CHAPTER 5

QIYAS
QIYAS
1. Definition
Literal - measuring or comparing with or judging by comparing.
Technical –

● A process of deduction by which the law of the text (Asl) is applied to cases (Far’a),
which have not been covered clearly in the other three sources.

● It is extended to cases or matters not explicitly covered by the Qur’an and Sunnah on the
grounds of a material similarity in the nature of the two cases.

● This material similarity is termed as ‘Illa” or effective cause.

2. FORMATION OF QIYAS
The essential requirements of Qiyas are:
a) Asl (original case, on which a ruling has been given);
b) Hukm (ruling on the original);
c) Illah (cause of ruling in the original case); and
d) Far‘a (new case on which ruling is to be given).

a) ASL (Original Case)

● Asl has 2 meanings:

- Source which reveals a particular ruling (e.g.: Surah Maidah 5:90)

- Subject matter of ruling which are wine drinking
Condition of al-Asl;

● The source of original ruling is the Quran and Sunnah.

● Many scholars do not consider Ijma to be basis of Asl.

Can one Qiyas constitute the Asl of another Qiyas?

● According to majority, one Qiyas can not form Asl of another Qiyas.
● However, Maliki jurist Ibn Rushd thinks a Qiyas can be basis for another Qiyas because
when one qiyas is founded on another qiyas, the Far’u of the second becomes
independent asl’ from which different illah may be deduced.

● Modern jurists Abu Zahrah and Muhammad Al Zarka agree. Minority seems to be right if
it does not contradict Nusus (clear texts or rulings) of the Qur'an and Sunnah.

b) HUKM (Rule)
● The rule governing the original case is to be extended to the new case.

● A command or a prohibition, which is dispensed by the Al Quran, Sunnah or Ijma’, &

analogy seeks its extension to a new case.

Conditions of Hukm are:

● It must be a practical Shariah ruling (Qiyas does not operate in the area of belief);

● The hukm must be operative. Shariah ruling must not be an abrogated one. Analogy
cannot be constructed onthe basis of a rule that stands abrogated. Similarly, the validity of
the ruling which is sought to beextended by analogy must not be the subject of
disagreement and controversy

● The Hukm must be amenable to understanding through human intellect.

● Hukm must not be limited to exceptional situations. For example, in polygamous

marriage in general is 4 wives, but for Prophet Muhammad is more than 4 wives.
However, permission to marry 4 wives after his demise cannot be extended through
analogy as these rulings were specific to him.

c) ILLAH (Effective Cause)

An attribute of the original case is found to be in common between the original and the new
case.
Conditions of Illah:

● Munasib (proper, according to Mujtahid or scholar of Fiqh);

- lt must be a proper (munasib) or bear a proper and reasonable relationship to the
ruling. The attribute shall serve to achieve the objective of the lawgiver.
 - Eg. Effective cause of prohibition of wine drinking (intoxicating effect) is compatible
with preservation of mind.

● It must be a constant attribute (mundabit);

- The ‘illah must be a constant and stable attribute which is applicable to all cases
without being affected by differences of persons, times, place and circumstances.
- For example, travellers areallowed to break the fast when there are travelling for
the purpose of preventing hardship andthis will not affect by other factors.
● It must be evident (Zahir)
- An apparent cause that can easily be perceived by the senses. It is an outward attribute
and not something internal and concealed. The apparent attribute shall be easily
identified in both original and new cases.

d) FAR’U (New Case) – not in sir’s slides

● Case that a ruling is extension of same ruling that is applied in original case

● Must not be included in AQ, Sunnah, Ijma

● Effective cause must be applicable and should be found in new case in same way as
original case
● Application to new case must not alter or change the law in AQ, Sunnah, Ijma (if haram
in original case = haram in new case)
Conditions of Far’u;

● The new case must not be covered by the text or ijma’

● The effective cause of analogy must be applicable to and should be found I the new case
in the same way as to the original case
● The application of qiyas to the new case must not result in altering the law of the text

3. ILLUSTRATION OF QIYAS

i) The ruling on drinks like beer, whisky or brandy (Far’a).

● Neither the Qur’aan, nor the Hadith, name these.
 ● However, they do mention that khamr (date wine) is Haraam, i.e., Asl. On this
ground, that all the aforementioned drinks cause intoxication (i.e., Illa), all sorts
of alcoholic beverages are declared Haraam, i.e., Hukm.
ii) The ruling on nail polish:
● A Hadith says that if one’s nails are coated with flour, the wudhu is not
complete. This is the Asl, which raises a question whether wudhu is acceptable
with nail polish or not, i.e., Far’a.
● Since both, flour and nail polish prevent water from reaching the nails (i.e., Illa),
jurists deduce that wudhu over nail polish is not acceptable (i.e., Hukm).

CHAPTER 6
MASLAHAH (PUBLIC INTEREST)

DEFINITION
 Literally – Maslahah = benefit or interest.
 Maslahah = unrestricted public interest in the sense of its not having been regulated
by the Law giver insofar as not textual authority can be found on its validity or
otherwise.
 Al-Ghazali – Maslahah consists of considerations which secure a benefit or prevent a
harm but which are, simultaneously, harmonious with the objectives (maqasid) of the
Shariah (religion, life, intellect, linage & property).
 Other definition – A consideration which is proper and harmonious with the
objectives of the Lawgiver; it secures a benefit or prevents a harm; and the Shariah
provides no indication as to its validity or otherwise (Badran, 1984; Sobuni, 1982).

MASLAHAH MURSALAH AS A LEGAL SOURCE

a. Qur’anic verses:
 Al-Anbiya’ (21:107) - "We have not sent you but as a mercy for all creatures". exam
 Yunus (10:57) – “O mankind! There has come to you a direction from your Lord and
a healing for the (diseases) in your hearts, and for those who believe, a guidance and a
Mercy”.

The message for these 2 phrases here transcends all barriers that divide humanity, none must
stand on the way of seeking mercy & beneficence to human beings.

 Al-Hajj (22:78) – “... He has chosen you, and has imposed no difficulties on you in
religion ...”
 Al-Maidah (5:6) – “... Allah doth not wish to place you in a difficulty, but to make
you clean, and to complete his favour to you, that ye may be grateful.”

God also described that His purpose in the revelation of religion of Islam is not a means of
imposing hardship in Surah al- Hajj (22:78), this may be confirmed in Surah al-
Maidah(5:6).

b. Hadith:
 "No harm shall be inflicted or tolerated in Islam".
 "The Prophet (SM) only chose the easier of two alternatives so long as it did not
amount to a sin".
 "Allah loves to see that His concessions (rukhsah) are observed, just as He loves to
see that His strict laws (‘azaim) are observed".
 “Muslims are bound by their stipulations unless it be a condition which turns a haram
into halal or a halal into haram.”
Based on these hadiths seems to grant Muslims the liberty to pursue their benefits & to
commit themselves to that effect if this does not amount to a violation of the explicit
commands & prohibitions of the Syariah.
it is confirmed that no unnecessary rigor in the enforcement of the ahkam(rulings) is
recommended, & that the Muslims should avail themselves of the flexibility & concessions
that the Lawgiver has granted them & to utilize such in pursuit of the masalih.

EXAMPLES
Companions
 Decided to issue currency, to establish prisons, to impose tax (kharaj) on agricultural
lands in the conquered territories.
Extra examples:
 The collection and compilation of al-Quran in a single volume
 The introduction of land tax
 The right to inheritance of a woman whose husband had divorced her during death
sickness
 The ruling of Umar that his officials must be accountable for the wealth they had
accumulated in abuse of public office and expropriation of such wealth

TYPES OF MASLAHAH (can refer to chapter 1 notes)

 Daruriyyat (Essential)
 Hajiyyat (Complementary)
 Tahsiniyyat (Embellishments)

CONDITIONS OF MASLAHAH
1. Must be genuine(haqiqiyyah).
 must be a reasonable in its aim to protect the rights of man.
 Protecting the faith – necessitates prevention of sedition (fitnah) and propagation of
hearsay
 Protecting intellect – promotion of learning, providing education
 Protecting of lineage – creation of favourable environment for care and custody of
children
 Protecting property – facilitating fair trade and lawful exchange of goods and services
in the community.

2. Must be general (kulliyah).

 in that it secures benefit, or prevents harm, to the ppl as a whole & not to a particular
person or group of persons
 must contemplate a benefit to the largest possible number of ppl.
  the whole concept of maslahah derives its validity frm the idea that it secures the
welfare of the ppl at large.

3. Must not be in conflict with a principle or value which is upheld by the nass or
ijma’.
 has to make sure that the new principle formulated does not clash with a text or
existing principles (nass) and propositions of Islamic law or attempt to alter the
implication of a text.

4. Must be rational (ma’qulah) and acceptable to the ppl of sound intellect.

 This is in reality means that the norm it promotes must be among the purposed of
Islamic law recognized by the syariah.

THE POLEMICS OVER MASLAHAH

Hanafis & most Shafiis.
 Do not accept as independent proof.
 Maslahah constitutes a valid ground for legislation only in the presence of a textual
indication.
 The masalih are either validated in the explicit nusus, or indicated in the rationale
(‘illah) of a given text, or even in the general objectives of the Lawgiver.
 Al-Qiyamah, 75:36.
The using of Maslahah as a source of Islamic law must therefore be guided by the
values that the Lawgiver has upheld. There is no Maslahah unless it is corroborated
by an indication in the Shariah. If Maslahah is not guided by the values upheld in the
nusus, there is a danger of confusing maslahah with arbitrary desires, which might
lead to corruption (mafsadah).
Malikis and Hanbalis:
 Maslahah is authoritative and that all is needed to validate action upon it is to fulfil
the conditions which ensure its propriety.
 Insist that the necessary conditions of maslahah must be fulfilled.
 Maslalah must pursue the valid objectives of the Shariah and the dictates of sound
intellect, acting upon which fulfills a useful purpose, or serves to prevent harm to the
people.
 When these conditions are met, maslahah becomes an integral part of the objectives
of the Lawgiver even in the absence of a particular nass.
 Example – Validated the death penalty for spies whose activity violates the maslahah
of the Muslim community.
The Fundamental for the well-being and survival of the people in this
Necessities/Essential world and hereafter.
(Daruriyyat) Example: housing, to protect people from heat/cold and provide
rest and sleep.

5 ultimate purposes of law and considered the most valuable

matters in life:
1. Preservation & protection of religion (al-Din);
 Faith must firmly be established.
 Achieved through the observance of different kinds of ibadah.
 Eg: performing solat, fasting, paying Zakat.

2. Preservation & protection of life (al-nafs);

 Means taken to promote existence of human life.
 Life is the greatest gift from Allah, so it has to be protected.
Islam forbids the taking of one’s life and the life of others.

3. Preservation & protection of progeny, dignity or lineage

(al-nasl);
 To protect lineage, Islam enjoins marriage and prohibits zina.
 Islam encompasses relationship between man and woman with
a collection of principles and code of moral conduct.

4. Preservation & protection of intellect (al-aql);

 Islam prohibits the consumption of anything that might harm
the ability and function of our brain.
 Consumption of alcohol and all intoxicating substances.

5. Preservation & protection of wealth (al-mal).

 Islam enjoins for the fiar distribution and circulation of
property and wealth within the community.
 Islam enjoins Muslims to earn a living and to involve in
trades.
 Forbids wealth spent in unlawful ways and encourages
charity.
 At the same time, Shariah forbids the taking of riba, cheating
in transactions, taking others property illegally.
The Needs  Aimed to facilitate life and remove hardship of the individual
(Hajiyyat) or community. However, if these matters are neglected, it does
not lead to the total disruption of normal life.
 Actions or matter that are not essential for survival but are
needed to make life comfortable and convenient.
 E.g.: means of transportation, Travelers are allowed to
 combine and shorten their prayers and break fast in
Ramadan.A sick person is allowed to pray in sitting or
sleeping position and break his fast in Ramadan
Complementary  To provide improvement and bring comfort to life.
(Tahsiniyyat)  Enhancement or embellishments to a person’s life.
 E.g., observance of cleanliness, use of perfumes,

CHAPTER 7
BLOCKING THE
MEANS
Blocking The Means (Sadd al-Dhara’i)

1. Definition
 Sadd = preventing/blocking
 Dhara’i (is the plural of dhari’ah) = leading to a certain end either beneficial or
harmful
 Technically, blocking the permissible acts which lead to an evil.

