Historical Background Of Islamic Law In Malaysia
Historical Background of Islamic Law in MalaysiaZulkifli Hasan, PhD
2Contentsn Islamas Rahmatan lil ‘Alaminn Administrationof Justice During the Prophet’s timen Administrationof Justice During the Period of Khulafa aln Administrationof Justice During Umayyad, Abbasid andRashidunOttoman Eran Administrationof Justice in Malaysian Pre-Colonial- Malacca and other statesn During Colonial- Portuguese, Dutch and Britishn Post-Colonial- After independence
3Rahmatan Lil ‘Alaminn TAWHID: The essence of Islam is al Tawhid. Muslim is definable by hisadherence to Al Tawhidn Al Tawhid: Acknowledging God as sole Creator of the universe andEqualizing all men as creatures of God.n MERCY: To all the world, both believers and disbelievers.n UNIVERSALISM:n The social order of Islam is universal, enveloping the whole of mankind.Islamic social order holds Islam relevant to every era of human activity.n The qualities of humanness are possessed by all mankind by nature.n ABIM
4Administration of Justicen The administration of justice is the process and structure which allowsconflicts between parties to be settled by a specific body.n History tells us that disputes arose and were disposed of at all times.n The Holy Qur’an gave much stress on Justice in various ways.n “We have made you a mid-most (just) community” (2: 143)n “O believers! Be establishers of Justice, Witness for God” (4: 135)n “Indeed We have sent forth Our Messengers with clear messages, and We sent down them theBook and the Balance, so that men may establish Justice” (57: 25).n Muslims have religious duties to undertake individually and collectivelyactive struggle to establish justice.n Injustice triggers the decline of civilization (Ibnu Khaldun).
5Prophet’s Timen Appointment of Saidina Ali, Muadz Bin Jabal and Unais as qadhis.n Prophet himself head of the state and at the same time head of thejudiciaryn Appeals will be referred to prophet himself.n Cases including inheritance, matrimonial, custody, qisas and hudud.n After expansion Prophet appointed a few assistance.n n n Ali Ibn Abi Talib and Muaz Jabal- YamanUmar Al Khattab- MedinaThere was no specific buildings and mostly conducted trials inmosque. Judges are paid through baitul mal and prophet always gaveadvise to them.n Example Itab Ibn Al Usaid the governor of Mecca was paid ten dirhams aday.
6Period of Khulafa al Rashidunn Saidina Abu Bakar As-siddiq.n Head of the state and at the same time head of the judiciaryn The sources of hukm or decision are Quran and Sunnah, thengathering the companion in order to deduce ruling by wayof ijma.n If no rulings be agreed upon unanimously Abu Bakar use hisown ijtihad.
7Caliph Umarn Saidina Umar Ibnu Khattabn The first inventor the system of separation of powers betweengovernor and judges.n Governors and judges were different personnel.n Umar gave his advise to judges verbally and through letters.Example his famous letter to Abu Musa Al-Ashaari.n The court administration was improved.
8Caliph Uthmann Saidina Uthman Ibnu Affann He is the only judge in the Medina.-Ali Talha and Zubair were his advisors .n Uthman delegated the power to appoints judges outsideMedina to governor.n Doctrine of delegation of powers was implemented.n Specific Court building was built.
9Caliph Alin Saidina Ali Ibnu Abi Talibn He moved the seat of government from Medina to Kufah.n Head of the state and judiciary.n Introduced a municipal guard called Shurta.
10Umayyad Periodn Thecaliph appointed judges in capital whilejudges elsewhere by the governorsn Jurisdictionof the judges including duty tosupervise the execution of the punishment.n Judgesstarted to record their judgment inwriting in order to prevent litigating partiesfrom disputing judgment given orally.
11Abbasid Periodn Judges were appointed based on the mazhab of the populates.n Caliphate and judiciary were separated.n Qadhi Qudhat (Chief Justice) was delegated with the power to appoint and dismissjudges, hear appeals and review judge’s decision, administer the judicialinstitutions and give advise to the caliph in judicial and legal matters.n First Qadhi Qudhat was Abu Yusof of Hanafi school.n Judges wore special dress, had special stamp and seal, and were assisted bysufficient number of court officials.n Trials at Specific Court building on specified dates.n Judges were required to record their judgment together with the grounds ofjudgment, details of the trials as well as evidence.n Registration of the case before it could be brought for trial.n Jurisdiction of the judges:- Civil and criminal cases, waqaf property, baitul mal,appoint wali, and lead wilayah al madzalim, wilayah hisbah, the police force andthe armed force.
12Ottoman Periodn Influencedn Westernby the West.legal profession started.n Interpreterin court known as “vakil”.
