Malaysian Legal System - Islamic Law

Malaysian Legal System (Universiti Malaya)

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 6.0 ISLAMIC LAW
• The Malaysian Legal System us a pluralistic legal system, whereby there
exists two sets of laws. We see this in our dual practice of civil law and
Islamic law.

• The history behind Islamic Law in Malaysia stems from the arrival and
spread of Islam, especially during the Melaka Sultanate. What once was
Adat law patched with Hindu-Buddhist principles and beliefs, became
Syariah in character.

6.1 PRE-BRITISH RULE

• Despite that, the new Syariah-based customary law was not purely Syariah,
as was noted by the Courts.

➢ SHAIK ABDUL LATIF v SHAIK ELIAS BUX

HELD: Before the signing of the treaties, the population of the Malay States
comprised of solely Muslim Malays with a large industrial Chinese community.
The only law that applied, at that period, to the Muslim Malays was Islamic law
modified by customs.
• In this instance, Muslim law was applied, not because it was the law of
Selangor but because it was the proper law relating to a Muslim estate.

• It was ‘the personal religious law of the Muhammadan inhabitants …’ and it

was applicable in the Courts of the Federated Malay States because the
Crown had bound itself by treaty not to interfere with issues related to Malay
customs and the Muslim religion. In other words, Hooker was saying the
Court was not prepared to admit that Muslim law had a territorial definition
as the law of a State or an area.

➢ ONG CHENG NEO v YEAP CHEAH NEO

HELD: It is noted that the testamentary power of Muslims does not cease to be
governed by Islamic law despite the adoption of English law.

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➢ RAMAH v LATON
HELD: The majority of the Court of Appeal held that the Muslim law was not
foreign law but local law and the law of the land of which the court must take
judicial notice. The court must accept the law and there should be no confusion
as to what was the local law.
• M.B. Hooker noted, as the judgment makes clear, the Court really had no
idea of what the rules of this so called ‘local law’ were in respect of the issue
before it. It was, in other words, placed in the embarrassing position of
attempting to administer a local law without knowing its contents.

• It was further viewed that had the British not colonised Malaya, without
doubt Islamic law would have become the law of Malaya – RJ Wilkinson.

• The Islamic Legal System in the Malay States prior to British colonialism
functioned with great influence from the Malacca Sultanate. In Ramah v
Laton, the contents of Islamic law varied state to state based on each state
custom.

• The Undang-undang Melaka is composed of several separate texts bound

together as one manuscript. It was copied and later recopied and although it
undoubtedly came to be regarded as one text, the various component parts
still clearly show themselves. The Malacca Laws consist of six different
texts;

1) The Undang-undang Melaka (proper)

2) The Maritime Law (partly)
3) Muslim Marriage Law
4) Muslim Law of Sale and Procedure
5) The Undang-undang Negeri
6) The Undang-undang Johor

• It is clear that in its administration, the rulers had appointed Qādīs (judges)
as their advisers in religious matters. This was proven by the presence of
prominent religious men such as Kadi Yusof, Kadi Monawar and Maulana
Abu Bakar.

• The Islamic laws in Malacca occupy almost a quarter of the sum of the local
provisions, which concern marriage law, law of sale and procedure, and
criminal law.

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• When the kingdom of Malacca was defeated by the Portuguese in 1511, the
texts of the Malay laws were taken and adapted with modifications in the
various Malay states including Pahang, Johore and Kedah.

• The Pahang laws which were formulated during the reign of Sultan Abd.
Ghafur Muhaiyyuddin Shah (1592– 1614 A.D.) following the Undang-
undang Melaka, the present authors found that the influence of the Malay
custom was less than the Islamic law which was generally followed. Thus,
there were provisions based on the Islamic law dealing with qisạ̄ s,̣ fines,
unlawful intercourse, sodomy, theft, robbery, apostasy, omission to pray,
jihad, procedure, and witnesses and oaths. There were also provisions
dealing with trade sale, security, guarantee, investments trust, payment for
labour, land, gifts and waqfs.

• The Johore laws too, were modelled on the Undang-undang Melaka. At the
beginning of the 20th century, the codifications of the Islamic law, as seen in
Turkey and Egypt, were translated into Malay and adopted. The Majalah al-
Ahkām was as adapted as the Majalah Ahkām Johor and the Ḥanafī Code
was adapted and translated as the Ahkām Shariah Johor.