2. Proof of blocking the means as a source of Islamic law

The proof of Sadd al-Dhara’i is established by the Quran and Sunnah

A. The Quran
 “And do not abuse those whom they call upon besides Allah, lest exceeding the limits
they should abuse Allah out of their ignorant.” (Al-An’am:108)
 In this verse, Allah prohibits the Muslims from cursing objects that are worshipped by
non-Muslims, so as to block the means to curse Allah.
 The prohibition in this example is founded on the likelihood that the associators
would insult God as a result.

B. The Sunnah
 The messenger of Allah prohibits a creditor from accepting gifts from a debtor so as
not to be a means of taking interest and taking gifts instead of interest.

3. Juristic Views

A. Hanafi and Syafi’e jurists

 They did not recognise Sadd al-Dhara’i as a principle of jurisprudence in its own right
on the ground that the necessary ruling regarding the means can be derived by
recourse to other principles such as Qiyas, Istikhsan (according to Hanafi jurists) and
Urf.

B. Maliki and Hambali jurists

 They have approved Sadd al-Dhara’i as proof of Shari’ah in its own right
 They argued that Sadd al-Dhara’i is an acknowledged principle of the Shari’ah as
long as the lawful acts lead to unlawful results, they should be prohibited
 The Maliki jurists say that ‘repelling of injury is to be accorded greater weight than
the securing of benefit’.
4. Types of permissible acts which lead to an evil

A. Meas which definitely to evil

 Digging a deep pit next to the entrance door to a public place which is not lit at night.
Anyone who enters the door is most likely to fall into it
 Based on the near certainty of the expected result of injuring others, the means which
lead to that result is equally forbidden
 The jurists of all schools are unanimous on the prohibition of this type of means

B. Permissible acts which most likely lead to evil.

 For example, selling grapes to winemakers, and renting out a premise for the purpose
of gambling or prostitution.
 Muslim jurists are in agreement that, this type of permissible act is to be blocked

C. Permissible acts which are rarely lead to evil.

 For example cultivating grapes, travelling by plane
 Muslim jurists agree that this type of permissible act is not to be blocked. Since
the benefit is prevalent

D. Means which frequently lead to evil but in most cases will not happen either on
certainty or probability
 Examples:
 Deferred sales: this sale is used to procure usury (according to Imam Malik and
Imam Ahmad bin Hanbal), they said that the means which is likely to usury is
unlawful and must be obstructed.
 Imam Abu Hanifah and Imam Shafi’e ruled that unless it definitely leads to evil the
basic legality of the sale must prevail
 E.g: Inah sale, it is a sale and buy back agreement. For instance, A sells a car for
RM20,000 to B payable at a future date (deferred payment) and later A buys it back
from B for RM15,000 payable at once (cash).
 Tahlil marriage: Marrying a woman with the intention of divorcing her so as to
enable her to remarry her previous husband.
 Muslim jurists agree that if the unlawful intention is apparent, such an act is to be
blocked. If not, it is not to be blocked
 But they differ about the indication that manifests such intention
 Shafi’e jurists look into the formation of a contract or transaction. If the contracting
parties expressly state in their contract of unlawful intention, such contract is
prohibited. And if they do not expressly state, such contract is not prohibited.
 Maliki and Hambali not only look at the formation but also circumstantial evidence
surrounding, and consequences of such a transaction.
  Hanafi agreed with Maliki and Hambali but they stipulated that there should be a
strong circumstantial evidence

5. Position and Proof of blocking the means as a source of law

 The Muslim jurists do not differ among themselves on the authority of Sadd al-
Dhara’i as a source of law but their difference is with respect to the scope of the
application of this source
 Its application is Maliki and Hanbali is wider and followed by Hanafi
 Meanwhile, the Shafi’e school of thought, it is strictly applied.

6. Its relationship with Maslahah

 Sadd al-Dhara’i is complementary to maslahah as the removal of hardship is a type of
maslahah
 Thus, the position of Sadd al-Dhara’i as a source of law is the same position as
Masalih Mursalah

The whole concept of Sadd al-Dhara’i is founded in the idea of preventing an evil before it
actually materialises. In line with the concept of ‘prevention is better than cure’, it is
therefore not always necessary that the result should actually obtain
 CHAPTER 8
ISTISHAB
(PRESUMPTION OF
CONTINUITY)
TOPIC 8: PRESUMPTION OF CONTINUITY

1. Definition
 Literal: Accompaniment and keeping close association or attachment.
 Technical: Maintenance of status quo until a proof is furnished in favour of its
changes.
 In other words, istishab is the presumption of the continuation of both the positive and
the negative until the contrary is established by evidence.
 Al-Qarafi (Maliki jurist) defines it to mean – The belief that the past or present
matter must be assumed to remain as it is in the present or future.
 It means that the past judgment and knowledge of it makes one assume that it will
continue in the future.

2. Rule
 Istishab is the presumption of the continuation of both the positive and the negative
until the contrary is established by evidence.
 If a specific rule was proved as positive in the past, it will continue to remain positive
until evidence which proves it as negative is furnished.
 If a specific rule was proved as negative in the past, it will continue to remain
negative until an evidence which proves as positive is furnished.

3. Examples
 If a specific rule was proved as positive in the past, it will continue to remain positive
until an evidence which proves it as negative is furnished.
 A contract of sale or a contract of marriage once it is concluded, it is presumed to
remain in force until there is a change.
 The change in the transfer of ownership (for contract of sale) and dissolution of
marriage (for marriage).
 The class schedule, the university policy and regulations, and government policy and
regulations.
 If a specific rule was proved as negative in the past, it will continue to remain
negative until an evidence which proves as positive is furnished.
 ‘A’ purchases a hunting dog from ‘B’ with the proviso that it has been trained to hunt.
But then, ‘A’ claims that the dog is untrained.
 ‘A’s claim prevails under Istishab unless there is evidence to the contrary since
Istishab maintains the natural state of things which in the case of the dog is the
absence of training.
 Case of debt. (absence of payment)

4. Types of Istishab
 Istishab Al-Adam Al-Asli
 Presumption of originally absence
 Istishab Al-Wujud Al-Asli
  Presumption of originally presence
 Istishab Al-Hukm
 Presumption of continuity of the general rules and principles of the law
 Istishab Al-Wasf
 Presumption of continuity of attributes

5. Istishab Al-Adam Al-Asli

 Originally not in existence
 Fact/rule which had not existed in the past
 It is presumed to be non-existent until the contrary is proved
 A child is presumed to remain a child until there is a change (attaining majority)
 An uneducated person is presumed to remain uneducated until he attains
educational qualifications.
 A trader is presumed to gain no profit unless proven otherwise (A who is a trading
partner claims that he has no profit). The presumption of absence of profit will be
in A's favour unless B can prove otherwise.
 A is in doubt whether he has taken ablution or not. The original state is that he has
no ablution. The presumption is he has not yet taken ablution. He has to take
ablution before he can perform solat.
 A suspected offender is presumed innocent until proven guilty.
 A ate B's food and he said B has given permission. B denies it. Presumption is in
favour of B since originally there is no permission.
 Defect in things sold. The presumption is originally there is no defect in the hands
of the seller.

6. Istishab Al-Wujud Al-Asli

 The jurists are in agreement that originally a man is free from liability, of rights and
obligations.
 It takes for granted the presence or existence of that which is indicated by the law or
reason.
 A is known to be indebted to B. Until A can prove that he has paid the debt to B
or was acquitted of the debt, the presumption is that A remains indebted to B as
long as B's loan to A is proven in the first place.
 If a man claims a right or debt due on another person, he is required to produce
evidence for that.
 The proof of this principle is based on Sunnah. “Proof lies on the plaintiff and the
oath is to be sworn by the defendant.”
 A husband is liable to pay his wife the dower (mahr) by virtue of the existence of
a valid marriage contract.
 This shows that istishab presumes the presence of liability or a right until an
indication to the contrary is found.
 It is an istishab which presumes the continuity of the general rules and principles of
the law.
  Istishab takes for granted the continued validity of the provisions of Shariah in
regards to permissibility and prohibition (halal and haram).
 The permissive and prohibitory are presumed to continue until the contrary is proved.

7. Istishab Al-Hukm
 It is an istishab which presumes the continuity of the general rules and principles of
the law.
 When there is a ruling in the law, whether prohibitory or permissive, it will be
presumed to continue until the contrary is proved.
 Food and beverages
 Prenuptial agreement. Is it allowed?
 The law on passengers' seatbelt (rear)
 The law on speed limit
 The law on wearing helmet within campus
 Prohibition on smoking on campus
 But when there is no such ruling available, recourse will be had to the principle of
ibahah (permissibility) which is the general norm of Islamic law concerning a matter
that is regarded as beneficial and free of evil consequences.
 Blood transfusion
 Organdonation
 Courts procedures
 The establishment of Islamic Banking Products.
 The hukm to eat 'belacan' (shrimp paste) or seafood
 The hukm to eat sea creatures or
 Fast and frozen food manufactured by non-Muslims
 Hence when the law is silent on a matter and it is not repugnant (offensive) to reason
it will be presumed to be permissible. This is based on the principle that Allah has
subjugated (humble) the earth and its resources to the welfare of man.
 Therefore, all objects, legal acts, contract and exchange of goods and services which
are beneficial to human beings are lawful on the ground of permissibility or ibahah.
Everything that is bad and harmful is prohibited.

8. Istishab Al-Wasf
 Continuity of attributes
 The presumption of existence of what is indicated by Shari’ah.
 Such as presuming clean water (purity being an attribute) to remain so until the
contrary is established to be the case - change of colour or taste.
 When a person has an ablution to perform solah, the attributes of cleanliness is
presumed to continue until it is vitiated.
o A mere doubt is not sufficient to nullify taharah.
 The legality of intimate relationship between husband and wife based on valid
marriage remains until there is evidence in proving their separation.
 o Therefore the jurists assert that ‘Certainty may not be disproved by doubt.
 In case doubt arises as to whether the shirt or skirt that you are wearing are still
clean or are tainted with dirt/animal waste etc.

9. Legal Maxim Originating From Istishab

 It is a fundamental principle that a thing shall remain as it was originally.
 "Things are assumed to be now as they have been"
 For example, you assume that someone is still alive now unless you have heard
definitively that he is dead (in inheritance cases, for example). This, the presumption
of continuity, is also known by the term istishab.
 The general principle is that the original state of things is permissible.
 ‘The generality is continued until it is put to limitation’
 The rule in the Quran that to the male a double share of the female in inheritance is
general and would have remained so if it were not qualified by the hadith that ‘the
killer does not inherit’
 Freedom from liability is a fundamental principle
 Certainty is not dispelled by doubt

10. Case of a Missing Person

 Doubt arises as to whether a man is still alive or not?
 Istishab: if he is known to have been alive and there is no news of his death – he is
presumed to still be alive until there is evidence showing his death.
 A missing person will be deemed alive presuming the continuity of his life.
 Example:
 A person is missing (eg; the case of Sharlinie-2008)
 The doubt is in the proof of something that is the possibility of her death
 By istishab, the presumption will be that the death is not proven. Istishab will presume
that she is still alive.
 However, if there is evidence showing to the contrary, the evidence prevails
 The disappearance of Malaysia Airlines Flight MH370 in 2014-239 people on
board, never to be seen again.