13The Advent of Islam in Malaysian Before the 15th Century, Islam was observed by selectivecommunity merely as personal religious practice.n The advent of Islam in Malacca (when in 1414 Parameswaraembraced Islam) had elevated the status of Islam.n From being mere personal religious practices to a formaldeclaration as state religion and formal application of Islamiclaw.
14Islamic transformationn Profound influence of Islam in social, cultural, legal andpolitical sphere.n Cultural - The blending of Islamic Law with the Malay adat.The domination of Hindu influence in the Malay Adat wasreplaced by Islamic influence by way of introduction ofShariah and modification of adat law to aligne with Islam.
15Brief History of Malaysian Malaya before 1957 was subjected to various foreign powers:n Portuguese 1511 -1641 (130 years)n Dutch 1641-1824n British 1786-1956n 1786: Penang was acquired by Sir Francis Light from the Sultan of Kedahn 1800 : Province Wellesley ceded to East India Companyn 1819 : Port of Singapore founded by Rafflesn 1824 : The Anglo Dutch treaty ended the colonial competition in Malaya- territorial exchange .Malacca ceded to British in return of Britishceding Sumatra to the Dutch.n 1824: The Sultan of Johor ceded Singapore to East India Company.Singapore, Penang and Malacca became the Straits Settlement.
16Brief History of Malaysian 1874-1889 : British administration was extended to Perak,Selangor, Pahang and Negeri Sembilan. British Residents beganto control the affairs of the malay states.n 1895 : Perak, Selangor, Negeri Sembilan and Pahang wereconstituted as the Federated Malay States.n 1903-1909: Kelantan, Kedah, Trengganu and Perlis known as theUnfederated Malay States witness the coming of BritishAdvisors.n 1946 : The nine Malay States including Malacca and Penang wereamalgated as Malayan Union.n 1948: The Malayan Union was formally shelved and replaced bythe Federation of Malaya.
17Malaccan Laws- The Law of Malacca & The Maritime law of Malaccaimporting principles of Islamic law, were promulgatedand introduced during the reign of Malaccan Sultanatewitnessing clear adaptation of Islamic Law in Family,Criminal, Transaction & Evidence Law.n RisalahHukum Kanun contains provisions on marriageand divorce, procedural laws, pohibition on riba, islamictransaction, homicide, illicit intercourse, anal relationshipagainst the order of nature, defamation.n Political– Islam replaced the Hindu system of devaraja(divine kingship) with the Sultanate system regarded asakin to the Caliphate.
18Malacca Sultanaten Sultanappointed qadis as their advisers in religiousmatters.n Islamwas the state religion of Malacca. Laws ofMalacca and Maritime Laws of Malacca.n MalaccaLaws consists of islamic family law, criminallaw, sale and evidence and etc.n Penaltiesaccording to hukum Allah and Hukum Adat(patriarchal and matriarchal).
19Malacca under Portuguese-Governor had supreme command overall inhabitants-Assisted by Ovidor (CJ), viador (mayor),the Bishop.-Malays came under the jurisdiction ofthe Bendahara, Malays in Naning andLinggi were controlled by aTemenggong.
20Malacca under Dutch- Governor had supreme authority over all inhabitants-Assisted by Council consisting of the Collector, Mayor.Another council is Council of Justice.-Laws regulations were issued by the central governmentin Holland.-Leave the Malays to practice their own customs and law.
21Other Malay statesn With the downfall of the Malaccan Sultanate in 1511 to thePortugese, the legacy was continued by the UNFMS and the FMS.n Influences of Islam profound-administration of law.n The law of Pahang 1595, the Law of Kedah 1605, the Law of Johor1789, 99 Laws of Perak 1878 – tailored after the Law of Malacca imported from Islamic legal text.
22Pahang and Terengganun The Pahang Digest compiled for Sultan Abdul al-GhafurMuhaiyuddin Shah (1592-1614) in its introduction states thatPahang was Dar al-Islam whereby 42 of its 68 articles were basedon the Shariah.n The Constitution of Terengganu 1911- Chapter 51, state religionno other be made official.n The Terengganu Law of Court 1885: established the ShariahCourts in the State.
23Johorn The Constitution of Johor 1895 – Art VII all times religion ofstate-head of state.n Majallat al-Ahkam & Majalah Ahkam Johore.n The Constitution of Johore 1895 in respect of oath,disqualification, penalties for royal family members.n Therefore clear application of Islamic Law in the malay stateswas not confined to personal law/family law per se butcovered other aspects as well.
