|Recent Developments in Shariah Law in Malaysia|
Before the coming of the Colonial powers, the law which was applied in the Malay States was the Islamic Law, which had. absorbed to some extent the rules of the Malay custom In Malacca the law was compiled in the Malacca Laws and when the Malacca Empire fell versions of the Malacca Laws were applied in the other States. as for example in Pahang and Johore and Kedah.In Trengganu the Islamic Law was applied particularly in the time of Sultan Zainalabidin III.In Johore the Majallat al-Ahkam a compendium of the civil law from Turkey, was translated into Malay, at the beginning of the twentieth century and ordered to be applied in Johore. Similarly the Hanafite Code of Qadri Pasha in Egypt was adapted and translated into Malay as the Ahkam Shariyyah,Johore.However with the coming of the British and their influence in the Malay States, English Law was introduced in the form of codes taken from those enacted in India, including the Penal Code. the Contract Act, the Evidence Act, the Criminal Procedure Code, the Civil Procedure Code: and in the field of land law legislation based on the Torrens System was introduced.
The introduction of these laws meant that the Islamic Law was no Ionger applicable in the areas covered by those laws. More significantly still, courts were set up headed by British judges trained in the English Common Law and the judges of these Courts tended to apply the English Law whenever there was no legislation which could be applied. In this way the law of torts and the rules of equity were introduced in the Malay States. The attitude taken by the British judges was confirmed by the Civil Law enactments of 1937 and 1951 and finally the Civil Law Ordinance, 1956. which stated that in the absense of any written law, the court shall apply in West Malaysia the Common Law of England and the rules of equity as administered in England on the 7th day of April 1956. The Civil Law Ordinance, 1956 was extended to Sabah and Sarawak in 1971 with the effect that in the absence of any written law, the courts were to apply the common law of England and the rules of equity, together with statutes of general application. as administered or in force in England, on the 1st day of December 1951 in the case of Sabah and the 12th day of December 1949 in the case of Sarawak . In the case of mercantile law the Civil Law Act provided that in the absence of any written law, the law applicable in the Malay States would be the English Law as on the 7th day of April 1956 while the law applicable in Penang, Malacca, Sabah and Sarawak would be the law in England at the corresponding period.The result of this development is that while in theory it may be claimed that Islamic Law is the law of the land in the Malay States. in practice and in actual fact it is the English Law which became the basic law and the law of the land in Malaysia. The Shariah Courts were placed in a subordinate position, their jurisdiction was restricted and no efforts were made to raise the status of the courts or their judges and officers.
In the case of Ramah v Laton a majority of the Court of Appeal in the Malay States held that Islamic Law is not foreign law but it is the law of the land and as such it is the duty of the courts to declare and apply the law. and it is not competent for the courts to take evidence on what the Islamic is. If the judges of the civil courts had put into practice what they declared in that case, it would have meant that the Islamic Law will have to be administered in the civil courts. Fortunately or unfortunately the judges of the civil courts felt that they were incompetent to deal with questions of Islamic law and for a time the device was adopted of giving the civil courts power to refer questions of Islamic Law and Malay custom to the State Executive Council of the various States.This power, given by the Determination of Muslim Law Enactment of 1930 was terminated when legislation for the administration of Muslim Law was enacted in the States and the Shariah Courts set up to deal with cases under the enactments. In this way a dual system of courts was set up in West Malaysia, that is the civil courts and the Shariah Courts. The Courts Ordinance, 1948. removed the Shariah Courts from the structure of courts under the Ordinance and they ceased to be federal courts.
Before Merdeka and when the Malay States were under the British influence. the position of the Shariah Courts and their judges and officers was truly subordinate. Their jurisdiction was limited and they were placed at the bottom of the court structure. In most states there were no proper court houses and the Shariah Courts and their staff were sadly neglected. After Merdeka, the Federal Constitution provided that the judicial power of the Federation shall be vested in the Federal Court (later for some time called the Supreme Court), the High Courts and inferior courts provided by federal law. Shariah Courts were ignored and even the definition of "Law" did not include the Islamic Law, although it included written law, the common law and custom and usage. The only mention of Shariah Courts was in the State List which provided
"Except with respect to the Federal Territories, Islamic law and personal and family law of persons professing the religion of Islam. including the Islamic law relating to succession. testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption,legitimacy, guardianship, gifts, partitions and non charitable trusts; wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and 4 the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State: Malay Custom: Zakat, Fitrah and Bait-ul-Mal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List: the constitution, organization and procedure of syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred ,by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.