11. Example
 In the drama ‘Menanti Februari’, the husband went missing at sea for six months.
The wife marries another guy during that time. One day, the husband returned home,
finding his wife is married to his best friend. What is the ruling of the marriage?
 Definition of Mafqud (Missing Person)
 It means lost, missing and disappear.
 Imam al-Syafie defines it as:
 “Whoever that is unheard from (does not send any word).” .
 Imam al-Nawawi defines mafqud as:
  “Someone that is unheard from and his whereabouts are unknown during his
travels, war or shipwreck and others.”
 The contemporary scholars from mazhab Syafie states mafqud as:
 “A person missing from his place of residence for a long time with no news and
it is unknown whether he is alive or dead.”
 Regarding the issue of the drama ‘Menanti Februari’, if the husband went missing at
sea (in Malaysia for example), then the duration for mafqud depends on the decision
of the judge after consulting with Malaysian Maritime Enforcement Agency, the
Prime Minister's Department who are responsible for carrying out maritime search
and rescue duty at the Maritime Zone of Malaysia and in the deep seas.
 Hence our opinion are as follows:
 The marriage of the wife with her new husband is invalid for the duration of mafqud
stated is 6 months without any scene showing that the wife receives a court decision
regarding her marriage status with her missing husband.
 The first wife is still considered as a legitimate wife of the missing husband for the
duration for mafqud has not ended.
 The child that the wife is pregnant with, as a result of her relationship with her second
husband is considered as a syubhah (doubtful) child conceived from syubhah
(doubtful) intercourse and is named as the child of his or her biological father (the
second husband) and the child will inherite from the father. The scholars agree to the
obligation of ‘iddah and the validity of lineage from an invalid marriage due to
marrying another man’s wife, if there are syubhah (doubts) that nulls the fornication
ruling, for they did not know the prohibition of the marriage. Hence, the marriage
(invalid) is not considered as fornication, and the chid is considered as the child of the
man that have intercourse with the mother.
 The wife is unable to ask for fasakh to the court, for fasakh can only be asked if the
husband went missing for more than a year, while in the drama, the husband has been
missing for just 6 months. Refer to Section 52 Order to Disperse Marriage or For
Fasakh In Islamic Family Law (Federal Territories) Act 1984 Act 303.

12. Juristic View

 The majority of legal theorists in general hold that presumption of continuity of
existing condition or state of affairs is a proof of Shari’ah that should be followed in
fatwa and administration of justice, because presumption of status quo belongs to
matter which is taken as a norm by the intellect and the social order proceeds
according to it.
 However, they differ on the scope of the application of this principle.
 Shafi’e and Hanbali accepted Istishab as a proof (they validated it) to defend and to
confirm the original hukum. Hold same view with the hanafis (to defend) except that
a missing person is also entitled to inherit the estate of a relative who died before him
through faraid and will.
 To the Shafi’e and Hanbali jurists, Istishab denotes:
 ‘continuation of that which is proven and the negation of that which has not existed’
  In other words Istishab presumes continuation of both the positive and the negative
until the contrary is established by evidence
 According to the Maliki, the Shafi’i and the Hanbali, istishab is a perfect proof,
that is, on both sides negative and positive. It is a proof for denying something and for
establishing a claim.
 The rights to which he is entitled to would remain as they are. So no one will inherit
him, nor will his wife be divorced. Besides, he also will entitle to new rights. Thus if
one of his relatives dies, he will inherit his relatives.
 On the other hand, some Hanafi jurists hold that istishab is a proof restricted to
negative side only. It is a proof for denying something but not for establish a
claim.
 Hanafi and Maliki do not consider Istishab as a proof in its own right. Istishab is
used to defend (as a shield) existing rule/status/law but not to establish (not as sword)
new hukum or right.
 A missing person is presumed alive based on istishab. Thus, his estate cannot yet be
distributed and his marriage cannot be dissolved. However, eventhough he is
considered to still be alive, he cannot inherit from any deceased relative who died
before his missing until his status is ascertained.
 Example, the rights already established for missing person will remain as they are,
and they will not be extinguished, presuming his as alive, but the new rights will not
be established in his favour, because the condition for establishment of these new
rights is his being alive.

Istishab is the last ground of fatwa. When the jurists is asked about the ruling of particular
case, he must first search for a solution in the Qur’an, the Sunnah, ijma’, qiyas and maslahah.
If a solution is still wanting, he may resort to istishab in either its positive or negative
capacities. Istishab applies only when no other evidence is available. It consists of a
probability. Thus it is not a strong ground for the deduction of the rules of Shari’ah. Istishab
ranks last in the order for ground of fatwa. In case of conflict with another proof, the proof
prevails.
 CHAPTER 9
LEGAL MAXIM OF
ISLAMIC LAW
1. Introduction
 Definition: A general rule which applies to all its particulars.
 It is a general principle in Islamic jurisprudence that contains general rules of Islamic
Law which can be applied to cases or situations that fall under its rule.
 E.g. Matters are determined according to intention.
 Covers all topics of the Islamic Legal System; e.g. family, transaction, criminal,
evidence etc;
 Also relates to Islamic ‘aqidah (system of belief) and al-akhlaq (ethics and morality);
and
A. Hardship Begets Facility (Meaning)
 Any ruling whose implementation causes hardship to a person or the action is unable
to be performed by a particular person for a specific acceptable reason then there are
alternatives and ways out that can be resorted to in order to overcome the difficulties
and hardship.
 Hardship in this maxim refers to hardships that surpass (melepasi) the normal limit
and ability of a person to perform them such as hardship of travel or sickness.
 The normal hardship that accompanies the implementation of every obligatory duty
such as hardship in performing certain kinds of ibadah such as fasting, hajj, and jihad,
the consequences of different kinds of penalty imposed by the Shariah do not fall
under this maxim.
 This is because this kind of hardship is bearable and is within the ability of a person to
tolerate it.
 Though the Shariah consists of obligatory duties, it does not impose anything
that would be beyond human capacity or individual ability.
 In addition, there will be no harm to a person who executes this kind of injunction of
the Shariah.
 Based on the principle of concessions or dispensations (rukhṣah), any individual
has the right to choose a harmless or more reasonable way if he finds it
considerably difficult to fulfill the requirements of the Shariah.
 One of the primary objectives of Islam is to alleviate the burden for its followers
and free them from the difficulties imposed by cultures, customs, and
religions.
Basis
 “God intends for you ease and He does not intend to put you in hardship”
(Al-Baqarah:185)
 “God does not intend to inflict hardship on you” (Al-Maidah:6)
 “He has chosen you and has not laid upon you in religion any hardship” (Al-Hajj: 78)
 Aishah r.a. said: “Whenever the Messenger of Allah (saw) was given a choice
between two things he chose the easier one unless it was a sin.
 Al-Ghazali said, “Everything that exceeds its limit changes into its opposite”. Thus it
becomes necessary to lighten the people's burden and to disregard general rules in
certain exceptional circumstances if their application were to result in injury and
hardship.
  All these verses indicate the fact that Allah does not intend to burden human beings
with all the injunctions that He revealed.
 If there exists any injunction which is difficult to perform for a valid reason, then
there will always be an alternative.
Conditions
 Any ruling which causes hardship or is unable to be performed based on acceptable
reason, an alternative can be found to overcome the hardship
 Facility (Rukshah) can be given for
 Omission (Exceptions)
 Reduction (Qasar)
 Combining (Jama’)
 Delay (Ta’khir)
 Advance (Ta’dim)
 Lawful the unlawful (Dispensation)
 Reasons for Rukshah
 Travel
a) The permissibility to revoke the contract of ijarah (hire) because of traveling
 Sickness
a) Perform tayammum when using water can cause further illness.
b) Performing salat in a sitting position or giving a sermon (khutbah) in the same
position.
c) Break the fasting of Ramadan, or not fasting from the very beginning due to
old age but with the payment of fidyah.
d) The permissibility to look into the aurat for treatment.
e) To ask another person to perform hajj or to complete his stoning the jamrah.
 Compulsion (permitted under duress)
a) Permitted to commit prohibited act
 Forgetfulness
a) Anyone who eats or drinks while he forgets that he is fasting, he should
continue with his fasting
 Ignorance (with commitment to learning)
a) Committing mistake in prayer, such as talking, making excessive movement
[Allowed for a limited time but must commit to learning]
 Difficulty
a) Those who suffer from illness such as difficulty in controlling their urination
 Incapacity (Children/ Women / Insane persons)
a) Children are not burdened with responsibility
b) Women are not obliged to perform jihad or Jumaat prayer
c) Insane persons are exempted from any responsibility
Application
 Does not apply to the implementation of obligatory duties such as ibadah, fasting, haj,
jihad, or religious obligations
 Categories for consideration of Rukshah
 Obligatory
a) Obligatory to choose: to eat carrion for those who are hungry (extreme)
 Recommended
a) Shortening the prayers
 Permitted
a) Bay as-Salam: Islamic contract in which full payment is made in advance for
specific goods to be delivered at a future date.
 Frowned
a) Better not to do: Break the fasting for those who are not facing excessive
hunger
 Prohibited
a) Abominable: Shortening the prayer for traveling less than 3 Marhalah
Example
 The general ruling related to the implementation of punishment towards a person
convicted of any crime is that the punishment should be carried out immediately upon
conviction. However, under certain exceptional conditions, such as if the criminal is
sick, the punishment can be deferred to a later time.
 If someone enters into a rental contract and later on has to travel for certain reasons,
he is allowed to cancel the rental contract. Under normal circumstances, a person is
not allowed to cancel this type of contract unless it is agreed between the contracting
parties beforehand. However, forcing a person to continue paying the rental when he
is not occupying the premises will amount to hardship.

2. Certainty is Not Overruled by Doubt (Meaning)

 Certainty literally means “undoubted knowledge of something that satisfies the soul”.
 In other words, innocent until proven guilty.
 It means that a fact established by law or proven with evidence will remain so until
there is another certainty that removes it.
 Any doubt that occurs when certainty prevails will have no power to remove the
certainty.
 Likewise, if something has not been established with certainty, it will remain so until
proven otherwise.
 This is because doubt, which comes later, is weaker than certainty on which it is
founded.
 Doubt, therefore cannot contradict or resist certainty.
 In general, this maxim means that one cannot be deemed liable until proven guilty.
  Any guilt attributed to any person must be treated as doubtful until proof is given to
lift the doubt and create certainty.
 Certainty can, in other words, only be overruled by certainty, not by doubt.
Basis
 “And most of them follow not except assumption. Indeed, assumption avails not
against the truth at all. Indeed, Allah is Knowing of what they do” (Yunus:36)
 The legal basis for this maxim is derived from the Hadith which states “Whenever one
doubts and does not know whether one prayed three or four raka'ats, such person
should act on certainty and ignore the doubts.” This means that if forgetfulness arises
to a Muslim in his prayer and he does not know whether he has prayed one raka`ah or
two, he should consider them one raka`ah. Likewise, if this person is not certain
whether he has prayed two raka`ahs or three, he should consider them two raka`ahs.
In all these cases the person should prostrate twice before he will finish his or her
prayer by saying the greeting. This Hadith clearly indicates that there is no room for
doubt and if a person is in doubt of anything, then he should disregard the doubt and
affirm certainties.
Condition
 Certainty, and its ruling based on certainty, cannot be set aside by doubt
 Takes into great consideration the original “known” condition before the doubt.
 Example: Innocent until proven guilty
Application
 Whoever certain on his taharah (purification), ablution, and doubt over it, he is
considered as in the state of taharah or ablution.
 All things (food, drink, dress, action) are permissible until there exists evidence to
prohibit them.
 All things are considered permissible unless they are prohibited (permissibility is the
natural state)
Example
 If a person is certain that he is in the state of ablution, he is considered to have
ablution until evidence or indication is showing otherwise.
 If a man marries a woman through a valid contract, then a doubt occurs regarding the
divorce of his wife, their marriage would be considered valid as the doubt has arisen
after certainty. This doubt of divorce, therefore cannot remove the certainty of
marriage.
 When the judge adjudicates on the basis of certainty but later it appears that he might
have erred in his judgment, if his initial decision is based on clear text and consensus,
it would not be subjected to review on the basis of mere probability.
 A missing person of unknown whereabouts is presumed to be alive, as this is the
certainty that is known about him before his disappearance. The certainty here shall
prevail, and no claim of his death would validate the distribution of his assets among
 his heirs until his death is proven by clear evidence. A doubtful claim of his death is
thus not allowed to overrule what is deemed to be certain.