24Islam is Law of the Landn Tan Sri Ahmad Ibrahim – the law applicable to the MalayStates before the colonisation era is Islamic Law modified byMalay Custom.n In the Malay States, although Islamic Law was recognised as lawof the land, the English judges and counsels did not expoundand develop its practice.n R.J Wilkinson said :n “There can be no doubt that Muslim law would have ended bybecoming the law of Malaya had not British Law stepped in tocheck it.”n Contention supported by decision of English Judges – Islamiclaw was not foreign law, but local law apart from the malay adat.
25Casesn Shaik Abdul Latif & Ors. V Shaik Elias Bux (1915) 1 FMSLR204 “ Before the first treaties the population of the statesconsisted almost solely of Mohamedan Malays with a largeindustrial and mining community in thye midst. The only lawat the time applicable to the Malays was Mohamedanmodified by local custom.”n Ramah v. Laton (1927)FMSLR 128 Thorn J. said:“Muslim law is not foreign law but local law; it is the law of theland, and the local law is a matter of which the court musttake judicial notice. The court must propound the law.”Tengku Jaafar & Anor v The State of Pahang (1987) 2 MLJ 74the Supreme Court endorsed that the land law applicable inPahang prior to introduction of the Torrens system, wasIslamic law based on the Shafie School of thought.
26Che Omar Che Soh v PublicProsecutor (1988) 2MLJ 55n Salleh Abas in the case of Che Omar Che Soh v PublicProsecutor (1988) 2MLJ 55“ Before the British came to Malaya. The Sultans in each oftheir respective states were the heads not only of the religionof Islam but also as the political leaders in their states, whichwere Islamic in the true sense of the words, because. The lawapplicable was Muslim law. Under such law the Sultan wasregarded as God’s vicegerent ”
27Sabah and Sarawakn As for Sabah & Sarawak, before the British influence, the lawapplicable to both states was basically native customary lawsof the various indigenous community.n Islam and Islamic law were treated as native custom.
28Malaya under the British Rulen British influence most of the legal system in Malaysia. 1807First Charter of Justice 1826- Second Charter of Justice Theeffect is Islamic law had lost its significant and was onlyapplied in the area of Islamic family law.n In 1937 Civil law enactment was enacted and introduced toFMS and extended to SS. All civil cases were subjected to theEnglish law.n Mohammedan Marriage Ordinance 1880 was promulgated inwhich it regulated the muslim marriage and divorce forstraits settlements until the Administration of Muslim LawEnactments were introduced to cover all Malaya. Theordinance provides inter alia Governor appointed the Qadhi.Appeals heard by the Governor. The governor will appointmufti to assist registrar in Islamic law matters.
29Islamic law under British Rulen Malaya – previously subjected to various foreign powers.n Except for the British, these foreign powers adopted a noninterference approach in their administration resulting nonsignificant changes.n Change in approach by British - major impact to the law ofthis country.n British Interference in traditional legal system began inPenang 1786, Malacca and Singapore in 1824. 1826 - StraitsSettlements.
30Application of English lawn Penang 1786 -1807 preserving public order.n Application of law – English lawn Application of local custom continued.n Administration- Village chiefs-minor cases, upkeep registry ofmarriages, birth, property transactions within respectivecommunity.n Other cases referred to English Magistrates.n 1807 First Charter of Justice.n Kamoo v. Basset (1808)1Ky.1 1807 Charter of Justiceintroduced Penang to the English laws in England as at 1807 inso far as far as it is suitable to the conditions and circumstancesof the local community.
31English Courtn Third Charter 1855 - No new English laws but restructuringadministration of the court of law.n Establishment ofShariahadministrative body? None.n Addressing issues of hukum syarak was directed to theEnglish court.n English law applied, setting aside Islamic law.Court orspecific lslamic
32Casesn In the Goods Of Abdullah (1835) 2 Ky. Ec.8 Malkin J - thetransfer property wholly by way of will by a muslim is validin accordance to English law eventhough contrary to hukumsyarak.n Fatimah & Ors v. Logan & Ors (1871) 1 Ky. 255 Hackett J –the introduction of the 1807 Charter of Justice simultaneouslymade English law as law of the land in Penang.n Ong Cheng Neo v. Yeap Cheah Neo & Ors (1872) 1 Ky.326again upheld that the law to be applied in Penang is EnglishLaw irrespective whether Penang was a territory ceded orsettled by the EIC.
33Family and Estate Mattersn 1823 Memorandum between Sultan of Johore, Dato’Temenggong & Raffles - matters pertaining to religious rites,marriage, inheritance, law and malay adat was respected inso far as it does not defy with natural justice and humanity.n Magistrates appointed among British traders to handle civiland criminal cases.