• Majalah al-Hakam was introduced during a period where Johore’s legal

system was heavily influenced by the British. It can also be argued if
Majallah al-Ahkām was a true reflection of the Islamic law or if had been
widely influenced by the legal system in Europe at that particular time

6.2 THE BRITISH PERIOD

• The arrival of the British drastically changed the makeup of the legal system
in Malaya. For Penang and Malacca, they became Colonies under the Straits
Settlements, together with Singapore. The use of Islamic law as law of
primary application was set aside by the FCoJ, SCoJ and extensive
importation of English law through statutes.

• For the Malay States, they were organised into FMS and UFMS. They did
not have enabling statutes until 1937 and 1951 but imported much of English
law.

• The Malay States were, in theory, independent Malay kingdoms but English
law was introduced through the influence of the British in two ways: first,
under the treaties made by the Malay Sultans with the British, the Sultans

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 agreed to receive British Residents or Advisers in the states and to follow
their advice in all matters of administration except in relation to the Muslim
religion and Malay customs.

• Under these provisions, the British Resident advised the Sultan to enact laws
such as the Contracts Act, the Penal Code, the Evidence Act, the Criminal
Procedure Code and the Civil Procedure Code, based on the Indian
modifications of English law and in the case of land, laws following the
legislation in Australia based on the Torrens system of registration of title.
The second stage of British influence was the introduction of the court
system. On the advice of the British, the Malay Sultans set up civil courts
and these were presided by British judges.

• In the absence of legislation governing this matter, the judges tended to refer
to the law in England and in this way the English law of torts and the English
rules of equity were introduced to the Malay States. The end result was the
English law replaced the Islamic law in many matters and this was
confirmed by the civil law legislations, culminating in the Civil Law Act
1956, provided in section 3 and 5.

• The pervasiveness of the adoption, importation and use of English law, is

illustrated below.

➢ GOVERNMENT OF PERAK V. A.R ADAMS & MOHAMED GUNNY V

VADVENG KUTI
HELD: In matters of Tort the Courts have always referred to English decisions
for fundamental principles.
➢ RE THE WILL OF YAP KWAN SENG
HELD: The Court here, under public policy reasons, adopted the rule against
perpetuities into the FMS. The judge said “why reject good public policy
because it is English?”

• In position of the judges adjudicating over these courts, it is natural that they
would apply the laws which they know. However, the use of English law
became extensively pervasive. The local legal system became secondary and
subjected to this new foreign law. The Syariah Court system was lowered to
be at the lowest level of judicial hierarchy.

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➢ SHAIK ABDUL LATIF v SHAIK ELIAS BUX [1915]
HELD: The validity of will of a Muslim domiciled in the FMS is governed by
Islamic law. The only law applicable to the Malays in the Malay States before
British arrival is Islamic law modified by local custom. It is noted that the
testamentary power of Muslims does not cease to be governed by Islamic law
despite the adoption of English law.

➢ RAMAH v LATON [1927]

HELD: Muslim law is local law and the Court must take judicial notice to
propound this law.

➢ KOH CHENG SEAH v SYED HASSAN [1930]

HELD: The English common law rule against perpetuities is not the law of the
State of Johore, as such wakaf is not invalid. The claimant failed to strongly
establish that a restraint upon alienation is unlawful by the local law as contrary
to public policy as declared by law. The Wakaf Prohibition Enactment 1911 did
not prohibit the creation of the wakaf to be void.

➢ AINAN BIN MAHMUD v SYED ABU BAKAR [1939]

FACTS: Which law shall apply to determine legitimacy of an alleged
illegitimate child, born of Muslim parents.
HELD: The Evidence Enactment is a statute of general application and all
inhabitants of the FMS are subjected to it, regardless of race or religion.

➢ RE ISMAIL BINTI RENTAH [1940]

HELD: Muslim law is the common law of the land, as far as Malays are
concerned.

➢ RE TIMAH BINTI ABDULLAH [1941]

HELD: Islamic law is part of the law in force in Pahang and is law of the land
for Muslims. Under Islamic Law, a non-Muslim is excluded from and cannot
succeed to the estate of a Muslim.

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• The use of English law in these cases and afterwards became unquestionable
when the Civil Law Enactment 1937 and Civil Law (Extension) Ordinance
1951 was enacted. These two enabling statutes formalised the practices of
the judges as well as allowing for more extensive adoption of English law
into the local legal systems.