3. Custom is The Basis of Judgement (Meaning)

 Customs that are acceptable collectively by society be used to determine the ruling of
certain actions.
 However, it does not mean that every custom that is established by a group of people
or society is acceptable in Islam.
 The custom itself must first be considered as good in the perspective of Shariah.
 The custom must first be discussed amongst the Mujtahidun whether it is good or not.
 Then, later the ruling will be given out by them.
 Human reasoning and constant practice alone cannot be used to influence the ruling or
hukum in Islam.
 “Certainty” (yaqīn) is defined as, “knowledge that does not suffer from hesitation.”
34

 This does not mean that certainty only exists when someone is “100% sure,” since it
is rare for matters to enjoy such a level of certainty.
 Rather, certainty refers to a level of knowledge that renders a matter to be deemed
true or established, such that one can comfortably act upon it without hesitation.
 “Doubt” (shakk) is a state in which the possibilities are of equal likelihood. That is,
one cannot say whether a matter is more likely to be true than untrue, or vice versa.
35

Basis
 “And those who follow a way other than the path of the believers" (4:115)
 “Hold to forgiveness, command what is right (Urf) but turn away from ignorant” (Al-
A’raf:199)
 Hadith: What the Muslims see/think right, it is also right in the sight of Allah
Condition
 Must not against the text
 Has been practiced by society
 Has been practiced before an event
 No contradiction in practice

Application

 The effect of this maxim is that once a matter has been the subject of yaqīn, a
subsequent doubt as to the existence of an event that negates the yaqīn has no effect.
 For example, according to the vast majority of scholars, if one is certain that they
performed ablution and they subsequently enter into a state of doubt (shakk) as to
whether or not they violated their state of ritual purity, they may safely assume that
they are still in a state of ritual purity and they will not have to redo their ablution.
36
  This maxim may understandably cause some confusion.
 It may occur to some, “If there is doubt as to the existence of a matter, then it can’t be
certain in the first place!”
 This is a common cause of confusion. This can be remedied by realizing that this
maxim deals with doubt that arises after certainty is established—not in the course of
establishing whether a matter is certain or not.
37

 In the above example, the person is certain that they performed ablution and entered a
state of ritual purity. There is no doubt about that.
 The doubt that subsequently arose is in relation to a new event—the violation of the
state of ritual purity.
 The person here is doubtful as to whether they violated that state or not. This degree
of knowledge (i.e., doubt) is not sufficient to negate the certain matter.
 This is distinct from a situation in which the person is doubtful as to whether they
even entered a state of ritual purity in the first place.
 If the person is doubtful about whether they correctly performed ablution (i.e., they
cannot say that it is more likely than not that they correctly performed ablution), the
person must redo the ritual.
 This itself has been crafted into a maxim which states, “doubt inhibits the ruling but
does not displace it”.

Example
38

 Adat lenggang perut. As long as the practice does not contradict with the Shariah like
the acts of Shirik, then it is permissible.
 If a purchaser seeks to return a product to the seller on the grounds that it is faulty,
and the testimony of expert witnesses does not satisfy the judge that it is more likely
than not that the product is faulty, the purchaser cannot return the item on these
grounds.
 If the presence of a contract is established, having doubt as to whether it has been
rescinded is inconsequential. The contract remains in effect until it is proven to be
rescinded. That is because it is presumed that the product sold by the seller is free of
faults until the claimant proves otherwise.
 If one is fasting and is in doubt as to whether the sun has set or not, they cannot break
their fast. That is because the last established matter is the presence of daytime.
Conversely, if one is awaiting dawn to begin one’s fast and is in doubt as to whether
the sun has risen or not, they may continue to eat and drink since the night is
presumed to continue until the presumption is rebutted by sufficient knowledge.


4. Harm Must Be Eliminated (Meaning)

 This means that it is not proper for someone to cause harm on others, or his property,
whether to begin or to retaliate it. It also means that when the judge wants to deliver a
sentence, it should not be more or heavier than the offender did to the victim.
 This is because the harm is injustice/wrong and injustice is prohibited by all religions.
Basis
  The Messenger of Allah said: “No harm should be inflicted, nor reciprocated. Anyone
who causes harm, Allah will do harm to him, and anyone who causes hardship to
people, Allah will do the same to him.”
 “Annoy them not, so as to restrict them” (AlTalaq: 6)
 “No mother shall be treated unfairly (with harm) on account of her child. Nor father
on account his child” (Al-Baqarah: 233)

Condition
 A person should not cause harm to another person in order to reciprocate the harm he
has caused.
 Choosing between various action to remove Harm must be applied according to the
scale of priorities under the Maqasid Shariyah
 Religion
 Life
 Mind
 Lineage
 Property
 Not all harms are worth consideration, rather jurists have posited certain conditions to
decide whether an action or inaction is considerable harm or not. The major
conditions are as follows:
 The harm should be real.
 The harm should be excessive
 The infliction should occur as a result of infringement arbitrariness or negligence.
 Infliction of Harm is on a Legitimate Benefit owned by the Right Owner.
Application
 Develop law based on the following views on Harm:
 Remove Harm before it occurs
 Minimise Harm once it occurs
 Prevent Further Harm after it occurs
Example
 The buyer may return the goods to the seller if the goods are defective.
 Suspend the license of the medical practitioner.
 Stop the unsound mind from transaction.

5. Acts are Judged by The Intention Behind Them (Meaning)

 All matters are connected to the intentions behind them.
 In the literal sense, the word intention means purpose or objective; in the legal usage
it refers to strong determination in the heart.
 Any act of human being must come from his will and intention.
Basis
  And whoever desires, by his deeds, the rewards of this world, we will give it to him
what has been allotted to him but he shall have no share in the Hereafter, and whoever
desires the rewards of the Hereafter, we will give him of it of his rewards and We will
requite the thankful. (Al-Baqarah)
 “Anyone who is obliged to do so while starving, yet without deliberately sinning,
Allah is forgiving and merciful” (Al-Maidah:3)
 According to hadith, deeds are judged by intentions and every person is judged
according to his intentions.

Conditions
 The deed will be decided in accordance with intention, and judged as so.
 Intentions are judged in 5 categories:
 Intention of the heart
 Intention that permeates/ grows in the heart
 Intention that grows in thoughts but refrains from it
 Intention to commit overshadows the thought of refraining from it
 Intention is solidified and determined to act on it
 Intentions of the matters to cause Harm must be decided by determining the context
i.e.:
 Intentional Harm
 Unintentional Harm
 Accidental Harm
 Incidental Harm

Application
 Finding a lost property: to return or to keep
 Providing a gift: To please by gifting or to offer a bribe.

Example

 In the madrassah where the teacher performs an ʼibādah as a means of teaching

others. In this case, the ʼibādah is done first for the sake of Allah (SWT), but it also
done with the intention of teaching others. This does not diminish the intention of the
action.
 Another instance that highlights the importance of intention in the qualification of an
action is in unintentional swearing, which is commonplace in certain Arab countries.
In these instances, the swearing by Allah is done simply out of habit – as it may be
customary in that culture, an expression that frequently rolls off the tongue. When a
person swears by Allah by saying “wallāhi” (by Allah), but their intention is not to
actually swear by Allah, then the saying is without value. A Muslim should do his/her
best to minimize this.
 CHAPTER 13
THE ADMINISTRATION
OF ISLAMIC LAW IN
MALAYSIA
Authoritative Bodies
 The Majlis Agama Islam
 Fatwa Institution
 Shariah Courts
 Mosques
 Financial
 Prosecution and Representation

ACT 505 ADMINISTRATION OF ISLAMIC LAW (FEDERAL TERRITORIES) ACT

1993

1. The Majlis Agama Islam

Establishment of the Majlis

 4(1) There shall be a body to be known as the “Majlis Agama Islam Wilayah
Persekutuan” to advise the YDPA in matters relating to the religion of Islam
 4(2) Upon the coming into force of this section, the Majlis Agama Islam Wilayah
Persekutuan” existing by virtue of section 5 of the Enactment shall be deemed to be the
MAjlis referred to in subsection (1)

Legal identity and powers of the Majlis

 5(1) The Majlis shall be a body corporate having perpetual succession and a corporate
seal, and the said seal may from time to time be broken, changed, altered, and made anew
as to the Majlis seems fit, and, until a seal is provided under this section, a stamp bearing
the inscription the “Majlis Agama Islam Wilayah Persekutuan” may be used as the
corporate seal
 5(2) The Majlis may sue and be sued in its corporate name
 5(3) The Majlis may enter into contracts and may acquire, purchase, take, hold and enjoy
moveable and immovable property of every description, and subject to any written law
affecting the same convey, assign, surrender and yield up, charge, mortgage, demise,
reassign, transfer or otherwise dispose of, or deal with, any moveable property vested in
the Majlis upon such terms as to the Majlis seems fit and in accordance with the Islamic
Law
 5(4) The Majlis shall have power to act as an executor of a will or as an administrator of
the estate or a deceased person or a s a trustee of any trust
 5(5) The Majlis shall have such further powers and carry out such duties as may by this or
by any other Act assigned to it

Committees

 6 The Majlis may appoint committees to assist in the performance of its duties or the
exercise of its power
Duty of the Majlis for Socio-economic Development of Muslims

 7(1) It shall be the duty of the Majlis to promote, stimulate, facilitate and undertake the
economic and social development and well-being of the Muslim community in the
Federal Territories consistent with Islamic Law.
 7(2) The Majlis shall have power, for the purpose of the discharge of its duty under
subsection
 (1) –
 (a) to carry on all activities, which will not involve any element which is not approved
by the religion of Islam, particularly the development of commercial and industrial
enterprises, the carrying on whereof appears to it to be requisite, advantageous or
convenient for or in connection with the discharge of its said duty, including the
manufacturing, assembling, processing, packing, grading and marketing of products;

 (b) to promote the carrying on of any such activities by other bodies or persons, and
for that purpose to establish or expand, or promote the establishment or expansion of,
other bodies to carry on any such activities either under the control or partial control
of the Majlis or independently, and to give assistance to such bodies or to other bodies
or persons appearing to the Majlis to have the facilities for the carrying on of any such
activities, including the giving of financial assistance by way of loan or otherwise;

 (c) to carry on any such activities in association with other bodies or persons,
including the departments or authorities of the Federal Government, or as managing
agent or otherwise on behalf of the Federal Government;

 (d) to invest in any authorized investment as defined by the Trustee Act 1949 [Act
208], and to dispose of the same on such terms and conditions as the Majlis may
determine;

 (e) subject to the approval of the Finance Minister, to establish any scheme for the
granting of loans from the Fund to Muslim individuals for higher learning;

 (f) to establish and maintain Islamic schools, and Islamic training and research
institutions; and

 (g) to do all acts that the Majlis consider desirable or expedient.

Powers to establish corporations

 8(1) The Majlis may, with the approval of the Yang di-Pertuan Agong, from time to time
by order published in the Gazette, establish a corporation by such name as the Majlis may
think fit to carry out and have the charge, conduct and management of any project,
scheme or enterprise which has been planned or undertaken by the Majlis in execution of
its duty or powers under section 7.
 8(2) The Majlis shall, with the approval of the Yang di-Pertuan Agong, by the same or by
a different order, make provisions in respect of a corporation established under subsection
(1) defining—
 (a) the duties, powers, and rights of the corporation;
  (b) the system of management of the corporation; and
 (c) the relations between the corporation and the Majlis and its right of control over
the corporation.
 8(3) The provisions of the Second Schedule shall apply to a corporation established by
the Majlis under subsection (1).