34Casesn Introduction of English laws by virtue of the First and SecondCharter did not however erase in total recognition towardsthe local system.n Sahrip v Mitchell & Anor (1870) Leic.466 Benson Maxwell Jgave judgment in favor of the Plaintiff contending the rightfulland occupation based on the Malay Adat laws of Malaccaagainst the Registry method imposed by the British.n Ramah binti Taat v. Laton binti Malim Sutan (1927) 6FMSLR 128 – Islamic law is not foreign law but local law.
35n The British intervention began in Perak and Selangor in 1874,Pahang in 1888,Negeri Sembilan 1889 through treaties/consultations.n Administrative limitations - were required to act on the advice of theBritish Residents/Advisers in all matters except in respect ofreligious matters and Malay custom.n eg. Pangkor Treaty 1874 - Sultan Perak agreed to accept a Britishresident whose advise must be asked and acted upon in all mattersother than those touching Islamic religion and malay custom.
36n Through the office of Residents and Advisers a system ofadministration of Justice headed by British judges wasintroduced - bring in English legal principles.n Statutes enacted - impose formally English Law.n A separate system of courts introduced to apply law basedon EL.n British admin separated religion from the state, islamic lawreduced to merely personal law of the muslims.n Status of Shariah Courts?
37n ShariahCourt was made Subordinate to the Civil Court inthe federal system.n Appealsn from decision of Shariah Courts?Heard by English judges or officers.n SyariahCts - placed within the state jurisdictionn Jurisdictionlimited basically to Muslims personal andmatrimonial matters only.
38n Office of Muftis maintained.n In some states such as Selangor, Perak, Negeri Sembilan wasestablished during the intervention.n Muftis continued as religious advisers to the rulers, issuingfatwas and assisting the Syariah Courts.n Assisting civil courts in determining matters of Islamic law.n Civil courts presided by English Judges who areindependent in their judgment.
39IMPACT OF COLONISATIONn The British colonization, the introduction of Royal Charters ofJustice in the Straits Settlements together acts of interventionin the Malay States slowly down sized Islamic law to spheresof Islamic family and personal law.n English law gradually replaced Islamic law as governing lawto be applied as far as the religious manners and customswould permit.n The British imposed English law in 2 ways the civil courtsystem and legislation.
40n Administration of justice by English judges trained in Englishlaw who applied English legal principle to solve disputes.n Imposition through legislations - The Civil Ordinance 1878for the Straits Settlements, The Civil Law Enactment 1937 forFMS AND Civil Law (Extension) Ordinance 1951 for UMFSn This was replaced by the Civil Law Ordinance 1956 whichapplied to all the eleven states of the Federation of Malaya.
41n The law continued after independence and was extended toSabah & Sarawak through the Civil Law Act 1956 (revised1972) after the formation of Malaysia.n All these provided the importation of English Common Lawand rules of equity into the local legal system.n Other legislations - the Penal Code (Act 574), Evidence Act1950 (Act 56) and the Contracts Act 1950 (Act 136) – importfrom Indian legislation.
42APPLICATION OF ENGLISH LAWS INSABAH & SARAWAKn In the Borneo States, the earliest contact with English lawbegan with the installation of James Brooke in 1841 as theRajah Of Sarawak.n Under the said private colonial rule, he introduced segmentsof the English system of justice which was familiar to him andat the same time retained native customs as far aspracticable.n When Borneo came under British protectorates in 1888 theprinciples of English law had been adopted by way of directlegislation and judicial decisions and Islam remained aspersonal law.
43Islamic law in sabah & sarawakn In Sabah and Sarawak, Islamic legal history is somewhatdifferent.n Islamic law was only a component of a variety of native lawsand had always remained a system of personal law.
44Sarawakn Islamic law in Sarawak developed from three sources:n The basic written law in the Undang-undang MahkamahMelayu (Laws of the Malay Court). It is a code of Malay Adatlaw, the first of its kind in Malaysia. Drafted in 1915 andapplicable to muslim malays.n Since 1955 it has been classified as subsidiary legislationand enforced by the courts by authority of Native LawOrdinance (Cap 51).The Code comprises 65 sections. TheIslamic elements is evident in some provisions, but minimal.The code is not a code of Islamic law but local malay laws.
45n Legislation referred to as “orders” which concerned Muslimsalso gave effect to local custom rather than principles ofIslamic law. The earliest surviving order was of 1893 onmarriage. It was designed to restrict marriage betweenorang dagang (strangers) and Sarawak women.n That order was followed by order of 1898 regarding theregistration of muslim marriage and divorce. Both orderswere consolidated by the Mohamedan Marriage Ordinance1946.
46Sarawakn The most significant legislation was Majlis Agama Islam(Incorporation) order 1954 which established Majlis Islam forSarawak having the main function of giving advice to thegovernment on Islam and malay custom, the issuing of fatwaon rrligious matters and Malay Customa
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