It can be seen that the jurisdiction given to the States and the Shariah Courts is limited. Even in regard to the subjects included, there are many Federal laws which extend the scope and application of Federal Laws. For example, in the field of succession, testate and intestate, account has to be taken of the Probate and Administration Act and the Small Estates (Distribution) Act with the result that the Kadhis are in effect only given the function of certifying the shares to be allotted to the beneficiaries under Islamic law.In the field of criminal law in particular, the jurisdiction of the Shariah Courts it very limited. It has jurisdiction only over persons professing the religion of Islam and it has only such jurisdiction in respect of offences as is conferred by Federal law. Until 1984, the Muslim Courts (Criminal Jurisdiction) Act, 1965 had provided that such jurisdiction should not be exercised in respect of any offence punishable with imprisonment for a term not exceeding six months or any fine exceeding $1,000.00 or with both. The Act was amended in 1984 and the jurisdiction of the Syariah Court has been extended by giving them jurisdiction to deal with cases punishable with imprisonment up to three years, or f ine up to $5,000.00 or whipping up to six strokes or the combination of all these. The Criminal jurisdiction of the Shariah Courts is therefore less than that of the First Class Magistrate which can generally try offences for which the maximum term of imprisonment does not exceed ten years imprisonment.
The subordinate position given to the Shariah Courts is also shown by the fact that in many cases their decisions could be overridden by the decisions of the civil courts. The Selangor Administration of Muslim Law Enactment. 1952, provided after setting out the jurisdiction of the Courts of the Kathi Besar and the Kathi, that "Nothing in this Enactment contained shall effect the jurisdiction of any civil courts and in the event of any difference or conflict between the decision of a courts of Kathi Besar or a kathi and the decision of a civil court acting within its jurisdiction, the decision of the Civil Court sh 11 prevail." Indeed there were many cases reported which show that the decision of the civil courts would prevail over the decision of the Shariah Court and the rulings of the Mufti, the highest Muslim legal officer.
The unsatisfactory position of the Shariah Courts and its judges and officers led the Government to form a Committee under the Chairmanship of the late Tan Sri Syed Nasir Ismail to look into the position and suggest measures to be taken to raise their status and position. The Committee in its report recommended that (a) the Shariah Courts should be separated from the Council of Muslim Religion in the States and be independent of it (b) steos be taken to improve the training and recruitment of Shariah judicial and legal officers and (c) steps be taken to improve the facilities in the Shariah Courts. especial in regard to court buliding. support ing staff and facilities . The recommendations of the Committee were in general accepted by the Government and steps taken to implement them.
The most significant change has been made by the enactment of the amendment to Article 121 of the Federal Constitution which has modified the provision that the judicial power of the Federation shall be vested only in the civil courts and has also provided that the High Courts and courts subordinate to it shall have no jurisdiction in any matter which comes within the jurisdiction of the Shariah Courts. It may be noted that with the establishment of the Federal Territories of Kuala.Lumpur and Labuan. the Shariah Courts have become federal courts for these territories.
Administrative measures have also been taken to separate the Shariah Courts from the Council of Muslim Religion. The judicial officers of the Shariah Court have been placed in the professional group and most states now provide adequate buildings, staff and facilities for the Shariah Court. With the assistance of the Public Service Department, a one-year in service diploma course has been instituted in the International Islamic Universitv to provide professional training to the serving officers of the Shariah Courts. This has
In the past the only legislation on the administration of the Muslim Law in the States was the Administration of Muslim LA, Enactment. This dealt among other things with the constitution and powers of the Council of Muslim Religion the Mufti and the power to issue fatwa or rulings on Muslim Law. the law relating to Muslim marriage and divorce. wakafs and baitulmal and the Shariah Courts. The provisions were very limited in their scope and in particular the law relating to the procedure and evidence to be applied in the Shariah Courts was inadequate and required reference to the civil law applicable in the civil courts. There was a need to have a new laws to deal with the administration of the Islamic Family Law and the jurisdiction. powers and evidence and procedure applicable in thh Shariah Courts in detail.
Before 1984 each State had its own legislation on the administration of the family law. There was a need to have a uniform law in this matter and a Committee headed by Tengku Zaid from the Attorney-General's Chambers was appointed to prepare a model enactment. This model code was later agreed to by the Conference of Rulers and after that referred to the various States for enactment of the legislation.Unfortunately the hope to have a uniform Islamic family lam, in this way was not achieved. as some states particularly Kelantan, Kedah and Malacca, made significant changes to the draft. In addition to the problem of lack of uniformity in the laws applied in the' various states there was also the problem of confl icts between the civil law and the Shariah Law. It was necessary therefore that steps should be taken to suggest measures to reconcile and. have uniformity in the Islamic Family Law applicable in the various states and to improve and strengthen the administration of the law in the Shariah Courts. In addition there was a need to examine the existing legislation, both Federal and States and suggest the removal of those provisions which are found to be in conflict with the Islamic law.