Power to establish companies and validation of companies established

 8A(1) The Majlis may, with the approval of the Yang di-Pertuan Agong, establish
companies under the Companies Act 1965 [Act 125] to carry out any activity which
has been planned or undertaken by the Majlis in the execution of its duty or powers
under section 7.
 8A(2) Every company established or purported to be established by the Majlis under
the Companies Act 1965 before the commencement of this section shall be deemed to
have been lawfully established and shall continue to exist as if it had been established
by the Majlis under subsection (1).
 8A(3) Any financing or financial assistance given by the Majlis under subsection 7(2)
to a company referred to in subsection (2) shall be deemed to have been lawfully
given.

Borrowing powers

 9(1) The Majlis may, with the approval of the Minister of Finance and upon such terms
and conditions as may be determined by him, borrow such sums as it may require for
discharging any of its functions under this Act.
 9(2) Sums borrowed by virtue of this section shall be paid into the Fund.

Membership of the Majlis

 10(1) The Majlis shall consist of the following members:

 (a) a Chairman;
 (b) a Deputy Chairman;
 (c) the Chief Secretary to the Government or his representative;
 (d) the Attorney General or his representative;
 (e) the Inspector-General of Police or his representative;
 (f) the Mufti;
 (g) the Commissioner of the City of Kuala Lumpur; and
 (h) fifteen other members, at least five of whom shall be persons learned in Islamic
studies.
 10(2) The Chairman, Deputy Chairman, and the members under paragraph (1)(h) shall be
persons who are Muslims and shall be appointed by the Yang di-Pertuan Agong on the
advice of the Minister for such term, not exceeding three years, as the Yang di-Pertuan
Agong may determine.
 10(3) A member whose term of office has expired may be reappointed.
 10(4) If at any time the person holding the appointment mentioned in paragraphs (c), (d),
(e) or (g) is not a Muslim, the Yang di-Pertuan Agong on the advice of the Minister shall
 appoint another officer who is a Muslim and next in seniority from the same Department
or Ministry to be a member in place of that person.
 10(5) The persons who, immediately before the coming into force of this section, were
the Chairman, Deputy Chairman, and appointed members of the Majlis Agama Islam
Wilayah Persekutuan shall, subject to this Act, continue to be the Chairman, Deputy
Chairman, and members of the Majlis respectively until the expiry of their current period
of appointment.

Termination of the appointments

 11 The appointment of an appointed member of the Majlis shall terminate—

 (a) on his death;
 (b) if he, by letter addressed to the Yang di-Pertuan Agong through the Chairman,
resigns his appointment; or
 (c) if he has been absent from Malaysia, without the written permission of the
Chairman, for a period exceeding six months.

Revocation of appointments

 12 The Yang di-Pertuan Agong may, on the advice of the Minister, revoke the
appointment of any appointed member of the Majlis—
 (a) if his conduct, whether in connection with his duties as a member or otherwise,
has been such as to bring discredit on the Majlis; or
 (b) if he has become incapable of properly carrying out his duties as a member; or
 (c) if, without any excuse which in the opinion of the Chairman is sufficient, he has
been absent from three successive meetings of the Majlis.

Appointments to be gazetted

 13 All appointments and revocations of appointment under sections 10, 11 and 12 shall be
published in the Gazette.

Secretary

 14(1) The Director of the Islamic Religious Department of the Federal Territories shall be
the Secretary of the Majlis.
 14(2) The Secretary shall be the chief executive and administrative officer of the Majlis
and shall be responsible for carrying out the policies and resolutions of the Majlis.
 14(3) The Secretary shall be entitled to attend all meetings of the Majlis and to participate
in its deliberations, but shall not be entitled to vote.
2. Fatwa Institution

Interpretation

 2(1)
 “Islamic Legal Consultative Committee” means Islamic Legal Consultative
Committee established under subsection 37(1).
 “Mufti” means the person appointed to be the Mufti for the Federal Territories under
section 32, and includes the Deputy Mufti.

Appointment of Mufti and Deputy of Mufti

 32(1) The Yang di-PertuanAgong may, on the advice of the Minister, after consulting the
Majlis, appoint fit and proper persons to be the Mufti and the Deputy Mufti for the
Federal Territories.
 32(2) Upon the commencement of this section, any person who, immediately before the
commencement, was the Mufti of the Federal Territories appointed under the Enactment
shall be deemed to have been duly appointed under this section to be the Mufti of the
Federal Territories and shall hold office as such.

Authority of Mufti

 33 The Mufti shall aid and advise the Yang di-PertuanAgong in respect of all matters of
Islamic Law, and in all such matters shall be the chief authority in the Federal Territories
after the Yang di-PertuanAgong, except where otherwise provided in this Act.

Fatwa

 34(1) The Mufti shall, on the direction of the Yang di-Pertuan Agong, and may, on his
own initiative or on the request of any person made by letter addressed to the Mufti, make
and publish in the Gazette, a fatwa or ruling on any unsettled or controversial question of
or relating to Islamic Law.
 34(2) No statement made by the Mufti shall be taken to be a fatwa unless and until it is
published in the Gazette pursuant to subsection (1).
 34(3) Upon publication in the Gazette, a fatwa shall be binding on every Muslim resident
in the Federal Territories as a dictate of his religion and it shall be his religious duty to
abide by and uphold the fatwa, unless he is permitted by Islamic Law to depart from the
fatwa in matters of personal observance, belief, or opinion.
 34(4) A fatwa shall be recognized by all Courts in the Federal Territories as authoritative
of all matters laid down therein.

Form of Fatwa
 35(1) A fatwa shall cite that it is made pursuant to section 34.
 35(2) A fatwa shall be published in the national language in the Rumi script, but a text of
the fatwa in the Jawi script may also be published.

Amendment, modification or revocation of Fatwa

 36(1) The Mufti may amend, modify or revoke any fatwa that has been issued earlier by
him or by any previous Mufti.
 36(2) An amendment, a modification or a revocation of a fatwa shall be deemed to be a
fatwa and the provisions of subsections 34(3) and (4) and subsection 35(2) shall apply
thereto.
 36(3) An amendment, a modification or a revocation of a fatwa shall cite that it is made
pursuant to subsection (1).

The Islamic Legal Consecutive Committee

 37(1) There shall be a committee to be known as the Islamic Legal Consultative

Committee.
 37(2) The Committee shall consist of—
 (a) the Mufti, as Chairman;
 (b) the Deputy Mufti;
 (c) two members of the Majlis nominated by the Majlis;
 (d) not less than two fit and proper persons to be appointed by the Majlis; and
 (e) an officer of the Islamic Religious Department of the Federal Territories to be
appointed by the Majlis, who shall be the Secretary.
 37(3) The persons who, immediately before the coming into force of this section, were
appointed members of the Legal Committee established under section 40 of the
Enactment shall, subject to this Act, be deemed to have been nominated or appointed to
be members of the Islamic Legal Consultative Committee and shall continue to be
members until the expiry of their current period of appointment.
 37(4) Of the persons referred to in subsection (3), two who are members of the Majlis
shall be deemed to have been nominated under paragraph (2)(c) and the rest shall be
deemed to have been appointed under paragraph (d) of that subsection.
 37(5) Whenever the Mufti proposes to make a fatwa under section 34 he shall call a
meeting of the Committee for the purpose of discussing the proposed fatwa.
 37(6) Before the Mufti makes a fatwa, he may cause such studies or research to be
conducted as he may direct and a working paper prepared.

Request for opinion from the Mufti

 38 Notwithstanding any written law to the contrary, the Mufti shall not be liable to be
summoned to any civil court or SyariahCourt to give opinion or evidence relating to
Islamic Law, but if in any court other than a Syariah Court any question of Islamic Law
 calls for a decision, that court may request the opinion of the Mufti on the question, and
the Mufti may certify his opinion to the requesting court.
Authorities to be followed

 39(1) In issuing any fatwa under section 34, or certifying any opinion under section 38,
the Mufti shall ordinarily follow the accepted views (qaul muktamad) of the Mazhab
Syafie.
 39(2) If the Mufti considers that following the qaul muktamad of the Mazhab Syafie will
lead to a situation which is repugnant to public interest, the Mufti may follow the qaul
muktamad of the MazhabHanafi, Maliki or Hanbali.
 39(3) If the Mufti considers that none of the qaul muktamad of the four Mazhabs may be
followed without leading to a situation which is repugnant to public interest, the Mufti
may then resolve the question according to his own judgment without being bound by the
qaul muktamad of any of the four Mazhabs.

3. Syari’ah Courts

Constitution of Syari’ah Courts

 40(1) The Yang di-PertuanAgong, on the advice of the Minister, may by notification in
the Gazette constitute SyariahSubordinate Courts for the Federal Territories at such
places as he considers fit.
 40(2) The Yang di-PertuanAgong, on the advice of the Minister, may by notification in
the Gazette, constitute a SyariahHigh Court for the Federal Territories.
 40(3) The Yang di-PertuanAgong, on the advice of the Minister, may by notification in
the Gazette constitute a Syariah Appeal Court for the Federal Territories.

Appointment of Chief Syariah Judge

 41(1) The Yang di-PertuanAgong may, on the advice of the Minister, after consultation
with the Majlis, appoint a Chief Syariah Judge.
 41(2) A person is qualified for appointment under subsection (1) if—
 (a) he is a citizen; and
 (b) he—
 (i) has, for a period of not less than ten years preceding his appointment, been a Judge
of a Syariah High Court or a Kathi or a Registrar or a Syariah Prosecutor of a State or
sometimes one and sometimes another; or
 (ii) is a person learned in Islamic Law.
 41(3) The person who, immediately before the commencement of this section was
holding the appointment of Kathi Besar under subsection 43(1) of the Enactment and was
performing judicial functions shall, on the commencement of this section, continue to
hold office as the Chief Syariah Judge as if he had been appointed under subsection (1).
 41(4) The appointment under this section shall be published in the Gazette.

Appointment of Judges of the Syari’ah Appeal Court

 42(1) The Yang di-PertuanAgong may, on the advice of the Minister, after consultation
with the Majlis, appoint for a period not exceeding three years not more than seven
Muslims to constitute a standing panel of judges and the Chief SyariahJudge shall select
two from amongst them to form a quorum of judges in the SyariahAppeal Court in
respect of every hearing.
 42(2) The names of the seven members shall be published in the Gazette.

Appointment of Judges of the Syari’ah High Court

 43(1) The Yang di-PertuanAgong may, on the advice of the Minister, after consultation
with the Majlis, appoint Judges of the Syariah High Court.
 43(2) A person is qualified for appointment under subsection (1) if—
 (a) he is a citizen; and
 (b) he—
 (i) has, for a period of not less than ten years preceding his appointment, been a Judge
of a Syariah Subordinate Court or a Kathi or a Registrar or a Syariah Prosecutor of a
State or sometimes one and sometimes another; or
 (ii) he is a person learned in Islamic Law.
 43(3) The persons who, immediately before the commencement of this section, were
holding the appointment of Kathi under subsection 43(1) of the Enactment and were
performing judicial functions shall, on the commencement of this section, continue to
hold office as Judges of the Syariah High Court as if they had been appointed under
subsection (1).
 43(4) All appointments under this section shall be published in the Gazette.

Appointment of Judes of Syari’ah Subordinate Courts

 44(1) The Yang di-PertuanAgong may, on the recommendation of the Chief Syariah
Judge, appoint from amongst members of the general public service of the Federation
Judges of the Syariah Subordinate Courts.
 44(2) All appointments under subsection (1) shall be published in the Gazette.