• The consequence of these legal developments is that Islamic law – the crux
of the local legal systems – became increasingly set aside or limited into the
scope of personal laws. These covered areas of marriages, inheritances and
religion.

• The Syariah Courts were relegated to an inferior position, at the bottom of

the court hierarchy. Their jurisdiction was reduced, the work of the kadi was
supervised with serious cases transferred to the civil courts. Where there
exist conflicting rulings, when civil and Syariah courts had concurrent
jurisdiction, the civil courts prevailed. Several states (i.e. Selangor
Administration of Muslim Law Enactment) have specific provisions that
preserved civil courts primacy in jurisdiction and ruling.

6.3 THE POSITION OF ISLAM IN THE FEDERAL CONSTITUTION

• During the drafting of the Constitution, there was great reservation to include
the current Article 3(1) to declare Islam as the religion of the Federation.
Article 3(1) was backed by UMNO and the Malay-majority Malayan Civil
Service. Opposition came from the minority communities who urged for
strong iron-cast constitutional safeguards for them. They urged stronger
protections for equality regardless of race, religion and gender.

• Ser Ivor Jennings, a member of the Reid Commission opposed it on grounds

that the Religion of Islam need not the power of the State to support it.
Article 11’s existence is a culmination of the Commission’s concerns. The
Malay Rulers opposed Article 3(1) because they felt that their sovereignty
over religion would be encroach upon.

• TAR requested Article 3(1), a result of UMNO and Malay political pressure,
be inserted. He clarified that it would not affect the secular state of the
Federation. British High Commissioner of Malaya supported Article 3(1) as
it would enable the proposed YDPA be made head of Islam in Penang and
Melaka.

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• The inclusion of 3(1) was then supplemented with additional clauses which
guaranteed the Rulers individual-state based position as HoR [3(2)].
Guarantee was also given to the Rulers that a Federal Department of
Religious Affairs would not encroach on their State prerogatives and it
would be under the YDPA. The latter guarantee allayed fears of the
department being under non-Muslim control.

• The UK Colonial Office were assured that 3(1) did not have intention of
creating a Muslim Theocratic State, the secular character of the Federation
would be maintained. The Colonial Office practiced restrain from
intervention, only considering that option if it would result in discrimination
against non-Muslims.

• The Alliance Government issued a White Paper which clarified and

affirmed;
o In no way does this affect the present position of the Federation as a
secular State,
o Every person will have the right to profess and practise his own
religion and the right to propagate his religion, though this last right is
subject to any restrictions imposed by State law relating to the
propagation of any religious doctrine or belief among persons
professing the Muslim religion.
o The position of each of the Rulers as head of that religion in his State
and the rights, privileges, prerogatives and powers enjoyed by him as
head of that religion will be unaffected and unimpaired.

• Tun Tan Sian – [3(1)] does not in any way derogate from the principle,
which has always been accepted, that Malaya will be a secular state and
there will be complete freedom to practise any other religion.

• Tunku Abdul Rahman's clarification in the Working Party meeting that “the
whole Constitution was framed on the basis that the Federation would be a
secular State”.

• Prime Minister Tunku Abdul Rahman had to clarify the meaning of this
provision during a debate in the Legislative Council. Said the Tunku: “I
would like to make it clear that this country is not an Islamic State as it is
generally understood, we merely provide that Islam shall be the official
religion of the State”.

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• The position of Islam in the Federal Constitution is embodied in Article 3
(1), Article 74, Article 121 (1A) and Article 160.

Article 3 (1)
➢ CHE OMAR CHE SOH v PP
HELD: Before the British came to Malaya, the Rulers of each respective states
were the heads of Islam and political leaders in their states, which were Islamic
in the true sense of the word. They themselves were Muslims, their subjects
were also Muslims and the law applicable in the states was Muslim law. When
the British came, the religion of Islam became separated into two separate
aspects, viz. the public aspect and the private aspect. The development of the
public aspect of Islam had left the religion as a mere adjunct to the ruler's power
and sovereignty. The concept of sovereignty ascribed to humans is alien to
Islamic religion in Islam.
By ascribing sovereignty to the ruler, the divine source of legitimacy is severed
and the British turned the system into a secular institution. Thus all laws
including administration of Islamic laws had to receive this validity through a
secular fiat.
The establishment of the Federated Malay States in 1895, with the subsequent
establishment of the Council of States and other constitutional developments,
further resulted in the weakening of the ruler's plenary power to such an extent
that Islam in its public aspect had become nothing more than a mere appendix to
the ruler's sovereignty. Because of this, only laws relating to family and
inheritance were left to be administered. The law was only applicable to
Muslims as their personal law. Thus, it can be seen that during the British
colonial period, through their system of indirect rule and establishment of
secular institutions, Islamic law was rendered isolated in a narrow confinement
of the law of marriage, divorce, and inheritance only.
In our view, it is in this sense of dichotomy that the framers of the Constitution
understood the meaning of the word "Islam" in the context of Article 3. If it had
been otherwise, there would have been another provision in the Constitution
which would have the effect that any law contrary to the injunction of Islam will
be void.
The law in this country is still what it is today, secular law, where morality not
accepted by the law is not enjoying the status of law.