At present the most important jurisdiction of the Shariah Courts is in relation to the family law of the Muslims. in this respect,an effort had been made earlier to have a uniform law for the various States in Malaysia but unfortunately this has not succeeded. One of the f irst tasks of the authorities was therefore to study the various Islamic family laws and to recommend various amendments to bring them closer to one another. The two most important enactments, were those enacted in Kelantan and in the Federal Territory and therefore amendments were suggested to the Kelantan and Federal Territory laws for adoption by them add the other states which followed one or other of them. A comprehensive table of amendments was prepared for each state or territory and these were discussed with the relevant authorities in the States or territory. Alhamdulillah many. States have accepted the suggested amendments and it is hoped that in time the Islamic family Law administered in Malaysia will be more uniform. Those states who have not yet enacted the Islamic Family legislation have been encouraged and assisted to enact them. In-addition to bringing the laws nearer to one another, amendments have also been suggested to ensure that the civil courts will not continue to exercise jurisdiction in such matters as breach of promise of marriage, custody of children and the division of the harta sepencarian or jointly acquired property.
Proposal have also been made for the increase in jurisdiction of the Shariah Courts escpecially in regard to probate and the administration of the Muslim estates. These will need the amendment of the Federal Constition but lawss have already drafted on wills and administration ao estates of Muslims. In additation there need to be laws dealing with zakat and fitrah, the Baitulmal and Wakafs. In regard to criminal offences, the jurisdiction og the Shariah Court needs increased. Power of arrest and criminal investigation need to be provided for and in time the jurisdiction of the shariah should be extend so that it can deal not only with minor taazir offences as at present, but also with qisas and diyat and hudud. To enable the Shariah Court to have such jurisdiction, it will again be necessary to amend the Federal Constitution.
In order to enhance the position and status of the Shariah Courts it may be necessary to amend the Federal Constitution and State Constitutions to include Islamic law in the definition of law and to make provision for the Shariah Courts, the judges of the Shariah Court and the Shariah Judicial and Legal Service. As stated above the jurisdiction of the Shariah Courts should be increased to include probate and administration of Muslim estates, power should be given to the State enforcement officers to exercise powers of arrest and investigation and the Shariah Courts be empowered to deal with cases of qisas, diyat and hudud. All these will require amendments to the Federal Constitution and to the State Constitutions.
At present although the Federal Constitution provides that the Islamic Law relating to succession, testate and intestate, comes within the State List and so within the jurisdiction of the Shariah Courts, in fact because probate and letters of administration are placed in the Federal List it is the Civil Courts which have jurisdiction to deal with the administration of Muslim estates. This has created an unsatisfactory state of affairs as the judges of the civil courts are not familiar with the Islamic Law of succession. Theresult of this and because of the delay in dealing with such cases is that many Muslim estates are left unadministered and when they come to be divided. the division is into minute shares in the land. Sometimes the Islamic Law is blamed for this when in fact it is the administration of the law which is to be blamed. Under Islamic law the estate of a deceased person should in fact be distributed among the next of kin as soon as possible. It is hoped therefore that the grant of probate and letters of administration of Muslim estates be transferred to the Shariah Courts. Apart from improving and enhancing the powers, jurisdiction and capabilities of the Shariah Court it is necessary to look at the civil laws and remove any conflicts with the Islamic Law.
The Guardianship of Infants Act, 1960 should not be made applicable to Muslims. The provisions of the Act are in conflict with the Islamic Law and there are already adequate and detailed provisions relating to the custody and guardianship of infants in the Islamic Family Law legislation of the States. Section 103 of the Islamic family Law (Federal Territories) Act, 1984 which makes the Guardianship of infants Act applicable to Muslims has been deleted by the Islamic Family Law (Federal Territories) (Amendment) Act. 1994. Section 51 of the Law Reform (Marriage and Divorce) Act, 1976, which in effect makes conversion to Islam a matrimonial offence which would entitle the other party who has not converted to Islam to apply for divorce, should be amended to provide that in such cases both parties to the marriage are entitled to apply for divorce. It may be said that where one party becomes a Muslim but the other party does not wish to do so. the marriage has blirretrievably broken down and thus either party can apply for divorce. At present the person who has become a Muslim has no remedy, as he cannot apply for divorce under the Law Reform (Marriage and Divorce) Act, 1976 nor can he apply to the Shariah Court for a divorce. While the civil law and the civil courts have striven to be fair and just to the spouse who has not embraced Islam, the spouse who has embraced Islam does not appear to be accorded the same rights. Moreover when two Muslims have married under the Islamic Law and one of the parties leaves the religion of Islam, the law does not give any rights to the spouse who remains a Muslim. as she cannot get a remedy either in the civil courts or in the Shariah Courts.