Registrars

 45 The Yang di-PertuanAgong may, on the advice of the Chief Syariah Judge, appoint,
from amongst members of the general public service of the Federation, a Chief Registrar
of the SyariahAppeal Court, a Registrar of the Syariah High Court, and Assistant
Registrars of the Syariah Subordinate Courts.
Jurisdiction of Syari’ah High Court

 46(1) A Syariah High Court shall have jurisdiction throughout the Federal Territories and
shall be presided over by a Syariah Judge.
 46(2) A Syariah High Court shall—
 (a) in its criminal jurisdiction, try any offence committed by a Muslim and punishable
under the Enactment or the Islamic Family Law (Federal Territories) Act 1984 [Act
303], or under any other written law prescribing offences against precepts of the
religion of Islam for the time being in force, and may impose any punishment
provided therefor;
 (b) in its civil jurisdiction, hear and determine all actions and proceedings in which all
the parties are Muslims and which relate to—
o (i) betrothal, marriage, ruju’, divorce, nullity of marriage (fasakh), nusyuz, or
judicial separation (faraq) or other matters relating to the relationship between
husband and wife;
o (ii) any disposition of, or claim to, property arising out of any of the matters set
out in subparagraph (i);
o (iii) the maintenance of dependants, legitimacy, or guardianship or custody
(hadhanah) of infants;
o (iv) the division of, or claims to, harta sepencarian;
o (v) wills or death-bed gifts (marad-al-maut) of a deceased Muslim;
o (vi) gifts inter vivos, or settlements made without adequate consideration in
money or money’s worth, by a Muslim;
o (vii) wakaf or nazr;
o (viii) division and inheritance of testate or intestate property;
o (ix) the determination of the persons entitled to share in the estate of a deceased
Muslim or of the shares to which such persons are respectively entitled; or
o (x) other matters in respect of which jurisdiction is conferred by any written law.

Jurisdiction of Syari’ah Subordinate Court

 47(1) A Syariah Subordinate Court shall have jurisdiction throughout the Federal
Territories and shall be presided over by a Judge of the Syariah Subordinate Court.
 47(2) The Syariah Subordinate Court shall—
 (a) in its criminal jurisdiction, try any offence committed by a Muslim under the
Enactment or any other written law prescribing offences against precepts of the
religion of Islam for which the maximum punishment provided by the Enactment or
such written law does not exceed two thousand ringgit or imprisonment for a term of
one year or to both, and may impose any punishment provided therefor;
  (b) in its civil jurisdiction, hear and determine all such actions and proceedings as the
Syariah High Court is authorized to hear and determine in which the amount or value
of the subject-matter in dispute does not exceed fifty thousand ringgit or is not
capable of estimation in terms of money.
 47(3) The Yang di-PertuanAgong may from time to time by notification in the Gazette
extend the civil jurisdiction of the Syariah Subordinate Court.

Appeal to Syari’ah High Court

 48(1) An appeal shall lie to the Syariah High Court from any decision of a
SyariahSubordinate Court—
 (a) in its criminal jurisdiction, by the prosecution or by a person convicted, and such
appeal may be against an acquittal, conviction or sentence or any of them;
 (b) in its civil jurisdiction—
 (i) by any person aggrieved by the decision, if the amount claimed is not less than one
thousand ringgit;
 (ii) in all cases involving any decision as to personal status, by any person aggrieved
by the decision;
 (iii) in all cases relating to maintenance of dependants, by any person aggrieved by
the decision, but no appeal shall lie against a decision made by consent; and
 (c) in any other case, if the Syariah High Court gives leave to appeal.
 48(2) On any appeal, the SyariahHigh Court may—
 (a) in a criminal matter, dismiss the appeal, convict and sentence the appellant, order
the trial Court to call for the defence or make further inquiry, enhance or alter the
nature of the sentence, order a retrial, or alter or reverse any order of the trial Court;
 (b) in a civil matter, confirm, reverse or vary the decision of the trial Court, exercise
any such powers as the trial Court could have exercised, make such order as the trial
Court ought to have made, or order a retrial.

Application for leave to appeal

 49(1) An appeal or application for leave to appeal under paragraph 48(1)(c) shall be made
to the Syariah High Court in such manner as may be prescribed, but in any event within
fourteen days from the date of the judgment, order or decision in respect of which the
application is made or, in the event that the applicant was not at that date aware thereof
and could not by the exercise of reasonable diligence have been so aware, within fourteen
days from the date such judgment, order, or decision came to his knowledge.
 49(2) The SyariahHigh Court, on hearing any application for leave to appeal, may on
special ground extend the time for appealing, notwithstanding that it may have expired.

Inheritance certificates

 50 If in the course of any proceedings relating to the administration or distribution of the

estate of a deceased Muslim, any court or authority, other than the SyariahHigh Court or a
 Syariah Subordinate Court, is under the duty to determine the persons entitled to share in
the estate, or the shares to which such persons are respectively entitled, the Syariah Court
may, on the request of such court or authority, or on the application of any person
claiming to be a beneficiary or his representative and on payment by him of the
prescribed fee, certify the facts found by it and its opinion as to the persons who are
entitled to share in the estate and as to the shares to which they are respectively entitled.

Supervisory and revisionary jurisdiction of the Syari’’ah High Court

 51(1) The Syariah High Court shall have supervisory and revisionary jurisdiction over all
Syariah Subordinate Courts and may, if it appears desirable in the interest of justice,
either of its own motion or at the instance of any party or person interested, at any stage
in any matter or proceedings, whether civil or criminal, in any Syariah Subordinate Court,
call for and examine any records thereof and may give such directions as justice may
require.
 51(2) Whenever the SyariahHigh Court calls for the records under subsection (1), all
proceedings in the Syariah Subordinate Court on the matter or proceedings in question
shall be stayed pending further order of the Syariah High Court.

Jurisdiction of Syari’ah Appeal Court

 52(1) The Syariah Appeal Court shall have jurisdiction to hear and determine any appeal
against any decision made by the Syariah High Court in the exercise of its original
jurisdiction.
 52(2) When an appeal from a decision of a Syariah Subordinate Court has been
determined by the Syariah High Court, the SyariahAppeal Court may on the application
of any party grant leave for the determination by itself of any question of law of public
interest which has arisen in the course of the appeal and the determination of which by the
Syariah High Court has affected the result of the appeal.
 52(3) When leave has been granted by the Syariah Appeal Court it shall hear and
determine the question allowed to be referred for its determination and make such order
as the Syariah High Court might have made and as it considers just for the disposal of the
appeal.

Supervisory and revisionary jurisdiction of the Syariah Appeal Court

 53(1) The SyariahAppeal Court shall have supervisory and revisionary jurisdiction over
the Syariah High Court and may, if it appears desirable in the interest of justice, either of
its own motion or at the instance of any party or person interested, at any stage in any
matter or proceedings, whether civil or criminal, in the SyariahHigh Court, call for and
examine any records thereof and may give such directions as justice may require.
 53(2) Whenever the SyariahAppeal Court calls for the records under subsection (1), all
proceedings in the SyariahHigh Court on the matter or proceedings in question shall be
stayed pending further order of the SyariahAppeal Court.
Composition of the Syari’ah Appeal Court

 54(1) An appeal in the SyariahAppeal Court shall be heard and disposed of by a chairman
and such two Judges of the SyariahAppeal Court as the Chief Syariah Judge may
determine.
 54(2) Notwithstanding section 42 of this Act, the Chief Syariah Judge may appoint any
Judge of the Syariah High Court to be a member of the Syariah Appeal Court for any
particular proceedings if the Chief Syariah Judge considers it desirable to do so.
 54(3) The Chief Syariah Judge shall be the chairman for every proceedings of the Syariah
Appeal Court, and in the event he is unable to act, the Chief Syariah Judge shall appoint
the most senior of the Judges of the Syariah Appeal Court to be chairman.

Decision by majority

 55 The appeal shall be decided in accordance with the opinion of the majority of the
members of the Syariah Appeal Court.

Continuation of proceedings in Syari’ah Appeal Court notwithstanding the absence of

Judge

 56(1) If, in the course of any proceedings in an appeal or at any time before delivery of
the judgment, any Judge of the SyariahAppeal Court hearing the proceedings is unable,
through illness or any other cause, to attend and complete the proceeding or otherwise
exercise his function as a Judge of that Court, then, if both parties consent, the hearing
shall continue and judgment or reserved judgment, as the case may be, shall be given by
the remaining two Judges of the Court, and for the purposes of the appeal the Court shall
be deemed to have been properly constituted.
 56(2) In any such case as is mentioned in subsection (1), if there is no unanimous
decision, the appeal shall be reheard.
 56(3) If under subsection (1) both parties do not give their consent, or more than one
Judge are unable, through illness or any other cause, to attend and complete the
proceeding or otherwise exercise their functions as Judges of that Court, the appeal shall
be reheard.

Appeal rules

 57 The Chief Syariah Judge may make rules on the procedure for appeals and
applications for leave to appeal.

4. Prosecution and Representation

Appointment of Syari’ah Prosecutors and Religious Enforcement Officers

 58(1) The Yang di-PertuanAgong may, on the advice of the Minister, appoint a person,
who is qualified to be a Judge of the Syariah High Court, to be the Chief Syariah
Prosecutor.
 58(2) The Chief Syariah Prosecutor shall have power exercisable at his discretion to
institute, conduct or discontinue any proceedings for an offence before a Syariah Court.
 58(3) The Chief Syariah Prosecutor may appoint fit and proper persons from among the
members of the general public service of the Federation to be the SyariahProsecutors who
shall act under the general control and direction of the Chief Syariah Prosecutor and may
exercise all or any of the rights and powers vested in or exercisable by the Chief Syariah
Prosecutor personally.
 58(4) The Majlis may appoint from among the members of the general public service of
the Federation a Chief Religious Enforcement Officer and Religious Enforcement
Officers to carry out the investigation of offences under this Act or under any other
written law prescribing offences against precepts of the religion of Islam.

Peguam Syarie

 59(1) Subject to subsection (2), the Majlis may admit any person having sufficient
knowledge of Islamic Law to be Peguam Syarie to represent parties in any proceedings
before the Syariah Court.
 59(2) The Majlis may, with the approval of the Yang di-PertuanAgong, make rules—
 (a) to provide for the procedure, qualifications and fees for the admission of Peguam
Syarie; and
 (b) to regulate, control and supervise the conduct of Peguam Syarie.
 59(3) Notwithstanding subsection (1), the Majlis may exempt any member of the Judicial
and Legal Service of the Federation or any person appointed under section 3 of the Legal
Aid Act 1971 [Act 26] from the provisions of this section.
 59(4) Notwithstanding anything contained in any other written law, no person other than
a Peguam Syarie or a person exempted under subsection (3), shall be entitled to appear in
any Syariah Court on behalf of any party to any proceedings before it.

5. Financial
 Establishment of Baitulmal
 Wakaf and nazr
 Vesting
 Restrictions on creation of charitable trusts
 Income of wakaf and nazr
 Capital of wakaf and nazr‘am
 Construction of instruments
 Accounts and annual reports
 Wakaf and nazr property
 Estimates
 Expenses of the Majlis
 Banks

6. Mosques
 Trusteeship of mosques and related lands
 Restriction on establishment of mosques
 Maintenance of mosques and compounds
 Boundaries of kariah masjid
 Appointment of the Pegawai Masjid
 Tauliah
 Tenure of office of Pegawai Masjid
 Control and direction over Pegawai Masjid
 Abolition of office of Nazir
 The Jawatankuasa Kariah
 Exemption

7. The Position of Islamic Law in Malaysia

A. Article 3 of the FC
 Article 3 of the Federal Constitution provides that “Islam is the religion of the
Federation, but other religions may be practiced in peace and harmony in any part
of the Federation.”
 Tunku Abdul Rahman - “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 offcial
religion of the State”
 It recognizes Malaysia as a multiracial and multi religious country permit other religions
to be practiced in peace and harmony.
 Case: Che Omar Che Soh v PP
 The appellant was charged with the mandatory death penalty for drug trafficking
offences and Firearms (Increased Penalties) Act 1971, which was then argued by the
appellant that such penalty was considered “un-Islamic” and contrary to Article 3 of
FC as the death penalty is prohibited by Islamic law. The application was then
rejected by the Supreme Court which held that Islamic law was to be confined only to
the areas of personal law such as marriage, divorce, and inheritance matters for
Muslims. Besides, the court also held that Article 3(1) means only such acts as related
to rituals and ceremonies.
 Case: Meor Atiqulrahman & Ors v Fatimah Sihi
 The High Court decided in favour of the pupil who had been unlawfully expelled
from school for disregarding the school directive for not wearing a turban, an Islamic
dress, to school.
  The court held, inter alia, that Article 3 of the constitution should be interpreted to
mean that the religion of Islam exceeds rituals and ceremonies and that the
government is given the responsibility to protect and promote Islam as best as it
could.
 On appeal, the Court of Appeal reversed the said decision. It was held that whether or
not wearing a turban formed an integral part of the religion of Islam involved a
question of evidence for the respondents to adduce, which they had failed in this case.
 On a further appeal, this decision was affirmed by the Federal Court.
 The status of Islam in the context of this article is related only to rituals and ceremonies
as held by the Supreme Court (now known as the Federal Court) in both of these cases.