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Article 74 (2) & Ninth Schedule List II
➢ MAMAT DAUD v GOVERNMENT OF MALAYSIA [1988]
HELD: An Act of Parliament that is backed by legislative intention to
guarantee public order, as intended in the Federal List, but in pith and substance
touches on matters of Islam which is in the State List, is void.

➢ LATIFAH MAT ZAIN [2007]

HELD: ‘Criminal law’ is a federal matter — item 4 List 1. However, State
Legislatures are given power to make law for the ‘creation and punishment of
offences by persons professing the religion of Islam against precepts of that
religion, except in regard to matters included in the Federal List’ - item 1 of
State List.
The two qualifications at the end of that sentence (i.e. ‘against precepts of that
religion’ and ‘except in regard to matters included in the Federal List’) limit the
offences that can be created by a State Legislature. So, where an offence is
already in existence in, say, the Penal Code, is it open to a State Legislature to
create a similar offence applicable only to Muslims? Does it not fall within the
exception ‘except in regard to matters included in the Federal List’ ie criminal
law?
The answer to the last-mentioned question is obviously in the affirmative.
Furthermore, Article 75 provides:
“If any State law is inconsistent with a federal law, the federal law shall prevail
and the State law shall, to the extent of the inconsistency, be void.”

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Article 121 (1A)
- Was introduced to give exclusive jurisdiction on Islamic matters to the
Syariah Courts, and exclude High Courts from ruling on such matters.

- Prior to the introduction of art 121(1A), the ordinary courts had the power to
review, and quite regularly reviewed, the decisions of syariah courts by
certiorari. That this caused some concern among those entrusted with the
task of administering Muslim law.

PRE-1988
➢ ROBERTS @ KAMARULAZMAN v UMMI KALTHOM [1966]
HELD: Civil courts exercised jurisdiction over issue of harta sepencarian
between a divorced Muslim couple. The Court ruled that the Muslim husband
could claim for half of the property under the principle of harta sepencarian.

➢ NAFSIAH v ABDUL MAJID [1969]

HELD: In a suit between two muslims over a breach of promise to marry, it
was alleged that the High Court would not have jurisdiction to try. The Court
ruled by virtue of the CJA 1964 and the Courts Ordinance 1948, it does have
jurisdiction. The Administration of Muslim Law Enactment 1959 does not
exclude the High Court’s jurisdiction whatsoever.

➢ COMMISSIONER OF RELIGIOUS AFFAIRS v TENGKU MARIAM

[1970]
HELD: The High Court is not bound by the Fatwa of the Mufti and is not
precluded in jurisdiction to hear the matter over the validity of the wakaf. Such
preclusion cannot be done by State law.

➢ MYRIAM v MOHAMED ARIFF [1971]

HELD: In a suit between a divorced Muslim couple over custody over their
infant children. It was alleged that the GIA 1961 does not apply as the parties in
contention are Muslim. The Court ruled that there is nothing in the GIA to

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preclude jurisdiction over Muslims, unless they are below 18 or is in conflict
with Muslim religion and Malay customs. The GIA applies accordingly.
POST – 1988
➢ DALIP KAUR v PEGAWAI POLIS DAERAH [1992]
HELD: The Supreme Court, according to Art. 121 (1A), conceded that the only
forum suitable to determine whether or not a Muslim remains a Muslim or
becomes an apostate is the Syariah Court. When there is a challenge to
jurisdiction, the correct approach is to see whether the Syariah Court has
jurisdiction and not whether the state legislature has power to enact the law
conferring jurisdiction on the Syariah Court.