The Married Women and Children (Enforcement of Maintenance) Act. 1968, needs to be amended to enable the maintenance orders made by the Shariah Court in a State to be enforced by the making of attachment of earnings orders. which will have effect not only in the State but also outside it. The position where the employer is a non-Muslim needs also to be provided for.
The Civil Law Act, 1956, should be amended to provide that the civil courts are not bound to refer to the Common Law of England and the rules of equity administered in England. Rather it should give power to the civil courts to formulate and apply the Malaysian common law. which can be modified to meet the needs of the inhabitants in Malaysia. and as far as the Muslims are concerned to allow a reference to the Islamic Law. Similarly section 27 of the Civil Law Act, 1956, relating to the guardianship and custodv of children should be repealed, as there is adequate legislation in Malaysi a for Muslims and non-Muslims in this respect.
There have been a number of cases decided in the civil courts where it has been held that the civil courts have jurisdiction in the matter of harta sepencarian, as this is a matter of Malay custom not of Islamic Law - see Roberts v Ummi Kalthum and Boto' v Jaafar . In the Islamic Family Law Act of the Federal Territory harta sepencarian is defined as property jointly acquired by husband and wife during the subsistence of marriage in accordance with the conditions stipulated by Hukum Syara . The judges and lawyers in the Shariah Court should clearly state that it is the Islamic Law, which is applicable in this matter and it is hoped that this will also be accepted in the Civil Courts and such cases will no longer be dealt with in the civil courts.
Another matter relates to the conversion to Islam and the question when a person becomes an apostate or murtad. The Supreme Court has recently in the case of Dalip Kaur v Pegawai Polis, Bt.Mertajam held that this question should be decided by the Shariah Courts or the Majlis Agama Islam. It is hoped that this view of the Supreme Court will be maintained.
There have been proposals to incorporate Islamic principles in the land law,. These have been considered by the Government and some have been accepted. including the inclusion of the Shariah Court in the definition of court and the registration of wakaf and harta sepencarian . It is hoped that other suggestions relating to ihya al-mawat, jual janji and shufaah will also be accepted.
When Muslims enters into a contract or an agreement they can provide that the contract should be interpreted according to the Islamic Law and that any dispute which arises shall be referred to the decision of arbitrators or hakam according to the Islamic Law. The arbitration can be held under the Arbitration Act but the Act should be amended to enable the appointment of arbitrators who are conversant with the Islamic Law and to provide for appeals from the arbitrators to the Shariah Court.
Section 6 of the National Language Act. 1963/67 provides that the texts of all bills, Acts,enactments and subsidiary legislation shall be in the national language and in the English language. It is suggested that where a law deals with the Islamic Law and is to be administered in the Shariah Courts. the text of the law needs to be in the National Language only.
The Shariah Courts at present are not given adequate recognition in the Federal Constitution and in the State Constitutions. Part IX of the Federal Constitution which deals with the Judiciary mainly deals with the civil courts and the judges of the civil courts. It is suggested that provisions on the lines applicable to the civil courts and the judges of the civil courts be provisions relating to the constitution of the Shariah Courts. the appointment of judges, the qualification of judges and their tenure of office and remuneration. There should also be provision for a Syariah Judicial and Legal Service.
At present the Shariah Courts (outside the Federal Territories) are state courts and this has created problems in the administration of justice in such courts. The judges and officers of the Shariah Courts are state officers buttheir scheme and terms of service are determined at the Federal level by the Public Service Department. There are many complaints of the delay in the implementation of the schemes of service in the states as the authorities in each state have to negotiate separately with the Public Service Department. There is no Uniformity in the schemes and terms of service throughout Malaysia. As the service is a State service there are very few opportunities for promotion and it has happened that officers who have attended the Diploma course at the International Islamic University to qualify themselves to be judges and legal officers have preferred when they go back to their states to accept appointments as state religious officers.