B. Article 11 of the FC
 Every person has the right to profess refers to belief and doctrines. The second refers to
exhibition of these beliefs through acts, practices, and ritual, and the third is about
attempts at propagations. The right to beliefs and doctrines is generally regarded as
absolute.
 A non-Muslims cannot be compelled to convert to Islam as this article guarantees
freedom of religion. In other words, they are free to profess and practise their religion,
which is constitutionally guaranteed in article 11(1).
 Right to Profess – Art 11(1) provides that a Muslim has the right to profess his religion.
The question is whether the words ‘his religion’ signify a Muslim can convert out of his
religion and choose other non-Islamic religions of his choice?
 Case: Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor
 It was held that Art 11(1) gives a person the right to profess a religion of his choice
but if a Muslim wishes to convert out of Islam, only the Shariah Court is competent to
determine the matter.
 Right to Propagate – The FC allows state law to control the propagation of non-Islamic
religions in any form among Muslim to preserve the sanctity of the Islamic faith.
 Case: Sulaiman Takrib v. Kerajaan Negeri Terengganu
 Any argument that any law that seeks to control the propagation of doctrines and
beliefs among persons professing the religion of Islam is unconstitutional because it is
inconsistent with art. 11 (freedom of religion) or any other provision is doomed to fail
from the star.
 Case: Jamaluddin Othman v Menteri Hal Ehwal Dalam Negeri
 It was stated that if the Home Ministry acts to restrict the freedom of a person from
professing and practising his religion, this act will be inconsistent with the provision
of article 11 and therefore any order of detention in this respect would not be valid.
 Case: Teoh v The Kadhi of Pasir Mas
 Parent or guardian possesses the right to determine their religion until he or she
attained the age of majority.
 Further, the term ‘Muslim’ is defined in section 2 of the Administration of Islamic Law
(Federal Territories) Act 1993 (Act 505) as;
i. a person who professes the religion of Islam;
 ii. a person either or both of whose parents were, at the time of the person’s birth,
Muslims;
iii. a person whose upbringing was conducted on the basis that he was a Muslim;
iv. a person who has converted to Islam in accordance with the requirements of s. 85 of
Act 505;
v. a person who is commonly reputed to be a Muslim; or
 (vi) a person who is shown to have stated, in circumstances in which he was bound by
law to state the truth, that he was a Muslim, whether the statement be verbal or
written.”

C. Article 74(2) of the FC

 The FC grants the respective State Legislative Assembly to make laws with respect to any
of the matters enumerated in the State List.

D. Article 121(1A) of the FC

 The states are given the legislative power over a wide range of personal matters affecting
the Muslims, and the Shari’ah courts were mandated to have jurisdiction over these
matters and only over persons professing the religion of Islam.
 The objective is to prevent overlappin jurisdiction between civil courts and syariah courts.
 When one of the parties in a non-Muslim marriage has converted to Islam, there will be
conflicts as to which court they should go to to seek remedies. Article 121 (1A) makes the
Civil Court not having jurisdiction over matters that already fall under the jurisdiction of
the Syariah Courts.
 However, conflicts arise when it comes to implementation of Article 121 (1A).
 A non-Muslim does not have a locus standi in the Syariah Court hence they not allowed
to bring their case to the Syariah Court.
 On the other hand, a Muslim could not bring his or her case to the Civil Court because a
Muslim marriage falls within the jurisdiction of the Syariah Courts.
 These parties will have difficulties in searching for remedies that can help them to solve
their disputes.
 Case: Ainan Syed Abu Bakar
 The HC decided that a child born to a Muslim women four months after her marriage to a
Muslim man is legitimate child of that man by relying on the provisions of sec 112 of
Evidence Enactment which clearly contrary to Islamic law.
 Case: Nafsiah v Abdul Majid
 The plaintiff brought an action for damages for breach of promise to marry on the ground
that she had been seduced by the defendant and she had given borth to his child. HC
decided it has the jurisdiction to hear the case and awarded damages.

E. Article 160 of the FC

 In article 160 of the constitution, the word ‘law’ is defined to mean “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.”
  However, Islamic law, which is a system of law based on the divine will of Allah (s.w.t.)
that was revealed to the Prophet Muhammad (s.a.w.).

I. Jurisdiction Cannot Be Implied

 It is a common misconception that once established, a Syariah Court has, ipso facto,
jurisdiction over all matters relating to Islamic law and Malay customs set out in the State
List.
 In a case where a widow sought a declaration that her deceased husband was a Buddhist
during his lifetime and at the time of his death, the High Court held that the jurisdiction of
the Syariah Court cannot be derived by implication and that if State law did not confer
jurisdiction to deal with a particular matter in the State List, the Syariah Court would be
precluded from dealing with that matter.
 As State law did not confer jurisdiction to determine the issue whether a person is a
Muslim or not at the time of his death, the High Court was not precluded from hearing
and determining that issue.

II. No Exclusive Jurisdiction on Islamic Law

 It is also inaccurate to hold that the Syariah Court has exclusive jurisdiction on all matters
related to Islamic law.
 Given that the Syariah Court is a creature of State law, it has no power of interpretation
on any matter which is the province of the High Court and the subordinate courts,
including issues on the interpretation of federal law and State law.

III. No Overlapping Jurisdiction

 Another common misunderstanding is that the Syariah Court is a parallel system

established under art. 121(1A) of the Federal Constitution.
 Article 121 establishes the High Court, the Court of Appeal and the Federal Court and
recognised such inferior courts as may be prescribed by law.
 Article 121(1A), however, merely excludes the jurisdiction of the High Court in respect
of any matter within the jurisdiction of the Syariah Court.
 Quite clearly, art. 121(1A) neither establishes nor confers jurisdiction on the Syariah
Court.84
 It is only when some jurisdiction is expressly conferred by State law on the Syariah Court
that art. 121(1A) would apply to exclude the jurisdiction of the High Court and the
subordinate courts on that matter.
 It has been stated above that the Syariah Court can only have jurisdiction if expressly
conferred by State law within the constraints of the Islamic law matters mentioned in the
State List.
 In the absence of jurisdiction being conferred on the Syariah Court in respect of any
matter, such matter would fall within the jurisdiction of the High Court and the
subordinate courts, unfettered by the operation of art. 121(1A).
 In any case, art. 121(1A) does not take away the jurisdiction of the High Court to interpret
any State law enacted for the administration of Islamic law, such jurisdiction being
outside the scope of State law, although concerning Islamic law.
 Article 121(1A) was introduced to prevent conflict of jurisdiction between the civil court
and the Syariah Court.
 If federal laws and State laws are made in strict compliance with the Federal List and
State List, there should not be a situation where both the civil court and the Syariah Court
have jurisdiction over the same matter or issue.
 If an issue were to arise on whether State law infringes on the Federal List, art. 121(1A)
cannot be an argument for ousting the jurisdiction of the civil court.
 In such a situation the question to be asked is whether such State law is constitutional in
the first place, which is a matter for the Federal Court to decide.
 Although there may be distinct issues falling within the jurisdiction of the civil court and
the Syariah Court at the same time as in Latifah Mat Zin, it does not follow that there is
an overlapping jurisdiction or assisting jurisdiction between the two nor are they
considered double proceedings.
Institution of Fatwa in
Malaysia
Introduction

 The National Fatwa Council issued a fatwa prohibiting Muslims from taking part in SMS
contests.
 Syed Ibrahim Syed Noh, in his article ”ISA is against Islam” highlighted efforts made by
various quarters to get State Muftis and the National Fatwa Council to state their position
on the ISA (Aliran Monthly 2004: Vol.24 No.8).

What is Fatwa?

 Linguistically, fatwa means an answer to a question.

 A fatwa is usually issued in order to resolve an issue when there is some doubt whether a
particular practice is permissible (halal) or forbidden (haram) in Islam.
 In Islamic jurisprudence, a fatwa is the opinion of a scholar based on that scholars
understanding of Islam, the scholars knowledge of the subject in question, and the social
milieu that raised the issue or question (Demystifying the Fatwa by Dr. Maher Hathout).
 Individual scholars have been known to express differing opinions when addressing the
same issue in a changed environment or situation (Muslims in the West Need
Contemporary Fatwa by Dr. Taha Alalwani).
 Fatwa comes from the Arabic root word ‘afta’ which means ‘to describe or enlighten.’
The al-Wasit dictionary states: “Fatwa; solution to any problem, whether related to
Shariah or legal matters; the plural versions are fatawi and fatawa. ‘Istafta’ means to
inquire or to ask for a fatwa and opinion.”
 The usage of the word can be found in al-Quran:
 Sura al-Nisa verse 127 states: “They ask your legal instruction concerning women,
say: Allah instructs you about them.”
 The terminological meaning of fatwa is that it is the Faqih’s explanation of laws and
frequently asked questions. Another definition of fatwa is the Syara’ law expounded by a
 Mufti to an inquirer in a non-restrictive form. Hence, the inquirer is not restricted or
bound by the law arising from the Mufti’s fatwa.
 The inquirer has the right to seek fatwa from another Mufti or Muftis. Furthermore, he
can apply the Fatwa from another Mufti, provided the Mufti is ‘Alim or pious and well
qualified to issue Fatwas.
 Several Muslim intellectuals describe the process of issuing Fatwa as “describing Allah’s
law generally and comprehensively in accordance with the demands of Syara’
guidelines.”
 A Mufti should be a pious person who is an expert in the field of his fatwa. He is also
expected to have the intellectual capacity to analyze and research past fatwas as well as
make rational choices.
 He should not be content with only extracting and narrating fatwas from other Muftis. A
Mufti who makes a fatwa founded on rumours and instincts will become a sinner and his
action is haram. Such Mufti is sinful because of his blatant lie towards Allah and
Rasulullah p.b.u.h.
 In a hadith narrated by Muslim bin Yasar he said: I heard Abu Hurairah saying;
Rasulullah said: “Anyone who makes a fatwa without knowledge, will bear the sin of
issuing the fatwa.” Such an action will not guarantee the truth because a Mufti issues a
fatwa based on al-Quran or the Sunnah of the Prophet Muhammad p.b.u.h or by Qias of
both al-Quran and Sunnah, or through istinbat of both of them. It is wrongful to deceive
Allah because in Sura an-Nahl: 33, Allah asks Muslims to “inquire from those with ilm or
knowledgeable in religion if you are without knowledge.” A person is either
knowledgeable or ignorant.
 The importance of fatwa and the threat of issuing fatwa without in depth knowledge in
Islam means that we should refer to those who possess specific expertise along with
sufficient mastery in the relevant syara’ area. These qualified people should be entrusted
to issue fatwas because they fulfill the necessary requirements.

