that the father’s right to
decide the religion and upbringing of the infant (under 18) is allowed
“subject to the condition that it does not conflict with the principles of the
infant’s choice of religion guaranteed to her under the Federal
Constitution.” In simpler words, according to the High Court, the infant
has the right to choose her own religion is she does it on her own free will.

• Mr. Teoh then appealed to the Supreme Court.

 EXAMPLES OF CASES

Case 2: Teoh Eng Huat v Kadhi of Pasir Mas

The Supreme Court allowed the appeal.

• In all circumstances and in the wider interests of the nation, no infant shall
have the automatic right to receive instruction relating to any other
religion other than her own without the permission of the parent.

• The law applicable to her immediately prior to her conversion is the civil
law, hence the right of religious practice of the infant shall be exercised by
the guardian on her behalf until she becomes major.

Although the appeal was allowed, the Supreme Court did not proceed with
the declarations sought by Mr. Teoh as his daughter was no longer an infant
by the time the case was heard in the Supreme Court.
 ADMINISTRATION OF ISLAMIC
LAW IN MALAYSIA

• As it stands today, Islamic law is a state matter (except Kuala Lumpur,

Labuan and Putrajaya – where it is a federal matter) and is confined to
personal law for Muslims.

• Presently, there are 3 independent authorities / entities that are responsible

for the administration of Islamic law in Malaysia.

1) Majlis Agama Islam

2) The Mufti

3) The Syariah Courts

 ADMINISTRATION OF ISLAMIC
LAW IN MALAYSIA

1. Majlis Agama Islam

Primary function is to advise the Ruler in

all matters concerning Islam.

It is empowered to:

• Acquire, hold and dispose of movable

and immovable properties.

• Administer all funds of the Baitul Mal.

• Collect Zakat.

• Be the trustee of all mosques, and

promote the Islamic religion for the
benefits of Muslims.
 ADMINISTRATION OF ISLAMIC
LAW IN MALAYSIA

2. Mufti

• A Mufti is a jurist who is qualified to

give authoritative legal opinions (fatwa)
on any unsettled or controversial issues
concerning Islamic law. In Malaysia,
Muftis are appointed by the Rules or
YDPA.

• The Mufti can issue a fatwa either on the

direction of Sultan, on his own
initiatives or on the request of any
person.

• In the making of fatwa, he will be

Mufti of Negeri Perlis: Prof Madya
Dato Arif Perkasa Dr Mohd Asri bin
Zainul Abidin
assisted by a committee. Once a fatwa is
made, it will be published in the Gazette,
and it will become binding on all
Muslims.
 ADMINISTRATION OF ISLAMIC
LAW IN MALAYSIA

3. Syariah Court

• Article 74 of the Federal Constitution

(read together with the State List),
prescribes that Islamic law and Islamic
matters (including the establishment of
Syariah courts) fall under the
jurisdiction of the states. The State List
stipulates that Syariah court is to have
jurisdiction only over persons professing
Islam and in respect only of the 26
matters mentioned therein.

• In 1988, Article 121(1A) was added in

the Federal Constitution which in effect
prevents the conflict of jurisdiction
between the civil court and the Syariah
court.
- CONCLUSION -