➢ MOHD HABIBULLAH v FARIDAH [1993]

HELD: The Supreme Court held that by virtue of the Islamic Family which
confers explicitly powers to the Syariah Court, that the High Court is precluded
from trying the matter. The relevant sections of the CJA 1964 must operate in
obedience to the Constitution, regardless if Art. 121 (1A) is retrospective or not.
No Act of Parliament, finely worded or not, can supersede a Constitutional
provision.

➢ SUKMA DARMAWAN [1999]

HELD: Article 121 (1A) does not exclude the Sessions Court jurisdiction to try
offences of gross indecency despite there being a separate Shariah Criminal
Offences Legislation for the offence of liwat. The offence under the Penal Code
is not concerning to just liwat only, but is general and wide in scope.

To ensure the smooth running of the system, s 59 of the Interpretation Act

applies where an act or omission is an offence under two or more written laws
the offender may be prosecuted and punished under any of those laws, so long
as he is not prosecuted and punished twice for the same offence. It follows that
where an offender commits an offence triable by either the civil court or a
syariah court, he may be prosecuted in either of those courts.

➢ LATIFAH MAT ZAIN [2007]

HELD: A syariah court in a State is established or comes into being only when
the Legislature of the State makes law to establish it, pursuant to the powers
given to it by item 1 of the State List. In fact, the position of the syariah courts,
in this respect, is similar to the Session Courts and the Magistrates’ Courts. In

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respect of the last two mentioned courts, which the Constitution call ‘inferior
courts’
Interpretation of the Federal Constitution is a matter for this court, not the
syariah court. Nowhere in the Constitution is there a provision that the
determination by Islamic law for the purpose of interpreting the Federal
Constitution is a matter for the State Legislature to make law to grant such
jurisdiction to the Syariah Court. Hence, there is no such provision in the State
Enactments to grant such jurisdiction to Syariah Courts. In fact, it cannot be
done

➢ SUBASHINI [2007]
HELD: When a marriage occurs between two non-Muslims, one of them
converts to Islam, they fall under jurisdiction of the Syariah courts. At this
juncture, the Muslim-convert can then apply at the Syariah court for the
dissolution of the prior civil marriage.

➢ LINA JOY [2007]

HELD: The power to adjudicate in cases of apostasy is within the jurisdiction
of the Syariah Courts. To leave Islam is to exercise a right under Islamic law,
and thus falls within such a jurisdiction. It is justified for the JPN to request a
certificate of apostasy from a person seeking to change their religious
description on their ID.

➢ INDIRA GANDHI [2018]

HELD: The majority in LINA JOY held that apostasy was within the
jurisdiction of the Syariah Court. It was held that the jurisdiction of the Syariah
Court cannot be excluded on the grounds that such jurisdiction extends only to
those professing the religion of Islam.
Art 121(1A) only protects the Syariah Court in matters within their jurisdiction
which does not include the interpretation of the provisions of the Constitution.
Hence when jurisdictional issues arise civil courts are not required to abdicate
their constitutional function
Article 121 (1A) does not constitute a blanket exclusion of the jurisdiction of
civil courts whenever a matter relating to Islamic law arises. The inherent

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judicial power of civil courts in relation to judicial review and questions of
constitutional or statutory interpretation is not and cannot be removed by the
insertion of clause (1A).
The jurisdiction to review the actions of public authorities, and the
interpretation of the relevant state or federal legislation as well as the
Constitution, lie squarely within the jurisdiction of the civil courts. This
jurisdiction, which constitutes the judicial power essential in the basic structure
of the Constitution, is not and cannot be excluded from the civil courts and
conferred upon the Syariah Courts by virtue of Article 121(1A).

ISSUES
1. Can a component state of Malaysia enact Hudud Laws?
a. Latifah Mat Zain
b. Item 1 State List vs Item 4 Federal List
c. Syariah Courts (Criminal Jurisdiction) Act 1965.

2. Can a Syariah Courts System be created for the whole of Malaysia?

a. Violate intention of the Framers
b. Article 74 (1) & (2), Federal List Item 4 (a), State List Item 1
c. Mamat Daud v Govt of Malaysia
d. Increased conflict of laws between the civil and Syariah laws.

3. If British did not come, Islamic law would have become the law of Malaya.
Discuss.
a. Reception of English Law into Malay States + NNS
b. Malacca Laws, Pahang Laws, Majalah Ahkam,Shariah Johor
c. Islamicised customary laws
d. Islamic jurisprudence, court system, judges and etc.

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