Consideration of making Fatwa

 1.
a) Difference in uruf, human needs and priorities vary according to place and time.
b) The reality of the differences in mazhab and intellectual opinions: some parts are
more suitable to be practiced in a particular time and location as compared to other
mazhab and intellectual opinions.
c) Compatibility of law and reality; Syariat does not explain law comprehensively and
explicitly. Instead, the law is being explained in general and it is mutlak (final) for it
could be applied to resolve various issues without limit.
 “Usually, the ruler of the state will have a better understanding of the issues faced by the
general public and thus be able to avoid problems that bring danger or calamity to them.
Furthermore, it will eliminate differences in opinions of fiqh, which is in line with the
demands of syarie.”
 Fatwa varies from one Mufti to another, depending on the mastery level of the Mufti.
Consequently, a person who wants to obtain a fatwa should select a person based on his
level of mastery and taqwa. A person who knows two opposing fatwas is not free to apply
 the more favorable fatwa. Rather, the person has to select according to tarjih (evaluation)
by weighing the Mufti’s level of mastery, taqwa and piety.
 Imam al-Syatibi said: There is no freedom of choice because the choice will wipe off
taklif, if we were to choose muqallid (those who follow without dalil) in following one
mazhab, then their only guidance is their nafs.
 Also, since there is only one foundation in shariah and that is Allah’s law, the Mufti can
only qiyas the said law. Subsequently a Muqallid cannot make a choice except after
making an evaluation. Some ulamas believe the evaluation (tarjih) should be meted out by
selecting a stiffer fatwa as a precautionary measure.” In conclusion, the focus of tarjih is
to execute the objectives of Syara’ and take into account the needs of mukallaf.

Functions of Fatwa Committee

 Issuing a legal opinion or fatwa on an issue which is submitted to him or which gives rise
to a related dispute with Islamic law.
 Consider the law that has been made by the Fatwa Committee MKI on issues related to
national interests.

Application to Obtain Fatwa

 Application to obtain a law or fatwa from the Committee Fatwa must be submitted to the
Mufti. The Fatwa Committee can also provide a legal opinion or fatwa on:
(i) Order of the King of the Ruling; or
(ii) Own initiative

Issues Classification

 Issues for which a legal opinion or fatwa is requested must be classified first whether it is:
(i) Issues that have been decided by consensus or error; or
 (ii) Issues that have been decided by the Fatwa Committee in need amendment or
revision; or
 (iii) New (contemporary) issues

Fatwa Reference Source

 Quran
 Sunnah
 Ijma’
 Qiyas

Fatwa Issuance Method

 Before the Fatwa Committee gives a legal opinion or make fatwa, a study or research on
the issue should be done.
 Once the study is completed, the Fatwa Committee will convene to discuss the issue in
question for the purpose of providing a legal opinion or make a fatwa.
 In issuing any legal opinion or fatwa, the Committee Fatwa should usually follow the
final qawl of the Syafi'i school.
 If the Fatwa Committee thinks according to the final qawl the Syafi'i sect will be against
the public interest, then the Committee Fatwa can follow any final qawl of the Hanafi
school, school Maliki or Hanbali sect.

Issuance of Fatwa According to Ijtihad

 If the Fatwa Committee thinks there is no final qawl of the four sects can be followed,
then the Fatwa Committee can give legal views or making fatwas according to ijtihad
without being bound by qawl final from any of the four sects.
 The main source of legal ijtihad or fatwa is al-Quran, al-Sunnah, Ijmak and Qiyas. Next
are the following reference sources:
(i) al-Istihsan
(ii) al-Masalih al-Mursalah
(iii) al-Urf
(iv) Sad al-Dhara’i
(v) al-Istishab
(vi) Shar’u Man Qablana
(vii) Qawl al-Sahabiyy
(viii) Amal Ahl Al-Madinah

Constitutional framework

 In Malaysia, Islam is a state matter. The Sultan is the head of religion in his own state.
The Yang di-Pertuan Agong is the head of religion in his own state as well as the head of
religion in the Federal Territories and all states without a Sultan.
 Since religion is a state matter, family and personal laws governing Muslims as well as
laws relating to religious offences are promulgated by the respective states in the
Federation, rather than by Parliament. Parliament can only pass legislation on such
matters when it comes to the Federal Territories.
Islamic Affairs at the state level

 The manner in which Islamic affairs are organized at the state level is laid out in the
Administration of Muslim Law Enactments.
 These state-based Enactments are generally similar in content but not identical to one
another.

To understand the institutions and mechanisms involved - the case of Selangor

 The Administration of the Religion of Islam (State of Selangor) Enactment 2003 provides
for the creation of the Majlis Agama Islam Selangor (Selangor Islamic Religious
Council). It is the duty of the Majlis to advise the Sultan of Selangor on all matters
relating to Islam, except matters of Hukum Syarak.
 The Majlis is also responsible for promoting the economic and social development of the
Muslim community in Selangor.All members of the Majlis (excluding the ex-officio
members) are appointed by the Sultan of Selangor on the advice of the Menteri Besar.
 (The Majlis consists of a Chairman, a Deputy Chairman, five ex-officio members (the
State Secretary, the State Legal Adviser, the State Financial Officer, the Mufti and the
Chief Police Officer) and not more than eight other members, at least five of whom shall
be persons learned in Hukum Syarak.)
 Advising the Sultan on matters of Hukum Syarak is the responsibility of the Mufti.
Appointment of the Mufti and Deputy Mufti is the sole prerogative of the Sultan of
Selangor.
 (In the case of Johore, the Sultan may seek the advice of the Ruler in Council when
appointing the Mufti and Deputy Mufti while in the Federal Territories, the Yang Di-
Pertuan Agong must consult the Majlis and may seek the advice of the Minister in
appointing the Mufti and Deputy Mufti.)

Making Fatwa
 Under the Enactment the power to make a fatwa rests with the Fatwa Committee. The
Fatwa Committee consists of the
 Mufti (who serves as the Chairman),
 the Deputy Mufti,
 the State Legal Adviser,
 two members of the Majlis,
 an officer of the Jabatan Agama Islam Selangor (appointed by the Majlis),
 between two and seven fit and proper persons appointed by the Majlis,
 and an officer of the Muftis Department who serves as its Secretary.
 Whenever the Committee proposes to make a fatwa the Mufti has to call for the meeting
of the Committee for the purpose of discussing the proposed fatwa. Before the Committee
makes a fatwa, the Mufti may decide that research should be carried out and a working
paper prepared. After the fatwa is prepared, the Mufti will, on behalf of the fatwa
committee, submit the fatwa to the Majlis Agama Islam Selangor.
 The Majlis will discuss the matter and if it so decides will ask the Sultan for his assent to
publish the fatwa in the Gazette.
 (In Kelantan and Johore, as well, the assent of the Sultan is required before a fatwa
can be gazetted.
 In the Federal Territories however, it appears that the Mufti can make and publish a
fatwa in the Gazette without the consent of the Agong.)
 When the fatwa has been assented to by the Sultan, the Majlis will inform the State
Government of the fatwa and the fatwa will be published in the Gazette.
 The fatwa upon being published in the Gazette becomes binding on every Muslim in the
State of Selangor. The Enactment states that it is a Muslim’s religious duty to abide by
and uphold the fatwa, unless he is permitted by Hukum Syarak to depart from the fatwa in
matters of personal observance.
 In issuing a fatwa, the Fatwa Committee is expected to follow the tenets of the Syafie
School. However if the Committee believes that following the tenets of the Syafie school
would lead to a situation repugnant to public interests, the Fatwa Committee can turn to
the tenets of the Hanafi, Maliki or Hanbali schools.
 If the Fatwa Committee is of the opinion that none of the four schools can be followed
without leading to a situation that is repugnant to public interests, then it can resort to
ijtihad (the exercise of independent judgment) in making the fatwa.

National Interests

 When it appears that a proposed fatwa may affect national interests a slightly different
procedure is set in motion. (A fatwa is deemed to affect national interests if it touches on
any matter, policy, programme or activity which directly affects the interests of the
Federal Government, a state government or any of its ministries, departments or agencies)
 The Fatwa Committee is required to
 adjourn its discussions on the fatwa and submit the matter to the Majlis Agama Islam
Selangor.
 The Majlis may decide to refer the proposed fatwa to the National Fatwa Committee,
through the Conference of Rulers.
 But before the matter is referred to the National Fatwa Committee the Majlis has to
first get the assent of the Sultan of Selangor
 If the National Fatwa Committee (comprising the Muftis from all the individual states as
well as five other Muslim scholars appointed by the Agong) recommends that the
proposed fatwa be made - and the Conference of Rulers agrees with the
recommendation - the matter will be returned to the Majlis Agama Islam Selangor. It
will then be up to the Majlis to decide if it wants to ask the Sultan of Selangor for his
assent to publish the fatwa in the Gazette.This means that even though the National Fatwa
Committee recommends that a particular fatwa be made, the ultimate prerogative of
whether such a fatwa should be gazetted lies with the Majlis Agama Islam Selangor and
the Sultan of Selangor.

Criminal Offences
 Each state has the power to decide what constitutes religious offences and to prescribe
punishment for a Muslim who commits such offences. The penalties meted out, however,
have to be in accordance with the Muslim Courts (Criminal Jurisdiction) Act 1984.
Under the Act, the Syariah Court is only allowed to impose
 a jail term of up to three years,
 impose a fine of up to RM5,000 or
 order that a person be given up to six strokes of the cane.
 In the case of Selangor, the Syariah Criminal Offences (Selangor) Enactment 1995 states
that
 any person who defies, disobeys or disputes a fatwa shall be guilty of an offence and
shall on conviction be liable to a fine of up to RM3, 000 or sent to jail for up to two
years.
 It was in accordance with this provision that three young Muslim women were
arrested by the Jabatan Agama Islam Selangor (JAIS) in 1997 and charged in court for
violating the fatwa that forbids Muslim women from participating in beauty contests.
 Under the Syariah Criminal Offences (Selangor) Enactment 1995,
 any person who gives, propagates or disseminates any opinion contrary to any fatwa
that is in force is also guilty of an offence. Such a person shall on conviction be liable
to a fine of up to RM3k or sent to jail for up to two years.

Fatwa as law

 There are a whole range of situations in which Muslims would appreciate having a point
of reference as to what is allowed and what is not. Are Muslims allowed to give and
receive blood? Are organ transplants allowed in Islam? Is a person allowed to use
contraceptives? Can a Muslim make use of a sperm bank?
 These and many other issues have been addressed by Muslim scholars in Malaysia and
the specific answers to these issues can be found at JAKIM’s website.
 One can thus appreciate the usefulness of religious edicts - a source of guidance in a
rapidly changing world.
 However is it really necessary that a fatwa be gazetted and have the force of law behind
it, leading to a situation where those in breach of the fatwa commit an offence?
 Would it not be better if a fatwa was not a hard and fast ruling but rather the opinion of
religious scholars which the public have the option to refer to when there is a need?

What if one disagrees

 Is it necessary to make criminals out of those who hold a different view?
o In Selangor, a fatwa stating that smoking is haram was gazetted in 1995. (Incidentally,
there are only three states Selangor, Kedah and Perlis -where there is such a fatwa.
Only in Selangor has this fatwa been gazetted.)
 Technically what this means is that JAIS can arrest any Muslim who smokes in Selangor!
Is it reasonable to fine a Muslim or send him to jail merely because he does not agree that
smoking should be considered as such a serious an offence?
 Members of the public are free to raise questions and express reservations about articles
in the Federal Constitution or vehemently criticize Acts of Parliament such as the Internal
Security Act.
 In fact, dissent and constructive criticism are part of our democratic culture. It is
important that this democratic space also extends to the whole arena of religious fatwa.

Conclusion

 Religious scholars have an important role to play in determining how Islam is understood.
However, in light of the broad spectrum of views in the Muslim world, what certain
religious scholars have to say need not be cast in stone.
 Moreover, in a democracy other voices have a right to be heard and everyone should be
given the freedom to venture an opinion even on religious matters. Indeed, Islam has a
rich history of debate and dissent and we as a nation must evolve a system that allows for
this plurality of views.
 Legislation that allows a fatwa to become law and makes it a crime to dissent stifles the
limited democratic space that we have. It also weakens the authority of elected bodies like
the state legislative assemblies and Parliament.
 The purpose of a fatwa should be to offer an opinion not to silence alternative views - and
the law needs to be amended to create a climate, which strengthens democratic
institutions and encourages rather than stifles discussion and debate.