The time has come to have Federal Shariah Courts and a Federal Shariah Judicial and Legal Service for the whole of Malaysia. Many of the problems in the administration of the Islamic Law will be surmounted if the Shariah Courts are constituted as Federal Courts, just like the Civil Courts. Apart from having a common system for the administration of the Shariah Courts and a Federal judicial and legal service, with more opportunities for promotion within the service, the summonses, warrants and orders of the Shariah Courts will be valid and enforceable throughout the Federation. In order to meet the sensibilities of the States, there should be adequate provision for consultation with the State authorities in the appointment of the judges and officials of the Shariah Courts.
At present appeals from the Shariah Court in a state are heard by the Shariah Appeal Court or Appeal Committee in the State. It may be advise able to provide for a Federal Shariah Court to hear appeals from the states. In order not to affect the position of the Yang di Pertuan Agong or the Ruler as Head of the Islamic Religion, it may be provided that the appeal should be to the Yang di Pertuan Agong or Ruler who will refer the appeal to the Federal Shariah Court for it to advise the Yang di Pertuan Agong or Ruler. It may be advisable to have the members of the Federal Shariah Court chosen from the various states and to provide that where the appeal is from a State. It should be heard by a panel including a representative of the State. The idea of having a Federal Shariah Court is to have some uniformity of decisions throughout Malaysia and in this way build up a common Malaysian Islamic law. The Government in Malaysia has striven to enforce Islamic values in all aspects of our life in Malaysia. In the field of economics and business, Malaysia can be proud of leading the Islamic world in the setting up of Islamic banks, takaful, rahn, the collection and administration of zakat investment in shares and the money markets. The applications of Islamic principles in these fields have not only, been adopted by other banks and insurance companies in Malaysia but have had their influence in our neighbouring countries, Indonesia, the Philippines and Brunei Darussalam. Already the Government and many other employers have used the principles of Islam in providing loans for the purchase of houses and motor cars. for example to their employees.
The progress has so far not been as significant in the field of law and the administration of justice. Here the legacy of the English. common law still seems to survive and the civil courts and the civil law are still the major constituents of our judicial and legal system. However the Shariah Courts have now been accepted as part of judicial and legal system in Malaysia and it is hoped that it will play a more significant part in future.
In the recent Supreme Court case of Mohamed Habibullah v Faridah Harun Hashim SCJ said "Taking an objective view of the Constitution, it is obvious from the very beginning that the makers of the constitution clearly intended that the Muslims of this country shall be overned by the Islamic family law as evident from the 9th Schedule to the Constitution, Item 1 of the State List - "Muslim Law and personal and family law of persons professing the Muslim religion - the constitution, organization and procedure of Muslim Courts the determination of matters of Muslim Law and doctrine and Malay custom". Indeed Muslims in this country are coverned'bv Islamic personal and family laws which have been in existence since the coming of Islam to this country in the 15th country. Such laws have been administered not only by the Shariah Courts but also by the civil courts. What Article 121(1A) has done is to grant exclusive jurisdiction to the Shariah Courts in the administration of such Islamic laws. In other words Article 121(1A) is a provision to prevent conflicting jurisdiction between the civil courts and the Shariah Courts". (p. 803 - 804)
Earlier the learned Judge said " It is obvious that the intention of Parliament by Article 121 (1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Shariah Court - I am therefore of opinion that when there is a challenge to jurisdiction. as here, the correct approach is to firstly see whether the Shariah Court has jurisdiction and not whether the State Legislature has power to enact the law conferrin- jurisdiction on the Shariah Court." (page 800) It would seem that the Shariah Courts have become an integral part of the court system in Malaysia. In order for it to be accepted as such. it is necessary for the judges and officials of the Shariah Courts to show that they are as capable of dispensing justice as the civil courts. In the past when they were treated as inferior courts and neglected in many ways. there were no doubt grounds to find excuses for the system of justice in the Shariah Courts. Now that they have became better organised. equipped and respected it will be possible for the Shariah Courts to show their worth and capabilities. In order to make the public and especially the non-Muslims, Citizens in Malaysia less apprehensive and critical of their existence and work. it will be necessary for the Shariah Courts to show that they are capable of giving fair and equitable justice. It is not enough to speak about Islamic justice, it is necessary to demonstrate it. For those who judge the Shariah Courts it is necessary not only to hear with their ears but to see or hear with their eyes. it is only if the Shariah Court judges and officials can show that they are capable of dispensing fair and equitable justice to all. that the prejudice andapprehension against them will be removed. It is up to the Shariah Courts to show that they are capable of attaining what is
"Allah has commanded -you to render back your trusts to those to